SAM & ORS v. AKPAN & ORS
(2020)LCN/15236(CA)
In The Court Of Appeal
(CALABAR JUDICIAL DIVISION)
On Thursday, April 16, 2020
CA/C/252/2018(R)
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
Philomena Mbua Ekpe Justice of the Court of Appeal
Hamma Akawu Barka Justice of the Court of Appeal
Between
CHIEF COMOS EDET SAM & ORS APPELANT(S)
And
CHIEF BASSEY EDEM AKPAN & ORS RESPONDENT(S)
RATIO
WHETHER ISSUE FOR DETERMINATION ARISES FROM THE GROUNDS OF APPEAL
This is because an issue for determination in an appeal is a substantial question of law or of the fact or both arising from the grounds of appeal filed in the appeal which, when resolved one way or the other, will affect the result of the appeal.
See Admin Gen; Delta State vs. Ogogo (2006) 2 NWLR (pt. 964) 366 CA. PER OWOADE, J.C.A.
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): By a Motion on Notice dated and filed on 21st January, 2020, the Respondents/Applicants in this appeal prayed the Court for:
a. An order striking out the Appellant issue No.2 as raised on pages 5 and 9 of their brief of argument for being incompetent; and
b. An order striking out the Appellant Reply brief for not being a reply brief within the purview of the Rules of Court.
The grounds for the application as contained in the body of the motion on notice of 21st January, 2020 are as follows:
1. Issue for determination, must be distilled from, or be predicated upon the grounds of appeal filed. The Appellants’ issue No. 2, which is expressed on record to emanate “from Ground II of the Notice of Appeal“, is completely at variance with and derogates the said grounds;
2. By Order 19 Rule 5(1) of the extant Rules of this Court, a Reply Brief is not a sine qua non: it is filed only to deal with “new points” raised in the Respondents’ Brief. It is not meant to be a supplementary or additional Brief of Argument wherein the Appellants repeat, rehash, embellish, add to or make up for a deficiency in the argument they had already proffered in their original Brief; and
3. The Respondents’ Brief of Argument on record raises no “new points” to justify the Appellants’ Reply Brief. The Appellants’ Reply Brief, stricto sensu is not a reply brief as envisaged by law, but a supplemental Brief of Argument contrary to law.
The Respondents/Applicants Motion of Notice is supported by an affidavit of four (4) paragraphs sworn to by one Eteidung Emmanuel Basey Udoekong, male, Nigerian, village head of Ifa Ikot Idang village
The Applicants/Respondent reacted by a counter affidavit of seven (7) paragraphs deposed to by Eteidung Maurice Asuquo Ibanga the certified village head of Ifa Ikot Idang village, Etoi, Uyo Local Government Area, Akwa Ibom State.
Written addresses were ordered and filed.
In his written Address in support of the application filed on 11th February, 2020, the Respondents/Applicants raised two (2) questions for the determination of the application.
a. Is the Appellants issue No. 2 predicated upon ground II of the “Notice of Appeal” as they claim or any other ground for that matter.
b. Is the Appellant’s Reply Brief an abuse of the Court’s process?
On question (a), Respondent’s/Applicant’s counsel submitted that Appellants’ issue No. 2 which is expressed on record to derive from Ground II of the Notice of Appeal is completely at variance with and derogates the said ground.
That the Appellants Ground II can be found in their Notice of Appeal at page 175 of the Record. It unambiguously complains about the Court below “refusing to evaluate evidence of the witnesses…“ yet, their issue 2 diametrically questions whether the Respondents’ “have on the evidence before the trial Court prove (sic) their case…“
He submitted that an appeal is determined upon a resolution of the issues for determination as raised by the parties in the Court. These issues, as a matter of law, must be predicated upon the grounds of appeal filed.
He referred to the cases of Ogunsola vs. NICON (2010) 187 LRCN 72, WACHUKWU VS. OWUNWANNE (2011) 197 LRCN 33, NWANA VS. FCDA (2007) 147 LRCN 1015, IBATOR VS. BARAKURO (2007) 153 LRCN 138.
