THE A.I.G IN CHARGE OF ZONE 9 UMUAHIA & ANOR v. MR. NDUKWE NELSON EME & ANOR
(2018)LCN/12292(CA)
In The Court of Appeal of Nigeria
On Monday, the 17th day of December, 2018
CA/OW/290/2017
RATIO
COURT AND PROCEDURE: WHETHER PROLIFERATION OF ISSUE IS ACCEPTABLE
“In OKONOBOR & ORS. VS. EDJEGBE & SONS TRANSPORT CO. LTD. & ANR. (2010) LPELR 2488 (SC) 8 paras A-B, the Supreme Court held as follows:- It is settled law that proliferation of issues is unacceptable, in our Appellate Courts. While Counsel is permitted to formulate an issue out of a ground or grounds of appeal, he cannot formulate two (2) issues out of ground of appeal as in the instant appeal. In OGOYI VS. UMAGBA (1995) 9 NWLR (Pt. 419) 253 at 297 the Supreme Court has this to say:- As the purpose of issues for determination is to enable the parties narrow the issues in the grounds of appeal filed in the interest of accuracy, clarity and brevity, the formulation or distillation of seven issues from only three grounds of appeal by the appellant in the instant case, is to be deprecated and frowned upon.” PER IBRAHIM ALI ANDENYANGTSO, J.C.A.
JUSTICES:
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
1. THE A.I.G IN CHARGE OF ZONE 9 UMUAHIA
2. CORPORAL IGBOKWE TITUS – Appellant(s)
AND
1. MR. NDUKWE NELSON EME
2. MRS. JULIET CHINYERE OJI – Respondent(s)
IBRAHIM ALI ANDENYANGTSO, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the decision of the Abia State High Court, Coram Hon. JUSTICE K.C.J. Okereke, J, sitting in Umuahia, delivered on 29th March, 2017 wherein reliefs (a) and (b) sought by the 1st Respondent (as an applicant) were granted.
Piqued by the said Judgment the appellants, who were the respondents, now appealed to this Court via a notice of appeal dated and filed on the 4th May, 2017 (see pages 345-347 of the record of appeal) with a sole ground of appeal.
Shorn of its particulars the ground of appeal runs thus: –
GROUND ONE ERROR OF FACTS
Whether the Trial High Court misdirected itself on evaluation of evidence when it held thus;
Did the Applicant’s daughter, Gift Ndukwe take part in the said promotion? Yes. Did she Gift Ndukwe win any car during the promo? The answer is Yes (See page 342 of record of Appeal)
It is noted here that the above is a novel ground of appeal. Novel in the sense that it is not couched in the language of a ground of appeal recognized in legal practice. It is rather an issue. I think counsel should as much as possible, try to abide by the format of drafting grounds of appeal properly.
The first Respondent took out an application before the trial Court enforcing his fundamental rights under Section 44 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) claiming the following reliefs: –
a) A DECLARATION that the confiscation of the Applicant’s Hyundai Car with the following particulars: Registration No: KJA 385 DQ, Chassis No. MALA741CAFMO47011 and Engine No: G4LAEM388731 by the 1st and 2nd Respondents is unlawful, illegal and a violation of the Applicant’s rights to own movable property as guaranteed under Section 44 of the 1999 Constitution of the Federal Republic of Nigeria 1999 (SIC) and Article 14 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, Cap 10 LFN 1990.
b) An ORDER directing the 1st and 2nd Respondents to release and return to the Applicant his Hyundai Car with the following particulars: Registration No. KJA 385 DQ, Chassis No. MALA741CAFM047011 and Engine No. G4LAEM 388731.
c) AN INJUNCTION restraining the 1st and 2nd Respondents, their agents, workmen, allies and instigators from further violation of the Fundamental Rights of the Applicant.
In support of the application are a 46 paragraph affidavit to which were annexed 5 exhibits A-E and a written address (See pages 1-95 of the Record of Appeal).
The 1st and 2nd Respondents filed what they termed Joint Affidavit of 35 paragraphs attaching a number of exhibits (see pages 60-209 of the Record of Appeal).
The 3rd Respondent (Juliet Chinyere Oji) filed a Counter Affidavit of 59 paragraphs with 16 exhibits attached. (See pages 96 -137 of the Record of Appeal).
Upon being served with the process of the Respondents, the Applicant filed a reply on points of law and a 28 paragraph further Affidavit annexing 4 additional exhibits. (See pages 215- 239 of the Record of Appeal). The Applicant also filed a Reply on points of law to the Counter Affidavit of the 3rd Respondent with a 46 paragraph further Affidavit attaching 3 more exhibits (See pages 152 -165 of the Record of Appeal).
The summary of the facts of this case is that there is an incorporated company known as GREEN WORLD NATURAL SOLUTION INTERNATIONAL which engages in the production, distribution and marketing of food supplements commonly known as and called GREEN WORLD PRODUCTS. The company distributes its products through a network strategy popularly known as NETWORK MARKETING.
