Victino Fixed Odds Limited V Joseph Ojo & 2 Ors (2010)

LAWGLOBAL HUB Lead Judgment Report

A. FABIYI, JSC

This is an appeal against the decision of the Court of Appeal, Benin Division delivered on 12th April, 2000 which upheld the appeal of the respondent herein.

The 3rd respondent which was set up in accordance with the provisions of the Pools Betting (Control and Taxation) Edict of Edo State, 1986 unanimously gave judgment in favour of the 1st respondent. It ordered the appellant herein to pay the 1st respondent the sum of N116,200.00. After the decision of the Arbitration Panel, the appellant, through its counsel appears to have agreed to pay the stated sum vide a document headed ‘RECEIPT’ dated 13/8/97 as contained on page 43 of the record of appeal.

The appellant later refused to comply with the decision of the 3rd respondent. Instead, it filed an application at the High Court of Justice, Benin City to seek an order of certiorari to quash the ruling of the 3rd respondent. The trial judge heard the application and in his judgment handed out on 12/3/98, he held ‘that there exists on the face of the record said to be quashed serious error of law’. He thereafter quashed the decision of the 3rd respondent which was delivered on 7/8/97; having found that the 3rd respondent which was delivered on 7/8/97; having found that the 3rd respondent was not properly constituted according to law. This issue was not raised by the parties, but by the trial judge suo motu. As well, he was not addressed by the learned counsel for the respondent on the salient point.

The respondent felt unhappy with the stance posed by the trial judge and appealed to the Court of Appeal (court below) for short. The court below, without any form of difficulty, upheld the respondents’ appeal. The appellant has appealed to this court to try its chance; at it were.

On 17th December, 2009 when the appeal was heard, learned counsel for the appellant adopted and relied on the appellant’s amended brief of argument which was filed on 22nd November, 2007 and the Reply to the 1st respondent’s Notice of Preliminary Objection filed on 20th May, 2008.

I note that on page 3 of the stated appellant’s brief of argument, it is indicated that it (the appellant) shall, at the hearing of the appeal, seek the leave of this court to file and argue an additional of ground appeal to with: ground 5. Nothing was urged in this respect when the appeal was heard. And like a child’s play, the appellant’s counsel formulated what he called issue (iii) without any leave granted by this court. With due regard to the learned counsel, the improper steps taken were to no avail. Issue (iii) is accordingly discountenanced.

On behalf on the 1st respondent, learned counsel adopted and relied on the brief or argument filed on 25th March, 2008 and urged that the appeal be dismissed. As well, learned counsel for the 2nd and 3rd respondents adopted their joint brief of argument filed on 6th October, 2006 and also urged that the appeal be dismissed.

The 1st respondent raised objected to ground 2 of the grounds of appeal. He contended that it does not arise from the judgment of the court below. He felt that the ground is incompetent and should be struck out. He placed reliance on the decisions in Egbe v. Alhaji (1990) 1 NWLR (Pt.128) 546 at 590 and Owie v. Ighiwi (2005) 5 NWLR (Pt.917) 184 at 217.

Learned counsel for the appellant felt that the said ground 2 of grounds of appeal arose from the decision of the court below in that it summarily said that the composition and designation of the 3rd respondent which the trial court raised suo motu without hearing the parties and decided the case on it was wrong for he went on a voyage of discovery in the area where the parties have not joined issue.

It is trite that a ground of appeal against a decision must relate to and challenge the validity of the ratio of the decision. No valid issue can be formulated from an invalid ground of appeal which does not relate to the judgment being challenged. See Owie v. Ighiwi (supra).

The decision of the court below, put briefly, is that it was wrong for the trial judge to make a case on his own different from that made by the parties and proceed to resolve same without affording the parties opportunity to address him on the point raised suo motu by him. The court below found that no issue was joined on the composition of the 3rd respondent at the trial court. The appellant is trying to surreptitiously force it in before this court. What a comedy of errors on the part of the appellant Ground 2 of the grounds of appeal is hereby struck out. As well, issue 1 distilled therefrom is discountenanced.

Issue (ii) couched on page 4 of the appellant’s brief of argument is partly relevant. It reads as follows:-

(ii) Were the learned justices of the Court of Appeal right in affirming the findings and ruling of the Arbitration Panel solely on the issue suo motu by the learned trial judge of the High Court when there was another ground why the High Court set aside the said ruling and findings of the Arbitration Penal and thus granted application for certiorari.”