Nweke Nwabueze & Ors. V. Uyaemenam Nwora & Ors. (2004)
LawGlobal-Hub Lead Judgment Report
ADEKEYE, J.C.A.
Before the High Court of Anambra State in a consolidated suit AA/53/77 and AA/11/77, the plaintiffs sued the 1st set of defendants – Nweke Nwabueze and & Ors. for themselves and on behalf of Umugama Village Ukwulu, for declaratum of title, damages for trespass and perpetual injunction over a parcel of land known `as Agu-Okpuluoji. The 2nd set of defendants, Nwoye Ofoedu and three others for themselves and on behalf of Oranto and Akpu Villages of Ukpo counter-claimed against the plaintiffs for declaration of title, damages for trespass and injunction over a parcel of land which the 2nd set of defendants call Ogululugwu. After the three parties presented their respective cases before the lower court, the learned trial Judge Justice Obiora Nwazota dismissed the plaintiffs’ claims and allowed the counter claim of the two sets of respondents on the 12th of November, 1999. The plaintiffs not only appealed against the judgment, but also brought an application to stay the judgment. The learned Chief Judge of Anambra State granted a stay of execution of the judgment, pending the bearing and determination of the appeal lodged by the plaintiffs against the said judgment; on the 14th of December, 2000. Being dissatisfied with the said ruling which stayed the execution of the judgment pronounced in their favour, the two sets of defendants filed a joint notice of appeal on the 20th of December, 2000 against the order of stay of execution. The ruling in respect of the order of stay is on pages 156-164 of the record of proceedings. The notice and the grounds of appeal cover pages 166-168 of the record. The plaintiffs filed three original grounds of appeal, and through an order of court granted on the 3rd of June, 2002, filed six additional grounds of appeal, which brings the total number of the grounds of appeal to nine. In the process of filing the necessary papers for the appeal against the order of stay, particularly the exchange of briefs by the parties, the respondents filed notice of preliminary objection on the 13th of March, 2003 praying the court to grant them the opportunity to argue at the hearing of the appeal that it is incompetent and consequently to strike same out.
Parties exchanged briefs in respect of the judgment against the order of stay. The appellants in the brief filed on 3/6/2002 distilled four issues for determination in the appeal as follows:
(a) Whether the lower court was right in granting stay to protect a party adjudged trespasser to land and regarding proven acts of trespass on the land?.
(b) Whether the lower court failed to give adequate consideration to pertinent and material issues in opposition to and grant of stay?.
(c) Whether the lower court was right in basing the grant of stay on the alleged threat of destruction of Abba Community Secondary School?.
(d) Whether the exercise of discretion by the court is bona fide, sound, fair and consistent with relevant and established judicial authorities of higher tribunals of this country?.
“The respondents in their brief filed 13/3/2003 raised three issues for determination as follows:
(1) Considering the circumstances of this case and the affidavit evidence filed before the lower court, whether or not the lower court rightly exercised its discretion in granting the application for stay of execution whether the Court of Appeal will substitute its views for those of the lower court on issues joined in the affidavit evidence to reverse the stay of execution granted by the lower court.
(2) Assuming without conceding that the lower court wrongly exercised its discretion in granting the application for stay of execution pending appeal, whether or not the Court of Appeal will reverse this exercise of discretion and or substitute it with his own.
The parties argued the preliminary objection raised and the appeal simultaneously. The grounds for the preliminary objection are as follows:
(a) That the appeal is incompetent by reason of the fact that no leave of either the lower court or the court of appeal was sought and obtained before the three original grounds of appeal were filed.
(b) The additional grounds of appeal numbered as grounds 4-9 and their particulars are prolix, unwieldy, argumentative and repetitive and are liable to be struck out.
(c) Additional grounds 4 and 8 are vague and contravene the rules of this court.
(d) The entire appeal is against the exercise of the discretion of the lower court while the grounds of appeal at best, raises issues of law and facts, when appellants sought no leave of either the lower court or the Court of Appeal to raise them.
