UNITED BANK FOR AFRICA v. AFRIMPEX ENTERPRISES LIMITED
(2013)LCN/5923(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of February, 2013
CA/K/411/2004
JUSTICES
AMIRU SANUSI Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
Between
UNITED BANK FOR AFRICA – Appellant(s)
AND
AFRIMPEX ENTERPRISES LIMITED – Respondent(s)
RATIO
WHETHER OR NOT A GROUND OF APPEAL MUST CONTAIN PARTICULARS OF ERROR
Again, it is now settled law that a ground of appeal must always contain clear, precise and unequivocal statement of the decision being attacked in the ground of appeal. Such ground therefore must contain particulars of the mistake or error or misdirection alleged except, of course, a general or omnibus ground and where such particulars or statements are inexistent it, tantamounts to gross non-compliance with the rules and therefore it makes such ground incompetent. See also Khalil vs. Yar’adua (2004) All FWLR (Pt.225) 111; Kaminby vs. Nunu (2006) All FWLR (Pt.300) 1709. However, I am not unmindful of the fact that a ground of appeal on misdirection or error in law which does not contain particulars can still be valid if such particulars are embedded in the ground of appeal. See Minister of Works vs. Tomas Nig. Ltd, (2004) 7 NWLR (Pt.872) 11. PER SANUSI, J.C.A.
WHETHER OR NOT A GROUND OF APPEAL MUST ARISE FROM THE DECISION BEING CHALLENGED
By the rule of this Court, a ground of appeal should be precise, clear and direct statement of the decision being challenged on appeal. Except where a ground of appeal is a general or omnibus one, such ground of appeal must give the exact particulars of the misdirection alleged or the mistake/error. The ground also must not be argumentative or narrative. Where such ground fails to comply with the above mentioned conditions, it then becomes incompetent and must be struck out. See Khalil vs. Yar’adua (supra), Omochie vs. Odogwu (2006) All FWLR (Pt.317) 544. PER SANUSI, J.C.A.
WHETHER OR NOT WHERE THERE IS NO ISSUE FOR DETERMINATION RAISED FROM A PARTICULAR GROUND OF APPEAL, THE GROUND OF APPEAL IS DEEMED ABANDONED
It is well settled law, that where there is no issue for determination raised from a particular ground of appeal, that ground of appeal is deemed abandoned by the appellant and would be liable to be struck out, See ANPP vs. INEC (2004) (Pt.871) 16; Bayero vs. Mainasara & Sons Ltd. (2006) NWLR (Pt.982) 391; Bhoson Plc vs. Daniel Kalio (2006) 5 NWLR (Pt.973) 330, Therefore, the absence of any issue raised or formulated on the omnibus ground would be tantamount to the abandonment of the said ground of appeal by the appellant. PER SANUSI, J.C.A.
AMIRU SANUSI, J.C.A. (Delivering the Leading Judgment): This appeal emanates from the judgment of Kano State High Court of Justice (the lower court) delivered on 4th October, 2004. At the lower court, the respondent as plaintiff, sued the appellant as defendant thereat, challenging the action of the defendant/appellant in refusing to allow him withdraw an overdraft for the sum of Seventy Million Naira facility which he earlier applied for and same was approved by the defendant/appellant bank and the overcharging of its account to the tune of Twenty one million eighteen thousand, one hundred and thirty four Naira eleven kobo N21,018,134.11k).
The facts of the case which gave rise to this appeal are that, having obtained approval of overdraft facilities from the appellant, the defendant/respondent applied to withdraw the sum of Fifty million Naira in order to off-set another loan which was granted by another bank and also to enhance its working capital. The appellant refused to allow the respondent herein to withdraw such amount out of the approved overdraft. Aggrieved by the action of the appellant/defendant, the respondent sued the appellant at the lower court seeking the underlisted reliefs:-
“1. A declaration that the plaintiff’s account with the defendant Kano Sharada Branch, has been illegally overcharged to the tune of N21,018,134.11 as at 31st August, 1998,
2. An order setting aside the said over charges and other overcharges as being illegal, unlawful and null and void.
3. An order of injunction restraining the defendant either by itself or through any of its agents, privies, servants or whosoever described from demanding any sum of the amount from the plaintiff on the basis of any of the over-charged sum.
