MALIZU V. ASISTANT COP
(2002)LCN/1105(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 13th day of March, 2002
CA/E/145/99
RATIO
WHETHER FRESH POINTS OF LAW OR ISSUES, CAN BE RAISED FOR THE FIRST TIME ON APPEAL WITHOUT THE LEAVE OF COURT
“It is now our law that fresh points of law or issues, cannot be raised for the first time in the Court of Appeal or the Supreme Court, which were not canvassed at the court below, unless with leave of the appellate court. (See the cases of – 1. Atoyebi v. Government of Oyo State (1994) 5 NWLR (Pt.344) 290; (1994) 5 SCNJ 62 at 78; and 2. Honica Sawmill (Nig.) Ltd. v. Hoof (1994) 2 NWLR (Pt.376) 326; (1994) 2 SCNJ 86 at 93. Once again, such issues must be struck out unless leave of the appellate court was obtained.” Per AKPABIO, J.C.A.
WHETHER PARTIES TO AN APPEAL WILL BE ALLOWED TO ARGUE ANY ISSUE NOT COVERED BY A GROUND OF APPEAL
“…And what is more, parties to an appeal will not be allowed to argue any issue not covered by a ground of appeal. (See Oniah & Ors. v. Onyia (1989) 1 NWLR (Pt.99) 514 and Labiyi v. Anretioia & Ors. (1992) 8 NWLR (pt. 258) 139.” Per AKPABIO, J.C.A.
WHETHER ISSUES FOR DETERMINATION FORMULATED IN A BRIEF MUST ARISE FROM A GROUND OF APPEAL
“It is our law that any issue for determination formulated in a brief must arise from one or more of the grounds of appeal filed by the appellant or respondent (where a cross-appeal is filed). If they do not so arise they become irrelevant and must be struck out. See the cases (1) Onifade v. Olayiwola (1990) 7 NWLR (Pt. 161) 130 at 157. (2) Momodu v. Momoh (1991) 1 NWLR (Pt.169) 608 at 620 – 621. (3) Bennet Ifediorah & 4 Others v. Ben Umeh & Ors. (1988) 2 NWLR (Pt.74) 5 at 16. (4) Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718 at 733, and many others.” Per AKPABIO, J.C.A.
WHETHER IT IS THE DUTY OF COUNSEL TO AVOID PROLIFERATION OF ISSUES FOR DETERMINATION
“The third shortcoming by the appellant is proliferation of issues by formulating four issues from three grounds of appeal, a practice that has been decried as not in consonance with orderly presentation of appeal, for which see Adisa v. The State, (1991) 1 NWLR. (Pt. 168) 490, 502; Agu v. Ikewibe, (1991) 3 NWLR (Pt. 180) 385, 401; and Anie v. Uzorka (1993) 8 NWLR (Pt. 309) 1, 16. ” Per OLAGUNJU, J.C.A
JUSTICES
JUSTIN THOMPSON AKPABIO Justice of The Court of Appeal of Nigeria
SULE AREMU OLAGUNJU Justice of The Court of Appeal of Nigeria
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
Between
BLESSING MALIZU Appellant(s)
AND
- ASSISTANT COMMISSIONER OF POLICE (S.I.I..B.) AWKA
2. THE COMMISSIONER OF POLICE ANAMBRA STATE, AWKA
3. THE HON. ATTORNEY-GENERAL, ANAMBRA STATE Respondent(s)
AKPABIO, J.C.A. (Delivering the Leading Judgment): This is an appeal against a ruling of S. M. B. Ibeziako, J. of the High Court of Anambra State of Nigeria, holden at Nnewi in Suit No.HN/MISC.304/96 delivered on the 27th day of February, 1997, wherein he dismissed in its entirety applicant’s application for a prerogative writ of Habeas Corpus and the sum of N2,000,000.00 (Two Million Naira) as damages for her unlawful detention at the S.I.I.B cell Awka, by the respondents or their agents.
The complaint of the applicant, leading to the application for a writ of Habeas Corpus ad Subjiciendum was contained in a 40-paragraph affidavit sworn to by one Mrs. Eunice Malizu, the mother of the applicant, supported by a “Statement pursuant to Order 30 rule 2 (2) and rule 2 (6) (9) and rule 3(1) of the Anambra High Court Rules, 1988.”
