ALH. JIBRIN BALA ALHASSAN v. FEDERAL GOVERNMENT OF NIGERIA & ORS
(2010)LCN/4009(CA)
In The Court of Appeal of Nigeria
On Monday, the 18th day of October, 2010
CA/A/308/M/08
RATIO
ISSUES FOR DETERMINATION: WHETHER AN APPEAL IS ARGUED ON THE BASIS OF THE ISSUES FORMULATED FROM GROUNDS OF APPEAL.
The law is settled that appeals in this court are argued on the basis of the issues formulated from grounds of appeal. In SEKONI v. UTC (NIG) PLC (2006) 8 NWLR (Pt.982) 283 at 298 paragraphs B-G, My Lord, Salami, JCA (as he then was) faced with the same situation had this to say:- “Furthermore, the Appellant, having formally framed two issues for determination as set out above, abandoned them and went ahead to argue the appeal under three separate headings contrary to the hallowed principle that it is the issue that are argued and not the grounds of appeal. But in the instant case, neither issues nor grounds of appeal were argued. The divisions under which the appeal was argued are (a) breach of condition of service (b) entitlement to the reliefs claimed (c) damages to include damages for mental distress, pain and suffering, The practice or procedure adopted by the learned senior counsel is novel. It is rather strange. Neither the current procedure whereby counsel are required, in their respective briefs to canvass and tender argument in support of issue driving from grounds of appeal nor erstwhile practice of arguing the grounds of appeal is followed. It is not permissible to canvass and tender argument by tripling the two issues. Having divided into three, the alleged two issues formulated and canvassed them separately; it is not possible to consider the appeal properly and fairly. Indeed it is not the business of the Court to perform surgical operation on the argument by sieving argument arising from the three segments and consigning or assigning them to the two issues framed for determination in the Appellant’s brief of argument.” See BEREYIN VS GBOBO (1989) 1 NWLR (PT.97) 372 at 389; KOREDE vs ADEDOKUN (2001) 15 NWLR (Pt.736) 483;NWADIKE VS IBEKWE (1987) 4 NWLR (Pt.67) 718, (1987) 12 SCPER PAUL ADAMU GALINJE, J.C.A.
BRIEF OF ARGUMENT: PURPOSE OF A BRIEF OF ARGUMENT IN AN APPEAL
A brief of argument in an appeal is not an all purpose document. It is only provided for to cater for argument in support of issues formulated from valid grounds of appeal. PER PAUL ADAMU GALINJE, J.C.A.
SUBSTANTIAL ISSUES: WHETHER MOST APPEALS ARE WON ON A FEW COGENT AND SUBSTANTIAL ISSUES
It is well settled that most appeals are won on a few cogent and substantial issues, well framed, researched and presented than on numerous trifling slips. See ILOABUCHI VS EBIGBO (2000) 8 NWLR (PT.668) 197; and EHIKHAMWEN VS ILUOBE (2002) 2 NWLR (PT.750) 151 where the Court also held that the practice of splitting issues is likely to confuse consideration of principal issues with subsidiary issues. PER PAUL ADAMU GALINJE, J.C.A.
BRIEF OF ARGUMENT: EFFECT OF AN ARGUMENT NOT PRESENTED IN SUPPORT OF ISSUES DERIVING FROM COMPETENT GROUNDS OF APPEAL
…it is settled therefore that where argument is not presented in support of issues deriving from competent grounds of appeal, such argument could be ignored and the appeal dismissed. PER PAUL ADAMU GALINJE, J.C.A.