4. A declaration that the Deed of Legal Mortgage made between the plaintiff and the defendant and registered as No.42 Vol.13 at the Land Registry in Kano is illegal, void and or instigated by fraud and therefore unenforceable and of no effect whatsoever.
5. A declaration that the defendant’s refusal to allow the plaintiff draw up the amount of Seventy million (N70,000,000) being the facility as approved and offered to the plaintiff is illegal and prejudicial.
6. Special damages in the sum of N350 million and general damages in the sum of N100 million for the wrong refusal to release the approved sum.
7. An order restraining the defendant either by itself or through any of his (sic) agents servants or privies or however described from taking any step in any manner whatsoever towards the exercise of any power conferred on the defendant in the Deed of legal mortgage and/or in any way enforce or implement any of the instruments executed in relation to the transaction/account forming the subject matter of the suit. ”
During the trial, the plaintiff now respondent, called three witnesses to prove its case/claims. The defendant did not however call any witness following the refusal by the trial Judge to oblige it an adjournment to call its witnesses, the court ordered the appellant to close its case and the trial court adjourned the matter for address. The trial court later delivered its judgment on the 4th October, 2004 and granted reliefs 1, 2, 3, 4, 5 and 7. With regard to relief No.6 for special damages, the trial lower court refused to award any special damages but it instead, awarded the sum of N25 million to the plaintiff/respondent as general damages.
Dissatisfied with the judgment of the lower court, the appellant appealed to this Court. Parties were ordered to file and exchange briefs of argument in keeping with the provisions of the rules of this Court. In the appellant’s Brief of argument dated and filed on 15/12/2004, five issues were raised for the determination of the appeal out of the six grounds of appeal contained in the Notice of Appeal dated 15/12/2004. The said issues are set out below:-
“1. Whether the learned trial Judge acted in isolation of the defendant’s right to fair hearing, a constitutional right in failing and/or refusing to hear and determine the defendant’s motion dated 3/5/2004 in which it sought to have the learned Judge disqualifying himself and refrain from continuing to adjudicate in the suit.
2. Whether the plaintiffs statement of claim does not disclose any reasonable cause of action known to the Law because;
(a) There was no enforceable agreement between the parties under which the defendant promised to lend to the plaintiff the sum of N70 million because there is no consideration for such an agreement pleaded in the plaintiff’s amended statement of claim;
(b) There is no plea of fraud since fraud and its particulars have not been pleaded by the plaintiff;
(c) An action for relief number 7 in the amended statement of claim is not maintainable under the Law because there was no denial that the plaintiff was indeed owing the defendant some money pursuant to the deed of legal mortgage.
3. Whether the claim of general damages is not maintainable because the case is one that is rooted in contract.
4. Whether the award of N25 million as general damages that was made in favour of the plaintiff is manifestly excessive and is not in accordance with the quantum and measure of the award made in suit or cases in Nigeria and in circumstances that are similar to what obtained in the circumstance and on the facts in this case and whether, in any event, the judgment is erroneous because the facts on which the award was based were not stated in the judgment and were not averred in the pleadings filed by the plaintiff.
5. Whether the learned trial Judge erred in law in making findings of facts and basing his judgment on the findings concerning bullying of and using or exercising force on PW2 or deceiving him to execute a deed of legal mortgage and applying undue influence or fraud in the process to get him to execute the deed of legal mortgage and he thereby caused miscarriage of justice, because those matter were not alleged in the pleadings of the patties. ”
The Respondent on the other hand in its brief of argument, formulated two issues for the determination of the appeal which read thus:-
“(a) Whether the appellants 1st, 3rd, 4th and 5th grounds of appeal are incompetent and defective in the of no particulars in support thereto and were narrative and vague.
(b) Ground 2 of the appellant’s Notice of Appeal is incompetent as same constitute a fresh issue and different case having regard to the defendant’s case before the trial court and the judgment thereto. ”
The respondent herein also filed Notice of Preliminary Objection on 17/10/2011 dated same day challenging the competence of the five grounds of appeal filed by the appellant. The grounds upon which the said Objection were relied on are:
“(i) That the 1st, 3rd, 4th and 5th grounds of appeal are incompetent and defective as they do not contain particulars in their support and also that they were narrative and vague.
