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the appellants at page 87 lines 33 to page 90 line 18 as well as page 136 of the record where the original grounds were withdrawn while the other reliefs were granted.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.
Any ground of appeal that satisfies that purpose should not be struck out notwithstanding that it did not conform to a particular form.
In this case notwithstanding the formulation of the grounds of appeal that were struck out the detailed statement of the particular of error and the clear statement of what the appellants conceived to be error in law and misdirection on facts in the judgment of the trial judge satisfied the requirement of the rule as to formulation of ground of appeal. To hold otherwise will be tantamount to insistence on form rather than substance. I came to the view that the court below was wrong in striking out grounds 2, 6 and 10 on the ground that they were incompetent.” (Italics are mine for emphasis)
Furthermore, it is also trite law that a ground of appeal alleging error in law and misdirection in facts is not incompetent if it otherwise complies with the rules of court requiring that a ground not vague or general in terms and discloses a reasonable ground of appeal such that the respondent is given sufficient notice of the precise nature of the appellants’ complaint.
At page 377 his Lordship Ogundare JSC in the same authority under reference supra, further, had this to say:
“Once, therefore a ground of appeal clearly states what the appellant is complaining about and there is compliance with the rules of court, I cannot describe such a ground as bad and therefore incompetent. The dictum of Nnaemeka – Agu JSC in Nwadike v. Ibekwe [(1987) 4 NWLR (Pt.67) 718 did not go as far as some of their Lordships of the Court of Appeal made it to look. The learned Justice of the Supreme Court advised against lumping together in a ground of appeal complaints that ought better to have been split into different grounds of appeal. I commend his wise counsel to all legal practitioners engaged in drafting notices of appeal. I do not think, however that non-adherence to this wise counsel will necessarily render incompetent any ground of appeal that otherwise complies with the requirements of the rules… Whether an appellant having regard to the Rules of Court has reasonably formulated his grounds of appeal in substantial compliance with the said Rules of court notwithstanding the defect or inelegance in the formulation but so long as the adversary party, from reading the formulated grounds of appeal, is duly notified of the complaint sought to be made by the appellant.” (Italics are mine).
Grounds of appeal can be classified into grounds of law, grounds of fact and mixed law and fact. The distinguishing factor however, is that which requires a thorough examination of the whole ground of appeal with its particulars in the case concerned. For instance where the ground reveals a misunderstanding by the lower tribunal of the law, or a misapplication of the law to the facts already proved or admitted, then it is a ground of law.
Where however, the ground requires questioning the evaluation of facts by the lower tribunal before the application of the law, it is a ground of mixed law and fact. The foregoing principles have been laid down in the decided Supreme Court decision of Onifade v. Olayiwola (1990) 7 NWLR (Pt.161) p. 135.
Further still, and on classification of grounds of appeal, Nnameka Agu JSC (as he then was) in the case of N.N.S.C. v. E.S.V. (1990) 7 NWLR (Pt.164) p.526 at 548 – 9 stated as immaterial whether or not an appellant called his ground of appeal that of law, facts or mixed law and fact. In other words, the relevant determining factor is for the whole particulars to be taken together. The authority of Ogbede & Ors v. Onochie & Ors (1986) 3 SC 54 supports the said contention. The case of Paul Nwadike & Ors v. Cletus Ibekwe & Ors (1987) 4 NWLR (Pt. 67) 718 is also in point to the effect that where the ground raises an issue of law based on an accepted undisputed or admitted facts, or on facts as found by the court below, it is a ground of law. However, where it is based on facts in dispute or that which is unascertained, it is one of mixed law and fact.
It is also a laid down principle in the case of Onifade v. Olayiwola under reference supra that every complaint in a ground of appeal must be set out with such particularity and certainty as to give the respondent due notice of the nature of the appellants’ complaints.
