F. EJIKE UME v. GRACE MGBACHI & ANOR
(2013)LCN/6323(CA)
In The Court of Appeal of Nigeria
On Friday, the 21st day of June, 2013
CA/E/89/99
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
F. EJIKE UME – Appellant(s)
AND
1. GRACE MGBACHI
2. BRENDAN MGBACHI – Respondent(s)
RATIO
WHETHER OR NOT AN APPEAL CAN LIE UNTIL THE COURT BELOW HAS MADE ITS DECISION
Section 241(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) says an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal. It follows that an appeal cannot lie until the court below has made its decision. An appeal based on a motion that was not moved, not considered and on which no decision was rendered cannot be a competent appeal. See Okeke v. Nwokoye (1999) 3 NWLR (Pt. 635) 495. Consolidated Breweries Plc. v. Aisowieren (2002) FWLR (pt. 116) 959. PER OWOADE, J.C.A.
WHETHER OR NOT GROUNDS OF APPEAL WITH NO ISSUES FOR DETERMINATION FORMULATED IS DEEMED ABANDONED
It is trite that a ground of appeal on which no issue is based or formulated is deemed abandoned and liable to be struck out. See A.N.P.P. v. I.N.E.C. (2004) 7 NWLR (Pt. 871) 16. Bhojsons Plc. v. Daniel Kalio (2006) 5 NWLR (pt. 973) 330. Bayero v. Mainasara & Sons Ltd. (2006) 6 NWLR (Pt. 982) 391. PER OWOADE, J.C.A.
WHETHER OR NOT AN APPELLANT CAN RAISE ON APPEAL A QUESTION NOT RAISED OR CONSIDERED BY THE LOWER COURT
This is also because as a general rule, an appellant will not be allowed to raise on appeal a question which was not raised, tried and considered in the court below unless the question involves substantial points of law, whether substantive or procedural and it is clear that no further evidence can be adduced which will affect the decision on them. See Bankole v. Belu (1991) 8 NWLR (Pt. 211) 523. Onwugbufor v. Okoye (1996) 1 NWLR (Pt. 424) 252. Okonkwo v. Ogbogu (1996) 5 NWLR (Pt. 449) 420. Yusuf v. U.B.N LTD. (1996) 6 NWLR (Pt. 457) 632. Koya v. U.B.A. LTD. (1997) 1 NWLR (Pt. 481) 251, Owie v. Ighiwi (2005) 5 NWLR (Pt. 917) 184. PER OWOADE, J.C.A.
WHETHER OR NOT AN ISSUE FOR DETERMINATION BASED ON INCOMPETENT GROUNDS OF APPEAL GOES TO NO ISSUE
An Issue for determination which is based on incompetent grounds of appeal is at large and goes to no issue. Such issue will be struck out as worthless. This is because it is the grounds of appeal that provide the legal basis for any attack on the judgment or ruling of a trial court. It is the grounds of appeal that give life, meaning and content to the issues raised in the appeal for determination. See John Holt Ventures Ltd. v. Oputa (1996) 9 NWLR (Pt. 470) 101 at 113. Ononiwu v. R.C.C. LTD. (1995) 7 NWLR (pt. 406) 214 . Sadiku v. A.G. Lagos State (1994) 7 NWLR (Pt. 355) 235. U.B.A. PLC v. A.C.B. (Nig) LTD. (2005) 12 NWLR (Pt. 939) 232. PER OWOADE, J.C.A.
WHETHER OR NOT A COURT IS BOUND BY A PREVIOUS DECISION IN THE EXERCISE OF ITS DISCRETION
Second, a court is not bound by a previous decision in the exercise of its discretion. Rather the court exercises its discretion in accordance with common sense and justice. See Gabari v. Ilori (2002) 14 NWLR (Pt. 786) 78. Offordile v. Egwuatu (2006) 1 NWLR (Pt. 961) 421. PER OWOADE, J.C.A.
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the interlocutory Ruling of Amaizu J. sitting at the Onitsha Judicial Division of the High Court of Anambra State delivered on 16th day of February, 1996.
The Respondents as Plaintiffs in the court below commenced this action against the Defendant/Appellant by a writ of summons dated 1/12/91 and filed on 20/12/91.
