INNOCENT NWACHUKWU & ANOR v. MICHAEL AJOMIWE ANELE
(2019)LCN/12574(CA)
In The Court of Appeal of Nigeria
On Friday, the 25th day of January, 2019
CA/OW/206/2014
RATIO
APPEAL: WHERE THE GROUNDS OF APPEAL IS DEFECTIVE
“The law is settled that where the ground of appeal is defective or the particulars do not flow therefrom or related thereto, such a ground or particular or particulars, are liable to be struck out. That, once the ground or one or more of its particulars, is/are liable to striking out, the remaining particular or particulars as well as the ground itself, are rendered otiose because it is not the duty of the Court to extend hands of fellowship to one of the parties by assisting him to carry out a surgical operation of that party’s ground of appeal by excising or removing the defective part from it. See the case of ABE V. UNILORIN (2013) LPELR 20643 (SC) in which these principles of law as enunciated by Nnaemeka-Agu, JSC; in the case of NWADIKE V. IBEKWE (1987) 4 NWLR (Pt. 67) 718 were applied.” PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
APPEAL: WHERE NOTICE OF APPEAL IS STUCK OUT
“In a situation where all the grounds of appeal contained in a Notice of Appeal are struck out for being defective, the Notice of Appeal is incompetent. In such a situation, the Court has an option either to dismiss the appeal or strike out the Notice of Appeal. See Anadi v. Okoli (1977) 7 S.C. 57 where Idigbe J.S.C, said at page 67:- ‘All the grounds of appeal were accordingly struck out. The position then was that the appellant had notice of appeal which contained no grounds of appeal. It was, in those circumstances, open to this Court to either dismiss the appeal (as was done in Anis Joseph Halaby v. Net Halaby (1951) 13 WACA 170 where the conduct of the appellant amounted to an abuse of process of Court) or to strike out the notice of appeal if we considered the same incompetent. The position here is that the appellant is left with a notice of appeal which clearly has no ground of appeal as is required by Order vii Rule 2(1) of the Supreme Court Rule. We consider the appeal, in those circumstances defective and incompetent.'” PER AYOBODE OLUJIMI LOKULO-SODIPE, 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
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
Between
1. INNOCENT NWACHUKWU
2. EMMANUEL OFORLETA ONUOHA Appellant(s)
AND
1. MICHAEL AJOMIWE ANELE
(For himself as head and other members of ANELE IHEZUO FAMILY, NDUMBARA AMAEGBU NNANATO, NKWERRE) Respondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment):
The appeal is against the judgment delivered on 17/6/2013 by the Imo State High Court, holden at Nkwerre and presided over by Hon. Justice T.E. Chukwuemeka-Chikeka (hereafter to be referred to as ‘the lower Court’ and ‘learned trial Judge’ respectively). The claimant (now Respondent in this Court) instituted his case against three Defendants jointly and severally and they are: (i) EMMANUEL DAN OLEMEFORO (for himself and as representing other members of Olemeforo family); (ii) INNOCENT NWACHUKWU; and (iii) EMMANUEL OFORLETA. The claims of the Respondent against the Defendants before the lower court are for:-
a. A declaration by the Honourable Court that the Claimant is entitled to apply for and be granted the statutory right of occupancy relating to the piece or parcel of land called “ALA MBARA” situate and lying at Ndumbara, Amaegbu, Nnanator, Nkwerre, Nkwerre Local Government Area, Imo State, Nigeria.
b. A declaration that the purported transfers of the land in dispute by the 1st defendant to the 2nd defendant on one hand, and by the 2nd defendant to the 3rd defendant on the other hand, without the consent and authority of the claimant are invalid and a nullity and as such without any legal effect.
c. Five Hundred Thousand Naira (N500,000.000) being general and specific damages for trespass.
d. Perpetual injunction restraining the defendants by themselves, servants, agents or privies, next-of-kins, donees, assigns, executors, heirs and or any person taking instructions from them from further trespassing into the land in dispute.”
The Defendants filed a counter-claim in the action of the Respondent. The counter-claim reads thus: –
1. A declaration by the Honourable Court that, the sale of the land in dispute “ALA MBARA” or “ALA ONUMAJURU”, well known to the parties, situate and lying at NDUMBARA AMAEGBU, Nkwerre, Nkwerre L.G.A. of Imo State made by the late DAN OLEMEFORO to the 2nd defendant (Innocent Nwachukwu) via the Deed of Conveyance dated 21st day of January, 1977 and registered as No. 88 at page 88 in Volume 81 of Imo State Land Registry Owerri is valid, proper and effective.
2. A declaration by the Honourable Court that the customary re-transfer/reside of the title and possession of the said land in dispute – “ALA MBARA” or “ALA ONUMAJURU” made by the 2nd defendant (Innocent Nwachukwu) to the 3rd Defendant – Emmanuel Oforleta Onuoha, is valid, proper and effective.