It is also pertinent and necessary that the nature of the ground of appeal must be based on matters related in the judgment appealed against. Relevant to the proposition is the Supreme Court authority of Sanusi v. Ayoola (1992) 9 NWLR (Pt.265) p.275 at 290 – 291, where the appellant for instance raised two distinct matters, which were never dealt with by the Court of Appeal in the judgment appealed against. Same was accordingly held as irrelevant with reference to the application of the principle in the case of Niger Construction Ltd v. Okugbeni (1987) 4 NWLR (Pt.68) 787.
For purpose of recapitulation, the 1st issue submitted and argued upon by the learned senior counsel was the incompetent nature of the additional grounds of appeal, grounds 1, 2, 3 and 4, which he emphatically argued are not misdirection of facts or error in law. The distinction between the two however, have been spelt out in the authority of Wadih Chidiak v. A.K.I. Laguda also under reference supra where the Federal Supreme court per Abboth F.J. among others said:
“A Misdirection therefore occurs when the issues of fact, the case for the plaintiff or for the defence, or the law applicable to the issues raised are not fairly submitted for the consideration of the jury. Where, however, the judge sits without a jury, he misdirects himself if he misconceives the issues, or summarises the evidence inadequately or incorrectly or makes a mistake of law, but provided there is some evidence to justify a finding it cannot properly be described as misdirection.”
A further related authority on the same principle of law is the case of Ezebilo Abisi & Ors v. Vincent Ekwealor & Ors (supra), which was also cited with approval and relied on the said authority of Chidiak v. Laguda at page 66, paragraphs ‘G’ – ‘H’ on when a misdirection occurs. In that case while the Court of Appeal only struck out ground of appeal No.4 as being incompetent, the Supreme Court saw that all the other grounds 1, 2, 3, 5, 6 and 7, with the exception of ground of appeal No.8, were also incompetent.
It is pertinent at this point to examine and analyse the four additional grounds of appeal complained against. In other words, the additional ground No.1 complains against the representative capacity of Isiaka-Badaru on behalf of the principal members of the family including the plaintiffs/Appellants in respect of the negotiation for the lease of the family property and which, they the appellant’s claim was carried out without their knowledge and or consent. Additional ground of appeal, ground 2 also complains of fraud having been committed against the plaintiffs by the defendant. Both grounds 1 and 2 propose to allege misdirection of law and fact. The particulars of misdirection however, relate to findings of fact.
Additional ground 3 complains of error in law and misdirection by the learned trial judge. A critical analysis of the particulars supplied substantially are facts averted on the pleadings as well as the evidence led thereon.
Lastly, Ground 4 is that which complains of misdirection in law and fact as well as a combination of a number of other complaints all lumped together and which are not necessarily related.
Having regard to the nature of the grounds of appeal and the contents thereof, the pertinent and relevant question is: – Can it be concluded as submitted by the learned senior counsel that the said grounds 1, 2, 3, and 4 are all incompetent and should therefore be struck out?
Following from the foregoing authorities under reference, it is crystal clear that the guiding factor in determining whether or not a ground of appeal is competent largely depends on the substance contained therein. That is to say, whether or not the ground states the complain in the decision reached so as to bring out the error contemplated. Consequently, an elegant use of language or form is not the overriding factor but rather substance as that being paramount, over and above technicality which should give way to justice and fairplay.
In the authority of Sanusi v. Ayoola under reference supra, emphasis had been laid on the need for the ground of appeal to be based on matters in the judgment appealed against. It is also immaterial that the appellant called his ground of appeal that of law or facts, but rather, the particulars are to be taken together. It is however relevant and sufficient that the ground of appeal should be set out with such particularity and certainty so as to give the respondent due notice of the nature of appellant’s complaints. This from all deductions had been met in the matter at hand wherein the respondent is not in doubt of the appellant’s subject of complaints. In other words, even the lumping together of complaints which would otherwise have been splited into different grounds of appeal, that in my view should not necessarily render incompetent the ground. This is trite and in reliance and reference to Hambe v. Hueze supra.