By paragraph 24 of the Plaintiffs/Respondents statement of claim dated 26/4/95, the Respondents claimed against the Appellant as follows:
“(a) A declaration that the Plaintiffs are the persons entitled to occupy, hold and use the said land registered as No. 75 at page 75 in volume 196 as described herein and more clearly delineated pink in the Plaintiff’s survey Plan NO. CEG/AN/LSO1/95 as 22/3/95 filed with their statement of claim.
Or In The Alternative
A declaration that the Plaintiffs are entitled to be granted the statutory right of occupancy of the said land in dispute as described in this paragraph 13(a) above.
(b) Perpetual Injunction restraining the defendants, his servants and agents from claiming the said land as his or unlawfully entering and committing any acts of trespass therein.
From the limited facts that could be gathered from the record of appeal, it would appear that the Defendant/Appellant applied to the court on the 19th day of July, 1995, and the court granted the prayer by striking out the Plaintiffs/Respondents suit under the provision of Order 9 Rule 42(1) of the Anambra State High Court Rules 1988.
By a Motion on Notice dated 27/7/1995, the Plaintiffs/Respondents brought an application praying the court (i) setting aside the order/orders whereby:
(a) The motion dated 26/4/95 and filed on this suit on the 12/7/95 with the Honourable Court.
And
(b) The substantive Suit No. 0/491/91 were respectively “struck out” on the 19/7/95 by the Honourable Court”.
On 11/12/95, before the Plaintiffs/Respondents application of 27/7/95 was moved, the Defendant/Appellant raised a preliminary objection and argued that the court lacked the jurisdiction to entertain the Plaintiffs/Respondent application of 27/7/95, that the application is incompetent and has been brought outside the time limit within which the court has powers to vary or reverse its order under the provisions of Order 9 Rule 42(3) of the Anambra State (High Court Civil Procedure) Rules 1988.
In a considered ruling delivered on 16/2/1996 on the preliminary objection by the Defendant/Appellants, the learned trial judge concluded at page 40 of the record that:
“In the result, I am of the firm view that the 30 days (that is under the provision of Order 9 Rule 42(3) of the High Court Rules 1988 govern only the period of time within which an applicant under the rule may bring his application. The period does not regulate the time the application is to be heard. I hold that the motion is competent. I overrule the preliminary objection”.
Dissatisfied with the above Ruling, the Defendant/Appellant at first filed a Notice of Appeal (containing six (6) grounds of appeal) dated 23/2/1996 before this honourable court.
Later on, the Defendant/Appellant was granted leave of this court to file and argue additional ground of appeal (Ground 7) whereby the Appellant complained on the lack of jurisdiction of the court below to entertain the process filed on 27/7/1995 by the Respondent on the ground that the Respondent’s motion of 27/7/1995 was assessed by the court’s registry but was never paid for.
This appeal was first heard on 26/2/2013, when the parties relied on the Appellant’s brief of argument dated 18/3/2011 and filed on 29/8/12. Respondents brief of argument dated 11/2/13 but filed on 14/2/13 and the Appellant’s Reply brief dated 18/2/13 filed on 21/2/13. Thereafter, the appeal was reserved for judgment.
On 28/3/2013, the court directed a question to the parties on the competence of Appellant’s additional ground of appeal (Ground 7) but in the question, the court erroneously referred to the Plaintiff’s/Applicant’s Respondent’s Motion on Notice dated 26/4/95 and filed on 12/7/95 as having not been heard. In fact, the Motion the court intended to refer to in the question was the Plaintiff’s/Applicant’s/Respondent’s Motion on Notice for setting aside dated 27/7/1995.
Meanwhile, the parties filed and adopted written addresses on the question posed by the court on 28/3/2013, when the appeal was re-heard on 27/5/2013.
The court was obliged to correct the mistake in the question directed to counsel on 28/3/13 and on 28/5/13 directed the proper question in relation to Plaintiff s/Applicant’s/Respondent’s Motion for setting aside of 27/7/95.
The hearing notices from the court gave a clear indication that the direction contained in the question of 28/5/13 supersedes that of 28/3/13.
On Thursday, the 30th day of May, 2013, both counsel appeared in court and furnished oral addresses on the question as properly directed by the court on 28/5/13 to wit:
“Whether the Appellant’s additional ground of appeal (Ground 7) should not be struck out on the ground of incompetence having regard to the fact that the Plaintiffs/Applicants/Respondents motion dated 27/7/1995 for setting aside has not been heard”.