The sum total of all the facts in support of the application may be summarised as follows:-
Sometimes about 3/9/95, the applicant, a young secondary school graduate was missing from home. Then on 4/9/95 she was found in the house of one Police Corporal by name Titus Madu at Ihiala by her two brothers by name David and Peter. According to the affidavit, one of the brothers slapped the applicant and took her away, but did nothing to Titus Madu, who they alleged had mesmerized and abducted their sister away. Soon after that the Police Corporal, Titus Madu, died, whereupon the applicant and her two brothers were arrested and detained on suspicion that they were responsible for the death of the said Police Corporal Titus Madu. Following numerous petitions written by applicant’s mother and their counsel, the two brothers of the applicant were charged before a Magistrate’s Court on a two count charge of conspiracy and murder of Titus Madu, but the applicant was neither charged nor produced before any court; rather she has been kept in Police custody since 24/4/96, first at Ihiala Police Station and then at S.I.I.B. Awka since the 2nd May, 1996. That even though the Ihiala Police completed investigation on the applicant, they nevertheless refused to release her but insisted that her two brothers David and Peter should be produced before they could release the applicant. Even after her brothers David and Peter were arrested and charged to court, the Police still held the applicant in custody until her mother Mrs. Eunice Malizu was forced to employ a counsel, Chief H.B. Onyekwelu to apply to the High Court, Nnewi for the prerogative order of Habeas Corpus as already stated above.
After leave was granted by the High Court on an ex parte application, the applicant was granted bail, and duly released, while a date was fixed for the hearing of the application on notice.
In due course the application on notice came up for hearing before Ibeziako, J. Chief Onyekwelu duly moved his application, asking not only for the release of the applicant from detention, but also for the payment of N2,000,000.00 (Two million Naira) as compensation for detention or deprivation of liberty. To his surprise, the application for the payment of two million naira compensation was vigorously opposed by Mr. A. O. Okeke, Assistant Chief Legal Officer who appeared as counsel for all the respondents. Mr. Okeke referred to Decree No.107 of 1993 (Constitution, Suspension & Modification Decree of 1993) Section 1(2), and the schedule thereto, and submitted that Section 32(6) of the 1979 Constitution on which applicant’s counsel had relied on for his N2 million compensation has been suspended by the Decree No.107 of 1993. He pointed out that the injury complained of happened on 24/4/96, while Decree No. 107 of 1993 came into force on 17/4/97. It was therefore submitted that “any provision suspended by the Decree 107 stands suspended.” The court was therefore urged to refuse the claim as the right of the applicant had ceased to exist on the commencement of Decree No. 107 of 1993.
In a brief rejoinder Chief H. B. Onyekwelu for applicant submitted that his application was based on Habeas Corpus and not on Fundamental Rights provision of 1979 Constitution and therefore Decree 107 did not affect the rights of applicant under the Habeas Corpus. He cited the case of Commissioner of Police v. Agbaje (1969) 1 NMLR 176 at 180 in support. The matter was then adjourned to 27/2/97 for a ruling.
On the said 27/2/97, the learned trial Judge, Ibeziako, J. came out with a 9-paged ruling in which he dismissed the application of the applicant in its entirety “because it is in head on collision with Decree No. 107 of 1993.”
The applicant being dissatisfied with the ruling of the High Court has now appealed to this court on three grounds, which without their ‘particulars’ read as follows:-
“(1) Error In Law: The learned trial Judge erred in law by holding that the Constitution (Suspension and Modification) Decree 1993 (Decree No. 107) suspended the constitutional right of every Nigerian as provided under S.32 of the Constitution of the Federal Republic of Nigeria 1979.
(2) Error In Law: The learned trial Judge erred in law in holding that the writ of habeas corpus ad subjiciendum was unavailing to the appellant.
(3) Error In Law: The learned trial Judge erred in law by ignoring the provisions of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, to which Nigeria is a signatory and adopted.”
From the above three grounds, four issues for determination were formulated as follows:-
“Issues for Determination
1. Whether Nigeria being a signatory and adopting. The African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, is not bound by it?.
2. Whether the said African Charter is not superior to and overrides the domestic laws of any member nation where any domestic laws are in conflict with the Charter aforesaid?.
3. Whether the 1st and 2nd respondents in the circumstances of the suit on appeal, were Federal Agencies within the scope of section 230(1)(q)(r) (s) of Decree No. 107 of 1993?.