Further still and with respondent’s counsel having filed respondent’s brief of arguments, they are presumed to have been duly notified of the complaints sought to be made by the appellants, hence the ability to respond thereon. The appellants in the circumstance can therefore be said to have reasonably formulated their grounds of appeal in substantial compliance with the rules of court, regard notwithstanding to any defect or inelegance in formulation. It follows that in as much as the said grounds are defective for one reason or another, they are not in my opinion completely and out rightly so fundamental as to render any to total rejection resulting into a striking out.
The second issue or leg of the preliminary objection relates to the defective nature of the appellants’ brief by failing to set out or distil issues arising from the grounds of appeal and thereby forming the basis of their arguments. In other words, with the appellants’ brief of arguments predicated on the grounds of appeal instead of the issues distilled therefrom, the legal effect of same had been thrown into question by the respondents.
A number of legal authorities have been enunciated on the essence of formulation of issues for the determination of an appeal; the relevance or purpose which serves to reduce the grounds of appeal into effectively concise formulations which take cognizance and consideration of the same issues running through more than one ground of appeal. In other words, the essence is to condense the grounds of appeal into a compact issue or issues. Hence when issues for determination are formulated the grounds of appeal from which they take their roots are extinguished as it were, and replaced by the issues. The appeal is then argued on issues and not on the grounds of appeal. The effect therefore is that issues formulated and not arising from the grounds of appeal will be deemed irrelevant and be struck out. The authority in point and giving rise to the foregoing principles is the case of Sanusi v. Ayoola at page 291 under reference supra. Further related authorities are Okonkwo v. Okolo (1988) 2 NWLR (Pt.79) 632; Ugo v. Obie Iewe (1989) 1 NWLR (Pt.99) 566; Oruah v. Onyia (1989) 1 NWLR (Pt.99) 514 which are all referred to and applied.
Further still and to buttress the principle that brief of arguments are argued on issues while the grounds of appeal articulate the notice of appeal, the authority in the case of Udo v. Eshiet (1994) 8 NWLR (Pt.363) p.483 at 497 is in support; also relevant are the cases of Dawodu v. Olagundudu (1986) 4 NWLR (Pt.33) 104, Bolaji v. Bamgbose (1985) 4 NWLR (Pt.37) 632 and Olowosagi v. Adebanjo (1988) 4 NWLR (Pt.88) 275.
With further reference to the Court of Appeal decision of Orimowo v. A.D.C. (1991) 2 NWLR (Pt.171) p.38 His Lordship Akpata J.C.A. at p.45 on defective brief where issues were formulated but grounds of appeal were argued, had this to say:
“I have observed that in the appellant’s brief of argument, appellant’s argued the grounds of appeal seriatim without relating them to the issues formulated. The purpose of formulating issues would be defeated if appeals are not argued in line with the issues framed. If counsel feels more comfortable to present his or her arguments in line with the grounds of appeal rather than in line with issues formulated he or she should at least relate the particular ground being argued to the issue of issues relevant to the ground.
All the issues formulated by both sides will in one form and another, directly or indirectly, be considered in this judgment although not in sequence.”
From the foregoing deductions, it follows that an appellant can argue in line with grounds of appeal and not necessarily on issues formulated. They must at least however be related to the particular ground being argued regard not being had to sequence provided all issues will in one form or another directly or indirectly be considered.