This appeal shall therefore be decided first on the oral addresses delivered by counsel on 30/5/2013 and as necessary on the briefs of argument referred to earlier in this judgment. That is the Appellant’s brief filed on 29/8/12, the Respondents brief filed on 4/2/13 and the Appellant’s Reply brief of 21/2/2013.
Chief Dr. F. Ejike Ume SAN, the Appellant nominated the following issues for determination:
1. Whether the learned trial judge was right in entertaining or exercising jurisdiction over an application or process, which did not comply with the mandatory provisions of Order 9 Rules 5, 6, 7 and 8 of the High Court Rules Cap. 66 Laws of Anambra State 1988, stipulating payment of fees for filing processes?
2. Whether non-payment of prescribed fees by the Plaintiffs/Respondents rendered the process or motion to set aside incompetent and thus deprived the court of the jurisdiction to entertain the motion or application?
3. If the Process or motion were not incompetent, whether the court below could have had the Power after the stipulated thirty (30) days limited period to vary or reverse the order or judgment of court.
Learned counsel for the Respondent on the other hand formulated the following issues for determination:
1. Whether in an interlocutory appeal, the appellant can raise and argue additional ground of appeal even on jurisdiction.
2. Whether the competence or otherwise of a motion not vet moved at the lower court can be a matter of appeal.
3. Whether the provisions of Order 9 Rule 42(1)(2)(3) High Court Civil Procedure Rules 1988 of Anambra State limits the time within which the court will hear and rule on the relevant application before it.
4. Whether it is not in the interest of justice in an Interlocutory Appeal in a suit where pleadings have not been exchanged and where a stay of proceedings granted is in its 16 year, to revoke the order of stay of proceedings and order resumption of proceedings to allow pleadings to be filed and the matter resolved on merit after full hearing.
Taken together, the summary of the submissions of the learned senior counsel who appeared in person as Appellant both in the oral presentation before this court on 30/5/13 and on the three issues formulated in his briefs of argument are:
(i) The motion dated 27/7/95 was and is not a motion. The motion was not stated to have been filed on any day. It was therefore not a motion known to our legal system as it is the law that a process for which filing fee was not paid is not a legal document. It is a nullity.
He referred to the cases of Hon. Ibrahim Latundun Balogun Gambari & Ors. v. Emir of Ilorin.
Alhaji Sulu Gambari & Ors. (1990) 5 NWLR (Pt. 152) 572 at 588.
(ii) That as Rules of Court must be obeyed, the failure to pay filing fees and act in accordance with the stipulation as in Order 6 Rules 5, 6, 7, and 8 of the High Court Rules of Anambra State 1988 renders the act or procedure invalid and incompetent. He referred to the cases of N.A. Williams & Ors. v. Hope Rising Voluntary Funds Society (1982) 1 – 2 SC 145 at 152. Chief Dominic Onuora Ifezue v. Livinus Mbadugha (1984) 5 S.C. 79 at 168.
Alhaji Abu Momoh v. His Highness Alhaji A.G. Momoh (1991) 1 NWLR (Pt. 169) 608 at P.618.
Alhaji Titilayo Anisi v. Jimoh Shotimehin (1993) 3 NWLR (Pt. 282) 461 at P. 473.
Ann Okwuchukwa Menakaya v. Dr. Timothy N. Menakaya (2001) 16 NWLR (Pt. 738) 203 at 236.
(iii) That, the motion of 27/7/95 was heard and that this court cannot sit on appeal after allowing Ground 7 of the Appellant’s Notice and Grounds of Appeal to be admitted as part of grounds of appeal.
(iv) That even if the motion of 27/7/95 were held to be competent, the learned trial judge erred in law when he held on 16th February, 1996 that he could entertain the application for him to reverse his final decision or order made in 19th July, 1995 despite the expiration of the thirty (30) days statutory time limit as provided by Order 9 Rule 42(3) of the Anambra State (High Court Civil Procedure) Rules 1988.
On the other hand, the summary of the arguments of the learned counsel for the Respondents both in the oral presentation before the court on 30/5/13 and on the issues formulated in his brief of argument are:
(i) The motion of 27/7/95 is still pending at the court below and it was never heard. The motion was assessed for N38 and paid for. It is the preliminary objection of the Defendant/Appellant that prevented the motion of 27/7/95 from being moved. The motion having not been moved, the appeal based on it is incompetent.