This strategy allows a participant to recruit other persons who become his/her down liners.
The company carried out a promo in which the Applicant, his daughter known as Gift Ndukwe, the 3rd Respondent Juliet Chinyere Oji, her daughter and her husband were registered participants. After the promo, the 3rd Respondent won a car. The daughter of the Applicant, Gift Ndukwe also won a car. The 3rd Respondent claimed that the Applicant fraudulently manipulated her daughter out of winning the car won by the daughter of the Applicant. She then petitioned to 1st Respondent, and the 2nd Respondent was instructed to investigate the matter. The car won by the daughter of the Applicant was confisticated and detained.
The Applicant then filed the application at the Abia State High Court which culminated in this appeal, by the Respondents in that case becoming the Appellants here. Henceforth I shall refer to the parties as Appellants and Respondents respectively.
The Appellants filed Appellant’s Brief of Argument settled by Nicodemus Omeje Esq. Supt of Police at the Zone 9 Headquarters dated and filed the 7th August 2017. The Respondent filed the Respondent’s Brief of Argument dated and filed on 6th September, 2017. Upon being served with the Respondent’s Brief of Argument, the Appellants filed a Reply to the Respondent/s Brief of Argument on points of law which was undated but filed on 17th November, 2017.
On the 2nd October, 2018 when this appeal was heard, the Appellants adopted their Brief and Reply Brief. The 1st Respondent’s Counsel was not in Court and so his Brief of Argument was taken as argued under Order 19 Rule 9(4) of the Court of Appeal Rules 2016.
The Respondent filed a Preliminary Objection along with his Respondents Brief of Argument. However since he was not in Court to argue it, same was deemed abandoned.
I shall now set out the issues submitted by the Appellant’s Counsel. In paragraph 5.00 appears GROUNDS OF APPEAL FILED BY THE APPELLANTS and in paragraph 5.01 appears GROUND ONE.ERROR OF FACTS. Then in paragraph 5.02 appears what is supposed to be the issue(s) formulated by the learned counsel to the Appellants thus:-
5.02 Whether the trial Court misdirected itself on evaluation of evidence when it held thus:
Did the Applicant’s daughter Gift Ndukwe take part in the said promotion? Yes
Did Gift Ndukwe win any car during the promo? The answer is Yes. See page 342 of the Record of Appeal.
Thereafter at paragraph 6.00 appears
ISSUE FOR DETERMINATION and in paragraph 6.01 there is ISSUE 1 thus:
Whether the Trial High Court was right in imputing presumption that Gift Ndukwe has right of participation in the promotion with ID NO. 55075121 without fulfilling the conditions preceden.
6.02 ISSUE 2
Whether the Trial High Court was right when it held that the exhibit F2 page 161 of the Record of Appeal vide further Affidavit of the Applicant in Reply to the 2nd Respondent’s Police Investigation Activities Letter to the GREEN WORLD NATURAL SOLUTION INTERNATIONAL LTD. See page 196 of Record of Appeal.
I have earlier in this judgment alluded to the sole ground of appeal filed by the Appellants from which two issues were distilled for determination of this appeal.
Having observed that the Appellants filed a sole ground of appeal but formulated two issues therefrom what is the consequence of that procedure adopted by the Appellants Counsel? In OKONOBOR & ORS. VS. EDJEGBE & SONS TRANSPORT CO. LTD. & ANR. (2010) LPELR 2488 (SC) 8 paras A-B, the Supreme Court held as follows:-
It is settled law that proliferation of issues is unacceptable, in our Appellate Courts. While Counsel is permitted to formulate an issue out of a ground or grounds of appeal, he cannot formulate two (2) issues out of ground of appeal as in the instant appeal.
In OGOYI VS. UMAGBA (1995) 9 NWLR (Pt. 419) 253 at 297 the Supreme Court has this to say:-
As the purpose of issues for determination is to enable the parties narrow the issues in the grounds of appeal filed in the interest of accuracy, clarity and brevity, the formulation or distillation of seven issues from only three grounds of appeal by the appellant in the instant case, is to be deprecated and frowned upon.
The Supreme Court in the case cited above struck out the issues which were proliferated. Accordingly the two issues formulated from the one (1) ground are declared incompetent and are hereby struck out.
With the exit of the issues there is nothing which narrows the issues in the ground of appeal for the purpose of brevity, clarity and precision.
The appeal thus becomes incompetent and is also struck out as its incompetence has robbed this Court of its jurisdiction to entertain and determine the appeal. This appeal is hereby struck out.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I agree.
Appearances:
Nicodemus Omeje, SP For Appellant(s)
Chief Michael I. Ndu, Esq. for the 1st Respondent For Respondent(s)
Appearances
Nicodemus Omeje, SP For Appellant
AND
Chief Michael I. Ndu, Esq. for the 1st Respondent For Respondent