The law has been spelt out on the attitude of appellate court to a defective brief of argument for instance in the case of Akpan v. State (1992) 6 NWLR (Pt.247) p.439 at 47 it was held per Nnaemeka Agu JSC that:
“Briefs have been designed to help this court and the Court of Appeal to expedite the disposal of appeals. Although the practice of brief writing has been with us for some fifteen years, we come across poorly written briefs practically everyday. Much as counsel have no excuse for producing poor brief now, the fact that they have done so will not discharge this court from its duty of doing substantial justice to the parties who appear before it. As the West African Court of Appeal, quoting. The siger, L.J. in Collius v. Vestry of Paddington (1880) 5 Q.B.D. 308, p.381 in A.Y. Ojikutu v. Francis E. Odeh (1954) 14 WACA 640 said at page 641:
Blunders must take place from time to time, and it is unjust to hold that because a blunder… has been committed, the party blundering to incur the penalty of not having the dispute between him and his adversary determined upon the merits.
If that was the attitude of the court during the hey days of technicality … how much more now that this court has in several cases declared its intention to do substantial justice?” (The under linings are mine for emphasis).
The authority of Udo v. Eshiet under reference supra is again well pronounced on the power of the appellate Court to strike out a defective brief and when such power is exercisable. In other words their Lordships in their consideration had this to say:
“It is not the law that once a brief is defective, then it must be struck out. An appellate court can strike out a brief if the defect in it affects the merit of the appeal i.e. to say where a defect in a brief affects the very basis, foundation or prop of the appeal an appellate court will have no alternative than to strike out the brief. The effect is that the court will assume that no brief was filed.”
Further still and in the same authority, their Lordships also proceeded at page 498 and said:
“Where an appellant proceeds to argue the grounds of appeal rather than the issues therefrom, the proper course open to the respondent is to point this out as a preliminary objection in which case the brief could be rejected and the appellant ordered to prepare an mended brief to argue issues instead of grounds.”
The authorities of Ivien Agbor v. Basuaya (1993) 1 NWLR (Pt.271) 598 and Oko v. Ntukidem (1993) 2 NWLR (Pt.274) 124 are referred to.
Furthermore, and on the effect of defective or in elegantly written brief Akpabio JCA (as he then was) while delivering the lead judgment in the case of Ivien Agbor v. Basuaye cited supra at p.604 had the following to say:
“…After the appellant had formulated his issues for determination, he nevertheless went back to argue his ground of appeal and abandoned the issues altogether. However, the respondent himself did not tell us what was the effect of basing argument on grounds instead of issues whether for that reason the appeal was competent or not competent. Rather he proceeded to formulate his own issues, and argued the appeal based on them. It is my view that this is a matter that should have been pointed out as preliminary objection, in which case the brief could have been rejected, and appellant ordered to prepare an amended brief to argue issues, instead of grounds. The respondents having now proceeded to reply to all the issues raised by the appellant, it appears that there is nothing this court can do at this stage than to proceed to resolve the issues or questions that have been argued.” (Under lining is mine for emphasis.)
Mohammed JCA on the same principle of law in the Criminal Appeal of the case of Oladejo v. State (1994) 6 NWLR (Pt.348) P.101 at 120 also had this to say:
“Although a defective or in elegantly written brief may attract the attention and comment of an appellate court an appellate court cannot dismiss an appeal merely because the appellants’ brief of argument is defective unless the defect or fault affects the merit of the appeal. In the present appeal the defects observed in the 4th and 5th appellant’s brief are not fatal as the brief contain all the essential requirements of order 6 rule 6 of the Court of appeal Rules 1981. (Obiora v. Osele (1989) 1 NWLR (Pt.97) 279 referred to).”
The said authority under reference is on all fours with the case at hand in that the respondents have also filed their brief and therefore did reply to all the issues raised by the appellants, which are merely argued along side the grounds of appeal.
It is settled law as per the authority above, therefore, that a bad, faulty or in elegant brief, though may attract some adverse comments from the appellate court it is still a brief, and the appellate court would not close its eyes to the fact of its existence regard not having had to the defect. Thus, the fact that the brief of argument is poorly written would not discharge the appellate court from its duty of doing substantial justice to the parties appearing before it. These principles are further laid down in the decision of Akpan v. State (supra), which referred to and followed the authorities of Obiora v. Osele and Ojikutu v. Odeh also under reference (supra).
