VALUCARD NIGERIA PLC v. REGISTRAR TRADEMARKS & ANOR (2012)

VALUCARD NIGERIA PLC v. REGISTRAR TRADEMARKS & ANOR

(2012)LCN/5458(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 13th day of June, 2012

CA/A/17/2011

RATIO

APPEAL: BASIS OF A GROUND OF APPEAL

“It is trite law that a ground of appeal must relate to the decision or Judgment appealed against and should be a challenge to or against the validity of its ratio decidendi. Therefore a ground of appeal will not be competent if it is not related to or connected with the controversy between the parties in any particular case. In the case of:- -Oloruntoba-Oju vs. Abdul Raheem 2009 13 NWLR Part 1157 Page 83 at 121 Paragraphs B-C Adekeye JSC stated thus:- “An appeal is a challenge against the Judgment of a trial Court and it is never predicated on what a Court has not decided in its Judgment or Ruling. Therefore a ground of appeal must arise from the live issues at the trial and not any hypothetical assumption by the applicant. In other words a ground of appeal must relate to the decision and should be a challenge to the validity of the ratio of the decision appealed against.” See also the following cases:- -Government of Akwa Ibom State vs. Powercom Nig. Ltd (2004) 6 NWLR Part 868 Page 202; -Triana Ltd vs. U.T.B. Plc (2009) 12 NWLR Part 1155 Page 313 at 329 Paragraphs D-F; -Karibu vs. Ibrahim (2004) 2 NWLR Part 857 Page 326.” Per BADA, J.C.A.

APPEAL: GROUND OF APPEAL: AN INCOMPETENT GROUND OF APPEAL THAT CANT STAND ALONE WILL LEAD TO ITS PARTICULARS AND ISSUES BEING INCOMPETENT

“It is also the position of the law that where a ground of appeal cannot stand as a result of its incompetence, its particulars and any issue formulated on it in the brief of argument are also incompetent and must fail.” Per BADA, J.C.A.

APPEAL: PRE CONDITIONS THAT MUST BE MET BEFORE AN APPELLATE COURT CAN ENTERTAIN AN APPEAL

“The Supreme Court, in the case of C.C.B. Plc. V. Ekperi (2007) 3 NWLR (Pt. 1022) 493 at 511 paras A-B per Tobi, J.S.C. observed thus:- “Grievance and dissatisfaction with, the judgment of a court is articulated and conveyed to an appellate court in ground or grounds of appeal. In other words, grounds of appeal are indexes of an appellant’s complaints against the judgment of a court. Accordingly, where there are no grounds of appeal, or there are no properly formulated grounds of appeal, an appellate court will conclude that there is no appeal before it, because one of the vital pre-conditions that must be met before an appellate court could entertain the appeal, as required by law, is missing. [Madukolu v. Nkemdilim (1962) 2 SCNLR 341 pages 511, paras. A-B; 513, Para. H.” Per MUKHTAR, J.C.A.

JURISDICTION: WHEN CAN THE ISSUE OF JURISDICTION BE RAISED?

“A careful examination of the said Ground 1 of the Notice of Appeal set out earlier in this Ruling would reveal that the said ground 1 borders on the issue of Jurisdiction of the trial Court which can be raised at anytime even for the first time on appeal. See the following cases:- Ali vs. Albeshin (Supra); Gaji vs. Paye (Supra). It is my view that the said Ground 1 of the Appellant’s Notice of Appeal being a complaint on the Jurisdiction of the trial Court, it does not matter whether or not the issue was raised before the trial Court or arose from the decision of the trial Court as the issue of Jurisdiction can be raised even for the first time on appeal without the leave of Court. In Gaji vs. Paye (Supra) Edozien JSC at Page 599-600 Paragraphs H-B held thus:- “But where the point or issue sought to be raised relates to the issue of Jurisdiction, the point or issue can properly be filed and argued with or without the leave of the Court even if it is being raised for the first time.” See also the case of:- Elugbe vs. Omokhafe (2004) 18 NWLR Part 905 Page 319.” Per BADA, J.C.A.

JUSTICES

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria

REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria

Between

VALUCARD NIG. PLC – Appellant(s)

AND

(1) REGISTRAR TRADEMARKS

(2) INTERSWITCH NIGERIA LIMITED – Respondent(s)

JIMI OLUKAYODE BADA, J.C.A. (Delivering the Lead Ruling): This is an application filed on the 1st day of March, 2012 in which the 2nd Respondent/Applicant prayed for the following Orders:-

“An Order of this Honourable Court striking out Ground 1 of the Appellant/Respondent’s Notice of Appeal dated and filed on 15th day of December, 2010 for being defective and incompetent.”

The Ground for the application is that the complaint in Ground 1 of the said Appellant/Respondent’s Notice of Appeal did not arise from the Ruling of the Lower Court dated 10th day of December, 2010, and therefore cannot be said to disclose any reasonable ground of appeal, consequently the said Ground 1 is incompetent.