In arguing the preliminary objection, the respondents in the written address submitted argued grounds one and four together. In the two grounds, he argued that the original grounds of appeal are not competent because leave of the court of first instance or this court were not sought before filing same. Right of appeal is statutory and they derive from the Constitution appeal from the trial court to this court is either as of right or with leave of either both courts according to sections 241 or 242 of the Constitution.
Application for stay is an interlocutory decision to preserve the res. An appeal against an interlocutory decision can only be obtained after leave of the trial court has been sought and obtained by virtue of section 242(1) of the 1999 Constitution. The word shall is operative in section 242(1), of the Constitution. An appeal against an interlocutory decision must be with the leave of the court except where the grounds of appeal are based on law. All the grounds of appeal emanate from the exercise of the discretion of the learned Chief Judge in granting the stay. In this appeal the discretion of the trial court is subject of complaint. The grounds of law cannot be based on law alone. The way and manner a ground of appeal is framed does not determine whether it is of law or fact. The Supreme Court had maintained in the case of Ifediorah v. Umeh (1988) 2 NWLR (Pt. 74) 5 at 16, that an appeal against the exercise of discretion must undoubtedly be one on fact or law or mixed law and fact, so be it particularly where discretion has to be exercised judicially or judiciously. Where the appellant/respondents failed to seek leave to file grounds of appeal is a failure of a condition precedent which makes the grounds ab initio incompetent, and it renders the step taken in a proceeding void. Leave granted to the appellant to file additional grounds of appeal does not cover the leave to appeal on grounds of mixed law and fact. If the grounds of appeal are incompetent for failure of a condition precedent no additional ground of appeal could be added to it, likewise any issue formulated on an incompetent ground of appeal becomes equally incompetent. The court is to hold that the original grounds of appeal are incompetent.
The second ground of objection relates to the drafting of the grounds of appeal numbers 4-9 which offends against specific provisions of the Court of Appeal Rules. The grounds of appeal contravenes Order 3 rule 2(3) of the Court of Appeal Rules, 2002, as the particulars are argumentative, prolix, repetitive and verbose. The grounds of appeal are full of arguments and repetitive. Grounds 1, 2, 4, 5 and 6 could have made a single ground if properly drafted. These grounds and ground 9 have been held as bad and should be struck out.
In ground three the respondent argued that grounds 4 and 8 offends against Order 3 rule 2(4) of the Rules of court, being vague and in general terms. Where the grounds of appeal are incompetent and struck out, the appeal cannot be sustained and same must be dismissed. It is therefore inevitable that this appeal be dismissed as the grounds of appeal are incompetent either for non-compliance with the rules of condition precedent. The respondents cited as an avalanche of cases in support of the grounds of the objection as follows:
Owata v. Anyigor (1993) 2 NWLR (Pt. 276) 380; Adewumi v. Attorney-General Ekiti State (2002) 2 NWLR (Pt.751) 474; (2002) FWLR (Pt. 92) at 1835; Orakosim v. Menkiti (2001) 5 SC (Pt.1) 72; (2001) 9 NWLR (Pt.719) 529; Ogbechie v. Onochie (1986) 2 NWLR (Pt. 23) 484; CBN v. Okojie (2002) 8 NWLR (Pt. 768) 48 at 59; Ibrahim-Ohida v. Military Administrator, Kogi State (2000) 12 NWLR (Pt. 680) 24; Ozobia v. Anah (1999) 5 NWLR (Pt. 601) 1; Lawson v. Afani Construction Co. Ltd. (2002) 2 NWLR (Pt. 752) 585; UBN v. Penny-Mart Ltd. (1992) 5 NWLR (Pt. 240) 228; Skenconsult v. Ukey (1981) 1 SC 6; Agbasi v. Ebikorefe (1997) 4 NWLR (Pt. 502) 630; Guda v. Kitta (1999) 12 NWLR (Pt. 629) 21 at 39; APP v. Ogunsola (2002) 5 NWLR (Pt. 761) at 484; Buzu v. Garabi (2000) 13 NWLR (Pt. 684) 228.
