OC EZE OBI INVESTMENT LIMITED & ANOR v. MIC-MERCHANT INVESTMENT LIMITED & ANOR
(2019)LCN/13535(CA)
In The Court of Appeal of Nigeria
On Friday, the 21st day of June, 2019
CA/A/681/2015
RATIO
AN APPEAL IS GENERALLY CONSIDERED A CONTINUATION OF AN ORIGINAL SUIT
An appeal is generally regarded as a continuation of an original suit rather than as an inception of a new action, and it should be a complaint against the decision of a trial Court. Thus in the absence of such a decision on a point, there cannot possibly be an appeal against what has not been decided against a party.PER ADAMU JAURO, J.C.A.
APPEAL: GROUNDS OF APPEAL: PARTIES ARE BOUND BY THEIR GROUNDS OF APPEAL
Parties are bound by their grounds of appeal and are not at liberty to argue grounds not related to the decision appealed against. The grounds of appeal against a decision must relate to the said decision given the fact that it is a challenge to the “ratio” of that decision. In other words, grounds of appeal must emanate from the decisions it is attacking. The Supreme Court Per Karibi Whyte, JSC had occasion to pronounce on the nature of grounds of appeal in the case of SARAKI VS. KOTOYE (1992) 9 NWLR (PT. 264) 156 AT 184, thus:
“…It is well settled proposition of law in respect of which there can hardly be a departure that the grounds of appeal against decision must relate to the decision and should constitute a challenge to the ratio of the decision. See: EGBE V. ALHAJI (1990) 1 NWLR (PT. 128) 546 AT 590. Grounds of appeal are not formulated in “nubibus”. They must be in firma tera, namely arise from the judgment. However, meritorious the ground of appeal, based either on points of critical constitutional importance or general public interest, it must be connected with a controversy between parties…”PER ADAMU JAURO, J.C.A.
UPON WHAT ARE GROUNDS OF APPEALS BASED?
It is elementary law that ground of appeal is based on issues duly raised by the parties as decided by the Court. Where as in this appeal, all the issues are not raised at the trial Court, duly decided and appealed against by the appellants; the appellants cannot arrogate any grievance to himself, because in law there is no basis for such grievance. See BUHARI VS. DIKKO (2004) 1 EPR 1 AT 51. In the instant appeal, I have also earlier said that all the appellants’ grounds of appeal filed and their particulars are not related to the judgment of the trial Court appealed against, therefore, they are incompetent and are accordingly struck out.PER ADAMU JAURO, J.C.A.
ISSUES FOR DETERMINATION MUST BE TAILORED TO THE REAL QUESTIONS IN CONTROVERSY IN A MATTER
Also, issues for determination must be tailored to the real questions in controversy in a case. See NWOSU VS. IMO ENVIRONMENTAL SANITATION AUTHORITY (1990) 2 NWLR PT. 135 PG 688. In the instant appeal, the appellants’ issues 1, 2 and 3 distilled for determination in this appeal, which do not arise from valid grounds of appeal, are deemed irrelevant and hereby discountenanced. The said issues for determinations are hereby struck out.PER ADAMU JAURO, J.C.A.
JUSTICES
ADAMU JAURO Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
Between
1. OC EZE OBI INVESTMENT LTD
2. ONYEBUCHI C. OBIOHA Appellant(s)
AND
MIC-MERCHANT INVESTMENT LTD
MR. MICHAEL NWANKWO Respondent(s)
ADAMU JAURO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of Niger State (herein after referred to as the trial Court) in Suit No.NSHC/MN/274/2014 delivered on the 15th day of May, 2015 by Hon. Justice Maria Sanda Zukogi.
The facts that led to this Appeal are that the Respondents as Plaintiffs at the trial Court instituted an action against the Appellants as Defendants via a summary judgment procedure under Order 11 of the High Court of Niger State (Civil Procedure) Rules, 2012, claiming against the Appellants as defendants the reliefs as contained in Exhibit AL as can be found at pages 48 of the record of appeal. The Respondents believed the Appellants had no defence to the suit, consequently filed an application for summary judgment dated 22nd October, 2014 on 27th October, 2014, pursuant to Order 11 of the High Court of Niger State (Civil Procedure) Rules, 2012. The defendants filed and argued a notice of preliminary objection to the hearing of the suit which was overruled by the trial Court on 1st
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April, 2015. Dissatisfied, the defendants then filed a notice of appeal against the ruling dated 13th April, 2015 on 20/4/2015.