JOINDER OF PARTIES: WHETHER A COURT HAS POWER TO ORDER JOINDER OF A PARTY WHERE IT CONSIDERS THAT SUCH A PERSON OUGHT TO BE A PARTY TO THE PROCEEDINGS
Order 5 Rule 5 (1) of the Federal High Court (Civil Procedure) Rules which was the extant rules at the time the judgment was delivered, empowers the Court on its own motion, to order that a person be added as a party to a suit where it considers that such a person ought to be a party to the proceedings. For the avoidance of doubt, the said rule provides as follows:- “If it appears to the Court, at or before the hearing of a suit, that all the persons who may be entitled to or who claim some share or interest in the subject matter of the suit, or who may be likely to be affected by the result, have not been made parties, the Court, may adjourn the hearing of the suit to a future day to be fixed by the Court, and direct that such Persons shall be made either Plaintiffs or Defendants in the suit, as the case may be.”This rule puts the burden on the court to order the joinder of a part where the joinder of such part will enable the court effectually and completely adjudicate upon and settle all the questions before the Court. See PEENOK INVESTMENT LTD v. HOTEL PRESIDENTIAL LTD (1982) 12 SC 1; OLAGUNJU VS YAHAYA (1998) 3 NWLR (PT.542) 501. In OLUWANIYI v. ADEWUMI (2008) 13 NWLR (Pt.1104) 387 at 477 paragraph A-B this Court, Per Augie, JCA said:-“In the circumstances, the Appellants contention that the lower court should have struck out the application must fail, because contrary to what they would have as believe, this is a simple case of non-joinder, which cannot be the basis for ousting the jurisdiction of a competent Court of law. See ONIBUDO VS ABDULLAHI (supra), where the Court held that the remedy of non-joinder is not ousting the jurisdiction of the Court, which leads to subsequent striking out of the matter, but for the Court to join the necessary party whether as Plaintiff or as Defendant. Thus, the fact that a necessary Party to the action has not been joined will not render the action anullity.”See AYORINDE VS ONI (2000) 3 NWLR (Pt.649) 348; 935. PER PAUL ADAMU GALINJE, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
Between
ALH. JIBRIN BALA ALHASSAN Appellant(s)
AND
1. FEDERAL GOVERNMENT OF NIGERIA
2. ATTORNEY GENERAL OF THE FEDERATION
3. THE ECONOMIC AND FINANCIAL CRIMES COMMISSION (EFCC) Respondent(s)
PAUL ADAMU GALINJE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Federal High Court, Abuja delivered on the 4th of April, 2008.
The Appellant by a motion ex-parte dated 30th August, 2007 sought for leave of the lower court to enforce his fundamental right.
Leave was so granted to him on the 29th of October, 2007 to enforce his rights. By a statement made pursuant to Order 1, Rule 2(3) of the Fundamental Rights (Enforcement Procedure) Rules 1979 and the motion on notice dated 30th October, 2007, the Applicant, by virtue of the leave, sought for the following reliefs:-
“(i) A Declaration that the Indictment of Applicant in February, 2007 for fraud and abuse of office by the Administrative Panel of Inquiry on Alleged Corrupt Practices by some Public Officers and Other Persons set up by the 1st Respondent is unconstitutional, ultra vires and flagrant breach of the Appellant’s Fundamental Rights to fair hearing.
(ii) A Declaration that the Report of the 3rd Respondent alleging Mass looting, corruption and abuse of office against the Applicant, upon which the Administrative Panel of inquiry on Alleged Corrupt Practices by some Public Officers and Other Persons set up by the 1st Respondent based its indictment is unconstitutional and breached the Applicant’s Fundamental Right to fair hearing.
(iii) An Order quashing and or setting aside the indictment/findings against the Applicant and contained at pages 13-14 of the Government White Paper on the Report of the Administrative Panel of inquiry on Alleged Corrupt Practices by some Public Officers and other Persons published in February, 2007 as being unconstitutional, ultra vires, null and void.
(iv) The sum of N10 million (Ten Million Naira) only as compensation and/or exemplary and aggravated damages jointly and severally against the Respondents for unlawful violation of the Applicant’s Fundamental Rights to fair hearing and denial of the Applicant’s right to participate as a gubernatorial candidate in the 2007 General Election.
Respondents entered appearance and variously filed counter affidavits. 3rd Respondent filed a preliminary objection to the hearing of the motion aforesaid. Parties were ordered to file written addresses which were subsequently adopted on the 14th December, 2007. In a reserved and not well considered judgment which was delivered on the 4th April, 2008, Nyako J. dismissed the Appellant’s case on the ground that the Administrative Panel of Inquiry which indicted the Appellant was not joined as a Party.
The Appellant is thoroughly dissatisfied with the decision of the lower court. Being dissatisfied and aggrieved, he has brought this appeal. The notice of appeal, which is at page 238 of the record of this appeal contains three grounds of appeal which I reproduce hereunder without their particulars as follows:-
1. The learned trial court erred in law and thereby occasioned a miscarriage of justice when it held as follows:-
“What is of interest to me at this stage is the Plaintiff seeking to enforce his fundamental right to fair hearing and he has not brought the infractors to Court. He alleges that the Administrative Panel did not give him a fair hearing and he has come to court behind their back without also giving them a fair hearing to defend the allegation.”