The application is supported by an affidavit of 8 paragraphs pertinent paragraphs of which are 3 to 7, reproduced as follows:-

“(3) That we have filed a Notice of Preliminary Objection dated 9th of March, 2011 challenging Ground 1 of the Appellant/Respondent’s Notice of Appeal dated and filed on 15th day of December, 2010 for being incompetent. The said Preliminary Objection was argued in the 2nd Respondent/Applicant’s Brief of Argument dated 9th of March, 2011 and filed on the 15th of March, 2011.

(4) That the present Motion on Notice became necessary in the light of recent authorities coming to our knowledge.

(5) That I have seen the Ruling of the Court below dated 10th day of December, 2010.

(6) That I have also seen the Notice of Appeal filed by the Appellant/Respondent in this Appeal and I verily believe that Ground 1 of the Appellant/Respondent’s Notice of Appeal dated and filed on 15th day of December, 2010 is incompetent for the reasons stated on the 2nd Respondent/Applicant’s Motion paper.

(7) That it is in the interest of justice that the Ground identified above be accordingly struck out for being in flagrant violation of the law and Rules of this Honourable Court.”

In opposition to the Application, the learned Counsel for the Appellant/Respondent filed a Counter Affidavit of 10 paragraphs, pertinent paragraphs of which are 2 to 6 and 9 reproduced as follows:-

(2) That the 2nd Respondent/Applicant filed a Notice of Preliminary Objection dated 9.3.2011 challenging the competence of Ground 1 of the Notice of Appeal.

(3) That the 2nd Respondent argued the said Notice of Preliminary Objection in its 2nd Respondent’s Brief of Argument dated 9.3.2011.

(4) That the Appellant/Respondent responded to the Notice of Preliminary Objection by filing a Reply Brief thereof dated 29.3.2011.

(5) That the Appellant/Respondent’s Reply to the Notice of Preliminary Objection was argued alongside its Reply on points of law to the 2nd Respondent’s substantive Brief of Argument.

(6) That contrary to the averment as contained in paragraphs 6 and 7 of the Affidavit in support of the 2nd Respondent’s Motion on Notice dated 1.3.2012, I state that Ground 1 of the Notice of Appeal borders on issues relating to jurisdiction of the Court.

(9) That Ground 1 of the Notice of Appeal arose from the Ruling of the trial Court.”

At the hearing, learned Counsel for the 2nd Respondent/Applicant referred to prayer 1 of the application and the ground relied upon. He submitted that the said ground does not arise from the Ruling of the lower Court and that once that is the position then ground and the issue formulated thereon should be struck out.

He relied on the following cases:-

Oloruntoba-Oju vs. Abdulrahman (2009) 13 NWLR Part 1157 Page 3 at Page 121 Paragraphs B-C;

Chukwu vs State (2007) 13 NWLR Part 1052 Page 430 at 447 Paragraphs D-G;

Odukwe vs. Ofomata (2010) 18 NWLR Part 1225 Page 404 at 423 Paragraphs E-G.

In his response the learned Counsel for the Appellant/Respondent referred to counter affidavit filed on 23/3/2012.

He submitted that the question to be asked is – Whether ground 1 of the Appellant’s Notice of Appeal which he said is on jurisdiction could be raised.

He referred to the following cases:-

-Ali vs. Albeshin (2008) 3 NWLR Part 1073 Page 94 at 134

-Gaji vs. Baya (2003) 8 NWLR Part 823 Page 583.

He urged that the application should be dismissed.

The Counsel for the 1st Respondent did not object to the application. He stated that the Appellant commenced the action at the lower Court and that he is now attacking it by issue of Jurisdiction.

He argued that the issue of Jurisdiction is a new one to which leave of Court ought to have been sought and granted before being raised.

He referred to the following cases:-

-Ajomale vs. Yaduat No. 1 (1991) 5 SCNJ Page 172;

-Babalola vs. Obaoku-Oti (2005) 1 NWLR Part 927 Page 386 at 402.

This application is for an order to strike out Ground 1 of the Appellant/Respondent’s Notice of Appeal dated and filed on 15th day of December, 2010 for being defective and incompetent.

The complaint is that the said Ground 1 of the Notice of Appeal did not arise from the Ruling of the lower Court dated 10th day of December, 2010 and therefore the said Ground 1 is incompetent.

I hereby reproduce the said Ground 1 of the Appellant’s Notice of Appeal without its particulars for ease of reference.

“Ground 1.

The learned trial Judge erred in law in assuming Jurisdiction to determine and delivering Ruling and/or Judgment on issue of competence or incompetence of the Appellant’s application for leave to apply for certiorari proceedings or the propriety or non-propriety of the earlier Order of the Court granting leave to the Appellant to apply for certiorari proceedings.”

It is trite law that a ground of appeal must relate to the decision or Judgment appealed against and should be a challenge to or against the validity of its ratio decidendi. Therefore a ground of appeal will not be competent if it is not related to or connected with the controversy between the parties in any particular case.