It was alleged that the defendants/appellants were served with the originating processes in December, 2014, but they have not responded.
The trial Court entered judgment in favour of the plaintiffs/respondents. It held inter alia as follows;
“…From all the above, the defendant was shown he has no defence to this claim, and the applicant in the circumstance is entitled to judgment…”
Dissatisfied with the judgment, the Appellants filed a Notice of Appeal on 19/5/15 containing three grounds of appeal as can be found at page 121 of the record of appeal. The record of Appeal was transmitted to this count on 13/11/15.
The briefs of argument were subsequently filed and exchanged by the parties in accordance with the Rules of Court. The Appellants’ brief of argument settled by Oyelekan Akingbade Esq., is dated 17/2/16 and filed on 18/2/16 but deemed filed on 29/10/18. The Respondents’ Brief of Argument on the other hand settled by Solomon M. Jiya Esq, is dated 30th March, 2016 and filed on the 31/03/2016 but
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deemed filed on 29/10/18. The Appellants also filed a reply brief on 22/4/16 but deemed filed on 29/10/18.
In the Appellants’ brief of argument, three issues were distilled for determination from the 3 grounds of appeal filed as follows:
1. Whether or not the refusal of the trial Court in granting preliminary objection amount to abuse of Court process.
2. Whether or not the Court of appeal can grant retrial in the instant case.
3. Whether or not the strict adherence to technicalities by the trial Court has occasioned substantial injustice.
The respondents’ counsel on their part adopted the three issues as distilled by the appellants.
The three issues for determination as distilled by the appellants are adopted in the determination of this appeal. The three issues would be taken together.
ISSUES ONE,TWO&THREE
Learned counsel for the appellants contended that the refusal by the trial Court to grant the appellants’ preliminary objection amounted to a gross abuse of Court process in this matter.
He submitted that the appellants by Exhibit A1 filed a matter before High Court of Justice No. 3 Minna, which
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processes were served on the respondents, and the respondents thereafter filed joint statement of defence and a counter claim “Exhibit A2”. He contended that both the appellants and the respondents joined issues at High Court No. 3. Consequently, while the case in High Court 3 was pending the respondents filed another matter before the High Court No. 2 with the same parties, subject matter and same issue. The appellants filed a preliminary objection, with the intention to inform the Court about the duplicity of matters by the respondents. He referred the court to the cases of;
OGOEJEOFO VS. OGOEJEOFO (2006) 3 NWLR (PT. 266) AT 208- 209; SARAKI VS. KOTOYE (1992) 9 NWLR (PT.264) PG 156; DOMA VS. ADAMU (1999) 4 NWLR (PT.598) PG 311; BENAPLASTIC VS. VASILYEV (1999) 10 NWLR (PT. 624) PG 620; A. G ONDO STATE VS. A.G EKITI STATE (2001) 17 NWLR PT. 743 PG. 706.
He contended that the preliminary objection filed raised a fundamental question which borders of the jurisdiction of the trial Court to hear the matter.
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He urged the Court to hold that the entire judgment of trial Court amounted to abuse of Court process and a nullity.
?
On whether or not the Court of appeal can grant retrial in the instant case, learned counsel for the appellant contended that taking into cognizance the fundamental oversight and the hurried nature in which the trial Court dispatched the appellants’ preliminary objection filed before it, this Court has the power to interfere with the exercise of the trial court’s discretion. He referred the Court to the cases of;MASSEKEN NIG. LTD VS. AMOAKA (2007) ALL FWLR PT.387 PG 902; DOKUBO ASARI VS. FRN (2008) ALL FWLR PT. 433 PG 1389, OJU L.G VS. INEC (2007) 38 WRN 32.
He submitted that it will be in the interest of justice to grant the appellants a second opportunity to be heard. He urged the Court to deem it fit to order a proper trial.