He reasoned that where as in this appeal, the question for determination does not arise from the ground of appeal filed, it and all the submission or argument made there under become incompetent and are liable to be struck out.
He referred to the cases of NSIRIM VS. AMADI (2016) 253 LRCN 115, IKPEAZU VS. OTTI & ORS. (2016) 254 LRCN 1, JOHN VS. STATE (2016) 257 LRCN 145, MOMODU VS. MOMOH (1991) 1 NWLR (pt. 169) 608, NTEOGWUILE VS. OTUO (2001) 88 LRCN 2357, CHIME VS. CHIME (2001) 3 NWLR (pt. 701) 527, AKINTOLA VS. BALOGUN (2000) NWLR (pt. 642) 532.
He urged on this Court to strike out Appellants issue No. 2 and Ground II as a ground of appeal from which no question is distilled or upon which no argument is canvassed is deemed abandoned.
He referred to the cases of IYOHO VS. EFFIONG & ORS. (2007) 147 LRCN 994, ARO VS. ARO (2000) 3 NWLR (pt. 645) 443, IKPOKU VS. IKPUKU (1991) 5 NWLR (pt.193) 571, AIGHOBAHI VS. AIFUWA (2006) 136 LRCN 1021.
On question (b) as formulated by the Respondent’s/Applicants, he submitted that by Order 19 Rule 5(1) of the extant Rules of this Court a reply brief is not a sine qua non. It is filed only to deal with “new points” if these were raised in the Respondents brief. It is not meant to be an additional or a supplemental brief of argument wherein the Appellants repeat, rehash or embellish the argument which they had already proffered in their original brief.
He referred to the cases of OKWU VS. UMEH (2016) 252 LRCN 131, EZEUKO VS. STATE (2016) 253 LRCN 1 at 45.
He submitted that in the appeal at hand, the Respondent’s brief of argument raises no new points to warrant a reply brief in response, rather it addresses one-to-one the points which the Appellants have canvassed in their original brief. Second, according to the learned counsel for the Respondent/Applicants, the Applicant’s Reply Brief is nothing but a repetition or a make-over of their brief of Argument.
He urged us to hold that the Appellant’s Reply brief is an abuse of Court process.
The Appellants/Respondents on the other hand submitted that their issue 2 properly derived from their Ground 2 of the Notice and grounds of Appeal and that apart from the fact that their Appellant’s Reply truly addressed new points raised in the Respondent’s Brief of Argument. It could never have constituted abuse of process.
Ground 2 of the Appellant’s grounds and Notice of Appeal together with its particulars read thus:
GROUND 2
The Learned Trial Judge erred in Law in refusing to evaluate evidence of the witnesses before the Court particularly, the evidence of DW1 and DW2.
PARTICULARS OF ERROR:
(a) The learned trial judge erred in Law when he refused to evaluate the evidence of the witnesses that testified in Court but went ahead and make findings that resulted in miscarriage of justice.
(b) The evidence of DW1 on how he was selected by the three (3) families out of four (4) families in Ifa Ikot Idang village, after the death and burial of the previous village head and how he was presented by the people of Ifa Ikot Idang village to Etoi Clan Council of Chiefs and finally his presentation to Uyo Traditional Rulers Council for recommendation to the Commissioner for Local Government and Chieftaincy Affairs for an onward recommendation to Governor of the State was ignored by the Court in his judgment.
(c) The evidence of Dw2 who testified that the DW1, the 2nd Appellant was duly selected by the Ekpuk Heads in Ifa Ikot Idang Village and that the 2nd Appellant is from a Royal family in Ifa Ikot Idang family was ignored by the Court in his judgment.
Appellant’s issue 2 in the Appellant’s Brief of Argument which was said to derive from the said Ground 2 on page 5 of the Appellant’s Brief of Argument reads thus:
(ii) Whether the Plaintiffs/Respondent have on the evidence before the trial Court prove their case on a balance of probability or on a preponderance of evidence to have warranted the trial Court granting all the reliefs sought in the favour of the Plaintiffs/Respondents from Ground II of the Notice of Appeal.”
