H.r.h. Eze Dr. Frank Adele Eke V. Mr. Godfrey Chizieze Ogbonda (2006)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C.

This appeal is against the decision of the Court of Appeal, Port Harcourt Division delivered on 12-2-2001 refusing to set aside its own judgment delivered on 16-7-1998.

The appellant and the respondent in this appeal were also parties in appeal No. CA/PH/304/97 then pending at the court below in which the respondent in this appeal was the appellant while the appellant in the present appeal was the respondent. The record of this appeal shows that when that appeal No. CA/PH/304/97 between the same parties in this appeal came up for hearing at the court below on 12-5-1998, on the application of the appellant who was yet to file his respondent’s brief, the appeal was adjourned to 23-6-98 for hearing. On this date both parties were represented by counsel but the appellant who was the respondent was yet to file the respondent’s brief of argument. In line with the provision of Order 6 rule 10 of the Court of Appeal Rules, the court below heard the appeal on the appellant’s brief alone without hearing the respondent in oral argument and the record does not show any such request coming from his counsel. Two days after hearing of the appeal, the appellant as respondent in the court below filed a motion on notice on 25-6-1998 for extension of time to file the respondent’s brief. This motion was fixed for hearing on 5-10-98. However, on 16-7-1998, the court below delivered its judgment allowing the appeal and ordering the hearing of the appellant’s action afresh by another Judge of the trial High Court of Rivers State.

Not satisfied with the judgment against him, the appellant filed a motion at the court below on 15-5-2000 asking for the setting aside of the judgment of that court of 16-7-1998 and the striking out of the notice of appeal filed on 14-11-97 upon which the appeal was heard. The court after hearing the parties on this application, saw no reason to set aside its judgment and therefore dismissed the appellant’s application on 12-2-2001. It was this decision of the lower court against the appellant that gave rise to this appeal.

From the three original grounds of appeal and one additional ground contained in the appellant’s notice of appeal, two issues were formulated in the appellant’s brief of argument. The two issues are-

“(i) Whether or not the judgment of the Court of Appeal dated 16th July, 1998 was a nullity, having regard to all the circumstances.

(ii) Whether or not the Court of Appeal has jurisdiction to review its own judgment which is null and void.”

In the respondent’s brief of argument however, from the same four grounds of appeal in the appellant’s notice of appeal, the following two issues were distilled:-

“1. Whether this appeal is competent,

2. Whether the decision of the Court of Appeal was correct.”

In the respondent’s brief of argument, the index to the contents therefore shows the respondent was relying on a notice of preliminary objection to the appellant’s appeal. However, there is no such notice in the respondent’s brief or any indication from the record that such notice was ever filed in the registry of this court giving the appellant three clear days notice of the objection before the date fixed for the hearing of the appeal in compliance with Order 2 rule 9 of the rules of this court. Instead, what the respondent did was to incorporate the terms of his preliminary objection to the appellant’s appeal as an issue arising for the determination of the appeal as issue one in his brief of argument which reads –

“Whether the appeal is competent.”

Obviously, this is not how a preliminary objection is raised under Order 2 rule 9 of the rules of this court. The law is trite that an issue for determination of any appeal is derived from the grounds of appeal filed by the appellant. Therefore any issue not distilled from such grounds of appeal is incompetent and ought to be discountenanced in the determination of the appeal. See Globe Fishing Industries Ltd. v. Coker (1990) 7 NWLR (Pt.162) 265, Onyido v. Ajemba (1991) 4 NWLR (Pt.184) 203.

As none of the appellant’s grounds of appeal complained of the competence of the appeal, the respondent’s issue as to whether this appeal is competent has no place in the determination of this appeal. This is because a respondent to an appeal who has not cross-appealed, cannot raise an issue outside those framed or formulated by the appellant from the grounds of appeal filed. See Nzekwu v. Nzekwu (1989) 2 NWLR (Pt.104) 373 and Kuusu v. Udom (1990) 1 NWLR (Pt.127) 421. Consequently, the preliminary objection to the competence of this appeal raised as issue one and argued in the respondent’s brief of argument, not having been raised in accordance with Order 2 rule 9 of the Rules of this court is incompetent and shall be ignored in the determination of this appeal. See Niger Progress Ltd. v. N.E.L. Corporation (1989) 3 NWLR (Pt.107) 68 at 82 and Ezukwu v. Ukachukwu (2004) 17 NWLR (Pt. 902) 227 at 245. For the same reason, the second issue in the respondent’s brief which also does not arise from the grounds of appeal filed by the appellant must suffer the same fate.

Coming back to the two issues earlier quoted in this judgment as raised in the appellant’s brief of argument, it is quite clear that both issues were framed from ground (iii) of the grounds of appeal which specifically complained that the court below erred in law resulting in the violation of the appellant’s right of fair hearing when that court refused to set aside its own judgment of 16-7-1998 which was a nullity. Following this development, it means that no issue for determination was distilled from the appellant’s ground (i) complaining that the decision of the court below on the grounds of appeal contained in the respondent’s notice of appeal filed on 14-11-97 were grounds of law requiring no leave for the grounds to be filed; ground (ii) complaining of the refusal of the court below to strike out the respondent’s notice of appeal filed on 14-11-97 and ground (iv) of the appellant’s grounds of appeal being an omnibus ground of appeal. In this situation where appellant fails to frame an issue from any ground of appeal filed, and the ground is not related to any issue for determination, the ground of appeal is deemed abandoned by the appellant and is liable to be struck out. See Eholor v. Osayande (1992) 6 NWLR (Pt.249) 524; Management Enterprises Ltd. v. Otusanya (1987) 2 NWLR (Pt.55) 179; Onifade v. Olayiwola (1990) 7 NWLR (Pt.161) 130; Momodu v. Momoh (1991) 1 NWLR (Pt.169) 608; Okeke v. Oruh (1999) 6 NWLR (Pt.606) 175 at 192 and Ibrahim v. Mohammed (2003) 6 NWLR (Pt.817) 615 at 647. Putting it differently, as the two issues distilled by the appellant in the appellant’s brief of argument for the determination of this appeal are not covered by, nor arise from grounds (i), (ii) and (iv) of the appellant’s grounds of appeal, those grounds are deemed abandoned as was the case in Sparkling Breweries Ltd. v. Union Bank of Nigeria Ltd. (2001) 15 NWLR (Pt.737) 539 at 556. In line with the law applicable in this regard, the appellant’s grounds (i), (ii) and (iv) of the grounds of appeal having been abandoned are hereby struck out.