4. Whether the appellant is entitled to damages on the facts and circumstances of the case?.”
I should perhaps state at this juncture that although the respondents were duly served with the notice and grounds of appeal, the appeal records, as well as the appellant’s brief of arguments, none of them filed any respondent’s brief of arguments nor did they send any counsel to represent them. This appeal was therefore argued on appellant’s brief alone, for failure of respondents’ briefs.
I have carefully examined all the issues formulated by the appellant’s counsel above and find that none of the issues formulated in this appeal can be entertained. In the first place, issues 3 and 4 did not arise from any of the grounds of appeal filed by the appellant. It is our law that any issue for determination formulated in a brief must arise from one or more of the grounds of appeal filed by the appellant or respondent (where a cross-appeal is filed). If they do not so arise they become irrelevant and must be struck out. See the cases –
(1) Onifade v. Olayiwola (1990) 7 NWLR (Pt. 161) 130 at 157.
(2) Momodu v. Momoh (1991) 1 NWLR (Pt.169) 608 at 620 – 621.
(3) Bennet Ifediorah & 4 Others v. Ben Umeh & Ors. (1988) 2 NWLR (Pt.74) 5 at 16.
(4) Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718 at 733, and many others.
And what is more, parties to an appeal will not be allowed to argue any issue not covered by a ground of appeal. (See Oniah & Ors. v. Onyia (1989) 1 NWLR (Pt.99) 514 and Labiyi v. Anretioia & Ors. (1992) 8 NWLR (pt. 258) 139. In view of the foregoing reasons, issues 3 and 4 in appellant’s brief are hereby struck out.
As for issues No.1 and 2, although complaints about the learned trial Judge ignoring the provisions of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act was made under ground 3 of the grounds of appeal, however the question of whether the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act was violated or not, and whether Nigeria was a signatory to such an act or adopted same or not, was never raised nor canvassed before the learned trial Judge, so as to give him an opportunity to rule or pronounce on it. It is now being raised in this court for the first time. It is no where found in the entire record of proceedings.
It is now our law that fresh points of law or issues, cannot be raised for the first time in the Court of Appeal or the Supreme Court, which were not canvassed at the court below, unless with leave of the appellate court. (See the cases of –
1. Atoyebi v. Government of Oyo State (1994) 5 NWLR (Pt.344) 290; (1994) 5 SCNJ 62 at 78; and
2. Honica Sawmill (Nig.) Ltd. v. Hoof (1994) 2 NWLR (Pt.376) 326; (1994) 2 SCNJ 86 at 93.
Once again, such issues must be struck out unless leave of the appellate court was obtained. Since no leave of this court was obtained before raising issues 1 and 2 in appellant’s brief, they must also be struck out. That should leave us with no issue for determination in this appeal. And when that occurs the whole appeal must be struck out as incompetent. (See Omagbemi v. Guinness (Nig.) Ltd. (1995) 2 NWLR (Pt. 371) 258 at 266 and 268.
However, before striking out this appeal, I have to observe that before the determination of the Habeas Corpus proceedings at the court below, the learned trial Judge had granted bail to the applicant in the sum of N50,000.00 and two sureties in like sum, and she was so released. However after dismissing her application, nothing was said about whether the bail was revoked or she was still to continue on that bail. It is now my respectful view that since none of the respondents had filed any counter-affidavit to contradict any of the averments in appellant’s affidavit or that a charge or information had then been filed against her in any court, the applicant’s affidavit stood unchallenged and she should therefore have been released unconditionally at that stage. Acting therefore by virtue of the general powers conferred on this court by Section 16 of our Court of Appeal Act, 1976, to do what the trial court should have done, it is hereby ordered that the applicant/appellant be released unconditionally from any custody she may happen to be in (whether Police or Prison Custody) forthwith.
Subject to the above order, the appeal of the appellant is declared to be incompetent for faulty formulation of issues, and is hereby struck out with no order as to costs.
OLAGUNJU, J.C.A.: The judgment just delivered by my learned brother, Akpabio, JCA, was made available to me in draft and I agree with his conclusion and reasoning that this appeal is incompetent, regrettably because of the ineptitude of the learned counsel for the appellant who, judging from the slipshod mistakes that abort the appeal, does not know how many beans make five.