In the instant case, it could be said that the Appellant’s issue 2 was inelegantly drafted in relation to the context of Ground 2 of the Appellant’s Notice and ground of Appeal. Clearly however, the Respondents/Appellants could not be said to be misled that the Appellants complain of evaluation of evidence leads to the question of whether or not the Respondents in fact proved their case in the Court below:
See Oloruntoba-Oju vs. Abdullraheem (2009) 13 NWLR (pt. 1157) 83.
Relatedly, as issue 2 of the Appellant’s Brief of Argument is formulated from Ground 2 of the Notice and Grounds of Appeal, Ground 2 of the said Notice of Appeal could not be said to have been abandoned.
This is because an issue for determination in an appeal is a substantial question of law or of the fact or both arising from the grounds of appeal filed in the appeal which, when resolved one way or the other, will affect the result of the appeal.
See Admin Gen; Delta State vs. Ogogo (2006) 2 NWLR (pt. 964) 366 CA.
On Respondents/Applicants question (b) on the competence of the Appellant’s Reply Brief of Argument, Learned Counsel for the Appellant has demonstrated that the Reply Brief was indeed a reaction to paragraph 16 at page 5 of the Respondent’s Brief of Argument to wit.
“16. With due respect, Learned Counsel submissions miss the import of the Traditional Rulers Law Cap. 134 Laws of Akwa Ibom State especially Section 9 thereof. My Lords, we have read the said legislation in extenso. It consists of 55 Sections: none – and we mean none – provides a bar to access to Court pending the fulfillment of a “condition precedent“. No such provision, we say is made in Section 9 or any other section of the Traditional rules Law, supra, the wording of which is plain clear and simple.”
Learned counsel for the Appellants submitted that it was based on this new issue raised by the Respondents that a Reply Brief was filed to direct this Honourable Court properly on those sections of the Law that deal with chieftaincy matter in Akwa Ibom State.
I have no doubt in my mind that the learned counsel for the Appellants has furnished adequate answers to the two questions raised by the Respondents/Applicants, either as to the alleged incompetence of Appellant’s issue 2 and Ground 2 of the Appellant’s Notice and Grounds of Appeal or even the alleged incompetence of the Appellant’s Reply Brief. In relation to both questions raised by the Respondents/Applicants I must add perhaps in a fundamental sense that the Courts are rather reluctant to shut out parties from litigating or having free and full access to present their cases consequent on the context of fair hearing which to my mind supercedes any undue technicalities or even rules of Court.
For these reasons, I find issue 2 of the Appellant’s Brief of Argument as competently deriving from ground 2 of the Appellants Notice and grounds of Appeal.
I also find that the Appellant’s Reply Brief is competent and ought not to be discountenanced.
The prayers in the Respondents/Applicants Motion on Notice of 21st January, 2020 are refused. The Respondents/Applicants Motion on Notice of 21st January, 2020 is accordingly dismissed.
N10,000 costs is awarded in favour of the Appellants.
PHILOMENA MBUA EKPE, J.C.A.: I had the opportunity of reading in draft the Ruling just delivered by my learned brother, MOJEED ADEKUNLE OWOADE, JCA.
I am in total agreement with the reasoning and conclusions arrived thereat. I too agree that the Appellant’s brief of argument ought to be discountenanced. The Respondent’s motion of notice of the 21st January, 2013 is accordingly dismissed.
HAMMA AKAWU BARKA, J.C.A.: The ruling just delivered by my lord MOJEED ADEKUNLE OWOADE, JCA was made available to me before now.
I agree with the reasoning and conclusion reached to the effect that the application lacks merit, and accordingly dismissed.
I abide on all orders made as to costs.
Appearances:
VICTOR U. ESSIEN Esq. For Appellant(s)
EMMS EKOGSON Esq. For Respondent(s)
