DOREGOS v. ADELE & ORS (2020)

DOREGOS v. ADELE & ORS

(2020)LCN/14773(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Thursday, November 19, 2020

CA/IB/24/2015

RATIO

APPEAL: WHETHER THE RESPONDENT IS PERMITTED TO RAISE ISSUES WHERE HE HAS NEITHER CROSS-APPEALED NOR FILED A RESPONDENT’S NOTICE

In an appeal, the Respondent is not permitted to raise more issues for determination than the Appellant in an appeal where he has neither cross-appealed nor filed a Respondent’s Notice. The best a respondent who has neither cross-appealed nor filed a respondent’s notice can do is to either adopt the issues formulated by the Appellant or recouch them in words he finds suitable for the presentation of his arguments. See Sylvanus Emesonye v. The State (2016) LPELR – 40550(CA); Osazuwa & Ors v. Isibor & Anor (2004) 3 NWLR (pt.859) 16. PER TSAMMANI, J.C.A.
PRELIMINARY OBJECTION: PURPOSE OF A PRELIMINARY OBJECTION

Now, in law, the purpose of a Preliminary Objection is to terminate in its embryonic stage, or to nip in the bud, an appeal so as to avoid the necessity of dissipating time and energy in considering a worthless or fruitless proceeding. Thus, where a Preliminary Objection is raised and upheld, the hearing of a matter or appeal is foreclosed in limine, so as to save time and energy. See A.P.C. v. INEC & Ors (2014) 8 NWLR (pt.1462) 531; Rabiu v. Adebajo (2012) LPELR – 9709 (SC) and Igbeke v. Okadigbo & Ors (2013) LPELR – 20664 (SC). In the case of Jim Jaja v. C.O.P; Rivers State & Ors (2012) LPELR – 20621 (SC), Ngwuta, JSC said:
“A Preliminary Objection is a preemptive strike and its resolution will determine whether or not the appeal will be determined on the merit.”
It means therefore, that where the objection dwells on the competence of only one or more of the grounds of appeal, a Preliminary Objection is not appropriate. In other words, where the objection will lead to the striking out of only one or more of the grounds while leaving some other grounds of the appeal standing upon which the appeal could be determined, a Preliminary Objection is not the appropriate remedy. That being so, where an objection is on the competence of one or some of the grounds of appeal only, a Preliminary Objection is not appropriate but a Motion notifying the Appellant that the Respondent intends at the hearing, to contest the competence of those grounds. However, where the objection is against the whole or totality of the grounds of appeal, such that if the objection is upheld the hearing of the appeal will be truncated, a Preliminary Objection may be entertained. See Okereke v. James (2012) 16 NWLR (pt.1326) 339 at 348 – 349; Adejumo v. Olawaiye (2014) 12 NWLR (pt.1421) 252 at 265; NNPC & Anor v. Famfa Oil Ltd (2012) 17 NWLR (pt.1328) 148 at 167 and General Electric Co. v. Akande (2010) 18 NWLR (pt.1225) 596. Thus, inInspector Isa Sarki v. John Lamela (2016) LPELR – 40338 (CA), this Court, per Georgewill, JCA said:
“It is the law that where the purpose of an objection is merely to challenge some of the grounds of appeal and not the competence of the entire appeal, the best procedure is by way of a Motion on Notice since its success would not in any way terminate the entire appeal in limine. On the other hand, where the purpose of an objection is to terminate in limine the entirety of the appeal, the best procedure is by way of a notice of Preliminary Objection challenging the competence of the entire appeal.” PER TSAMMANI, J.C.A.
APPEAL: REQUIREMENT FOR APPEAL AS OF RIGHT AND APPEAL SOUGHT BY LEAVE OF COURT

it should be noted that there is a right of appeal in respect of question of law alone as enshrined in Section 241(1)(b) of the Constitution of the Federal Republic of Nigeria. However, where the Ground of Appeal is on question of fact or mixed law and facts, the leave of the trial Court or of this Court is required. This is so because, where an appeal does not fall within the ambit of Section 241(1)(a) – (f) of the Constitution, leave of Court is required. PER TSAMMANI, J.C.A.
APPEAL: HOW TO DETERMINE WHETHER A GROUND OF APPEAL RAISES A QUESTION OF LAW OR MIXED LAW AND FACTS