He referred to the provision of Section 241 of the 1999 Constitution (as amended).
(ii) An appeal cannot lie until the court below has made its decision on a matter.
A motion not moved is as good as not been filed.
And if not filed, no appeal can arise. He referred to the cases of Okeke v. Nwokoye (1999) 3 NWLR (Pt. 635) 495.
Consolidated Breweries Plc. v. Aisowieren (2002) FWLR (Pt. 116) 959.
(iii) The Appellant’s Preliminary Objection in the court below concerns the Provisions of Order 9 Rule 42(1) of the Anambra State (High Court Civil Procedure) Rules 1988 providing for the time within which to apply to restore a suit struck out for failure to file pleadings at the end of which such striking out will become a dismissal of (sic) or final judgment.
(iv) The contention of the Appellant in the preliminary objection was that the 30 days prescribed by the Rules of Court is not only about the time within which to bring the application to restore the suit but also includes the time within which the court itself must hear the motion and deliver its ruling.
The motion of 27/7/95 has not yet been moved. It is still pending at the High Court of Onitsha since 1966.
I have carefully gone through the Ruling of the court below as contained from pages 38-40 of the record of appeal. The Ruling concerns the interpretation of the provisions of Order 9 Rule 42(3) of the High Court Rules, Anambra State 1988.
The Defendant/Appellant raised a Preliminary Objection that the motion of 27/7/95 should have been heard within 30 days after the order of striking out the Plaintiffs/Respondent’s suit was made. The Appellant as Defendant argued that since the court did not hear the application within the period prescribed by Order 9 Rule 42(3) of the High Court Rules, 1988, which according to him is 30 days, the court lacked the jurisdiction to vary or reverse its order as is provided for in the said Order 9 Rule 42(3).
The Appellant as defendant further contended that any act done after the expiration of the stipulated 30 days was a nullity.
The Plaintiff/Respondents contended before the court below that the Plaintiffs/Applicants/Respondents filed the motion before the expiration of 30 days from the order. That the motion is competent because such judgment or order can be varied or reverted by an application by the affected party not later than thirty days from the date of the judgment or order.
The learned trial judge merely ruled that the Plaintiffs/Applicants/Respondents Motion is competent vis-‘a-vis the time limit the application was brought.
Obviously, from the above stated facts, the learned counsel for the Respondents was right to say that the Plaintiffs/Applicants/Respondents Motion of 27/7/95 has not been heard.
In more general terms, the consequence of the failure to hear or to rule in respect of the Plaintiffs/Applicants/Respondents Motion on Notice of 27/7/95 is that no appeal can be based on a Motion on which no decision was rendered.
Section 241(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) says an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal. It follows that an appeal cannot lie until the court below has made its decision. An appeal based on a motion that was not moved, not considered and on which no decision was rendered cannot be a competent appeal.
See Okeke v. Nwokoye (1999) 3 NWLR (Pt. 635) 495.
Consolidated Breweries Plc. v. Aisowieren (2002) FWLR (pt. 116) 959.
In relation to the instant case, the only ground of appeal connected with the preliminary objection of the Defendant/Appellant is ground 6 of the Notice and Grounds of Appeal which complained that:
Ground 6 Error in Law
“The learned trial judge erred in law by purporting to redraft the provisions of a statute and stated that he was interpreting the provisions which he drafted himself”.
Incidentally, the Appellant did not formulate any issue on the said ground 6 of the Notice and Grounds of Appeal. It is trite that a ground of appeal on which no issue is based or formulated is deemed abandoned and liable to be struck out.
See A.N.P.P. v. I.N.E.C. (2004) 7 NWLR (Pt. 871) 16.
Bhojsons Plc. v. Daniel Kalio (2006) 5 NWLR (pt. 973) 330.
Bayero v. Mainasara & Sons Ltd. (2006) 6 NWLR (Pt. 982) 391.
Appellant’s Issue No. 6 is deemed abandoned and it is accordingly struck out.
Appellant’s ground 1, 2, 3, 4, 5 and 7 of the Notice and grounds of appeal are all based on the Plaintiffs/Applicants/Respondents Motion on Notice of 27/7/95 which was not heard or entertained by the court below and on which no decision was rendered by the court below in the Ruling appealed against.
An appeal must be based on a decision of the court; a ground of appeal that is not based on a decision of the court is incompetent and liable to be struck out.