3. A declaration by the Honourable Court that, the 3rd defendant – Emmanuel Oforleta Onuoha is entitled to the customary right of occupancy of the said parcel of land in dispute “ALA MBARA” or “ALA ONUMAJURU” situate and lying at NDUMBARA AMAEGBU, Nkwerre, Nkwerre L.G.A. of Imo State.
4. An order of the Honourable Court for an order of perpetual injunction restraining the Claimant – Michael Ajomiwe Anele and other members of Anele Ihezuo family of Ndumbara, Amaegbu Nnanato Nkwerre, their privies, agents and all those claiming title through or in trust for them, from interfering in any manner howsoever, wheresoever and whatsoever with the customary right of occupancy of the 3rd defendant over the land in dispute.
5. An order of the Honourable Court on the claimant to pay the 3rd defendant the sum of N1,248,500.00 (One Million, Two Hundred and Forty-Eight Thousand, Five Hundred Naira) as special damages for destructions made in the land in dispute.
6. An order of Court on the claimant to pay the defendants the sum of N700,000.00 (Seven Hundred Thousand Naira) as general damages for trespass to the land in dispute.”
The case was tried on pleadings filed and exchanged by the parties and the lower Court in the light of the evidence adduced by the said parties and their respective witnesses and having also had the benefit of their written addresses, entered judgment in favour of the Respondent in the terms of the claims before it (except that damages of N50,000.00 was awarded in respect of claim ‘c’).The lower Court in its judgment also specifically dismissed the counter-claim of the Defendants.
Being aggrieved with the outcome of the case, two of the three Defendants sued jointly and severally by the Respondent, namely, INNOCENT NWACHUKWU and EMMANUEL OFOROLETA ONUOHA, initiated the instant appeal by lodging at the registry of the lower Court on 16/7/2013 a notice of appeal bearing the same date against the:
Whole judgment in which the trial High Court, Nkwerre, Imo State presided over by his Lordship, HON. JUSTICE T. E. CHUKWUEMEKA CHIKEKA gave judgment in favour of the Claimant/Respondent and granted the reliefs:
(a) Declaration that the Claimant is entitled to apply for and be granted the statutory right of occupancy relating to the piece or parcel of land called ‘ALAMBARA’ situate and lying at Ndumbara, Amaegbu, Nnanator, Nkwerre Local Government Area Imo State
(b) Declaration that the purported transfers of the land in dispute by the 1st Defendant to the 2nd Defendant on one hand and by the 2nd Defendant to the 3rd Defendant on the other hand, without the consent and authority of the Claimant, are invalid and a nullity, and as such without any legal effect.
(c) Perpetual injunction restraining the Defendants by themselves, servants, agents or privies, next of kins, Donees, Assigns, Executors, Heirs and or any person taking instruction, (sic) from further trespassing into the land in dispute.
(d) General and specific damages assessed at N50,000.00 (Fifty Thousand Naira) and cost of the suit assed at N10,000.00 (Ten Thousand Naira).
AND
Further dismissed the counter claim of the Defendants.
The notice of appeal contains two grounds of appeal with copious or extensive particulars. Ground 1 has ‘Particulars of Error of Misdirection’ running from (a) – (r) while the ‘Particulars of Error and Misdirection’ running from (A) – (J). The two grounds of appeal shorn of their respective particulars read: –
GROUND 1:
ERROR OF MISDIRECTION OF FACTS:
The judgment of the trial High Court is against the weight of evidence as the trial High Court misdirected itself in the evaluation analysis of the facts and evidence in the case before the Court such that the conclusions and holdings of the Court are inconsistent with the evidence and upon such misdirection, the Court gave judgment in favour of the Claimant and dismissed the Defendants’ counter claim.
GROUND 2:
ERROR OF LAW AND MISDIRECTION OF FACTS:
(I) The trial High Court erred in law where it concluded on the customary law that is applicable in the case and stated it as follows:
“Exhibit ?N? the Deed of Conveyance between Daniel Olemeforo and the 1st Defendant was not witnessed by any key member of Ihezuo’s family assuming Dan Olemeforo was the head of the family and sold it as such. The book customary laws of Imo State of Nigeria at page 39 paragraph 4 (d) states as follows:
“Sale of family land is allowed in most Areas in Orlu Zone, but the sale has to be by the head of the family in liaison with the principal members otherwise it will fail.
(II) The trial Court also misdirected itself in facts where it concluded as follows:
“I had earlier stated that the genealogy of the land in dispute had no problem, the only area of dispute is, ‘whether the land belonged to Dan or not’. The Claimant by himself as CW1, Cw2 and Exhibit C which was addressed to the 1st Defendant, goes to prove that the land in dispute belongs to the Claimant.”