2. The learned trial court erred in law and thereby occasioned a grievous miscarriage by interpreting the requirements of the Fundamental Rights Enforcement Procedure Rules or of fair hearing to mean that the Applicant/Appellant ought to join the Administrative Panel of inquiry to this suit.
3. The learned trial court erred in law and thereby came to a wrong conclusion when it dismissed the claims of the Applicant/Appellant solely on the ground of the non joinder of “all necessary parties” as raised by the learned trial court in its judgment.”
In line with the relevant rules of this court, parties filed and exchanged briefs of argument which were variously adopted by learned counsel for the respective parties when the appeal came up for hearing on the 20th of September, 2010.
At page 7 of the Appellant’s brief of argument dated 28th day of July, 2009 and filed on the 29th July, 2009, Mr. Ikwueto, learned senior counsel for the Appellant, who also settled the Appellant’s brief of argument formulated one issue only for the determination of this appeal.
This issue reads as follows:-
“Whether the learned trial court correctly determined the issues before it when it held that the non joinder of the Administrative Panel of Inquiry was fatal to the Appellants case.”
The 1st and 2nd Respondents in their joint brief of argument dated 23d of March, 2010 at page 4 paragraph 3.0 adopted the issue as formulated by the Appellant. The 3rd Respondent also adopted the same issue for determination at page 5 paragraph 3.01(i) of its brief of argument which was filed on the 17th of March, 2010 with modification in its wording.
It reads thus:-
“(i) Whether the learned trial court was right when it held that the failure to join the Administrative Panel of inquiry as a necessary party was fatal to the Appellant’s case.”
The submissions of Mr. Ikwueto, learned senior counsel for the Appellant in this appeal is at pages 7-25 of the Appellant’s Brief of Argument. These submissions are clearly set out under six broad headings, namely:-
I. DUTY OF COURT TO DETERMINE ISSUES SUBMITTED TO IT FOR DETERMINATION
ii. DUTY OF COURT TO ALLOW PARTIES TO ADDRESS IT ON ANY ISSUE RAISED SUO MOTU.
III. EFFECT OF NON-JOINDER OF A PARTY TO AN ACTION
IV. HE WHO DOES A THING THROUGH ANOTHER DOES IT HIMSELF.
V. LEGAL STATUS OF THE REPORT OF THE ADMINISTRATIVE PANEL OF INQUIRY WHICH INDICTED THE APPELLANT
VI. GENERAL POWERS OF THIS COURT TO GRANT THE RELIEFS SOUGHT AT THE COURT BELOW
The only argument that is consistent with the sole issue formulated by the learned senior counsel for the Appellant is the submission under the 3rd heading as enumerated above. The argument in respect of the other headings do not seem to flow from the sole issue so formulated. The law is settled that appeals in this court are argued on the basis of the issues formulated from grounds of appeal.In SEKONI v. UTC (NIG) PLC (2006) 8 NWLR (Pt.982) 283 at 298 paragraphs B-G, My Lord, Salami, JCA (as he then was) faced with the same situation had this to say:-
“Furthermore, the Appellant, having formally framed two issues for determination as set out above, abandoned them and went ahead to argue the appeal under three separate headings contrary to the hallowed principle that it is the issue that are argued and not the grounds of appeal. But in the instant case, neither issues nor grounds of appeal were argued. The divisions under which the appeal was argued are (a) breach of condition of service (b) entitlement to the reliefs claimed (c) damages to include damages for mental distress, pain and suffering, The practice or procedure adopted by the learned senior counsel is novel. It is rather strange.