The law is that, to determine whether a ground of appeal raises a question of law alone, or mixed law and facts, the Court will examine the ground of appeal as framed together with the particulars thereof. In other words, in order to determine whether a ground of appeal raises question of law alone or fact or mixed law and facts, the grounds of appeal and the particulars thereof must be scrutinized together. See U.B.A. Ltd v. G.M.B.H. (1989) 3 NWLR (pt.110) 374; B.A.S.F. Nig. Ltd v. Faith Enterprises Limited (2010) 1 S.C.M. 41 at 54 and Ejiwunmi v. Costain (W.A) Plc (1998) 12 NWLR (pt.576) 149.
The purpose of such examination is to find out whether the ground of appeal is one of law alone or fact or mixed law and facts. Such determination is no doubt not an easy one. To determine the issue, the Court must therefore engage in the process of sifting the particulars in relation to the ground of appeal. It is not the cognomen given to the ground of appeal that will settle the issue. Accordingly, the Courts, particularly the Supreme Court has given a guide to the resolution of the difficulty. The test to be applied in determining whether a ground of appeal is one of law alone or of mixed law and fact has been settled in several cases such as Ogbechie v. Onochie (1986) 2 NWLR (pt.23) 484 at 491; Nwadike & Ors v. Ibekwe & Ors (1987) 4 NWLR (pt.67) 718 at 733; Metal Construction (W.A.) Ltd v. D. A. Migliore & Ors (1990) 2 SCNJ 20; Brossette Manufacturing (Nig.) Ltd v. M/S Ola Ilemobola Ltd & Ors (2007) 14 NWLR (pt.1053) 109; Ade Coker v. United Bank for Africa Plc (1997) LPELR – 880 (SC), etc.
Thus, in the case of Molegbemi & Ors v. Ajayi & Ors (2011) LPELR – 4501(CA), I said:
“The question now is, when will a ground of appeal be said to question the findings of fact made by a trial Court. The determination of whether a ground of appeal is one of law, mixed law and fact, and facts simpliciter is not always an easy one. What is required is for the Court determining same to thoroughly examine the grounds of appeal in the case concerned to see whether the grounds reveal misunderstanding by the lower Court of the law or a misapplication of the law to the facts already proved or admitted in which case, it would be a question of law, or it is one that would require questioning the evaluation of facts by the lower Court before application of the law, in which case it would amount to a question of mixed law and facts……. Where the ground of appeal is an invitation to the Appellate Court to investigate the existence or otherwise of certain facts made by the trial Court or where it questions the evaluation of evidence tendered, then it is a ground of fact or at best a ground of mixed law and fact. In other words, where a ground of appeal is a complaint on the findings of the trial Court based on evidence led at the trial or the evaluation of the evidence by the trial Court, it is purely a ground of fact…” PER TSAMMANI, J.C.A.

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Haruna Simon Tsammani Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

BERNADINO OGUNSANYA DOREGOS APPELANT(S)

And

PRINCE RAFIU ADEKUNLE ADELE 2. ISMAILA ADEGUN 3. AMBALI ALAGBE 4. MR. ADEREMI ADEGBITE 5. MRS. ADEREMI ADEGBITE RESPONDENT(S)

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This appeal is against the Ruling of the Oyo State High Court of Justice sitting in Ibadan delivered on the 4th day of February, 2014 in Suit No: I/638/2007.

The Appellant herein as Plaintiff in the Court below, initiated the action by a Writ of Summons which was filed on the 09/10/2007. Thus, by a Further Amended Statement of Claim dated and filed on the 09/11/2008, the Plaintiff/Appellant claimed as follows:
(a) N25,000,000.00 (Twenty Five Million Naira) being general damages for the trespass committed by the Defendants on the Plaintiffs’ land known as Plots 12, 13, 14 & 15 on Chief M. A. Akinloye Layout, Oluwo Village, Off Abaa Road, Ikolaba, Ibadan which are more particularly marked and delineated in Plan No: PAS/W/183C and covered by a Deed of Conveyance Registered as No:48 at page 48 in Volume 2274 of the Lands Registry, Ibadan.
(b) INJUCTION restraining the Defendants by themselves, their agents, servants and or privies or otherwise howsoever from further entering upon, building and or committing any further acts of trespass on the said land.

Issues were

duly joined when the Defendants now Respondents filed an Amended Statement of Defence and Counter Claim on the 30/6/2008; and the Plaintiff/Appellant filed a Further and Better Amended Reply to the Defendants’ Statement of Claim & Defence to Counter Claim. Hearing in the matter then commenced in 2008 and, the Plaintiff/Appellant called four (4) out of the Six (6) witnesses to be called. Having failed to call the remaining two (2) witnesses despite several adjournments all at the instance of the Appellant, the learned trail Judge suo motu closed the Plaintiff/Appellant’s case on the 04/4/2012.

Thereafter, the Defendants/Respondents frontloaded their case and opened their defence. However, on the 07/06/2013, the Plaintiff/Appellant filed a Motion on Notice pursuant to Order 39 of the Oyo State High Court (Civil Procedure) Rules, 2010, for:
(1.) An Order reopening the case so that the Claimants can be allowed to call his remaining witnesses in this case.
(2) An order of this Honourable Court extending the time within which the Claimant may file the frontloaded processes of his remaining witnesses in this case and deeming the

frontloaded processes already filed and served as properly filed and served.