The reliefs which the Appellants seek from this Court as set out in the notice of appeal read: –
(a) To allow the appeal, set aside the judgment of the trial High Court of Imo State, Nkwerre Judicial Division holden at Nkwerre and presided over by HON. JUSTICE T.E. CHUKWUEMEKA CHIKEKA in Suit No. HON/61/2005 delivered on 17thJune, 2013.
(b) Make an order dismissing the Claimant’s claims in the said suitNo. HON/61/2005.
(c) Enter Judgment for the Defendants in the said Suit No. HON/61/2005 as per their counter claims (sic).
The appeal and the preliminary objection (hereafter to be simply referred to as ‘P.O.’) to the said appeal were entertained on 31/10/2018. The Respondent, first argued the P.O. by adopting and relying on the arguments at paragraphs 5.0 – 5.03.10, in his brief of argument dated 4/12/2014 and filed on the same date but deemed as properly filed on 22/5/2018; while the Appellants duly responded to the same by adopting and relying on process titled ‘Appellants’ Reply to the Respondent’s Preliminary Objection? dated 23/12/2014 and filed on 24/12/2014. Subsequently, learned leading counsel, Chima C. Okaforin urging the Court to allow the appeal adopted and relied on Appellants’ brief of argument dated 31/10/2014 and filed on the same date but deemed as properly filed on 22/5/2018 as well as Appellants’ reply on points of law dated 23/12/2014 and filed on 24/12/2014 but deemed as properly filed on 22/5/2018.
In the same vein, learned counsel F.C. Abraham adopted and relied on Respondent’s brief of argument dated 4/12/2014 and filed on the same date but deemed as properly filed on 22/5/2018, in urging the Court to dismiss the appeal. The Respondent also urged the Court to discountenance the reply brief of argument filed by the Appellants as it is a re-argument of the appeal.
The issues formulated for the determination of the appeal in the Appellants’ brief of argument read thus:-
ISSUE 1:
Going by the totality of the evidence adduced at the trial High Court, was the trial High Court right to have held that, from the totality of the evidence, the Claimant/Respondent has proved his case on preponderance of evidence and entitled to judgment. (Stemmed from ground 1 of appeal)
ISSUE 2:
Was the trial High Court right in discountenancing some vital evidence of the Defendants/Appellants as unpleaded and completely lost sight of some others in the evaluation of evidence for which the trial High Court discredited the evidence of the Defendants/Appellants and dismissed the Defendants/Appellants’ counter claim while upholding the Claimant’s/Respondent’s claim. (Stemmed from ground 1 of appeal).
ISSUE 3:
Was the trial High Court right in applying the customary law said to be allowed in most areas of Orlu Zone in deciding the matter while disregarding the particular customary law of Nkwerre binding on the parties given in evidence for which the Court invalidated the Defendants’/Appellants’ title to the land made through customary sale and purchase?
(Stemmed from ground 2 of appeal).
ISSUE 4:
Was the trial High Court right in holding that the land in dispute belongs to the Claimant/Respondent on the basis and evaluationof Exhibit ‘C’ (a letter) and Exhibits A and B (survey plans) while disregarding a clear evidence of customary arbitration binding on the parties and the proper evidential contents/value of Exhibits A, B, and C?
(Stemmed from ground 2 of appeal).?
On his part, the Respondent formulated two issues for the determination of the appeal in his brief of argument and they read thus: –
i. Whether the trial Court properly analysed and evaluated the facts and evidence in the case before the Court, such that the conclusions and holdings of the Court, particularly, the conclusion/holding of the trial Court that the land in dispute belongs to the Claimant/Respondent, are consistent with the evidence laid in the case.
ii. Whether given the circumstances of this case, there are grounds for the learned trial Judge to apply the customary law applicable in Nkwerre under Orlu Zone in this case regarding the sale of family property by the family head without the consent of the principal members of the family.
I consider it expedient to first resolve the P.O. to the appeal brought by the Respondent before proceeding to determine which of the two sets of issues for determination formulated by the parties is more appropriate for the resolution of the appeal on the merit in the event the P.O. is overruled. In any case, the settled position of law (and which needs no citing of authority or authorities) is to the effect that where there is a P.O. to the hearing of an appeal, the same must be first considered and resolved as there would be no need to entertain the appeal on the merit if the P.O. succeeds. However, before proceeding to consider the Respondent’s P.O. on the merit,
I consider it necessary to resolve the question as to whether or not there is a proper Notice of P.O. placed before the Court by the Respondent. The Appellants raised this issue in their response to the P.O. of the Respondent under the heading ‘NON-EXISTENCE OF THE RESPONDENT’S PRELIMINARY OBJECTION’.
