ABDULLAHI ADO DAN KOYA KUFASA & ORS v. MALLAM BAFFA KUREN DAGA & ORS
(2014)LCN/7144(CA)
In The Court of Appeal of Nigeria
On Monday, the 28th day of April, 2014
CA/K/169/2002
RATIO
EFFECT OF AN ISSUE FORMULATED OUTSIDE THE GROUNDS OF APPEAL
The law is that the only known and legitimate way or method of laying a complaint before a higher court or tribunal, to show grievances of an aggrieved party against a decision taken by an inferior court or tribunal, is by filing a notice of appeal which contains the grounds of appeal against that decision – Aderibigbe vs Abidoye (2009) 10 NWLR (Pt 1150) 592, Akpan vs Bob (2010) 17 NWLR (Pt 1223) 421, Dingyadi vs Independent National Electoral Commission (No 1) (2010) 18 NWLR (Pt.1224) 1.
Thus, to be useful in an appeal, an issue for determination must pivot and propel a specific complaint contained in the grounds of appeal. There must be a direct correlation between an issue for determination and the core complaint contained in the ground of appeal it is distilled from. Any issue for determination formulated outside the grounds of appeal is irrelevant and liable to be struck out – Shipcare Nigeria Limited, Owners of the “M/T African Hyacinth” Vs The Owners of the “M/V Fortunato” (2011) 7 NWLR (Pt 1246) 205, Ebute vs Union Bank of Nigeria Plc (2012) 2 NWLR (Pt 1284) 254 and Odusote V Vs Odusote (2012) 3 NWLR (Pt 1288) 478. Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
WHETHER A GROUND OF APPEAL FROM WHICH NO ISSUE IS FORMULATED CAN BE STRUCK OUT
It is settled law that a ground of appeal from which no issue is formulated is deemed abandoned and is liable to be struck out – Microsoft Corporation vs Franike Associates Ltd (2012) 3 NWLR (Pt 1287) 301, Mohammed vs Babalola (2012) 5 NWLR (Pt 1293) 395, Purification Technique (Nig) Ltd vs Jubril (2012) 18 NWLR (Pt 1331) 109. Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
JUSTICE
ABDU ABOKI Justice of The Court of Appeal of Nigeria
THERESA N. ORJI-ABADUA Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
Between
ABDULLAHI ADO DAN KOYA KUFASA
ALHAJI YUSUF MAGAJI MADIGA
MOHAMMED MAGAJI BURIZAWA
MOHAMMED GARBA KAKUM Appellant(s)
AND
MALLAM BAFFA KUREN DAGA
UBANYAWA A. ISYAKU
AHMED A. MIGA
ALI GARI YAI KYAU
DANJINJIRI NA DANTALO
MUSA UBALI (FOR THEMSELVES AND ON BEHALF OF MIGA FISHERMEN ASSOCIATION)
JIGAWA STATE GOVERNMENT
MINISTRY OF AGRICULTURE, JIGAWA STATE
ATTORNEY GENERAL OFJIGAWA STATE Respondent(s)
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the Jigawa Sate High Court in Suit No JDU/9/2000 delivered by Honorable Justice Tijjani Abubakar on the 7th of April 2000 dismissing the Appellant’s application for interlocutory injunction. The Appellants, as plaintiffs, commenced the action in the lower Court against the Respondents, as defendants, by a writ of summons dated the 10th of February, 2000 and their claims were for:
i. A declaration that the Plaintiffs are the traditional custodians of fishing water ponds at Kufasa, Madiga, Gwayi and Kakum having been in active fishing occupation of the said water ponds from time immemorial.
ii. A declaration that the Plaintiffs cannot be deprived of their active fishing occupational rights from the water ponds without due process of law.
iii. A declaration that anything that has the effect of denying and or depriving the plaintiffs as traditional custodians of their active fishing occupational rights without the due process of law is in bad faith.
iv. An order of perpetual injunction restraining the Defendants whether by themselves or through their agents, servants, proxies, appointees, representatives of howsoever known and called from disturbing the Plaintiffs from their being traditional custodians of these water ponds.
v. The cost of filing and prosecuting this suit as well as solicitor’s fees.
The Appellants filed a motion ex-parte also dated the 10th of February, 2000 and by which they sought for:
a. An order of interim injunction restraining the Defendants either by themselves or through their agents, servants, proxies or in the name of Miga Fishermen Association from entering, disturbing and fishing in the water ponds known and described as Kafasa, Madiga-Bindadau, Gwayi and Kakum until the hearing and determination of the motion on notice.
b. An order of interim injunction restraining the Defendants either by themselves or through their agents, servants, proxies or in the name of Miga Fishermen Association from entering, disturbing and fishing in the water ponds known and described as Kafasa, Madiga-Bindadau, Gwayi and Kakum on the 12th day of February, 2000 or any other date subsequent until the hearing and determination of the motion on notice.
c. An order of interim injunction keeping the matters in status quo in respect of the Plaintiffs as traditional custodians of the water ponds.
The application was supported by a six paragraph affidavit. The Appellants also filed a motion on notice dated the 10th of February, 2000 seeking for orders of interlocutory injunction in the same terms as prayed for on the motion ex parte. The lower Court heard the motion exparte on the 11th of February, 2000 and it granted the interim orders of injunction as prayed. In granting the application, the lower Court stated thus:
“I have considered the affidavit evidence before me and I am satisfied that it is just and proper to grant the interim orders 1-3 sought by the Plaintiffs/Applicants in order to maintain the status quo and also forestall the breach of law and order in the area. The three prayers (1-3) supra are hereby granted upon an undertaking by the Plaintiffs or their counsel to pay appropriate compensation in the event it is found that the Plaintiffs/Applicants do not deserve the orders granted.”