Counsel for the appellants in the appeal against the order for stay, in his reply to the objection argued that as the grounds are set out in the notice filed on the 13th of March, 2003 and paragraph 14 at page 2 of the written address are different and leave of court is not sought, to effect the change paragraph 1.4 should be discountenanced. On ground one, he replied that Order 3 rule 2 Court of Appeal Rules, 1981 does not require that leave of the Court of Appeal must be obtained before a notice of appeal containing original grounds of appeal can be filed. In considering ground four, the appellants’ counsel mentioned that the respondents’ counsel introduced elements of interlocutory decision and preservation of the res pending appeal.
By virtue of S. 241(a) of the 1999 Constitution – an aggrieved party can appeal as of right against any final decision of a State High Court. In section 241(1)(b) of the 1999 Constitution – an aggrieved party can appeal as of right on ground of law. It is also a misconception to hold in section 242(1) of the 1999 Constitution that leave is required before an appeal can be brought against an interlocutory decision.
The contention in section 242 is that an aggrieved party who cannot appeal as of right or as set out in paragraphs A-F must appeal with leave of the High Court or Court of Appeal. In order to decide whether an order of court is final or interlocutory, test to be applied is whether the judgment or order made finally disposes of the right of the parties, and has not left any further reference to that tribunal on the matter in controversy between the parties. Vide case of Assam & Ors. v. Okposin & Ors. (2000) 10 NWLR (Pt. 676) 659. The case between the parties determined by Nwazota, J. is a final judgment to which no leave to appeal is required. The respondents’ counsel having considered what is final or interlocutory decision in respect to a number of decisions, finally submitted that an appeal against the ruling of Onaniba, C.J. is an appeal against a final decision within the purview of section 241(1)(a) of the 1999 Constitution, hence no leave is required and that court is urged to overrule the preliminary objection. If it is an interlocutory order, leave will be required, only if the appeal is on mixed law and fact, but if it is on law alone, then no leave is required. It is not in every case where the appeal is on exercise of judicial discretion that grounds of appeal will raise an issue of mixed law and fact. It is not in doubt that the complaint in the ground must be read together in order to ascertain whether the issue raised is on a question of law or otherwise. The consideration is that the trial Judge failed to consider all the issues raised by 1st and 2nd sets of appellants in opposition to the application of the respondents’ ground one is a question of law, grounds three and four which deal with adhere to matters of facts in the exercise of its judicial discretion judicially and judiciously is – raises a question of law. The appellants counsel contended that all the nine grounds raised questions of law. In respect of ground 2, the learned counsel for the appellants held that learned counsel for the respondents failed to demonstrate the argumentative, repetitive and/or prolix, and unwieldy aspect of grounds 4 – 9. Each of the grounds succinctly set out the complaint and pal1iculars thereto. This ground of objection ought to be refused as unsubstantiated. The learned counsel for the respondent also contended that grounds 4 and 8 are not vague, but the grounds and particulars are couched in a way to convey their clear meaning, Central Bank of Nigeria v. Okojie & Ors. (2002) 8 NWLR (Pt. 768) at 48. It is the conclusion that the preliminary objection has not been substantiated and ought to be accordingly dismissed. Amongst cases cited in support of the application are Akinsanya v. U.B.A. Ltd. (1986) 4 NWLR (Pt. 35) 273; Mohammed v. Olawunmi (1990) 2 NWLR (Pt. 133) 458; Assam & Ors. v. Okposin & Ors (2000) 10 NWLR (Pt. 676) at 659; U.T.B. v. Odofin (2001) 8 WLR (Pt. 715) at 296; Folbod Investment Ltd. v. Alpha Merchant Bank Ltd. & Ors. (1996) 10 NWLR (Pt. 478) 344; Nwadike & Ors. v. Ibekwe & Ors. (1987) 4 NWLR (Pt. 67) 718; Central Bank of Nigeria & Anor. v. Okojie & Ors. (2002) 8 NWLR (Pt. 768) at 48.