The Grounds upon which the motion was predicated are as follows:
(i) That the Claimant is been bedridden for over two years as a result of ill health.
(ii) The failure of the Claimant to frontload his processes in this case and call his remaining witnesses is not deliberate but caused by his ill health.
(iii) The Claimant is now willing and ready to prosecute this case to conclusion.
(iv) That the Claimant is ready to pay the costs occasioned by this delay.
(v) The Defendants will not be prejudiced by the grant of this application.
(vi) That it is in the interest of justice to grant the applicant’s application.

The Motion was supported by an Affidavit of 14 paragraphs deposed to by one E. M. Adebolajo. Attached to the Affidavit was one document marked as Exhibit “DA”. In opposing the Application, the Respondents filed a Counter-Affidavit of 13 paragraphs deposed to by one Ismaila Adegun, the 2nd Respondent in the case. In response, the Plaintiff/Appellant filed a Further Affidavit of 18 paragraphs. Counsel for the parties then

filed and exchanged Written Addresses and in a considered Ruling delivered on the 04/2/2014, the learned trial Judge considered the application to be without merit and dismissed same. Dissatisfied with the Ruling, the Plaintiff/Appellant had filed this appeal.

The Notice of Appeal consisting of five (5) Grounds of Appeal was filed on the 10/2/2014. The parties complied with the Rules of this Court by filing Briefs of Arguments. The Appellant’s Brief of Arguments was filed on the 07/12/2017 but deemed filed on the 27/5/2019. The Appellant nominated only one issue for determination as follows:
“Whether the learned trial judge was right in refusing the Claimant’s application to reopen his case and call his remaining witnesses and frontload their witness statement on oath.” [Grounds 1, 2, 3 and 5]

The Respondents’ Brief of Arguments was filed on the 14/6/2019. The Respondents while challenging the competence of the issue formulated by the Appellant, was of the view that the following two issues will better determine the substance of this appeal, viz:
(i) Whether the lower Court was right in declining

jurisdiction to sit on appeal over her previous order by refusing the Appellant’s application? [Grounds 1 and 3].
(ii) Assuming the lower Court was wrong (which we do not concede) whether the Appellant made out a case warranting the reversal of the said order. [Ground 2].

Before I proceed, I find it necessary to point out that, appeals are generally determined on the issues presented to the Court for adjudication by the Appellant. In an appeal, the Respondent is not permitted to raise more issues for determination than the Appellant in an appeal where he has neither cross-appealed nor filed a Respondent’s Notice. The best a respondent who has neither cross-appealed nor filed a respondent’s notice can do is to either adopt the issues formulated by the Appellant or recouch them in words he finds suitable for the presentation of his arguments. See Sylvanus Emesonye v. The State (2016) LPELR – 40550(CA); Osazuwa & Ors v. Isibor & Anor (2004) 3 NWLR (pt.859) 16.
In the instant case, the Respondents neither cross-appealed nor filed a Respondent’s notice. In that respect, the issues formulated by the

Respondents are hereby discountenanced. The issue formulated by the Appellant is accordingly adopted as the issue that arise for the determination of this appeal. Accordingly, any argument in the Respondents’ Brief of Arguments which has no bearing to the issue formulated by the Appellant will not be countenanced.

Now, before I proceed, it is also pertinent to note that the Respondents raised and argued a Notice of Preliminary Objection in pages 1 – 13 of the Respondents Brief of Arguments which was filed on the 14/6/2019. By the Preliminary Objection, the Respondents contended that, all the Grounds of Appeal are in total violation of Order 7 rule 2 of the Court of Appeal Rules, 2016 and therefore, incurably defective. Furthermore, that the Appellant’s Brief of Arguments formulated, partly from those Grounds of Appeal has been contaminated thereby and accordingly rendered invalid, and liable to be struck out. The Grounds upon which the Objection is predicated are that:
a. Order 7 rule 2(2) of the Court of Appeal Rules, 2016 require grounds of appeal alleging errors of law to clearly state that particulars and nature of such

errors.
b. A ground of appeal which alleges an error of law must in addition to quoting the passage where the error was alleged to have occurred specify the nature of the error – Atuyeye v. Ashamu (1987) 1 NWLR (pt.49) 267 at 279; Adeniyi v. Disu (1958) 3 FSC 104; Osawuru v. Ezeiruka (1978) 6 – 7 SC; Ifediora v. Ume (1988) 2 NWLR (pt.74) 74.
c. None of the 5 grounds of appeal contained in the Notice of Appeal quoted from the passage in the ruling where the error was alleged nor specified the nature of the error having not satisfied the above particulars in all the 5 grounds are incompetent and liable to be struck out – Bereyin v. Gbodo (1989) 1 NWLR (pt.97) 372 at 379.
d. Grounds of appeal to be competent must arise from the ratio of the decision complained against.
e. Grounds 2, 4 and 5 did not arise from the ruling of the trial Court which merely declined jurisdiction to reverse her earlier order closing the case of the Appellant which order had not been appealed or challenged by any appeal.
f. The said grounds 2, 4 and 5 as contained on pp.64 – 66 of the Record are thus incompetent and liable to be struck