On the point of correction, let me say as a preliminary point that contrary to the position maintained at the trial court, the Constitution (Suspension and Modification) Decree No. 107 of 1993, which in the First Schedule thereto suspended sub-section 32 (6) of the Constitution of the Federal Republic of Nigeria, 1979, on the breach of which the appellant’s action was founded came into force on 17/11/93 and not on 17/4/97 as erroneously stated. See Federal Republic of Nigeria Official Gazette No. 29, Vol.80 of 17/11/93. But that is beside the point as this appeal turned on preliminary matters that become decisive making it unnecessary to wade into the issue of whether the arrest and detention of the appellant by the respondents was actionable under sub-rule 32 (6) of the 1979 Constitution as violation of her constitutional right to personal liberty.
On the matter at hand, firstly, the question of whether Nigeria as a signatory to the African Charter on Human and Peoples’ Rights is not bound by the Charter and whether the Charter does not override the domestic law of this country where the two are in conflict purportedly formulated from ground of appeal 3 – were not canvassed at the trial in the court below. Therefore, issues 1 and 2 are fresh issues that can be raised on appeal only with leave of this court. No leave was obtained by the appellant to raise the issues; they are, ipso facto, incompetent. See Din v. Attorney-General of the Federation (1988) 4 NWLR (Pt. 87) 147, 183; Adamu v. Ikharo (1988)4 NWLR. (Pt. 89) 474, 491; Attorney-General of Oyo State v. Fairlakes Hotel Ltd., (1988) 5 NWLR (Pt. 92) 1, 48 – 49; Okenwa v. Military Governor of Imo State (1996) 6 NWLR (Pt.455) 394; (1996) 6 SCNJ. 221, 232-233; and Koya v. UBA Ltd., (1997) 1 SCNJ 1, 22; (1997) 1 NWLR (Pt.481) 251.
The second point is not any less grievous. Issues 3 and 4 formulated for determination do not arise from any of the three grounds of appeal filed in the notice of appeal. This offends against the principle that issue for determination must arise from a ground of appeal or from a combination of grounds of appeal. Consequently, an issue framed from or argument canvassed on a point not arising from a ground of appeal is worthless for the purpose of deliberations on the appeal and must, therefore, be disregarded. See Musa v. Ehidiahen (1994) 3 NWLR (Pt. 334) 544, 560 – 561; Oduntan v. General Oil Ltd. (1995) 4 NWLR (Pt. 387) 1; and Anigala v. Abeh (1999) 7 NWLR (Pt. 611) 454. Accordingly, issues 1 and 2 in the appellant’s brief of argument not arising from any of the complaints against the judgment of the trial court formulated as grounds of appeal they are, therefore, a splinter of complaints extrinsic to the decision on appeal which must be ignored.
The third shortcoming by the appellant is proliferation of issues by formulating four issues from three grounds of appeal, a practice that has been decried as not in consonance with orderly presentation of appeal, for which see Adisa v. The State, (1991) 1 NWLR. (Pt. 168) 490, 502; Agu v. Ikewibe, (1991) 3 NWLR (Pt. 180) 385, 401; and Anie v. Uzorka (1993) 8 NWLR (Pt. 309) 1, 16. In any case, in view of the fundamental nature of the two earlier errors this particular mistake pales into a mild one.
In the result, the desultory presentation of the appeal is sheer quibbling betraying that learned counsel for the appellant is completely at sea with the fundamentals of preparing an appeal, in particular with framing grounds of appeal and harmonizing the grounds with the issues for determination, so much that it is evident that he cannot see the wood from the trees.
The whole appeal is one relay of misadventure in which learned counsel for the appellant is unable to muster up and assemble materials to challenge a decision that is not defended by the respondents. It is the height of legal amateurishness that paints a poor image of the legal profession as one uncharted field of guesswork that thrives on trial and error. It is outrageous to say the least.
The upshot of the appeal in which there is no rhyme between the grounds of appeal and the issues formulated from them and in which the fresh issues raised did not see a prior sanction is a charade that rendered the appeal incompetent and regrettably leaves the appellant high and dry. The leading judgment has come to the ineluctable conclusion that the appeal is incompetent. I agree with the conclusion and I also so declare. Similarly, I strike out the appeal. I adopt the order in the leading judgment that if the appellant has not been released from custody, whether police or prison, she should be released immediately.
Appeal is struck out with the order releasing the appellant from custody.
M.D. MUHAMMAD, J.C.A.: I agree.
Appeal struck out.
Appearances
Chief H.B. OnyekweluFor Appellant
AND
Respondents absent and unrepresentedFor Respondent