I have carefully considered the issues raised in the preliminary objection filed by the respondents and the reply therefrom. It is common ground that what is being criticised and challenged and the subject of appeal in this case is the exercise of the discretionary power of the learned trial Chief Judge exercised in favour of granting a stay of execution of the judgment delivered in respect of a land dispute. The notice of appeal with three original grounds were filed timeously, but it was contended that no leave of either the lower court or the Court of Appeal was obtained, as condition precedent to the filing of the appeal. This is deemed to be imperative as the entire appeal is against the exercise of the discretion of the lower court, while the grounds of appeal raises issues of law and fact. Prior to the reply of the issues raised in the objection, the appellants’ counsel in the main appeal observed that the grounds of the preliminary objection as couched and drafted in the notice of preliminary objection filed under Order 3 rule 15(1) of the Court of Appeal Rules, 2002 – differ from what obtains in the written address of the respondent in the argument in respect of the preliminary objection. I have perused both documents and I find it difficult to spot any difference in the contents. The argument contained in the brief relating to ground 1 as set out in the said paragraph 14, the request to discountenance same shall be over looked. The appellants’ counsel cited the wrong rules of court to support the contention that there is nothing in Order 3 rule 2 of the Court of Appeal Rules, 1981 requiring that leave of the Court of Appeal must be obtained before a notice of appeal containing original grounds of appeal can be filed. The relevant provision relating to appeals and leave to appeal is Order 3 rule 3 of the Court of Appeal Rules, 2002. By virtue of Order 3 rule 2(7) of the Court of Appeal Rules, 2002, the court shall have power to strike out a notice of appeal when an appeal is not competent or for any other reason. On the other hand and further still, where grounds of appeal are incompetent and struck out, the appeal cannot be sustained and same must be struck out. As rightly pointed out obtaining leave to appeal where mandatory is an exercise of the condition precedent to jurisdiction. Where such leave is obtained jurisdiction is conferred on court to entertain the appeal. A court is only competent, when the case comes by due process of law, and upon fulfillment of condition precedent to the exercise of jurisdiction. Saleh v. Monguno (2003) 1 NWLR (Pt. 80l) at 221; Madukolu v. Nkemdilim (1962) 2 SCNLR at 341; Skenconsult v. Ukey (1981) 1 SC 6.
In order to find out whether the appeal is against issue of stay of execution is competent, I shall examine whether the condition precedent to the exercise of jurisdiction has been complied with, that is whether it is relevant to obtain leave of the trial court or the Court of Appeal in order to file the three original grounds of appeal by the appellants. The pertinent question is in what scenario will leave of court be required to file notice and original grounds of appeal? A right of appeal is statutory, as this is enshrined in the Constitution of the Federal Republic of Nigeria. Generally speaking, an appeal to the Court of Appeal is either as of right or with the leave of court, according to sections 241 or 242 of the 1999 Constitution section 242(1) stipulates that:
“Subject to the provisions of section 241 of the Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that of the High Court or the Court of Appeal.”
Section 241(1) (a) and (b) states that:-
“An appeal shall lie from decisions of the Federal High Court or a High .court to the Court of Appeal as of right in the following cases:
(a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance,
(b) where the ground of appeal involves question of law alone, decision in any civil or criminal proceedings – F.B.N. Plc. v. Fashar (2000) 6 NWLR (Pt. 662) page 573; Tecno Mech. (Nig.) Ltd. v. Ogunbayo (2000) 14 NWLR (Pt. 639) 150; Total International Ltd. v. Awogboro (1994) 4 NWLR (Pt. 337) page 147; Adamu v. A.-G., Borno State (1996) 8 NWLR (Pt.465) page 203; Elendu v. Ekwoaba (1995) 3 NWLR (Pt. 386) at 704.”
Similarly where the grounds of appeal in a notice of appeal against an interlocutory decision of the High Court raises question of law, there is no need for leave of court to be sought or obtained before notice of appeal is filed. Adetona v. Edet (2001) 3 NWLR (Pt. 699) at 186.