Neither the current procedure whereby counsel are required, in their respective briefs to canvass and tender argument in support of issue driving from grounds of appeal nor erstwhile practice of arguing the grounds of appeal is followed. It is not permissible to canvass and tender argument by tripling the two issues. Having divided into three, the alleged two issues formulated and canvassed them separately; it is not possible to consider the appeal properly and fairly. Indeed it is not the business of the Court to perform surgical operation on the argument by sieving argument arising from the three segments and consigning or assigning them to the two issues framed for determination in the Appellant’s brief of argument.” See BEREYIN VS GBOBO (1989) 1 NWLR (PT.97) 372 at 389; KOREDE vs ADEDOKUN (2001) 15 NWLR (Pt.736) 483;NWADIKE VS IBEKWE (1987) 4 NWLR (Pt.67) 718, (1987) 12 SC
In the instant Appellant’s brief of argument, the sole issue is divided into six and out of the six divisions, only one is relevant. I must state at this stage without any fear of contradiction, that a brief of argument in an appeal is not an all purpose document. It is only provided for to cater for argument in support of issues formulated from valid grounds of appeal. The three grounds of appeal, which I have reproduced elsewhere in this judgment all complain about error of law on the part of the learned trial judge when he dismissed the Appellant’s suit solely on the ground that the Administrative Panel that indicted the Appellant was not joined as a party. The sole issue formulated from the three grounds of appeal is consistent with the said grounds of appeal. Any argument that does not arise from the issue so formulated goes to no issue. In OMOZEGHIAN v. ADJARHO (2006) 4 NWLR (pt.969) 33 at 57 paragraph E-G, My Lord, Augie, JCA held as follows:-
“I agree with the Respondents that the issues as formulated by the Appellant are more wide-ranging than are necessary in the determination of this appeal. In addition, the Appellant split his issue 2 into (ii) and (iii) which is absolutely unacceptable.
Authorities abound which state that it is clearly unacceptable for an issue to raise in it, other issues. It is well settled that most appeals are won on a few cogent and substantial issues, well framed, researched and presented than on numerous trifling slips. See ILOABUCHI VS EBIGBO (2000) 8 NWLR (PT.668) 197; and EHIKHAMWEN VS ILUOBE (2002) 2 NWLR (PT.750) 151 where the Court also held that the practice of splitting issues is likely to confuse consideration of principal issues with subsidiary issues.”
From the authorities I have considered hereinabove, it is settled therefore that where argument is not presented in support of issues deriving from competent grounds of appeal, such argument could be ignored and the appeal dismissed.
In the instant appeal, I have chosen not to dismiss this appeal, because the incompetent argument under the headings numbers 1,2,4,5 and 6 as enumerated elsewhere in this judgment are easily discernible from the competent argument under heading number three. To that extent, I will ignore all other argument except the one under the 3rd heading which I will consider on its own merit.
On this issue, Mr. Ikwueto, learned senior counsel for the Appellant submitted that the lower court acted in error when it dismissed the Appellants suit for failure to join the Administrative Panel that indicted the Appellant. I agree with the learned senior counsel on this score. Order 5 Rule 5 (1) of the Federal High Court (Civil Procedure) Rules which was the extant rules at the time the judgment was delivered, empowers the Court on its own motion, to order that a person be added as a party to a suit where it considers that such a person ought to be a party to the proceedings. For the avoidance of doubt, the said rule provides as follows:-
“If it appears to the Court, at or before the hearing of a suit, that all the persons who may be entitled to or who claim some share or interest in the subject matter of the suit, or who may be likely to be affected by the result, have not been made parties, the Court, may adjourn the hearing of the suit to a future day to be fixed by the Court, and direct that such Persons shall be made either Plaintiffs or Defendants in the suit, as the case may be.”This rule puts the burden on the court to order the joinder of a part where the joinder of such part will enable the court effectually and completely adjudicate upon and settle all the questions before the Court. See PEENOK INVESTMENT LTD v. HOTEL PRESIDENTIAL LTD (1982) 12 SC 1; OLAGUNJU VS YAHAYA (1998) 3 NWLR (PT.542) 501. In OLUWANIYI v. ADEWUMI (2008) 13 NWLR (Pt.1104) 387 at 477 paragraph A-B this Court, Per Augie, JCA said:-“In the circumstances, the Appellants contention that the lower court should have struck out the application must fail, because contrary to what they would have as believe, this is a simple case of non-joinder, which cannot be the basis for ousting the jurisdiction of a competent Court of law. See ONIBUDO VS ABDULLAHI (supra), where the Court held that the remedy of non-joinder is not ousting the jurisdiction of the Court, which leads to subsequent striking out of the matter, but for the Court to join the necessary party whether as Plaintiff or as Defendant. Thus, the fact that a necessary Party to the action has not been joined will not render the action anullity.”See AYORINDE VS ONI (2000) 3 NWLR (Pt.649) 348; 935. The argument of Mrs, A.O. Mbamah that the non-joinder of the Administrative Panel of Inquiry is fatal to the Appellant’s case is untenable and it is contrary to the position of law on this issue. So also is the submission of Chief Obla, learned counsel for the 3rd Respondent. This is so because the Supreme Court has effectively sealed this issue with a stamp of authority that is binding on all other Courts in this Country in the case of IYERE VS B.F.F.M LTD (2008) 18 NWLR (Pt.1119) 500 which was cited and relied upon by learned counsel for the Appellant. In that case, the trial court in its judgment found the suit “incompetent ab initio” On ground that the Appellant failed to join the Respondents’ Duty Operator, one D. Agbator as a Defendant.