On Whether or not the strict adherence to technicalities by the trial Court has occasioned substantial injustice, learned counsel for the appellants submitted that the reason for the refusal of the preliminary objection filed by the appellants was that the process in the High Court No. 3 was
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only mentioned and the applicants only furnished the suit number without attaching the process. On this technical ground, the preliminary objection was dismissed.
Learned counsel argued that the Courts are enjoined in the adjudication of disputes between the parties to do substantial justice and not to have an undue regard to technicalities. He contended that in this matter the trial Court based its decision on technicalities. He referred the Court to the cases; UNITED BANK FOR AFRICA LTD VS. DIKE NWORA 1978 11-12 SC AT 6-7; ADDAX PET. DEV. NIG. LTD VS. DUKE 2010 15 WRN PG. 127; BAYO VS. FRN 2008 ALL FWLR PT. 428 304 AT 308.
He urged the Court to uphold the appeal in the interest of justice and to do substantial justice in the instant case.
Learned counsel for the respondents on their part submitted that the trial Court was right in law to dismiss the appellants’ preliminary objection when they failed to furnish the trial Court with sufficient materials to prove her allegations. He referred the Court to Section 136 (1) of the Evidence Act, 2011.
He argued that, at the trial Court the appellants failed to exhibit in their preliminary
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objection before the trial Court the alleged suit that is said to be in abuse of the process of the Court. He referred the Court to the said preliminary objection of the appellants at pages 76 to 80 and the respondents’ reply on point of law at pages 92 to 85 of the record of appeal respectively.
He submitted that the appellants expected the trial Court to speculate. After all, a Court of law cannot speculate. He referred the Court to the case of ARCHIBONG VS. ITA 2004 13 WRN 1 AT 27-28.
Learned counsel contended that the appellants seem to misconceive the position of law regarding what constitutes an abuse of the process of Court against the backdrop of duplicity of suits. He referred the Court to the case of OKOROCHA VS. PDP 2014 26 WRN PG. 19 AT 63-64.
He argued that duplicity of suit as canvassed by the appellants must pass a mandatory test for it to succeed as duplicity and by extension an abuse of process of Court. He referred the Court to the case of MINISTER OF WORKS VS. TONIMAS NIG. LTD (2002) 2 NWLR (PT. 725) AT 77.
Learned counsel also referred this Court to the respondents’ statement of claim at page 5 to 8 of
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the record of appeal, and urged the Court to compare same with claims on pages 100 to 102 of the record of appeal and the respondents’ joint counter claim at pages 105 to 108 of the record, he opined that this Court will find that the dates contradicts the allegations raised by the appellants that respondents filed another suit after joining issues in another Court. This Court will also find that from the processes referred to in the record of appeal; the respondents’ suit was first filed on 27/10/2014. He referred the Court to the case of CHEVRON NIG. LTD VS. ONWUGBELU (1996) 3 NWLR PT. 437 AT 404.
Learned counsel for the respondents insisted that there is no duplicity of suits, and the claims and reliefs sought on the face of all the processes referred to from the record of appeal are different and independent of each other. He urged the Court to so hold and resolve this issue in favour of the respondents.
On issue two, the respondents’ counsel raised a preliminary point that the issue is incompetent as it does not relate to any of the grounds of appeal filed by the appellants. He referred the Court to the case of IBATOR VS. BARAKURO (2007) 9
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NWLR (PT. 1040) PG. 475.
He contended that this Court has no basis to grant retrial in the absence of any defence to the respondents’ claim at the trial Court, as a retrial cannot be granted in vacuum. He referred the Court to the cases of; FABIYI VS. ADENIYI (2000) SC 31 AT 42; DURWODE VS. THE STATE (2001) 7 WRN 50 SC.
He urged the Court to discountenance this issue and strike it out.
On issue three, learned counsel for the respondents submitted that like issue two, issue three is also incompetent and irrelevant as it is also alien to any of the grounds of appeal filed by the appellants. He submitted that where an issue is predicated on an incompetent ground, such issue becomes unarguable. He referred the Court to the cases of; THOR LTD VS. FCMB LTD 2002 4 NWLR PT. 757 PG 427; UBA PLC VS. ACB NIG LTD 2005 12 NWLR PT. 939 PG 232; JOHN HOLT VENTURES LTD VS. OPUTA 1996 9 NWLR PT. 470 PG 101 AT 113.