It is the stance of the Appellants that there is no Notice of P.O. filed by the Respondent and that this has rendered the P.O. in question incompetent and should be discountenanced. It is also the stance of the Appellants that the Respondent having failed to file a Notice of P.O. as prescribed by the Rules and no filing fee having been paid in accordance with the Third Schedule to the Court of Appeal Rules, 2011, which provides for N3,000.00 (Three Thousand Naira) filing fee on filing any process otherwise not provided for, the P.O. before the Court is incompetent. That this is a case of non-filing and payment of filing fee which robs the Court of jurisdiction to hear the P.O.
Preliminary objection to the hearing of an appeal is basically a separate proceeding in the appeal in which it is being argued and I am of the considered view that if an appellant in his response raises a new or fresh issue in respect of the P.O., the respondent who raised or brought the P.O. should as of right file a reply to that new or fresh issue or in any event proffer his response viva voce on the new or fresh issue, at the hearing of the P.O. The Respondent did neither. I however do not take this as a concession of the fresh or new issue raised by the Appellants in respect of the Respondent’s P.O. This is more so as the Appellants rightly elevated the fresh or new issue to the sphere of ‘jurisdiction’. It is settled law that parties cannot by consent or acts of omission or commission confer jurisdiction on the Court. Be that as it may.
I however cannot but say that it must be that the Appellants prior to the hearing of the P.O. were not served with a copy of the Notice of P.O. filed by the Respondent containing the ‘Revenue endorsements’ made by the registry of the Court. If they were served with such a process, then they must be mischievous in raising the fresh or new issue in respect of the non-filing of a Notice of P.O and non-payment of the requisite or appropriate fees therefor. Suffice it to say, that the Court has before it, a Notice of P.O. dated 9/4/2015 and filed on same date by the Respondent and on which process, it is endorsed that the Respondent paid a sum of N3000.00 for the P.O.; N200 for filing and N100 for service. The number of the receipt in respect of the payment is also quoted on the copy of the Notice of P.O. in the Court’s file. The Appellants, prior to raising the fresh or new issue regarding the non-filing of a Notice of P.O. by the Respondent and non-payment of the requisite/appropriate filing fees therefore in my considered view should have had the good sense of searching the Court’s file.
Flowing from all that has been said, is that I find the Notice of P.O. of the Respondent to have been properly and validly filed and argued as the positions of all the briefs of the parties were regularised prior to the entertainment of the said P.O. and appeal. I will therefore proceed to consider the P.O. on the merit.
The P.O. to the appeal as indicated in the Notice of P.O. (supra), is predicated on non-compliance by the Appellants with Order 6 Rule 3 of the Court of Appeal Rules 2011 as well as Order 12 Rule 1 of the Court of Appeal Rules 2011 and the Third Schedule thereto, dealing with fees. The grounds of the objection as set out in the Notice of P.O. read thus: –
1. Grounds one (1) and two (2) of the Appellants’ notice and grounds of appeal are argumentative, narratives, verbose, nebulous, incongruent, ambiguous and general in terms.
2. Particulars of grounds one (1) and two (2) of the Appellants’ notice and grounds of appeal are not in tandem with the said two grounds of appeal, rather, the particulars are at cross purpose to the grounds of appeal.
3. The appellants failed to pay the mandatory requisite filing fee for the Notice and grounds of Appeal.
4. A glance at the endorsements at page 261 of the printed record show clearly that the Appellants only paid N2,000.00 for the Appeal as against the sum of N5,000.00 prescribed by the Rules.
5. The Jurisdiction of the Court to hear and determine any appeal is invoked by the filing of a notice of Appeal in the registry of the Court. Filing of a notice of appeal means payment by the appellant of the appropriate filing fees as prescribed by the Rules of Court.
6. The Defendants’/Appellants filed two grounds of Appeal as shown at pages 251-260 of the printed record (see also page 5, paragraph 1.10 of the Appellants’ brief of Argument), but raised and argued four issues in their brief of argument which amounted to proliferation of issues for determination.
7. The appellants formulated two issues from each of the said two grounds of appeal, thereby raising four issues from the two grounds of appeal, contrary to the age long principle of law that no more than one issue must arise from the same ground of appeal and that the number of issues raised will not out-number the grounds of appeal.?
Arguing what was described as ?ground I of the P.O.? which is also stated to be in respect of non-compliance with Order 6 Rules 2(2), (3) and 3 of the Court of Appeal Rules, 2011, the Respondent submitted that grounds 1 and 2 (i) and (ii), in the notice of appeal are argumentative, narratives, verbose, nebulous, incongruent (sic), ambiguous and general in terms. That the totality of the said two grounds of appeal and their particulars are bereft of adequate and reasonable information as to what the complaint is against the decision of the lower Court. This is because the said grounds are so clumsily and ambiguously drafted that he (Respondent) cannot precisely and/or clearly appreciate or know what the attack or Appellants’ complaint against the decision of the lower Court, is, and upon which this Court is being invited to consider and determine the appeal.