(ii) That Ground No.2 of the appellant’s Notice of Appeal is incompetent because same constitutes fresh and different case having regard to the defendant’s case before the trial court and the judgment thereto. ”
It needs to be stated here, that the Respondent extensively argued the Notice of Preliminary Objection in paragraph 4.1 through to paragraph 6.19 of the Respondent’s unpagenated Brief of argument which was duly served on the appellant, but the latter did not deem it right or proper to respond to the Objection or had refused to file any Reply Brief so as to meet or respond to the Preliminary Objection extensively argued in the Respondent’s brief. Again, when the appeal came up for hearing before us on 29th November, 2012, the appellant’s counsel absented himself from court despite being served to appear before us and argue his appeal. Sequel to that, the learned Respondent’s counsel urged us to invoke the provisions of Order 18 Rule 9(4) of Court of Appeal Rules 2011 and deem the appeal to have been argued by the appellant.
Thereupon, the court granted the respondent’s application and deemed the appeal to have been argued by the appellant. But with regard to the preliminary objection filed by the Respondent, there is also no appellant’s Reply Brief filed by the appellant. It can therefore ordinarily be said that the appellant had conceded to the Preliminary Objection argued in the Respondent’s brief of argument.
Be that as it may, I shall graciously consider the Preliminary Objection and determine same before considering the merit of the appeal if need be. But before doing so, I think it will be pertinent to reproduce all the grounds of appeal below as contained in the appellant’s Notice of Appeal dated 15th December, 2004 even for ease of reference.
GROUNDS OF APPEAL
“(1) The learned trial Judge erred in law in failing and/or refusing to hear and determine the defendant’s motion dated 3/5/2004 in which if sought to have the learned Judge disqualify himself and refrain from continuing to adjudicate in the suit because he thereby acted in violation of the defendants right to fair hearing, a constitutional right.
(2) The judgment is erroneous in law since the plaintiff’s statement of claim does not disclose any reasonable cause of action know to the law because:-
(a) There is no enforceable agreement between the parties which the defendant promised to lend to the plaintiff the sum of N70 million because there is no consideration for such an agreement raised in the plaintiff’s amended statement of claim.
(b) There is no sufficient plea of fraud since particulars of fraud have not been pleaded.
(c) An action for relief number 7 in the amended statement of claim is not maintainable under the law because there was no denial that the plaintiff was owing the defendant some money pursuant to the deed of legal mortgage (sic).
(3) The learned trial Judge erred in law in making and award of general damages to the plaintiff because the case being one rooted in contract, is not one in which a claim for general damages is maintainable.
(4) The judgment is erroneous because the award of N25m as general damages that was made in it in favour of the plaintiff is manifestly excessive and is not in accord with the quantum and measure of the award in similar cases in Nigeria and in the circumstances that are similar to what obtained in the circumstances and on the facts in this case and in any event the facts on which the award was based or could have been based were not stated in the judgment and were not averred in the pleadings filed by the plaintiff.
(5) The learned trial Judge erred in law in making findings of facts and basing his judgment on the findings concerning the following issues raised and considered by the trial Judge namely that PW2 agreed to execute the deed of legal mortgage because of acts that amounted to cullying of the witness by the defendant that consideration for the execution of the deed was lacking, that the parties were idem when the deed was executed and that there was undue influence, and force utilized by defendant to induce pus 2 to execute the deed the trial Judge thereby caused miscarriage of justice because those matters were not alleged in the pleadings of the parties.
(6) The judgment is unreasonable and against the weight of evidence.”