out.
g. Appeals are argued from issues formulated from valid grounds of appeal and any issue formulated from an invalid ground or combination of valid and invalid grounds is incompetent and liable to be struck out – Bereyin v. Gbodo (supra) at 380; Akochie v. Nwamadi (1992) 8 NWLR (pt.258) 214 at 224; Kano Tex. Plc v. G & H (Nig.) Ltd (2002) 2 NWLR (pt.751) 420 at 445.
h. Grounds 5, although couched as an error is really a ground of mixed law and fact for which no leave was sought or obtained before its inclusion in an interlocutory appeal contrary to Section 242(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
i. Where leave is required to file a ground of appeal, it must be applied for and duly obtained; failure to obtain such leave renders the ground of appeal incompetent, invalid and liable to be struck out – Ault & Wiborg v. NIBEL Industries (2010) 6 – 7 SC.I; UBA v. Staulbau GMBH (1989) 6SC (pt.1) 22.
j. The sole issue for determination paragraph (3.1) in the Appellant’s Brief dated 04/11/2017 but filed on 07/12/2017 having been formulated from invalid grounds 1, 2, 3 and 5

(or a combination of valid and invalid grounds) is invalid, incompetent and liable to be struck out.

Learned Counsel for the Respondent formulated two issues which he considers as necessary for the determination of the Preliminary Objection; as follows:
a. Whether all or any of the 5 grounds of appeal are/is incompetent having regard to settled principles of law.
b. Whether the sole issue for determination formulated is valid having regard to the incompetence of all or any of the ground(s) from which they are formulated.

I wish to also note at this stage that, no issue was formulated from Ground four (4) of the Notice of Appeal. The sole issue formulated for determination indicate that, same was distilled from Grounds 1, 2, 3 and 5. It is settled law that, where no issue is formulated from any Ground of Appeal, such Ground is deemed abandoned. The effect is that such Ground should be struck out. See Onuoha v. Ndubueze (2001) 48 WRN 84 at 91; Mohammed v. Babalola, S.A.N. (2011) LPELR – 8973 (CA) and Balogun v. FRN (2015) LPELR – 24744 (CA). Since no issue was formulated from Ground 4, it is deemed abandoned and consequently

struck out.

Now, on the Preliminary Objection, learned counsel for the Respondent began by contending that, this appeal stems from the ruling delivered on the 04/2/14 dismissing the Appellant’s application seeking for an order to reopen the Appellant’s case which was closed on the 04/04/2012. That, the observation is important because there is no specific appeal against the order of 04/04/2012 as the proceedings of the trial Court for that day is not part of the record of appeal.

Learned Counsel for the Appellant then referred to Section 241(1)(b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which confers a right of appeal as of right on questions of law alone. That, where the appeal involves questions of fact or mixed law and fact, leave of the High Court or of this Court must be sought and obtained. The case of Petgas Resources Ltd v. Mbanefo (2018) All FWLR (pt.926) 123 at 146 was then cited to submit that, an appeal is generally a creation of statute and that failure to comply with the statutory requirements prescribed by the relevant Laws under which such appeal is derived, will deprive the appellate

Court of jurisdiction to entertain the appeal.

On that note, learned counsel submitted that Ground 2 is an appeal against the exercise of the discretion by the trial Court and therefore based on consideration of the materials submitted by the Appellant at the lower Court. There is no specific response by the Respondent on this point.

Before I proceed to consider this point, I wish to pause here to consider the objection raised by the Appellant on the competence of the Preliminary Objection raised by the Respondent, and which is under consideration here. Learned Counsel had argued from pages 1 – 2 of the Appellant’s Reply Brief of Arguments that, it is inappropriate for the Respondents to challenge the competence of a ground of appeal by a notice of Preliminary Objection. That considering the nature of the objection, the Respondent ought to have filed a Motion on Notice challenging the competence of the ground of appeal. The case of NJC v. Aladejana (2015) All FWLR (pt.772) 1792 at 1821 was then cited to submit that, it is not lawful to challenge the competence of a ground of appeal by a Preliminary Objection.

Learned Counsel for the

Appellant then cited the cases of Ebong v. Effiong (2007) 17 NWLR (pt.1062) 92 at 106; N.E.P.A. v. Ango (2001) 15 NWLR (pt.737) 627 and Thomas v. Aderinokun (2008) All FWLR (pt.440) 657 at 665, to submit that, the purpose of filing a notice of Preliminary Objection to an appeal is to contend that the appeal is incompetent or fundamentally defective and not against just a ground or more of the grounds of appeal. We were accordingly urged to hold that the notice of Preliminary Objection incorporated in the Respondent’s Brief of Arguments is incompetent and to strike it out.