An appeal against an interlocutory decision must be one with leave of the court where the grounds of appeal are based on mixed law and facts or facts alone. It is therefore imperative to distinguish between a final decision or an interlocutory decision.
It is well settled that in the task of making a clear distinction between an interlocutory and final decision, what is to be considered is whether the judgment or order has finally disposed of the rights of the parties. If it does then the order is a final order. If it does not, it is interlocutory – Akinsanya v. U.B.A. Ltd. (1986) 4 NWLR (Pt. 35) at 273; Mohammed v. Olawunmi (1990) 2 NWLR (Pt. 133) 458; Assam & Ors v. Okposin & Ors. (2000) 10 NWLR (Pt. 676) at 659; Universal Trust Bank Plc. & Ors. v. Odofin (2001) 8 NWLR (Pt. 715) 296 at 301.
The appellant’s counsel is of the view that the order of stay of execution made by Ononiba, C.J. at pages 156-165 of the record is a final order following a controversy which was determined by the trial court. The learned trial Judge granted the stay of execution in the exercise of its judicial discretion.
I do not share the view of the appellants’ counsel in this regard. I agree with the submission of the learned respondents’ counsel that the decision of the court following an application for stay of the judgment of court is an interlocutory decision made to preserve the res pending appeal. The appeal can only be brought after obtaining leave of the trial court or Court of Appeal. An interlocutory order for stay is an order made between the commencement of an action, in this case, an appeal, and its final determination. It does not finally dispose of the right of the parties. The order shall be discharged when the appeal is determined. In this appeal the exercise of the discretion of the trial court in favour of the respondent in granting a stay that is the subject of complaint, the grounds of appeal emanating therefrom cannot be based on law alone no matter how it is drafted or couched to make it appear like a ground of law. The grounds have to be considered with the particulars to decide whether it is a ground of law or fact or mixed law and fact. Ogbechie v. Onochie (1986) 2 NWLR (Pt. 23) 484; Onifade v. Olayiwola (1990) 7 NWLR (Pt.161) at 130 Sc.
Where there is an exercise of a court’s discretion, I hold the impression that the principles and way and manner in which a court will exercise its discretion in a particular case is a question of fact, and whether or not he exercised it judiciously or judicially is a question of mixed law and fact. The latter is applicable in this case to the way and manner the learned Chief Judge exercised his discretion in granting the application for stay. CBN v. Okojie (2002) 8 NWLR (Pt. 768) 48 at 59.
Where the appeal here is on mixed law and fact, leave of court must be obtained from the trial court or the Court of Appeal in accordance with the provision of the Constitution being against an interlocutory decision of the lower court.
Failure of the appellants to take this step has rendered their appeal incompetent and any subsequent steps taken based on the initial omission. It is settled law also that where any proceedings are begun other than as provided by the Rules such proceedings are incompetent. Saleh v. Monguno (2003) 1 NWLR (Pt. 801) at 221. Ground 2 is a complaint on couching and drafting of the grounds of appeal, as the grounds of appeal and their particulars contravene Order 3 rule 2(3) of the Court of Appeal Rules, 2002, which states that:
“The notice of appeal shall set forth concisely and under distinct heads intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.”
I agree with the submission of the respondents’ counsel that the grounds of appeal of the appellants are repetitive, argumentative and verbose. Grounds 1, 2, 4, 5, 6 mostly on the consideration of court in the exercise of the discretionary power to grant a stay, could have been covered by a single ground of appeal.
It is noteworthy that although there is no limitation to the number of grounds of appeal a party may file, grounds of appeal must be cogent, concise and articulate. The grounds of appeal shall be elegantly couched with avoidance of duplicity, repetition, verbosity and prolixity within the provisions of Order 3 of the Court of Appeal Rules, 2002. Sosanya v. Onadeko (2000) 11 NWLR (Pt. 677) at 34.