In urging this court to sustain his preliminary objection, the learned counsel for the respondent submitted that the grounds of appeal Nos. 1, 3, 4 and 5 contained in the Notice of Appeal are incompetent and liable to be struck out in view of the provisions of Order 6 Ruled 2 of the Court of Appeal Rules 2007 (not 2011 albeit). The learned counsel for the respondent further argue that under the Court of Appeal Rules, grounds of appeal which allege misdirection or error of law, the particulars and nature of misdirection of error must be clearly and mandatorily stated. This is because the said provisions used the word “shall” which therefore implores mandatory posture or import. He relied on this authority of Oroclue v. Odogwa (2006) All FWLR (Part 317) 544, Khalil vs. Yar’adua (2004) All FWLR (Pt.225) 111 in another submission, the learned respondent’s counsel stated that a ground of appeal which alleges “error in law or misdirection of which fails to give or provide particulars of the alleged error or misdirection is improper and should be struck out. He said grounds 1, 3, 4 and 5 do not contain any particulars of error or misdirection. With regard to ground No.2, the learned respondent’s counsel argued that the said ground of appeal did not flow or arise from the judgment appealed against, as the said judgment did not make any reference to or pronouncement on cause of action known to law. He said that issue was never raised or canvassed by the parties at the lower court and as such could not validly be raised before this court except with leave of this court sought and obtained which was never done here. He therefore urged this Court to hold that the said ground of appeal is also incompetent and to strike it out. See Manhattan Investment Ltd. Vs. Corporative Development Bank Plc (2009) All FWLR (Pt.483) 1381, Federal College of Education vs. Akinyemi (2009) All FWLR (Pt. 469) 1784.
Then on ground No.5, the learned respondent’s counsel submitted that the said ground of appeal is not easily understandable and that it is vague, verbose and therefore contrary to the rules of this Court. Moreso, had it been some particulars were provided in its support, the said ground would have been fully understood and more clear in understanding but that is not the case here, so the said ground is not competent and is therefore liable to be struck out. The learned respondent’s counsel further submitted that since the grounds of appeal are incompetent and therefore liable to be struck out, all the issues for determination drawn or formulated from then should also be struck out since issues can only be validly raised or based on competent ground or grounds of appeal. See John/Holt/Ventures Ltd, Vs. Oputa (1996) 9 NWLR (Pt.470) 101 at 113 para. B – C. By way of conclusion, the learned respondent’s counsel submitted that furthermore, ground 5 is also incompetent since it alleges error of law and misdirection of facts at the same time in the way it was couched. He said the two features are different and independent of one another and are also distinct from one another. Thus, the merger of the two features in one and same ground of appeal is wrong and it makes the said ground incompetent too, hence it ought to be struck out even for that defect alone. See University of Ilorin vs. Oyalame (2001) FWLR (Pt.83) 2193. The learned counsel for the respondent himself urged this Court to strike out the appeal since all the grounds of appeal are defective and incompetent. Reliance on this submission is placed in the case of Kwasai vs. Ma’aji (2006) AII FWLR (Pt.295) 767.
I have very closely considered grounds of appeal Nos. 1, 3, 4 and 5 in the extant Notice of Appeal as reproduced above. A cursory look at them clearly shows that the appellant is complaining of misdirection or error in law. By the provision of Order 6 Rule (2) of the Court of Appeal Rules 2007, such grounds in order to become valid and competent, they must contain the particulars or nature of error or misdirection. The said provisions read thus:-
“Where the ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall clearly be stated.”
My understanding of the meaning of the above quoted provisions is that a misdirection or error in law is that, for a ground of appeal alleging misdirection or error in law, it must satisfy these conditions, namely:-
(a) the passage in the judgment where a misdirection was alleged to have occurred specify the nature of the error in law or misdirection.
(b) give full substantial particulars of the alleged error in law or misdirection.
I must say that the use of the word “shall” in the above provisions of the Rule makes it mandatory that such grounds must strictly conform with the provisions of the Rules mentioned supra and furthermore, non-compliance with the provisions of the rules renders such ground invalid and incompetent and therefore liable to be struck out. See Dikibo vs. Ibitoye (2001) All FWLR (Pt.71) 1706 – 1711 Dantan vs. Lale (2000) FWLR (Pt.24) 1467; Umaine vs. Attah (2004) FWLR (Pt.577) 65.