(2012) LPELR – 20621 (SC), Ngwuta, JSC said:
“A Preliminary Objection is a preemptive strike and its resolution will determine whether or not the appeal will be determined on the merit.”
It means therefore, that where the objection dwells on the competence of only one or more of the grounds of appeal, a Preliminary Objection is not appropriate. In other words, where the objection will lead to the striking out of only one or more of the grounds while leaving some other grounds of the appeal standing upon which the appeal could be determined, a Preliminary Objection is not the appropriate remedy. That being so, where an objection is on the competence of one or some of the grounds of appeal only, a Preliminary Objection is not appropriate but a Motion notifying the Appellant that the Respondent intends at the hearing, to contest the competence of those grounds. However, where the objection is against the whole or totality of the grounds of appeal, such that if the objection is upheld the hearing of the appeal will be truncated, a Preliminary Objection may be entertained. See Okereke v. James (2012) 16 NWLR

(pt.1326) 339 at 348 – 349; Adejumo v. Olawaiye (2014) 12 NWLR (pt.1421) 252 at 265; NNPC & Anor v. Famfa Oil Ltd (2012) 17 NWLR (pt.1328) 148 at 167 and General Electric Co. v. Akande (2010) 18 NWLR (pt.1225) 596. Thus, inInspector Isa Sarki v. John Lamela (2016) LPELR – 40338 (CA), this Court, per Georgewill, JCA said:
“It is the law that where the purpose of an objection is merely to challenge some of the grounds of appeal and not the competence of the entire appeal, the best procedure is by way of a Motion on Notice since its success would not in any way terminate the entire appeal in limine. On the other hand, where the purpose of an objection is to terminate in limine the entirety of the appeal, the best procedure is by way of a notice of Preliminary Objection challenging the competence of the entire appeal.”
In the instant case, it is apparent that all the five (5) Grounds of Appeal in the Notice of Appeal have been challenged. Accordingly, if the challenge on the competence of all the five (5) Grounds of Appeal is upheld, it would mean that there would be no more Ground of Appeal to sustain the appeal. On that

note, the Notice of Preliminary Objection raised and argued by the Respondent is appropriate. I now proceed on the merit of the Preliminary Objection.

Now, on the objection of the Respondent to the competence of Ground 2, it should be noted that there is a right of appeal in respect of question of law alone as enshrined in Section 241(1)(b) of the Constitution of the Federal Republic of Nigeria. However, where the Ground of Appeal is on question of fact or mixed law and facts, the leave of the trial Court or of this Court is required. This is so because, where an appeal does not fall within the ambit of Section 241(1)(a) – (f) of the Constitution, leave of Court is required.
The issue to be considered now, is whether Ground 2 of the Notice of Appeal is one of law alone or fact or mixed law and fact. The law is that, to determine whether a ground of appeal raises a question of law alone, or mixed law and facts, the Court will examine the ground of appeal as framed together with the particulars thereof. In other words, in order to determine whether a ground of appeal raises question of law alone or fact or mixed law and facts, the grounds of appeal

and the particulars thereof must be scrutinized together. See U.B.A. Ltd v. G.M.B.H. (1989) 3 NWLR (pt.110) 374; B.A.S.F. Nig. Ltd v. Faith Enterprises Limited (2010) 1 S.C.M. 41 at 54 and Ejiwunmi v. Costain (W.A) Plc (1998) 12 NWLR (pt.576) 149.
The purpose of such examination is to find out whether the ground of appeal is one of law alone or fact or mixed law and facts. Such determination is no doubt not an easy one. To determine the issue, the Court must therefore engage in the process of sifting the particulars in relation to the ground of appeal. It is not the cognomen given to the ground of appeal that will settle the issue. Accordingly, the Courts, particularly the Supreme Court has given a guide to the resolution of the difficulty. The test to be applied in determining whether a ground of appeal is one of law alone or of mixed law and fact has been settled in several cases such as Ogbechie v. Onochie (1986) 2 NWLR (pt.23) 484 at 491; Nwadike & Ors v. Ibekwe & Ors (1987) 4 NWLR (pt.67) 718 at 733; Metal Construction (W.A.) Ltd v. D. A. Migliore & Ors (1990) 2 SCNJ 20; Brossette Manufacturing (Nig.) Ltd v. M/S Ola Ilemobola Ltd & Ors