The trial court, then proceeded to dismiss the suit in its entirety.
The Appellant appealed to this court without success. On a further appeal to the Supreme Court, it was held:-
“The main reason given for refusing the Appellant’s claim was his failure to join the silo operator, Agbator. The reason is totally untenable…… as there is no provision making it mandatory that such person must be joined before an action could be competent; there is therefore totally no basis for such conclusion.
It may be mentioned that both the trial High Court and the Court below relied on the authority of the Court of Appeal decision in IFEANYI CHUKWU (OSONDU) CO, LTD VS SOLEH BONEH (NIG) LTD (1993) 3 NWLR (PT.280) 246 as authority for the stand taken by the two courts in this case, But happily that case went on appeal to this Court as in IFEANYI CHUKWU (OSONDU) CO, LTD VS SOLEH BONEH (NIG) LTD (2000) 5 NWLR (Pt.656) 322 and this Court clearly overruled the principle of law relied on by the Court of Appeal in the case.
The position of the law on the matter as clearly stated by this Court in that case is that no cause or matter shall be defeated by reason of mis-joinder or non-joinder of parties, The failure of the Plaintiff Appellant to join Agbator, the silo operator, in the instant case could therefore not be a ground for dismissing the case.”The Apex Court has spoken clearly; all other knees must bow in obedience. I am therefore bound by the decision of the Supreme Court as cited above.
The power of a trial court to order the joinder of a necessary part is discretionary, and except the lower court proceeded on a wrong principle, an Appellate Court will be must reluctant to interfere with the decision of the trial court as to joinder. See In Re: MOGAJI (1986) 1 NWLR (Pt.19) 759; IGE v FARINDE (1994) 7 NWLR (PT.354) 42.
In the instant case, the lower court proceeded on a wrong principle in dismissing the case for failure to join a party. It is therefore a matter that requires the intervention of this Court. On the basis of the reasons I have articulated in this judgment, the sole issue formulated in this appeal is resolved in favour of the Appellant and the grounds of appeal upon which it is formulated are hereby allowed. The decision of the lower court is hereby set aside. This matter was decided upon a preliminary objection filed by the 3rd Respondent. The case was not heard and dismissed on the merit, I cannot therefore invoke the provision of Section 15 of the Court of Appeal Act 2004 to determine the case. The proper order in my view is to remit this case back to the Hon. Chief Judge of the Federal High Court to be assigned for rehearing before a judge other than Binta J. It is so Ordered. The Appellant is entitled to the cost of this appeal which assess at N30, 000.00
MOHAMMED LAWAL GARBA, J.C.A.: I have read a draft of the Lead Judgment written by my learned brother GALINJE, J.C.A. in this appeal before now. His Lordship has fully considered the germane issue that calls for determination in line with the position the law established in the judicial authorities cited in the lead judgment. The views expressed and the conclusions reached therein are the same with mine and so I join in allowing the appeal in the terms set out in the lead judgment including the consequential order.
JIMI OLUKAYODE BADA, J.C.A.: I read before now the lead Judgment of my Lord, PAUL ADAMU GALINJE, JCA just delivered and I agree with my Lord’s reasoning and conclusion.
The appeal is meritorious and it is allowed by me.
I endorse the consequential orders made in the said lead Judgment.
Appearances
Mr. P.I.N, Ikwueto, SAN with C.I. Mbaeri, Esq., and P.O. Nwankwo.For Appellant
AND
Mr. A.A, Foelong
Mr. Chris Agbiti with T. EjehFor Respondent