Amongst others, the Respondent cited the case of Adah v Adah (2001) 5 NWLR (Pt. 705) 1, as deciding that a ground of an appeal which is argumentative, narrative or verbose, is incompetent and liable to be struck out under Order 6, Rule 2(3) supra. The Respondent also contended that the particulars of the two grounds of appeal are not in tandem with the said two grounds of appeal.
Further dwelling on ground 2 of the grounds of appeal, the Respondent proffered similar arguments (as put forward in respect of ground 1) regarding the argumentative and narrative nature of particulars (a) to (c) of the said ground 2. Also, that particulars (d) to (j) of the said ground 2 are at cross purposes as the said particulars consist of independent complaints from the ground of appeal itself. It is the stance of the Respondent that where the particulars of a ground of appeal do not flow or arise from or relate to the ground, the resultant effect is that the particulars in question must be struck out. The Respondent also stated the settled position of the law to be that once one or more of the particulars of any grounds of appeal are bad, the remaining particulars serve no useful purpose, as the Court will not give effect to the ground of appeal by excising bad particulars. That the entire ground will be liable to be struck out. Cases considered to be relevant were cited. In rounding up the submissions on ground I of the P.O., the Respondent said that the nature of particulars (a) to (r) of the ground 1, and particulars (d) to (j) of the ground 2 of the grounds of appeal, ought to have been separate grounds of appeal and as such are incompetent and liable to be struck out.
The stance of the Appellants in respect of ground I of the P.O., is to the effect that the Respondent’s position as highlighted above, is grossly misconceived. It is the stance of the Appellants that grounds of appeal are different from their particulars. The Appellants submitted to the effect that the Respondent merely laboured in vain in muddling up and failing to differentiate between grounds of appeal and their particulars, and nature of the misdirections or errors in the instant appeal. It is also the stance of the Appellants that all the authorities cited by the Respondent do not apply in this case.
I have hereinbefore re-produced the two grounds of appeal contained in the notice of appeal and it is to be noted that ground 2, ex-facie was split into two namely, (i) and (ii). I am of the considered view that the Appellants as in the case of separate findings or omissions made by the lower Court, ought not to have combined two different ‘misdirections of facts’ alleged to have been made in the judgment of the lower Court in the same ground. Ground 2 of the grounds of appeal is therefore liable to be struck out for that infraction without much ado.
I have also earlier stated that the particulars of the two grounds of appeal are very extensive. I have however read them painstakingly and I cannot but agree with the stance of the Respondent that particulars (a) to (r) of ground 1, are unrelated to the said ground. The said ground complains of the judgment of the lower Court as being against the weight of evidence as the lower Court misdirected itself, etc. It is inconceivable that this ground of appeal can rightly or correctly accommodate specific particulars set out thereunder. The particulars as rightly submitted by the Respondent, are clearly independent complaints that should have been couched as separate grounds of appeal just as the Appellants should have made the complaints in ground 2 separate and distinct. The particulars of ground 1, therefore are liable to be struck out as they are all incompetent. I
have earlier found that ground 2 of the grounds of appeal, is liable to be struck out inasmuch as it is a combination of two distinct complaints; consequently the particulars under the said ground would be lacking in any foundation by way of a ground of appeal and are glaringly incompetent and must suffer the same fate. The law is settled that where the ground of appeal is defective or the particulars do not flow therefrom or related thereto, such a ground or particular or particulars, are liable to be struck out. That, once the ground or one or more of its particulars, is/are liable to striking out, the remaining particular or particulars as well as the ground itself, are rendered otiose because it is not the duty of the Court to extend hands of fellowship to one of the parties by assisting him to carry out a surgical operation of that party’s ground of appeal by excising or removing the defective part from it. See the case of ABE V. UNILORIN (2013) LPELR 20643 (SC) in which these principles of law as enunciated by Nnaemeka-Agu, JSC; in the case of NWADIKE V. IBEKWE (1987) 4 NWLR (Pt. 67) 718 were applied.
Flowing from what has been stated before now therefore, is that ground 1 of the Respondent?s P.O. must be and is hereby upheld. I will dwell on the consequence of the success of this ground of objection after the other two grounds of objection are resolved.
Dwelling on what he termed as ‘ground II of the P.O.’ the Respondent argued in the main that the non-payment of the appropriate filing fee as prescribed under the Third Schedule of the 2011 Rules, in respect of the notice of appeal lodged in the registry of the lower Court by the Appellant, is grossly incompetent and robs this Court of the jurisdiction to entertain the instant appeal. It is the stance of the Respondent that the obligation on the Appellants to pay the complete filing fees charged under the Court of Appeal Rules, 2011 cannot be attributed to ‘error of the registrar of the lower Court’. This is because the responsibility to pay what the Rules prescribed, is absolutely that of the Appellants. That ex-facie page 261 of the printed record, the Appellants only paid N2,000.00 for the notice of appeal as against the sum of N5,000.00 prescribed by the Rules.