Further as pointed out in ground three of the objection, a ground of appeal must not contravene Order 3 rule 2(4) of the Court of appeal Rules, 2002 which states as follows:
“No ground which is vague or general in terms or which discloses no reasonable ground of appeal shall be permitted, save the general ground that the judgment is against the weight of the evidence, and any ground of appeal or any part thereof which is not permitted under this rule may be struck out by the court of its own motion or on application by the respondent.”
I have carefully digested all the grounds of appeal formulated in the appeal against the order of stay made by this court, and I shall express my feelings about them as follows:
Ground One
Though a ground of law, it is vague and the particulars are insufficient.
Ground Two
This ground is vague.
Ground Three
This ground is repetitive and not supported by any particulars, as the reasoning of the court should have been particularized.
Ground Four
This ground is a ground which depicts an error in law and in fact, a mixture of law and fact. The particulars are conclusion of counsel. They are verbose and repetitive. Particulars should embody the conclusion from the reasoning of the learned trial Judge and not conclusion of counsel based on evidence.
Ground five
This ground is tagged error in law, what is quoted from judgment makes it a mixture of error of law and fact. The particulars in support are argumentative, and purely submission and conclusion of the views of counsel.
Ground six
This ground is referred to as error in law, but is purely of fact, while the particulars are argumentative.
Ground Seven
This ground is repetitive and the particulars are flagrantly argumentative and verbose.
Ground 8
This ground is vague.
Going by the rules of court no ground which is vague and in general terms and which discloses no reasonable ground shall be permitted, such ground shall consequently be struck out.
Vagueness of a ground of appeal may arise where it is couched in a manner which does not provide any explicit standard for its being understood or when what is stated is so uncertain that it is not susceptible of being understood. It may also be considered vague when the complaint is not defined in relation to the subject or it is not particularized or the particulars are clearly irrelevant. In this appeal, some of the grounds fall into this definition. CBN v. Okojie (2002) 8 NWLR (Pt. 768) 48; Atuyeye v. Ashamu (1987) 1 NWLR (Pt. 49) at 267.
A proper ground of appeal must relate to its particulars within the judgment appealed against. The particulars to support the ground must be drawn from the reasoning in the judgment of the trial court, and in the instant case, the reasons on which the learned Judge exercised his discretion to grant a stay. Stirling Civil Engineers (Nig.) Ltd. v. Yahaya (2002) 2 NWLR (Pt. 750) at 1; Etaluku v. NBC Plc. (2004) 15 NWLR (Pt. 896) at 370.
I cannot and I find it difficult to single out a ground of appeal which is proper and in order out of the nine grounds of appeal filed. They are affected by defaults which have rendered them incompetent. It is often held that the purpose of the rules of court relating to the formulation of grounds of appeal is to give sufficient notice and information to the other side of the precise nature of the complaint of the appellant, and of the issues that are likely to appear in the appeal. Once an appeal satisfies this purpose, it should not be struck out even though it did not conform to a particular form. Some of the shortcomings in the grounds of appeal are fundamental. They affect the competency of the Court of Appeal in exercising jurisdiction in entertaining the appeal having failed to satisfy condition precedent to filing them. By virtue of Order 3 rule 2(4) of the Court of Appeal Rules, 2002 any grounds of appeal which offend against the section may be struck out. Any appellant who alleges misdirection or error in law is obliged to set out the alleged wrongs committed by the court against whose judgment he is appealing. The alleged wrongs must be from the judgment itself, they are not to be gathered from evidence outside the judgment of the trial Judge. Adeleke v. Asani (2002) 8 NWLR (Pt. 768) at 26. Under Order 3 rule 2(7) the court shall have power to strike out a notice of appeal when a notice of appeal is not competent or for any other sufficient reasons. I shall not hesitate to invoke Order 3 rule 2(7) to strike out all the grounds of appeal in this appeal. The appeal is consequently struck out as the grounds of appeal are incompetent for various reasons already given. The preliminary objection is sustained, while the appeal No. CA/E/76/2001 is struck out in its entirety with N5,000.00 costs to the respondents.
Other Citations: (2004)LCN/1644(CA)