Again, it is now settled law that a ground of appeal must always contain clear, precise and unequivocal statement of the decision being attacked in the ground of appeal. Such ground therefore must contain particulars of the mistake or error or misdirection alleged except, of course, a general or omnibus ground and where such particulars or statements are inexistent it, tantamounts to gross non-compliance with the rules and therefore it makes such ground incompetent. See also Khalil vs. Yar’adua (2004) All FWLR (Pt.225) 111; Kaminby vs. Nunu (2006) All FWLR (Pt.300) 1709. However, I am not unmindful of the fact that a ground of appeal on misdirection or error in law which does not contain particulars can still be valid if such particulars are embedded in the ground of appeal. See Minister of Works vs. Tomas Nig. Ltd, (2004) 7 NWLR (Pt.872) 11
In the present situation, none of the grounds of appeal now being challenged had the particular or error of misconception embedded in it. The said grounds 1, 3, 4 and 5 are therefore incompetent and are liable to be struck out. See A.G. Akwa-Ibom State vs. Essien (2004) 7 NWLR (Pt.872) 288. The said grounds of appeal are hereby declared incompetent and are hereby accordingly struck out.
Furthermore, with regard to ground No.5, I am at one with the learned respondent’s counsel’s submission that the said ground appears vague, verbose and indeed very difficult to understand in the way it was couched. By the rule of this Court, a ground of appeal should be precise, clear and direct statement of the decision being challenged on appeal. Except where a ground of appeal is a general or omnibus one, such ground of appeal must give the exact particulars of the misdirection alleged or the mistake/error. The ground also must not be argumentative or narrative. Where such ground fails to comply with the above mentioned conditions, it then becomes incompetent and must be struck out. See Khalil vs. Yar’adua (supra), Omochie vs. Odogwu (2006) All FWLR (Pt.317) 544. The said ground, for reason stated above is also incompetent and thus liable to be struck out and is hereby accordingly so struck out. See C.B.N. vs. Okojie (2002) 8 NWLR (Pt.768) 48. As regards ground of appeal No.2, it seems to me that it is posing a challenge in the Statement of Claim in the sense that it did not disclose any reasonable cause of action known to law as argued by the learned appellant’s counsel. A careful and dispassionate perusal of the judgment of the lower court now being appealed against clearly disclosed that the issue of compliance or otherwise with the statement of claim was neither raised at the trial nor canvassed by the parties. Similarly, the lower court did not make any pronouncement on such point in its judgment. The appellant is therefore raising it here for the first time without prior leave of this court sought and obtained. It is trite law, that for a ground of appeal or issue for determination to be competent, it must flow from the judgment appealed against. Prior leave of court is required to raise such fresh issue in order to make such a ground of appeal or issue for determination of an appeal to be competent.
In the case of Federal College of Education vs. Akinyemi (2009) All FWLR (Pt.469) 1784 it was held thus:-
“Where ground of appeals do not arise from the Judgment appealed against and issues raised can opt be said to have formulated from the incompetent grounds, a preliminary objection seeking to strike out such an appeal will be sustained. Any issue formulated from an incompetent ground of appeal is in itself incompetent and should be discontinued.”
Thus as I posited above, ground No.5 was not raised in the judgment appealed against or canvassed by the learned counsel to the parties at the proceedings, it is therefore also incompetent and inappropriate. It is as such liable to be and is accordingly struck out for the reasons I advanced supra.
In the light of my discourse above, I must say that I see merit in the preliminary objection challenging the competence of grounds Nos. 1, 2, 3, 4 and 5 contained in the Notice of Preliminary Objection to be meritorious and is well taken. It is hereby sustained.
