Surveyor Ekerete E. Etukudo & Anor. V. Surveyor E. B. Akpan (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment)

This appeal is from the decision of the High Court of Akwa Ibom State in suit No. HU/UND.147/2008, delivered on 23/7/2008 by which it entered judgment in part, under the undefended list procedure and transferred a part to the general cause list for determination.

The Respondent had taken out a writ of summons under the provisions of Order 23, Rule 1 of the Akwa Ibom State High Court Civil Procedure Rules, 1989 (to be referred to as High Court Rules after now) and after receipt of the writ, the Appellants had filed a notice of intention to defend the action accompanied by an affidavit disclosing a defence on the merit.

In the judgment appealed against, the High Court had found that the Appellants, had admitted the sum claimed by the Respondent less 10% thereof which was disputed by the parties, and so entered judgment in respect of the sum said to have been admitted and transferred the disputed 10% to the general cause list.

Aggrieved by that decision, the Appellants filed a notice of appeal against it on the 5/8/08 which was with the leave of the court, amended and further amended to make the total grounds therein, four (4). In the Appellants’ brief settled by M. D. Uyoh, Esq., filed on the 5/5/09 but deemed on 2/5/12, two issues were submitted for decision in the appeal as follows:-

“1. Whether the trial court had jurisdiction to hear the case under the undefended list or hear it all when the proper defendant was not before the court.

2. Whether the institution of Suit No. HU/UND.147/2008 was not an abuse of court process in view of the pendency of suit No. HU/71/2008 seeking the nullification of CADASTRAL SURVEY PRACTICE (In-house Guidelines/Bye-Laws) among other reliefs.”

The Amended Respondent’s brief was filed on the 23/5/12 and Mr. A. A. Asuquo, Esq, who settled it presented a single issue which he says arises for determination in the appeal. It is thus:-

“Whether the learned trial judge had jurisdiction in entertaining suit No. HU/UND.147/2008 and in entering judgment for the Respondent in the sum of N328,000.00 being the sum less 10% of the mandatory deposit admitted by the Appellants in their affidavit in support of notice of intention of defend filed in the lower court.”

In addition to the above issue however, the learned counsel had gone ahead to argue the issues raised in the Appellants’ brief even though he said they did flow from the grounds of the appeal.

On the 17/1/13, the briefs above were adopted by learned counsel for the parties at the oral hearing of the appeal and we were urged by each of them to uphold their respective submissions therein.

The learned counsel for the Respondent has rightly pointed out in his brief that the learned counsel for the Appellant has not indicated in the issues formulated by him from which of the grounds of appeal they were distilled. It cannot be over emphasized that diligence and good practice of brief writing in the appellate courts require that counsel should, at all times, indicate from which grounds of an appeal the issues they formulate for decision in the briefs of argument are distilled. This is because of the requirements of the principles of law that issues submitted for determination must derive or enure from the grounds of an appeal otherwise they would be incompetent and liable to be struck out.

Unless a clear indication is made in the brief, it is difficult for the court and other parties to now know from which grounds of an appeal issues were formulated as they would be left to assumption.

I have observed that after submissions the issue raised by him and the Appellants’ issues in the appeal, learned counsel for the respondent had raised and argued what appeared to be an objection at pages 10 – 15 of his brief. He seems to be challenging the jurisdiction of the court to have granted leave to the Appellants to file the Further Additional Ground 1 and to deem it and the Appellants’ brief as duly filed on the 25/2/12 and 2/5/12 respectively. The ground of the objection was that the Appellant ought to have first applied for and obtained leave to file the further ground before filing it and arguing same in his brief. That the court could not deem both the ground and the brief already filed in the same motion for leave, placing reliance on the decision of the court in Ekwulugo v A.C.B. Nig. Ltd. (2006) 6 NWLR (975) 30 at 42 and another.

Although there is no Reply brief from the learned counsel for the Appellants to answer to the objection, I would say that the objection appears to be a complaint or attack on the discretionary decision by the court to grant leave to file the further additional ground and to deem it and the Appellants’ brief already filed, to have been duly filed. It is an appeal couched in the form of an objection, on the jurisdiction of the court, against that decision.