(2007) 14 NWLR (pt.1053) 109; Ade Coker v. United Bank for Africa Plc (1997) LPELR – 880 (SC), etc.
Thus, in the case of Molegbemi & Ors v. Ajayi & Ors (2011) LPELR – 4501(CA), I said:
“The question now is, when will a ground of appeal be said to question the findings of fact made by a trial Court. The determination of whether a ground of appeal is one of law, mixed law and fact, and facts simpliciter is not always an easy one. What is required is for the Court determining same to thoroughly examine the grounds of appeal in the case concerned to see whether the grounds reveal misunderstanding by the lower Court of the law or a misapplication of the law to the facts already proved or admitted in which case, it would be a question of law, or it is one that would require questioning the evaluation of facts by the lower Court before application of the law, in which case it would amount to a question of mixed law and facts……. Where the ground of appeal is an invitation to the Appellate Court to investigate the existence or otherwise of certain facts made by the trial Court or where it questions the evaluation of

evidence tendered, then it is a ground of fact or at best a ground of mixed law and fact. In other words, where a ground of appeal is a complaint on the findings of the trial Court based on evidence led at the trial or the evaluation of the evidence by the trial Court, it is purely a ground of fact…”
I have carefully perused Grounds 2 of the Notice of Appeal and the particulars thereof. Though the Appellant captioned the said ground as one of error of law, in reality, when read along with the particulars therefore, it is a complaint about the evaluation of the affidavit evidence placed before the Court by the learned trial judge. To that extent, I am satisfied that ground two is a question of fact, or at best a question of mixed law and fact. The Appellant therefore required the leave of this Court, or of the lower Court, to raise same. Since such leave was neither sought nor obtained, the said ground (Ground 2) is incompetent. It is accordingly struck out.

Learned Counsel for the Respondent also contended that, Ground 5 is fundamentally defective because:
(a) It does not relate to any decision in the ruling appealed against. In

other words, that it is not an attack against any ratio in the ruling appealed against.
(b) It is essentially an appeal against the order made on the 04/04/2012 wherein the Appellant’s case was closed.
(c) By referring to the Appellant’s affidavits, contested by the Respondent at the lower Court, it raised a fresh point of mixed law and fact which was not part of the ruling appealed against.

Learned Counsel for the Respondents then submitted that, in the absence of an issue or decision in the ruling appealed against on the question of whether or not the Appellant was served or not before the order of closure dated 04/04/2012 was made, Ground 5 cannot constitute a valid ground of appeal in this appeal. Learned Counsel for the Respondent also submitted that, a ground of appeal must be borne out by the record which must show what and where the Appellant’s complaint is recorded. The cases of Ogolo v. Fubara (2003) FWLR (pt.169) 1285 andIshe v. Ansa (2001) FWLR (pt.80) 150 were also cited to further submit that; nowhere in the record where the Appellant’s complaint of non-service before the Court ordered the closure of his

case, was made. In conclusion, learned counsel submitted that in any case, Ground (5) did not arise from the decision appealed against and ought to be struck out.

In response, learned counsel for the Appellant argued that the complaint in Ground 5 of the Notice of Appeal is against the decision of the trial Court closing the Claimant’s case. That in its ruling of 04/2/2014, the trial Court stated clearly that the Appellant’s case was closed on the 4/4/2012.

In law, an appeal is a complaint against the decision of a lower Court. In other words, an appeal is an invitation to a higher Court to review the decision of a lower Court, so as to see whether upon a proper examination of the facts placed before it and the applicable law, the lower Court made a correct decision. It is a complaint against the reason for the conclusion arrived at by the lower Court. See Nsirim v. Amadi (2016) 5 NWLR (pt.1504) 42; Okonkwo & Anor v. UBA Plc (2011) LPELR – 23010 (SC) and Rev. King v. State (2016) LPELR – 40046 (SC). For there to be a valid appeal, there must be in existence a subsisting decision of a lower Court. The ground of appeal must

question the reason for that decision. In other words, it must be a complaint against the ratio decidendi for the decision. See A.G; Oyo State & Anor v. Fairlakes Hotel Ltd (1988) 5 NWLR (pt.92) 1; Ugwu v. State (2013) 14 NWLR (pt.1374) 257 and Adebesin v. State (2014) 9 NWLR (pt.1413). A ground of appeal must therefore relate to the facts and law arising from the judgment appealed against and not on extraneous matters outside the issues canvassed and pronounced upon in the decision appealed against.
The Notice of Appeal in this appeal is contained in pages 63 – 67 of the record of appeal. In the preamble to the Notice of Appeal, it is stated that complaint of the Appellant relates to decision of the Court below delivered on the 04/02/2014. The said decision (Ruling) is contained in pages 58 – 62 of the record of appeal. The Ruling pertain to an application filed by the Appellant seeking the order of the Court below to re-open his case which was closed on the 04/4/2012. In the determination of that Motion, the learned trial Judge formulated the issue to be determined in that Motion as follows:
“Whether this Court has the power

to reverse itself by allowing the Claimant to reopen his case which had been closed earlier in this proceeding by the order of this Court?”
The learned trial Judge held that it had no vires to revisit its order closing the Appellant’s case. The learned trial Judge based its answer on the reason stated in page 61 of the records as follows:
“From the foregoing, it is clear that, as a matter of law, only the Court of Appeal can review the order of this Court closing the case of the Claimant in this proceeding and it is immaterial the genuineness or otherwise of the reasons proffered by the Claimant for his failure to comply with the orders of this Court directing him to frontload his case and/or call his remaining witnesses. This is more so when those facts were not placed before the said order was made despite representation of the Claimant by Counsel and several adjournments granted at his instance.”
That is the ratio upon which the learned trial Judge declined jurisdiction to reopen the Appellant’s case. Ground 5 of the Notice of Appeal, states that:
“The learned trial Judge erred in law by closing the