I observe that the Notice of Preliminary Objection is merely restricted to Grounds 1 to 5. The extant Notice of Appeal however contains six grounds of appeal. The Notice of Preliminary Objection did not therefore cover the sixth ground of appeal which is the general/omnibus ground of appeal. The omnibus/general ground of appeal can ordinarily sustain the appellant’s appeal even where grounds one to five have been declared incompetent and were struck out. The next salient issue is to see if this court can consider the appeal based on that omnibus grounds of appeal alone. Now looking at the appellant’s brief of argument, there is no where any issue for determination was raised or encapsulated from the general/omnibus ground of appeal i.e. ground No.6. None of the five issues raised in the appellant’s brief captured the omnibus ground of appeal and no argument was advanced on that issue. It is well settled law, that where there is no issue for determination raised from a particular ground of appeal, that ground of appeal is deemed abandoned by the appellant and would be liable to be struck out, See ANPP vs. INEC (2004) (Pt.871) 16; Bayero vs. Mainasara & Sons Ltd. (2006) NWLR (Pt.982) 391; Bhoson Plc vs. Daniel Kalio (2006) 5 NWLR (Pt.973) 330, Therefore, the absence of any issue raised or formulated on the omnibus ground would be tantamount to the abandonment of the said ground of appeal by the appellant. The omnibus ground of appeal having been deemed abandoned is also hereby struck out. As a corollary, having earlier struck out, the 1st, 2nd, 3rd, 4th and 5th grounds of appeal for being incompetent for reasons given above and also having deemed the sixth ground of appeal as abandoned for want of issue for determination of the appeal raised on it, the Notice of appeal is left bare as it has no any competent or valid ground of appeal to sustain it.
Now, in a situation where all the grounds of appeal contained in a Notice of Appeal are found to be incompetent as in this instant case, an appellate court is left with no option but to strike out the appeal since if all the grounds of appeal are incompetent the entire Notice of Appeal becomes a nullity in view of the provisions of Order 3 Rule 7 of this Court’s Rules. See Kwasau Maaji (2006) All FWLR (Pt.295) 767.
Thus, having sustained the Preliminary Objection on the incompetence of all the five grounds of appeal and striking out same along with the omnibus ground of appeal (ground 6), the Notice of Appeal is rendered invalid and incompetent hence the appeal ought to be and is hereby accordingly, struck out. Similarly, since the appeal is struck out, I feel it would be superfluous to consider the merit of the appeal which has been struck out. The Notice of Preliminary Objection therefore succeeds and is accordingly allowed and sustained.
The Appeal is hereby struck out by me. No order as to costs.
ABDU ABOKI, J.C.A.: I have the privilege of reading before now the lead judgment of my learned brother AMIRU SANUSI, JCA which has just been delivered. I entirely agree with his reasoning and conclusions that the appeal be struck out, the Notice of Appeal being invalid and incompetent. I also hold that the Notice of Preliminary Objection succeeds and is accordingly allowed and sustained. This appeal is accordingly struckout.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I had the opportunity of reading before now the leading judgment just delivered by my learned brother, Amiru Sanusi OFR, JCA. I agree with him completely that the Preliminary Objection raised by the Respondent ought to be sustained. It is ludicrous that the Appellant’s Amended Notice of Appeal which is hinged on six grounds of appeal does not contain any particulars of the errors of law alleged to have been committed by the trial Court. The law is that where the particulars of error that is suppose to highlight the error complained of in a ground of appeal are neither distinctly set out under a different heading nor embedded in the ground of appeal itself, the ground of appeal so raised with such particulars will be rendered incompetent.
In Osasona vs. Ajayi (2004) 4 NWLR Part 984 page 527; the Supreme Court held that where the particulars of error in law or misdirection of the ground complained of are either not set out separately or not discovered through careful perusal as having been incorporated into the body of the ground of appeal, the ground of appeal will contravene the relevant rule which, in the present case, order 3, rule 2(2) of the court of Appeal Rules. The ground will be incompetent and is liable to be struck out.
It is glaring that the Appellant’s grounds of appeal Nos. 1-5 have no particulars either headed separately or incorporated in the body of the said grounds of appeal. Further, Ground No. 2, seems argumentative to me therefore, the argument highlighted therein, cannot be treated as particulars of error of law alleged thereat. In the light of the aforementioned authority, and the reasons articulated in the leading judgment of this Court, the Preliminary Objection raised by the Respondent is equally, sustained by me. Furthermore, since the Appellant’s Amended Notice of Appeal has nothing on the face of it sustaining it and in view of non-formulation of any issue from the sixth ground of appeal, the Amended Notice of Appeal filed by the Appellant in this appeal is hereby struck out by me. I make no order as to costs.
Appearances
Appellant counsel served but absent.For Appellant
AND
Okechukwu NwaezeFor Respondent