He urged the Court to discountenance this issue and strike out same for being incompetence.
?
Learned counsel for the respondents argued that if the appellants’ argument is supporting the notice of appeal filed on 20/4/2015, the
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appellants ought to have sought the leave of the Court to argue these issues. He referred the Court to Section 24 (1) (2) (a) of the Court of Appeal Act, 2004 and the case of BOSIEC VS. KACHALA 2006 1 NWLR PT. 962 PG 587.
He contended that the appellants having failed to seek and obtained the leave of this Court to enable them canvassed argument against the ruling of the trial Court delivered on 1st April, 2015, their arguments goes to no issue. He urged the Court to so hold.
The appellants in their reply brief conceded that the processes filed at High Court 3 were not attached to their preliminary objection, but the Court and suit number were furnished. Therefore, since the appellants cannot furnish a spurious suit number before a Court of justice, furnishing a suit number does not amount to act of speculation.
On the allegation that the respondents’ suit was first filed on 27/10/2014, the appellants’ counsel submitted that the respondents failed to refer the Court to the matter filed before Justice Christopher Auta dated 24th October, 2014 with reference number NSHC/MN/259/2014 which the respondents responded by filing a joint statement
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of defence and counter claims.
He urged the Court to discountenance the respondents’ arguments and to hold that the appellants were not speculative and never attempted to pervert the course of justice.
On issue two, the appellants’ counsel contended that the respondents are still fantasizing in the heydays of technicalities. He submitted that the failure to tie an issue to the grounds will not necessarily result in the case being struck out for being incompetent. He referred the Court to the cases of;ADEOGUN VS. FASOGBON (2011) 3 SCNJ 342 AT 359; CHIME VS. CHIME (1995) 6 NWLR (PT. 404) PG 734; ADERIBIGBE VS. ABIDOYE (2009) 4 SCNJ 259 AT 279.
He maintained that the fact that the appellants failed to couch the issues for determination in the exact words as the grounds of appeal does not imply that the issues are not in the spirit of or distilled from the grounds of appeal to render the issues incompetent or irrelevant.
He urged the Court to discountenance and strike out the arguments of the respondents as lacking in merit.
?
On issue three, the appellants’ counsel submitted that the fulcrum of this appeal is on the preliminary objection
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brought by the appellants at the trial Court which was not granted by the trial judge and nothing else. Therefore, the respondents’ raising extraneous issue in their brief of argument is purely a judicial abuse. He urged the Court to discountenance these extraneous issues.
Let me quickly start by saying that the appellants themselves admitted that the fulcrum of this appeal is on the preliminary objection brought by the appellants at the trial Court which was not granted by the trial judge and nothing else. See paragraph 3.11 of the appellants’ reply brief to the respondents’ brief of argument filed on 22/4/2016 but deemed filed on 29/10/2018.
An appeal is generally regarded as a continuation of an original suit rather than as an inception of a new action, and it should be a complaint against the decision of a trial Court. Thus in the absence of such a decision on a point, there cannot possibly be an appeal against what has not been decided against a party. In the instant appeal, I have observed from the appellants’ notice of appeal filed on 19/5/2015, that this appeal was filed against the Judgment of the High Court of Niger State in Suit No.
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NSHC/MN/274/2014 delivered on the 15th day of May, 2015. However, the appellants’ grounds of appeal contained in the said notice of appeal, their particulars, the issues distilled for determination and the entire argument in the appellants’ brief of argument are not related to the said judgment delivered on 15th May, 2015, the subject matter of this appeal, but rather relates to the ruling of the trial Court which was delivered on 1st day of April, 2015. See pages 89 to 90 of the record of appeal. The said ruling delivered on 1st April, 2015 was appealed by the appellants herein vide their notice of appeal filed on 20/04/2015. See pages 92 to 93 of the record of appeal. The appellants’ themselves conceded that there is pending appeal against the said ruling, vide notice of appeal dated 13th April, 2015 and filed on 20th April, 2015 by the appellants herein. See pages 92 to 93 of the record of appeal. The appellants’ themselves conceded that there is pending appeal against the said ruling, vide notice of appeal dated 13th April, 2015 and filed on 20th April, 2015 by the appellants herein. See page 92 of the record of appeal, and particulars of
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ground 2 of the notice of appeal at page 122 of the record of appeal.