Responding to this ground of objection, it is the stance of the Appellants in the main that it is incorrect that there was non-compliance on their part with Order 12 Rule 1 of the Court of Appeal Rules, 2011 and the third schedule thereto, dealing with fees. That the position in the appeal is one of underpayment of filing fee and not non-payment of filing fee for which they cannot be held responsible as same was occasioned by the negligence of the registrar of the lower Court.
It is also the stance of the Appellants that inadequate/underpayment of filing fees does not raise the issue of jurisdiction but is a mere irregularity. The Appellants submitted that all the cases cited by the Respondent under this ground of his P.O. do not apply in the instant case.
I am of the considered view that ground II of the Respondent’s P.O. actually does not require an elaborate treatment or discourse. This is because I am of the considered view that if the Respondent had appreciated that all that the said ground raises is one of inadequate or shortfall in the filing fees paid by the Appellants in respect of their notice of appeal, in contradistinction to non-payment of filing fees at all, for the said process and had allowed himself to be guided by recent authorities, the Respondent ought not to have pursued this ground of objection which was raised and argued as a jurisdictional issue.
Suffice it to say that the law is settled that the consequence of the payment of inadequate or shortfall in the payment of filing fees in respect of a Court process, particularly a notice of appeal, is not the same as in the case of the non-payment at all, of the requisite filing fees for such a process. My lord, Rhodes-Vivour, JSC; disclosed this much in the case of NIGERIA AGIP OIL CO. LTD V. NKWEKE (2016) LPELR ? 26060(SC) when he said thus: –
“In SC. 693/2013 an appeal on an identical issue decided by the Court on 11/12/15 in my concurring judgment to the leading judgment delivered by my learned brother I.T Muhammed, JSC I said that:”…. non-payment of filing fees is different from inadequate payment, the latter being the fault of the Registry…” I must say that non payment of filing fees is a serious omission by the Appellant which in effect deprives the Court of jurisdiction to hear the appeal. See Okolo v. UBN Ltd (2004) 3 NWLR (Pt. 859) p. 87. On the other hand inadequate payment of filing fees is usually the fault of the Registry who made a mistake when it told the Appellant the amount to be paid. In cases where the fees paid by the Appellant are inadequate it is the singular duty of the presiding Judge to order the erring Appellant to pay the correct filing fees instead of striking out the appeal.” See also the case of SPDC V. AGBARA (2015) LPELR 25987(SC) wherein the Supreme Court reiterated its position that the payment of inadequate filing fees as assessed by the registrar of a High Court and in contravention of the fees provided for by the Rules of this Court, does not raise a jurisdictional issue but is only an irregularity that can be cured.
Flowing from what has been said in relation to ground II of the Respondent’s P.O. is that the said ground fails and is hereby overruled.
Dwelling on what was described as ‘ground III of the P.O.’ the Respondent brought out the fact that the Appellants was guilty as it were of proliferation of issues as they have formulated more issues than the grounds of appeal filed, and that this is highly deprecated and discouraged by the Courts. Against the backdrop of other submissions, the Respondent urged this Court to dismiss this appeal for being grossly incompetent.
Responding to ground III of the Respondent’s P.O., the Appellants urged the Court as it were to accommodate the multiplicity of issues for determination stemming from a ground of appeal. The Court was urged to exercise its age-long wisdom by giving credence to substantial justice over and above technicality by discountenancing this ground of P.O. as it is no more than technicality. This is more so as the Supreme Court has condemned sacrificing substantial justice on grounds of technicality. It is the stance of the Appellants that merely raising just two (2) germane issues from one ground of appeal and arguing them together as in the instant case, does not necessarily amount to proliferation of issues and cannot render the appeal or the grounds incompetent or fatal. That the practice is that one of the extra issues out of one ground of appeal may be treated as a non-issue. Cases considered relevant were cited in aid of the submissions of the Appellants.
I cannot but observe that the Appellants in responding to this ground of appeal clearly do not dispute the fact that they have violated the age long or settled principle or position of law which prohibits the proliferation of issues formulated for the determination of an appeal vis a vis the grounds of appeal in the notice of appeal. They would only appear to be advocating that the Court should overlook the infraction they have committed against the backdrop of doing substantial justice.