It is significant to point out that the respondents have filed the respondents’ brief and therefore did reply to all the issues or questions raised by the appellant. Both the briefs are therefore on the same footing with defects being imputed to either side.
Having regard to the two issues raised by the senior counsel on the preliminary objection, it is my humble view that even if, taken for granted the additional grounds 1, 2, 3 and 4 were defective as contemplated the appeal could still be sustained on grounds 5 and 6. Technically, there is no doubt that the said grounds 1, 2, 3 and 4 are defective as to form and elegance use of language. However, and that notwithstanding, the defect is not that fundamental to the root and rendering the entire appeal defective and liable to be struck out. In other words, it is my considered view that the appeal at hand cannot be struck out based on technicality. This is especially having regard to the trend of the lines of directions per the authorities supra in leaning towards substance and justice of the case rather than form and elegance amounting to mere technicalities, which could lead to injustice.
Furthermore, I would also like to restate that with the appellants’ brief having been argued on the grounds of appeal, it is generally defective. This, the counsel ought to have seen and taken adequate measures by forestalling and rectifying the defects. Certainly, a greater level of better performance was expected especially having regard to the fact that the brief was prepared and filed by a counsel.
However, and that notwithstanding, by taking a harder line and approach would undoubtedly lead to a greater harm and hardship to the appellants who are no longer represented by any counsel but have rather chosen to handle the appeal on their own. There is a duty duly placed on the court to do all that is possible within its powers to ease any further and unnecessary burden on parties and not to add to the heavy yoke already placed on them of having to prosecute their respective cases.
The matter at hand had been in court since 1981 and with the date of judgment being 12th December 1984. To further extend the period by striking out this appeal would amount to further delay the completion of the case. In summary and succinctly put, grounds of appeal are to conveyor keep the respondents informed of the complain intended by the appellants against the judgment arrived at. In the same vein, the essence of brief writing is to condense the grounds of appeal and ensure that the issues distilled therefrom keep the respondents well in the knowledge of what issues or questions are raised and expected. It follows therefore, that form, elegance in language or vocabulary is not the expectation but substance as provided by the authorities supra.
The relevant question to pose is, having regard to the grounds of appeal filed; do they convey the intention of that contemplated by the appellants? With the answer having been arrived at in the positive, the next relevant question is, does the appellants’ brief either directly or indirectly incorporate the grounds of appeal so as to cover the issues envisaged?
In my considered humble opinion and having regard to the entire circumstance of the case the answer to the second question is also in the positive. It follows therefore that the justice of this appeal is that which I hold would be better served if the additional grounds 1, 2, 3 and 4 of the grounds of appeal are nevertheless allowed to stand and the appeal to be heard thereon.
This is further fortified in the light of the subsisting grounds 5 and 6 of the additional grounds of appeal, which are not objected to and upon which the appeal can, for all intent and purpose, be conveniently sustained. The defect would not for the justice of the appeal be so fundamental and detrimental so as to vitiate the entire appeal. Further still and by the appellants’ raising questions on their brief and subsequently abandoning same, and thereby embarking on the grounds of appeal for their argument, same would not directly or indirectly and necessarily preclude the consideration of all issues inclusive of the questions raised. This I hold is not a penalty invoking or watertight situation but rather that which affords a leeway flexibility open for such covering dimension.
I would further wish to restate that in as much as the grounds of appeal and the brief which are before us serve sufficient purpose for this appeal to be heard, parties could if they so wish file an amended brief. In other words, the interest of justice is that which would be served for the appeal which could be heard as it is whether or not; parties tow the line of action by filing an amended brief.
The objections by senior counsel therefore are both overruled and the appeal should proceed for hearing. There will also be costs of N5, 000.00 against the respondents and in favour of the appellants.
Other Citations: (2003)LCN/1404(CA)