I have earlier said that in the instant appeal, the grounds of appeal filed and their particulars, the issues for determination and the entire appellants’ counsel argument on the issues, relates to a ruling of the trial Court delivered on 1st April, 2015. It is trite law that an appellant may combine an appeal against an interlocutory decision with an appeal against the final judgment; provided that where the time to appeal against the interlocutory decision has expired, leave of the Court must be sought and obtained. In the instant case, the appellants have failed to seek and obtained the leave of the Court to enable them canvass argument against the interlocutory ruling delivered on 1st April, 2015. Consequently, the appellants’ argument contained in their brief of argument against the said ruling delivered on 1st April, 2015 goes to no issue and is hereby discountenanced.
?
Parties are bound by their grounds of appeal and are not at liberty to argue grounds not related to the decision appealed against. The grounds of appeal against a decision must relate
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to the said decision given the fact that it is a challenge to the “ratio” of that decision. In other words, grounds of appeal must emanate from the decisions it is attacking. The Supreme Court Per Karibi Whyte, JSC had occasion to pronounce on the nature of grounds of appeal in the case of SARAKI VS. KOTOYE (1992) 9 NWLR (PT. 264) 156 AT 184, thus:
“…It is well settled proposition of law in respect of which there can hardly be a departure that the grounds of appeal against decision must relate to the decision and should constitute a challenge to the ratio of the decision. See: EGBE V. ALHAJI (1990) 1 NWLR (PT. 128) 546 AT 590. Grounds of appeal are not formulated in “nubibus”. They must be in firma tera, namely arise from the judgment. However, meritorious the ground of appeal, based either on points of critical constitutional importance or general public interest, it must be connected with a controversy between parties…”
It is elementary law that ground of appeal is based on issues duly raised by the parties as decided by the Court. Where as in this appeal, all the issues are not raised at the trial Court, duly decided and appealed against
15
by the appellants; the appellants cannot arrogate any grievance to himself, because in law there is no basis for such grievance. See BUHARI VS. DIKKO (2004) 1 EPR 1 AT 51. In the instant appeal, I have also earlier said that all the appellants’ grounds of appeal filed and their particulars are not related to the judgment of the trial Court appealed against, therefore, they are incompetent and are accordingly struck out.
Also, issues for determination must be tailored to the real questions in controversy in a case. See NWOSU VS. IMO ENVIRONMENTAL SANITATION AUTHORITY (1990) 2 NWLR PT. 135 PG 688. In the instant appeal, the appellants’ issues 1, 2 and 3 distilled for determination in this appeal, which do not arise from valid grounds of appeal, are deemed irrelevant and hereby discountenanced. The said issues for determinations are hereby struck out.
Having struck out all the appellants’ grounds of appeal and the issues for determination distilled there from in this appeal, there is no competent appeal before this Court.
?
The appellant’s notice of appeal filed on 19/5/2015 is hereby struck out. There will be no order
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as to costs.
STEPHEN JONAH ADAH, J.C.A.: I read in draft the judgment just delivered by my Lord Adamu Jauro, J.C.A.
I agree with the reasoning and the conclusion thereat that the appeal is incompetent.
I too do strike out the appeal for being incompetent.
TINUADE AKOMOLAFE-WILSON, J.C.A.: I had the preview of the lead judgment of my learned brother, ADAMU JAURO, JCA.
I am in agreement with his reasoning and conclusion and order reached therein.
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Appearances:
Simon C. John, Esq. with him, S.O. Okoye, Esq.For Appellant(s)
S.M. Jiya, Esq.For Respondent(s)
Appearances
Simon C. John, Esq. with him, S.O. Okoye, Esq.For Appellant
AND
S.M. Jiya, Esq.For Respondent