Claimant’s case”.
It is apparent from the Appellant’s Motion seeking the order of the lower Court to reopen it’s case, that the power or vires of the trial Court to close the case was never in issue. What was in issue was whether the trial Court could reopen the case, same having been closed on the 04/4/2012. It is therefore my view that Ground 5 which contends that the learned trial Judge erred in law when it closed the Appellant’s case did not arise in the Ruling delivered on the 04/2/2014. Indeed, the prayers on the Motion filed on the 07/6/2013 and the grounds upon which the Motion to reopen the Appellant’s case bear clear testimony to that fact. I also hold that Ground 5 does not arise from the Ruling of the trial Court delivered on the 04/2/2014. Ground 5 is therefore incompetent and is ordered to be struck out.

Learned Counsel for the Respondent went on to submit that, only Grounds 1 and 3 seemingly challenge the ratio of the decision appealed against. It was however submitted that the said grounds of appeal did not meet the requirements of Order 7 rule 2 (1) of the Court of Appeal Rules, 2016 which require

an Appellant to set out in a ground of appeal, the particulars and nature of error alleged, if the ground alleges an error of law. The cases of Bereyin v. Gbodo (1989) 1 NWLR (pt.97) 372 at 379; Saka Atuyeye & 4 Ors v. Emmanuel O. Ashamu (1987) 1 NWLR (pt.49) 267; J. A. Adeniji & Anor v. Saka Disu (1958) 3 FSC 104; Felix Osawaru v. Simeon Ezeiruka (1978) 6 – 7 SC.135 andBennet Ifediorah & 4 Ors v. Ben Ume & Ors (1988) 2 NWLR (pt.74) 5 were cited in support. That, a cursory look at the grounds of appeal would show that they fail to meet the requirements of the said Order 7 rule 2(2) of the Court of Appeal Rules, 2016.

Learned Counsel for the Respondent then submitted that, the exercise of the right of appeal is circumscribed by rules and practice which are meant to be obeyed. The case of Kente v. Ishaku (2019) All FWLR (pt.973) 477 at 502 was cited in support and to urge us to declare the grounds of appeal to be incompetent and strike them out.

Now, Order 7 rule 2(2) of the Court of Appeal Rules, 2016 stipulate that:
“Where a ground alleges misdirection or error in law, the particulars and the nature of the

misdirection or error shall be clearly stated.”
After a cursory perusal of the Grounds of Appeal and the particulars thereof, I am of the view that the objection of the Respondent on this ground is not valid. Clearly, all the Grounds of Appeal are amply supported by particulars of error or misdirection. In any case, the purpose or object of stating particulars is to give the Respondent notice of the case he is going to meet on appeal. In other words, the particulars of a ground of appeal is to explain the ground of appeal, so that the Respondent is informed of the nature of the complaint of the Appellant against the judgment on appealed. The whole essence of grounds of appeal and their particulars is to give the Respondent; notice of the case he has to meet in the Appellate Court. See Federal Medical Center, Ido-Ekiti v. Olajide (2011) 11 NWLR (pt.1258) 256; Olufeagba v. Abdul-Raheem (2009) 18 NWLR (pt.1173) 384 and Monguno v. Blue Whales & Co. (2011) 2 NWLR (pt.1231) 275. The complaint of the Respondent here, cannot thus be sustained. All the grounds of appeal have been adequately supported by their particulars, and there is no complaint by the

Respondent that he has been misled by any of the grounds of appeal. Grounds 1 and 3 of the Notice of Appeal are therefore competent.

Now, learned counsel for the Respondent argued that, the lone issue for determination was formulated from grounds 1, 2, 3 and 5 of the Notice of Appeal. It was then submitted that in law, issues for determination can be raised only from valid grounds of appeal; and that any issue raised from an invalid Ground of Appeal is incompetent and liable to be struck out. The cases of AP Ltd v. Owodunni (1991) 8 NWLR (pt.210) 391 at 423; Okoye v. NCF Co. Ltd (1991) 6 NWLR (pt.199) 501 at 533 and Thor Ltd v. FCMB Ltd (2002) 3 SCM 130 were cited in support. That where a ground of appeal is incompetent, any issue for determination based on such incompetent ground of appeal goes to no issue and should be struck out.

