CHIEF AKPAN UDO UTUNG & ANOR v. SIR MALACHY NKANTION & ANOR
(2019)LCN/13498(CA)
In The Court of Appeal of Nigeria
On Friday, the 14th day of June, 2019
CA/C/96/2018
RATIO
HOW A PARTY SHOULD CHALLENGE SOME GROUND OF APPEAL, HE OUGHT TO USE A MOTION WHEN IT WONT DO AWAY WITH THE ENTIRE APPEAL
It will be expedient to resolve the docile objection to the Respondents choice to use a preliminary objection instead of a motion on Notice to challenge the appeal. The position is not a statutory one but that of judicial pronouncement that when a party wants to challenge some grounds of appeal which will not do away with the entire appeal, then, a motion on notice is best suited method to adopt.PER YARGATA BYENCHIT NIMPAR, J.C.A.
APPEAL: HOW BEST TO CHALLENGE AN ENTIRE APPEAL
However, where the challenge is against the whole appeal, then a preliminary objection is the method to adopt. See SPDC (NIG) LTD. VS. AMADI (2011) LPELR-3204(SC) which held:
“Preliminary objections are filed against the hearing of an appeal and so once it succeeds the appeal no longer exists. All too often we see preliminary objections filed against one or more grounds of appeal. Once there are other grounds that can sustain the appeal, a preliminary objection should not be filed. Instead a Notice of Motion seeking to strike out the defective grounds of Appeal should be filed. In this case a Preliminary objection was properly filed, because if it succeeds the appeal comes to an end. See: NEPA VS. Ango 2001 15 NWLR (PT. 737) 627.” Per RHODES-VIVOUR, J.S.C PER YARGATA BYENCHIT NIMPAR, J.C.A.
INITIATING PROCESSES MUST BE DULY SIGNED BY EITHER PARTY OR A LEGAL PRACTITIONER
It is trite that initiating processes must be duly signed by either the party or the legal practitioner representing the party. The legal Practitioners Act requires the practitioner to sign such processes to be filed in a particular manner as settled in SLB CONSORTIUM (supra).PER YARGATA BYENCHIT NIMPAR, J.C.A.
APPEAL: WHAT HAPPENS AFTER THE INITIAL 60 DAYS OF FILING HAS PASSED
The import of the rule reproduced above is quite clear and straightforward. Once 60 days after the filing of the Notice of Appeal expires, the duty becomes mandatorily that of the Appellant and the rule uses the word SHALL to emphasis the importance of the shifting of responsibility to the Appellant.PER YARGATA BYENCHIT NIMPAR, J.C.A.
WORDS AND MEANING: “SHALL”
The imperativeness of the word shall receive judicial attention in a number of cases, NWANKWO & ORS. VS. YAR ADUA & ORS. (2010) LPELR- 2109(SC) which held thus:
“The word shall when used in a statutory provision imports that a thing must be done. It is a form of command or mandate. It is not permissive, it is mandatory. The word shall in its ordinary meaning is a word of command which is normally given a compulsory meaning as it is intended to denote obligation. Bamaiyi vs. A.G. Federation (2001) 12 NWLR pt. 722 pg. 468 Ifezue vs. Mbadugha (1984) 1 SCNLR pg. 427 Chukwuka vs. Ezulike (1986) 5 NWLR pt. 45 pg. 892. Ngige vs. Obi (2006) 14 NWLR pt. 999, pg. 1.”PER YARGATA BYENCHIT NIMPAR, J.C.A.