In my considered view, it is worrisome that the Appellants would appear not to appreciate the position of the law that ‘substantial justice’ is not what the Court can invoke when it is obvious from surrounding circumstances that the party urging the invocation of the principle, has by his actions not created the enabling atmosphere for the Court to do the same. The Rules of this Court specifically provide for the bringing of a P.O. to an appeal. The position of the law is settled as to the consequence of the success of a P.O. The Respondent filed his brief of argument in which he argued the P.O. as far back as 4/12/2014. The Appellants responded to the same in a process different from his reply brief to the Respondent’s brief of argument, and which was filed as far back as 24/12/2014. As it can be gathered from what has been earlier said in this judgment, the Appellants in their response to the P.O. of the Respondent first set out to attack the competence of the P.O. on the ground that a Notice of P.O. was not filed and that no payment was made for any such notice. On 9/3/2015, the Respondent in compliance with the Rules of Court filed a Notice of P.O. in respect of which he duly paid the prescribed fee. The Notice of P.O. therefore formed the basis of the P.O. argued in the Respondent?s brief of argument.
This is particularly so as it was on 22/5/2018 that the Appellants regularised the position of the record of appeal as per its compilation and transmission. This resulted in the Court also deeming processes filed in the appeal before the regularisation of the record (including the briefs of argument of the parties) as having been regularly filed as at 22/5/2018. In my considered view, it is glaring from the foregoing narration that the Appellants not only had constructive or advanced notice of the P.O. in which the issue of proliferation of issues for determination by them amongst other issues, was raised since the argument of the said P.O. in the Respondent?s brief of argument, and actual notice as it were that the Respondent was serious about pursuing the P.O. as far back as 2015 when the Respondent filed a formal Notice of P.O in compliance with the Rules of Court. In the circumstances, one would have thought that if the Appellants had properly examined the grounds of the P.O. of the Respondent particularly the issue of proliferation of issues for determination vis a vis their appeal, and were convinced that they had committed the acts or omissions the P.O. was about, they had more than ample time at all material times prior to the date the instant appeal was entertained, to have corrected their position by taking appropriate remedial steps. In this regard see the cases ofLONG-JOHN V. BLAKK (1998) LPELR 1791 (SC) in which the principle of substantial justice as enunciated in the cases of CONSORTIUM MC V. NEPA (1992) 6 NWLR (Pt. 246) 132; NALSA AND TEAM ASSOCIATES V. NNPC (1991) LPELR ? 1935 (SC); and NNEJI V. CHUKWU (1988) 3 NWLR (Pt. 81) 184, amongst others, was applied. The Appellants did not see the need to take any remedial step in respect of the matters raised in the grounds of the P.O. particularly in respect of the ground of the proliferation of issues for determination vis a vis the grounds of appeal. The Appellants did not do this despite the negative impart the success of any of the grounds of the P.O. portended for their appeal, despite the position of the law that the filing of a P.O. does not preclude the party against who it has been raised from correcting the lapses brought to the fore by the P.O. In other words, the Appellants would appear not to appreciate the fact that if they had taken remedial step(s), the soil as it were, might have been removed from under the Respondent with the consequence that the Respondent would have had to withdraw the P.O. or the Court would have dismissed the same if the remedial steps scaled through.
I am of the considered view that it would have been in any proceeding brought by the Appellants for the purpose of remedying the matters raised in the grounds of the P.O. that would have imparted negatively on their appeal, that they (Appellants) could have properly appealed to the doing of substantial justice, to enable them do the needful for the purpose of having their appeal heard on properly couched grounds of appeal with equally properly thought out particulars and formulation of appropriate number of issues vis a vis the grounds of appeal. The apparent firm or unyielding stance of the Appellants to oppose the P.O. brought by the Respondent, in my considered view is antithetical to the appeal or resort to ‘substantial justice’ now made by the Appellants in their reply to the Respondent’s P.O. In other words, the circumstances before the Court does not justify the appeal by the Appellants for the doing of substantial justice or its invocation by the Court. I am of the considered view that ‘substantial justice’ is not the exclusive preserve of one of the parties to a matter and it is not to be used to deny the other party to the proper outcome of an issue in contention (where the issues are not recondite) and upon which parties have taken irreconcilable positions.
Suffice it to say that as there are many authorities not only deprecating the proliferation of issues for determination vis a vis grounds of appeal; arguing an issue distilled from a proper or valid ground of appeal together with an issue distilled from an improper or invalid ground of appeal; and/or arguing issues that have no basis or foundation in the grounds of appeal, etc; and the clear consequences therefore, I am not swayed or persuaded not to mete out the settled consequence to the Appellants for any or all of these infractions. Accordingly, each of ground 1 and ground 2 of the two grounds of appeal in the instant appeal from which the Appellant distilled two issues are liable to be struck out just as the issues distilled for the said grounds and arguments thereon, are equally liable to be struck out and are hereby respectively struck out. In this regard see the case of YISI (NIG) LTD V. TRADE BANK PLC (2013) LPELR 20087 (SC) wherein his Lordship Ngwuta, JSC; said thus:-
”The principle governing the formulation of issues for determination is that a number of grounds of appeal could, where appropriate, be formulated into a single issue running through them. It is undesirable to split issues in a ground of appeal as was done in the appellant’s brief. See Labiyi v. Anretiola (1992) 10 SCNJ 1 at 2. An issue for determination must arise from one or a combination of grounds of appeal. See Nwudenyi & Ors v. Aleke (1996) 4 NWLR (Pt. 449) 349 and on no account should more than one issue be framed from one ground of appeal. An issue emerges from one or more grounds of appeal not the other way round. See Garba v. The State (2000) 4 SCNJ 315.”