See Section 241 (1) of the 1999 Constitution (as amended).
This is also because as a general rule, an appellant will not be allowed to raise on appeal a question which was not raised, tried and considered in the court below unless the question involves substantial points of law, whether substantive or procedural and it is clear that no further evidence can be adduced which will affect the decision on them.
See Bankole v. Belu (1991) 8 NWLR (Pt. 211) 523. Onwugbufor v. Okoye (1996) 1 NWLR (Pt. 424) 252. Okonkwo v. Ogbogu (1996) 5 NWLR (Pt. 449) 420. Yusuf v. U.B.N LTD. (1996) 6 NWLR (Pt. 457) 632. Koya v. U.B.A. LTD. (1997) 1 NWLR (Pt. 481) 251, Owie v. Ighiwi (2005) 5 NWLR (Pt. 917) 184.
In the instant case, Appellant’s Issues Nos. 1 and 2 are based on the additional ground (Ground 7) of the Notice and Grounds of Appeal, those issues are based on an incompetent ground of appeal, therefore the issues and the incompetent ground are liable to be struck out.
An Issue for determination which is based on incompetent grounds of appeal is at large and goes to no issue. Such issue will be struck out as worthless. This is because it is the grounds of appeal that provide the legal basis for any attack on the judgment or ruling of a trial court.
It is the grounds of appeal that give life, meaning and content to the issues raised in the appeal for determination.
See John Holt Ventures Ltd. v. Oputa (1996) 9 NWLR (Pt. 470) 101 at 113.
Ononiwu v. R.C.C. LTD. (1995) 7 NWLR (pt. 406) 214
Sadiku v. A.G. Lagos State (1994) 7 NWLR (Pt. 355) 235.
U.B.A. PLC v. A.C.B. (Nig) LTD. (2005) 12 NWLR (Pt. 939) 232.
Appellant’s ground 7 of the Notice and Grounds of Appeal is incompetent; Issues 1 and 2 based on the said ground 7 are worthless. Accordingly, Appellant’s ground 7 and Issues 1 and 2 are struck out.
Similarly, Appellant’s grounds Nos. 1, 2, 3, 4 and 5 which were not based on the decision of the court below of 16th day of February, 1996 on which this appeal was based and Issue No. 3 based on those grounds are struck out.
In this appeal, the learned Senior Advocate who appeared in person as Appellant raised an interesting point of law, he opined that this court can no longer ignore or strike out Ground 7 of the additional ground in the Notice and Grounds of Appeal having sought the leave of this honourable court to add, the said ground of appeal to the original grounds filed in the appeal. With great respect, the position of the Learned Senior Advocate, Appellant does not represent the position of the law.
First, the grant of leave to file an additional ground of appeal as in the instant case involves the exercise of the discretionary power of the court.
See Alamieyeseigha v. C.J.N. (2005) 1 NWLR (Pt. 906) 60.
Second, a court is not bound by a previous decision in the exercise of its discretion. Rather the court exercises its discretion in accordance with common sense and justice.
See Gabari v. Ilori (2002) 14 NWLR (Pt. 786) 78.
Offordile v. Egwuatu (2006) 1 NWLR (Pt. 961) 421.
In the instant case, Appellant’s ground 6 of the Notice and Grounds of Appeal is deemed abandoned and is struck out. Appellant’s grounds 1, 2, 3, 4, 5, and 7 are incompetent.
Appellant’s Issues Nos. 1 – 3 are also incompetent. Appellants grounds 1, 2, 3, 4, 5 and 7 and issues 1 – 3 are also struck out.
The Appellant has no ground of appeal to sustain this appeal.
The appeal is devoid of foundation. Appeal No. CA/E/89/99 is accordingly struck out.
I make no order as to costs.
ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, MOJEED ADEKUNLE OWOADE JCA gave me the privilege of reading the draft of the judgment just delivered. I agree with the reasoning and conclusion that the appellant has no ground to sustain the appeal which is struck out by me with no order as to costs.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had read a copy of the judgment just delivered by my learned brother, MOJEED ADEKUNLE OWOADE. I agree with the reasoning and conclusions. I also strike out Appeal No. CA/E/89/99. I make no order as to costs.
Appearances
Eze Dr. Ejike Ume SAN appears as appellant with C.V. Ejike Ume.For Appellant
AND
Ifeanyi Umeh with Chiedu UmejiFor Respondent