APPEAL: DUTY TO PREPARE AND FILE A RECORD OF APPEAL
The rules are clear that responsibility mandatorily becomes that of the Appellant. See UMAR VS. RABO (2015) LPELR-40408(CA) wherein my lord WAMBAI, JCA held:
“The duty of compiling and transmitting the records of appeal is by Order 8 Rule 1 of our Rules of Court, primarily that of the Registrar of the Court below who is statutorily saddled with that responsibility. This he must do within 60 days after the filing of the Notice of appeal. It is only where he fails to do so within the 60 days that the Appellant shall be mandated to do so within 30 days after the Registrar’s failure or neglect. Nwora & Ors. vs. Nwabueze & Ors. (2013) LPELR 2058 (SC), Adekanbi & Anor vs. Olufawoye (2012) LPELR 80 36 (CA) FBN PLC vs. TSA Industries Ltd. (2007) All FWLR (Pt.352) 1719. Once the Appellant has done the needful, it becomes incumbent on the Registrar of the lower Court to compile the record together with all the documents constituting the records of appeal and transmit same to the Appellate Court. From the point that the Appellant fulfills the requirements on his part, the rest is for the trial Court to discharge its duty of duly compiling and transmitting the record of appeal.”PER YARGATA BYENCHIT NIMPAR, J.C.A.
APPEAL: RECORD OF APPEAL: THE CONSEQUENCE OF NOT REGULARIZING THE RECORD OF APPEAL
The consequence of not regularizing the record of appeal makes the record of appeal in this appeal incompetent and must be struck out. See NKUE VS. WAKAMA (2018) LPELR-44292(CA) which held thus:
“Another anomaly I discovered is that the main record of appeal was compiled and transmitted to this Court out of time and there is no application to regularized it in the case file.PER YARGATA BYENCHIT NIMPAR, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
Between
1. CHIEF AKPAN UDO UTUNG
(of Ikot Oko village, Oruk Anam LGA)
2. WINGS OF REDEMPTION MINISTRIES
(Ediene Ikot Inyang village) – Appellant(s)
AND
1. SIR MALACHY NKANTION
2. CHIEF IGNATIUS AKPAN UKO
(for themselves and on behalf of the people of Ediene Ikot Inyang village, Oruk Anam LGA) – Respondent(s)
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal challenges the correctness of the judgment of the AKwa Ibom State High Court of Justice sitting at Ikono, delivered on the 23rd October, 2017 by Hon. Justice Ekerete A. Ebienyie wherein the Court below entered judgment in favour of the Respondents.
Dissatisfied with the decision the Appellants filed an Amended Notice of Appeal on the 7th March, 2018 and deemed on the 18th October, 2018 setting out 4 grounds of Appeal.
Facts leading to this appeal are straight forward and can be simple summarized. The Respondents took out a writ of summons before the Court below seeking the following reliefs:
i. A declaration that the plaintiffs are entitled to the Customary Right of Occupancy of the piece or parcel of land known and called ?IKOT AKPASIERE EDIENE INYANG? lying and situate at Ediene Ikot Inyang village in Oruk Anam local Government Area within the jurisdiction of this Honourable Court.
?ii. A Declaration that the Defendants are trespassers having entered the Plaintiffs? land known and called ? IKOT AKPASIERE EDIENE IKOT
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INYANG? lying and situate at Ediene Ikot Inyang Village, Oruk Anam local Government Area without their authority or Consent, destroyed crops and economic tress therein and lease out some portions of the land to the 3rd defendant and others while the plaintiffs are still in exclusive possession.
iii. N10,000,000 (Ten Million Naira) being special and general damages for trespass.
iv. Perpetual injunction restraining the Defendants whether by themselves, their servants, workmen, agents or privies from further acts of trespass on the said land in exclusive possession of the plaintiffs.
Parties joined issues and the matter went to trial with the Respondents and Appellants calling three witnesses each and documents were tendered in evidence as Exhibits. Counsel written addresses were adopted and after a careful consideration the Court below entered judgment for the Respondents, a decision that did not go down well with the Appellants thus this appeal.
The Appellants Brief settled by CHIEF CLETUS OKOI ESQ., was filed on the 3rd October, 2018 and it distilled 4 issues for determination as follows:
?a. Whether the learned trial
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judge entertained the suit No. HUK/8/2007 and entered judgment without jurisdiction.
b. Whether the learned trial judge failed refused or neglected to properly evaluate and analyze the entire evidence, documents, Exhibits and final addresses before the Court thereby denying the Appellant the right to fair hearing.
c. Whether the learned trial judge exhibited manifest bias against the Appellant in evaluation of evidence and the trial generally.
d. Whether the judgment is against the weight of the evidence adduced at the trial by the Appellant amounting to a perverse judgment.