In the same case, Rhodes-Vivour, JSC; said thus: –
“Where more than one issue is formulated from the same ground of appeal both the issues so formulated and the ground from which they were formulated shall be struck out. See Agbetoba v. The Lagos State Executive Council & Ors 1990 6 SCNJ Pt. 1 P. 12 Tanerewa Nig Ltd v. Plastifarm Ltd 2003 14 NWLR Pt. 840 p. 369.”
Flowing from all that has been said is that even if the two grounds of appeal herein had not been found liable to be struck out given the success of ground 1 of the grounds of the P.O., they stand liable to by struck out on the success of ground 3 of the said P.O.
The Respondent given the success of the P.O. has glaringly shown that the instant appeal cannot be heard even if the Court were minded to hear it. This is because the trite position of the law is that appeals are heard on issues and not grounds of appeal (which in any event are no more existent in the instant appeal). The Appellants? appeal now being bereft of any issue for determination, surely cannot be argued by them. This is more so as the Appellants have even questioned the appropriateness of the issues formulated for the determination of the appeal by the Respondent (who is not the person appealing in any event). The instant appeal is not one in which the originating process has been found to have been filed out of time. It was validly filed or lodged. The flaw that has now attached to the instant appeal, is not only one in respect of the notice of appeal that is rendered incompetent as it has no grounds of appeal; but also attaches to the appeal itself as the Appellants have no issues upon which they can argue the appeal. Given, these circumstances, I am of the considered view that this is not a case in which the appeal should be struck out for incompetence of the originating process as it were, but one that should be dismissed.
This is particularly so as it would appear that appeal that is founded on a valid notice of appeal that is subsequently rendered incompetent by the striking out of the sole ground of appeal therein or all the grounds of appeal therein can properly be dismissed. In this regard, see the case of OLOWOKERE V AFRICAN NEWSPAPERS OF NIG. LTD. (1993) 5 NWLR (Pt. 293) 583 wherein this Court stated thus:-
In a situation where all the grounds of appeal contained in a Notice of Appeal are struck out for being defective, the Notice of Appeal is incompetent. In such a situation, the Court has an option either to dismiss the appeal or strike out the Notice of Appeal. See Anadi v. Okoli (1977) 7 S.C. 57 where Idigbe J.S.C, said at page 67:-
“All the grounds of appeal were accordingly struck out. The position then was that the appellant had notice of appeal which contained no grounds of appeal. It was, in those circumstances, open to this Court to either dismiss the appeal (as was done in Anis Joseph Halaby v. Net Halaby (1951) 13 WACA 170 where the conduct of the appellant amounted to an abuse of process of Court) or to strike out the notice of appeal if we considered the same incompetent. The position here is that the appellant is left with a notice of appeal which clearly has no ground of appeal as is required by Order vii Rule 2(1) of the Supreme Court Rule. We consider the appeal, in those circumstances defective and incompetent.”
In other words, I would have considered it appropriate to have struck out the notice of appeal and consequently the appeal, had the flaws in the validity of the appeal lodged by the Appellants been limited solely to the grounds of appeal, unfortunately they are not. See also the case of ODELUGA V. ANIAKOR (2012) LPELR 19977 (CA) wherein this Court per Lokulo-Sodipe, JCA; stated thus:-
Given the success of the preliminary objection of the Respondent and as a result of which all the grounds of appeal in the appeal have been struck out, and all arguments in relation to the grounds, to be discountenanced, it follows that the Appellant’s appeal must fail inasmuch as his complaints against the judgment of the lower Court stand unsubstantiated. In the final analysis, the appeal must be dismissed and is hereby dismissed, given success of the preliminary objection of the Respondent and as the Appellant thereby has nothing to urge to substantiate the appeal.
In the final analysis, and guided by the cases cited above, the instant appeal is dismissed with costs of N25,000.00 against the Appellants and in favour of the Respondent.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree.
RITA NOSAKHARE PEMU, J.C.A.: I had a preview of the lead judgment just delivered by my Brother AYOBODE OLUJIMI LOKULO-SODIPE JCA. I agree entirely with his reasoning and conclusion. I also dismiss the appeal as lacking in merit.
I abide by the consequential order made as to costs.
Appearances:
Chima C. Okafor with him, U. V. DimFor Appellant(s)
F.C. AbrahamFor Respondent(s)