Learned Counsel for the Respondent then cited the cases of Bereyin v. Gbodo (supra) at 380; Akuchie v. Nwamadi (1992) 8 NWLR (pt.258) 214 at 224; Geosource (Nig.) Ltd v. Biragbara (1997) 5 NWLR (pt.506) 607 at 616 – 617 and First Zenith Holdings Ltd v. HFP Engineering Ltd (2017) All FWLR (pt.881) 1158 at 1177 to

submit that, even if it is only one ground from which the sole issue for determination is found to be incompetent, the issue will be rendered incompetent and must be struck out. That, once the sole issue for determination is found to be incompetent and struck out, the entire appeal must be dismissed. The case of UOR v. Loko (1988) 5 SC (Reprint) 22 at 39 was cited in support. We were accordingly urged to uphold the Preliminary Objection and to dismiss the appeal for being incompetent.

Learned Counsel for the Appellant submitted that, the sole issue raised for determination relates to and encompasses all the grounds of appeal. That, a determination of the sole issue will resolve the complaints in the grounds of appeal. That in any cases, parties have been enjoined to avoid proliferation of issues.

The law is that issues for determination in an appeal must emanate only from competent grounds of appeal. As a corollary to that, an Appellant is permitted to distill an issue from more than one ground of appeal. However, where an Appellant decides to formulate an issue from more than one ground of appeal, he must ensure that all the grounds from which the

issue is distilled, are competent. This is so, because, it is the law that where an issue is distilled from both competent and incompetent grounds of appeal, such issue would be incompetent and liable to be struck out. The Courts consider that it is not the duty of the Court to embark upon the business of sieving and separating the arguments on the competent grounds from the arguments in respect of the incompetent grounds in order to reach a decision. In such circumstance, the said issue would be declared incompetent and struck out. See Aribo v. CBN & Anor (2011) 12 NWLR (pt.1260) 133; Umanah v. NDIC (2016) 14 NWLR (pt.1533) 458; Njemanze v. Njemanze (2013) LPELR – 19885 (SC) and Mobil Oil Producing (Nig.) Unlimited v. Johnson & Ors (2018) LPELR – 44359 (SC).
In the instant appeal, only one issue was distilled for determination. The said issue is said to be formulated from Grounds 1, 2, 3 and 5. It would be noted that Grounds 2 and 5 have been found to be incompetent and consequently struck out. It means therefore, that the sole issue formulated for determination in this appeal, has been distilled from both competent (Grounds 1 and 3)

and incompetent Grounds (Grounds 2 and 5). That has therefore rendered the sole issue formulated for determination, incompetent. It is accordingly struck out. The sole issue having been struck out; it means that there is no more issue to be determined in this appeal. That means that the Preliminary Objection has succeeded and it is accordingly upheld.
Having found in favour of the Preliminary Objection, there is nothing more for me to determine in this appeal. The only order I shall make in the circumstances is to strike out the appeal for being incompetent. See Panalpina World Transport (Nig.) v. J. B. Olandeen Int. & Ors (2010) 19 NWLR (pt.1226) 1. Appeal is accordingly struck out.

I award cost of fifty thousand naira (N50,000.00) against the Appellant in favour of the Respondents jointly and severally.

JIMI OLUKAYODE BADA, J.C.A.: I had the advantage of reading before now the draft of the Judgment of my learned brother HARUNA SIMON TSAMMANI, JCA just delivered and I agree with the reasons given as well as the conclusion that the Preliminary Objection succeeds.

I am also of the view that the appeal is incompetent

and it is struck out by me.
I abide by the consequential orders made in the said lead Judgment.

FOLASADE AYODEJI OJO, J.C.A.: I have read before now, the lead judgment just delivered by my learned brother HARUNA SIMON TSAMMANI, JCA. I agree that the objection has merit and should be sustained.

In the instant appeal, the sole issue formulated by the Appellant is derived from both competent and incompetent grounds of appeal. It is settled law that an issue for determination derives its support from a competent ground of appeal. Any issue formulated from an incompetent ground goes to no issue and should be struck out. See AGBAKA VS. AMADI (1998) 11 NWLR (PT. 572) 16: THOR LIMITED VS. FIRST CITY MERCHANT BANK LTD (2002) 4 NWLR (PT. 757) 427; OKWUAGBALA VS. IKWUEME (2010) 19 NWLR (PT. 1226) 54. The sole issue formulated by the Appellant has its root in an incompetent ground of appeal. I agree with my learned brother that it should be struck out. There is therefore no issue for determination in this appeal. The consequence is an order striking it out. I also strike out this appeal.

I abide by consequential Order as to

cost.

Appearances:

Adekunle Sobaloju, Esq. For Appellant(s)

O. Akintunde, Esq., with him, K. O. Salaudeen, Esq. For Respondent(s)