The Respondents Brief settled by IDARA EBOH ESQ., it is dated 27th day of January, 2018d file and on the 7th February, 2019 and deemed on the 11th April, 2019. It settled 3 issues for determination thus:
i. Whether upon the Respondents? writ of summon and statement of claim, the jurisdiction of the lower Court was in anyway adversely affected by the Appellants alleged sub- issues of lack of locus standi, the statute of limitation claim of non-disclosure cause of action and or the suit was an abuse of Court process.
?ii. Whether the learned trial
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judge judicially and judiciously evaluated the parties evidence before the Court and equally accorded them their deserved probative legal values in tandem with the rule in Mogaji vs. Odofin (1978) SC91 at 93 and whether these amounts to miscarriage of justice, biases and denial (sic) the Appellants fair hearing.
iii. Whether the Plaintiffs/Respondent at the lower Court did proved their case vis a-vis that they owned the land indispute up to the stream/river which separates them from the Defendants/Appellants village in accordance to the rules in Udofia vs. Alfa 6 WACA, Idundun VS. Okumagba (1976) and more importantly according to the recent Supreme Court decision in Momoh vs. Umoru (2011) 15 NWLR (Pt. 1270) 15.
The Respondents incorporated in their Respondents? brief a preliminary objection challenging the appeal thus:
The Appellants 1st Notice of appeal was filed on the 30th October, 2017. The Appellants through the Registrar of the lower Court transmitted records of proceedings to this Court on 27th February, 2018, the date this appeal was entered which itself was out of time and without leave of this Court.
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?The Appellants unsigned amended notice of appeal and ground of appeal was filed on the 27th March, 2018 and with the leave of Court same deemed properly filed on the 18th October, 2018.
The grounds upon which the preliminary objection is based states thus:
a. That this Court?s certified true copy of the Appellant?s/Respondents proposed notice and grounds of appeal filed alongside the motion on notice by the Appellants to regularize their process was not signed either by the Appellants or their counsel as mandatory required by law.
b. That from the above paragraph, the Appellants brief of arguments filed before this Court is devoid of any foundation and is nullity.
c. That record of proceedings from the lower Court was transmitted out of time and entered in this Court without leave of this Honourable Court.
d. That the Appellants? brief of argument dated 3rd October, 2018 was filed out of time without the Appellants paying appropriate fees as statutory (sic) stipulated as penalty for late filing.
The Respondents raised a sole question for determination under the preliminary objection as follows:
?Whether this Honourable
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Court has jurisdiction to adjudicate on the Appellants? unsigned notice of appeal and grounds of appeal, brief of arguments filled out of time without paying the appropriate penalty and in absence of the leave of the Court and also incompetent record of appeal transmitted out of time also without leave of the Court argument.
Arguments in support of the objection are found at pages 2-5 of the Respondents? brief.
The Appellants filed an undated reply on the 20th February, 2019 but deemed on the 11th April, 2019 wherein it reacted to the preliminary objection and the Respondent?s Brief of argument in the main appeal. It did not distill any issue for determination in the Preliminary objection. The Court shall adopt the sole issue formulated by the Respondents in the preliminary objection for determination.
As required by the rules of the Court, the preliminary objection must be considered first before taking any step in the main appeal and only if the objection does not succeed and fails to truncate the appeal then the main appeal shall be considered.
PRELIMINARY OBJECTION
The Respondents in arguing the preliminary
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objection submitted that the Appellant?s brief is incompetent because the proposed Notice of Appeal was not signed by a legal practitioner furthermore, that the Record of appeal was transmitted outside the time limited for transmission of record which is 45 days and without payment of penalty as required. On the first point he relied on the ALH AMADU KANKIA BELL