In the case of:-

-Oloruntoba-Oju vs. Abdul Raheem 2009 13 NWLR Part 1157 Page 83 at 121 Paragraphs B-C Adekeye JSC stated thus:-

“An appeal is a challenge against the Judgment of a trial Court and it is never predicated on what a Court has not decided in its Judgment or Ruling. Therefore a ground of appeal must arise from the live issues at the trial and not any hypothetical assumption by the applicant. In other words a ground of appeal must relate to the decision and should be a challenge to the validity of the ratio of the decision appealed against.”

See also the case of:-

Elugbe vs. Omokhafe (2004) 18 NWLR Part 905 Page 319.

In this matter, issues have been joined by the parties in respect of the application for leave to apply for certiorari.

The learned trial Judge while considering the issue at page 445 lines 9- 18 of the record of appeal held as follows:-

“From the record before the Court the Ruling of the 1st Respondent, the subject of complaint in this case was delivered on 12/8/09 while the instant suit was filed on 28/08/09. By simple arithmetical calculation the present motion for certiorari was filed 16 days after the Ruling of the Registrar. It is clear that time provided for the appeal has not elapsed. It is therefore my opinion that the motion for certiorari having been brought before the expiration of time allowed for appeal is not competent. The Appellant’s motion for certiorari is premature and same is hereby struck out.”

From the above decision it could be seen that it was the application for leave to apply for certiorari which was filed 16 days after the Ruling of 12/08/2009 that the trial Court termed premature despite the fact that Justice Bello had granted the application. See pages 409 to 410 of the Record of Appeal.

Consequent upon the foregoing it is my view that Ground 1 of the Appellant’s Notice of Appeal relate to or is connected with the issues as canvassed by the parties before the trial Court and it equally arose from the decision of the Court below and as such a valid and competent Ground of Appeal moreso when it is a complaint on Jurisdiction.

Since I have held that the said Ground of Appeal is competent therefore the issues and argument arising therefrom as contained in the Appellant’s brief of argument are competent and valid.

In the final analysis it is my view that the Preliminary Objection lacks merit and it is dismissed.

Parties are to bear their own costs.

HUSSEIN MUKHTAR, J.C.A.: I have had a preview of the ruling just rendered by my learned brother BADA, J.C.A. and agree with the meticulous reasoning therein and the conclusion that the application is completely devoid of merit.

Ground 2 of the appeal clearly arises from the decision of the court below apart from being premised on issue of jurisdiction that can be raised at any stage of the proceedings and even for the first time on appeal.

The law is trite that grounds of appeal, except in respect of jurisdiction, cannot be competent unless they relate to the decision appealed against. It will otherwise make no sense.

The said ground 1 being attacked by the 2nd respondent/applicant was precise on the part of the decision of the trial court which it attacks and not left to mere speculation or conjecture. The Supreme Court, in the case of C.C.B. Plc. V. Ekperi (2007) 3 NWLR (Pt. 1022) 493 at 511 paras A-B per Tobi, J.S.C. observed thus:-

“Grievance and dissatisfaction with, the judgment of a court is articulated and conveyed to an appellate court in ground or grounds of appeal. In other words, grounds of appeal are indexes of an appellant’s complaints against the judgment of a court. Accordingly, where there are no grounds of appeal, or there are no properly formulated grounds of appeal, an appellate court will conclude that there is no appeal before it, because one of the vital pre-conditions that must be met before an appellate court could entertain the appeal, as required by law, is missing. [Madukolu v. Nkemdilim (1962) 2 SCNLR 341 pages 511, paras. A-B; 513, Para. H.”

The application to strike out ground 1 is unmeritorious in view of the foregoing appraisal and the detailed reasons in the lead ruling which I adopt wholly. The said ground one is competent and so is the issue that has been distilled from it. The application filed by the 2nd respondent on 1st March, 2012 is hereby dismissed for lacking in merit.

I subscribe to the consequential orders made in the lead ruling.

REGINA OBIAGELI NWODO, J.C.A.: Where a Ground of Appeal arose from the decision of the trial court it is a competent ground. Where the Issue raised in the Ground of Appeal was canvassed in the court below on competency of action or Jurisdiction the Ground of Appeal is competent as leave is not required before the Issue of jurisdiction can be raised in a Ground of Appeal.

I agree with the reasoning in the lead Ruling of my learned brother Bada, JCA, that there is no merit in the preliminary objection. For the fuller reasoning contained therein, I also dismiss the preliminary objection. Parties to bear their own cost.

Appearances

MR. O. AJUNWA with him is E. OKORO for the Appellant.For Appellant

AND

MR. O. OSHOBI for the 1st Respondent with him are O. I. ARASI,

O. B. OMOTEHINSE and O. C. OBAYUANA (MISS).

DR. A. S. LAYONU SAN with him are O. OLANREWAJU and E. O.

ONATADE (MISS) for the 2nd Respondent.For Respondent