Joseph Anie & Ors. V. Chief Ijoma Uzorka & Ors. (1993)

LawGlobal-Hub Lead Judgment Report

ONU, J.S.C. 

This appeal which emanates from the Court of Appeal sitting in Benin turns solely on the point as to whether a judgment delivered by High Court of Bendel (now Delta) State presided over by Idahosa, J. and holden at Kwale on a Saturday – 18th July, 1981 to be precise – was a nullity by reason of its having been so delivered on that day purported to be a public holiday.

For a clearer understanding of the case, it is pertinent to narrate in a brief outline hereunder facts showing how it originated as follows:

The appellants as plaintiffs sued the respondents who were defendant in Suit No. HCK/44/76 in the High Court of Bendel (now Delta) State then holden at Ughelli in the Ughelli Judicial Division for:

(a) declaration of title to land at Ashaka called Ekpaizabu/Akpaizebu/Osu-Ogbe.

(b) recovery of possession, damages for trespass and

(c) Injunction.

After the exchange of pleadings by the parties, the respondent brought a cross-action as plaintiffs in Suit No. HCK/49/76 against the present appellants, who now were defendants, seeking similar reliefs in respect of a part of the area earlier claimed by the appellants. The case which had been transferred from the Ughelli Judicial Division to the newly created Kwale Judicial Division went to trial before Idahosa, J. sitting at Kwale. The learned Judge proceeded to hear evidence from all the witnesses called by both sides between 15th March, 1978 and 12th June, 1981. Counsel thereafter addressed the trial Court on 30th June, 1981 and it reserved judgment to 16th July, 1981. For reasons not stated, the judgment was not ready on 16th July, 1981 and it had to be further adjourned to 17th July, 1981 – a Friday and this in the presence of the parties. For reasons also not apparent on record, judgment was not delivered until the following day, Saturday 18th July, 1981 and this in the presence of counsel for both sides none of whom complained as the record clearly indicates.

The respondents feeling dissatisfied with the judgment however, appealed to the Court of Appeal where the only ground of appeal argued on their behalf (they had earlier) filed 4 original and one additional grounds all renumbered 1 to 5, out of which ground 5 was the one argued) attacking the delivery of the judgment on Saturday, 18th July, 1981 as being a nullity. The Court of Appeal sitting in Benin allowed the respondents’ appeal, holding that the proceedings before the trial Court were a nullity because the judgment in the case was delivered on a Saturday which was not a normal working day.

Being aggrieved by the decision of the Court of Appeal (hereinafter in the rest of this judgment referred to as the lower Court) the appellants have appealed to the Supreme Court on four original grounds, and with leave, an additional ground of appeal. Parties exchanged briefs of argument in accordance with the rules of Court. The appellants through their counsel have formulated seven tautologus issues, which in my view, are amorphous and in the apt words of the respondents in their brief of argument at page 2 thereof “are constructed upon a misapprehension of the true reasoning and the judgment of the Court of Appeal.”

That this attack is to a large extent justified stems from the now firmly established principle of law that it is wrong for counsel to formulate issues for determination in excess of the grounds of appeal filed. Indeed it is now a very well established principle of law that except in special cases where the grounds of appeal so dictate, it is undesirable to formulate an issue in respect of each ground of appeal. See Attorney-General of Bendel State v. Aideyan (1989) 4 NWLR (Pt. 118) 646; Buraimoh v. Bamgbose (1989) 3 NWLR (Pt. 109) 352 and Utih v. Onayivwe (1991) 1 NWLR (Pt. 166) 166 – 214. Hence, where as in the instant case, there are five grounds of appeal but learned Senior Advocate on appellants’ behalf has submitted seven issues for the determination of Court, such a proliferation of issues can hardly be justified.

This is the moreso, when the preponderance of decided cases point irrevocably to the formulation of issues in general practical terms that must be tailored to the issue in controversy. In fact, it is now well settled that such issues for determination must of necessity be limited by, circumscribed and fall within the scope of the grounds. See: Nwosu v. lmo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688 at 714 and Adelaja v. Fanoiki & Anor. (1990) 2 NWLR (Pt. 131) 137 at 148. All told, not only do the seven issues formulated outstrip the five grounds of appeal in numerical strength falling as they do, outside the scope of those grounds, but are, in my respectful view superfluous and unnecessarily prolix. See Agu v. Ikewibe (1991) 3 NWLR (Pt. 180) 385 at P. 401. The seven questions submitted on behalf of the appellants are therefore accordingly discountenanced for neither being limited by, circumscribed nor falling within the scope of the grounds of appeal.

I will next consider whether the four questions submitted on behalf of the respondents would ideally provide an answer or come readily in use here.

While it is now well settled that it is not right for a court to suo motu formulate or single-handedly raise issues for the parties (See Nwokoro v. Onwna (1990) 3 NWLR (Pt. 136) 22 at 35 and Ugo v. Obiekve (1989) 1 NWLR (Pt. 119) 556 the four issues put forward on respondents’ behalf if contracted into three (by reason of their issues 3 and 4 overlapping each other and for the sake of convenience are better argued together as one issue), I will respectfully adopt them for the argument of this appeal. They are (as modified) set out hereunder thus: