Ntol Clement Ashagba & Ors. V. Mr. Michael Monn & Anor. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment)

At the Ogoja Division of the High Court of Cross River State, the Appellants were the Defendants in Suit No. HJ/59/2005 instituted by the Respondents through the Writ of Summons and Statement of Claim filed on 1/8/2005 for the reliefs endorsed on the Writ of Summons and particularized in the Statement of Claim as follows:

“1. A DECLARATION that the 1st plaintiff is the owner of the twenty plots lying and situate off Ogoja/Ikom Road Ndok junction Ogoja having paid for same and as witnessed by agreement dated 1st day of October 1990.

2. Five Million Naira (N5,000,000.00) only being special, exemplary, aggravated and general damages for trespass by Defendants restraining first plaintiff from development and use of his land.
3. Perpetual injunction restraining the Defendants, by themselves, their agents, workers, successors in title heirs assigns executors and administrators from tampering and entering unto 1st plaintiff’s land.”

The 1st Respondent alone testified at the trial of the suit and in the judgment of the lower court delivered on 14/6/2007, the learned trial judge Hon. Justice Michael Edem granted the declaratory and injunctive reliefs sought by the Respondents while N25,000.00 was awarded as general damages and N20,000.00 as cost of transportation from and fueling from Abuja to Ndok and Calabar.

The Appellants as Defendants were dissatisfied with the judgment of the lower court and appealed to this Court by the Notice and Grounds of Appeal filed on 28/10/2008 upon the Order of this Court extending the period to appeal.

The Appellants filed only one Ground of Appeal as follows:

“The learned trial judge erred in law when he proceeded to deliver judgment without availing the appellant the opportunity to be heard or cross-examine the Respondents.

(a) The trial court ought to have issued a hearing notice.

(b) The Appellants had already filed their joint statement of defence with leave of court to defend the suit at the lower court on the merit, but the trial court wrongly struck out same and proceeded to deliver judgment.

(c) The Appellants were denied fair hearing.”

The Appellants’ Brief of Argument filed on 30/3/2009 was settled by Philip Obien Esq., learned counsel and he therein raised three issues for determination as follows:

1. Whether the lower court’s refusal to order hearing notice to be served on the Appellants after the 1st Respondent’s evidence amounted to a breach of fair hearing,
2. Whether the Appellants filed a Defence recognized in law.
3. Whether the lower court’s refusal to set aside its judgment to allow the Appellants cross-examine the 1st Respondent amounted to a denial of fair hearing.

The Respondents’ Brief of Argument filed on 17/9/2010 was deemed by order of this court to be properly filed on 22/2/2011. The Respondents did not formulate any issue of their own but adopted and argued all the three issues formulated by Appellants.

At the hearing of this appeal on 15th March, 2011, the learned counsel on both sides adopted their respective Briefs of Arguments and placed reliance thereon. Learned Counsel for the Appellants urged court to allow the appeal while the learned counsel for the Respondents rather urged upon this court that the appeal be dismissed.

A legal practitioner who is familiar with the practice in the Appellate Courts must by now understand that proliferation of issues is not tolerated by the Courts. It is the practice that whiles two or more grounds of Appeal may generate one issue for determination, an Appellant is not permitted to formulate more than one issue from a Ground of Appeal. See Agbetola v. Lagos State Executive Council (1991) 15 NWLR (Pt. 188) 664; Mercantile Bank of Nigeria Plc v. Nwobodo (2005) 14 NWLR (pt. 945) 379; Amodu v. The Commandant, Police College, Maiduguri (2009) All FWLR (Pt. 488) 195. It is also settled that an issue must relate to or be founded upon the Ground of Appeal filed. See Emespo J. Continental Ltd. v. Corona Shifah-Rtsgesellschaft (2006) All FWLR (Pt. 321) 1233.