The motion on notice for interlocutory injunction was thereafter adjourned to the 1st of March, 2000 for hearing. The application was contested by the Respondents and it suffered several adjournments and was eventually argued before the lower Court on the 7th of April, 2000. The lower court dismissed the application in a ruling delivered on the same day. The lower Court said thus:
“… From the affidavit evidence the relevant averments are only those dealing with the right to fish in the ponds and certainly not title to the ponds. By virtue of section 4 of the Fisheries Law, the relevant authority to give rights is the 8th Defendant/Respondent and not the Local Government. I agree with the submission of the Respondents’ counsel that the issue of title is separate from right to fish in this application. If the learned counsel for the Applicants is correct that the two rights are not separate then he should have taken the case to an Area Court which is the court of competent jurisdiction under section 41 of the Land Use Act to deal with title.
Even if the Local Government is a competent authority to vest the Applicants right to fish in the ponds under the Fisheries Law, the licence for this year’s fishing issued to the 1st – 6th Respondents, therefore being earlier in time it would prevail over that of the Applicants, even in equity being relived (sic) by the Applicants.
Considering the economic loss the 1st – 6th Respondents would suffer certainly the balance of convenience is on the Respondents side in this case. One the necessary consideration of grant of such an interlocutory injunction is inadequacy of damages as compensation. There is no where in the five affidavits in support of the application this relevant material fact is covered by the Applicants.
On the totality of the affidavit evidence before me and the provision of section 4 of the Fisheries Law Cap 56 of the Laws of Jigawa State the application has no merit and is hereby refused.”
The Appellants were dissatisfied with this ruling and they caused their counsel to file a notice of appeal dated the 13th of April, 2000 against it. The notice of appeal contained four grounds of appeal.
In ventilating the grievances of the Appellants in this appeal, their Counsel presented a brief of arguments dated 27th of May, 2002 and filed on the 19th of June, 2002 and it consisted of eighteen pages. Counsel to the first to the sixth Respondents reacted by a brief of arguments dated the 10th of October, 2011 and it was filed on the 12th of October, 2011 sequel to this Court granting an extension of time to do so on the 11th of October, 2011 and it consisted of eight pages. Counsel to the seventh to the ninth Respondents filed a brief of arguments dated the 16th of May, 2012 consisting of nineteen pages. The seventh to the ninth Respondents also filed a notice of preliminary objection dated the 28th of January, 2012 but filed on the 16th of May, 2012. At the hearing of the appeal, counsel to the seventh to the ninth Respondents argued his preliminary objection and counsel to the parties thereafter adopted their respective briefs on the appeal.
In his brief of arguments, counsel to the Appellants formulated two issues for determination in this appeal and these were:
i. Whether on the affidavit evidence adduced before the learned Trial Judge the Appellants have made out a case for the grant of interlocutory injunction.
ii. Whether the learned trial Chief Judge was right by holding at the stage of interlocutory injunction that by section 4 of the Fisheries Law of Jigawa State Cap 56 of 1998 the relevant authority to give license is the 8th Respondent.
Counsel to the Appellants stated that the two issues for determination were distilled from grounds two and three of the grounds of appeal. As stated earlier, the notice of appeal of the Appellants contained four grounds of appeal. In essence, the Appellants did not formulate any issue for determination from grounds one and four of the notice of appeal. It is settled law that a ground of appeal from which no issue is formulated is deemed abandoned and is liable to be struck out – Microsoft Corporation vs Franike Associates Ltd (2012) 3 NWLR (Pt 1287) 301, Mohammed vs Babalola (2012) 5 NWLR (Pt 1293) 395, Purification Technique (Nig) Ltd vs Jubril (2012) 18 NWLR (Pt 1331) 109. Grounds one and four on the Appellants’ notice of appeal are thus hereby struck out.
In their notice of preliminary objection, the seventh to the ninth Respondents prayed for an order striking out the two issues for determination formulated by the Appellants together with the arguments canvassed on them, as they were not distilled from any grounds of appeal in the Appellants’ notice of appeal. Counsel to the seventh to the ninth Respondents canvassed arguments on the notice of preliminary objection in his brief of arguments and he reproduced the grounds of appeal as well as the two issues for determination and stated that a dispassionate look at the two issues shows that they have nothing to do with the grounds of appeal. Counsel stated that it was settled law that issues for determination must be distilled from the grounds of appeal and that an issue not distilled from a ground of appeal was incompetent and must be discountenanced together with the arguments advanced thereon and he referred to several case law authorities including Onifade vs Olayiwola (1990) 7 NWLR (Pt 161) 130 and Chiekeilo vs Nwali (1998) 8 NWLR (Pt 560) 114. Counsel urged this Court to uphold the preliminary objection and to strike out the appeal.
Counsel to the Appellants did not file any response to the preliminary objection. This however does not mean that this Court must accept the arguments of the Counsel to the seventh to the ninth Respondents as gospel truth. This is because the address of Counsel is not binding on the court. The court must still assess the arguments – Oruboko Vs Oruene (1996) 7 NWLR (Pt. 462) 555, Eya Vs Olopade (2011) 11 NWLR (Pt 1259) 505 and Independent National Electoral Commission vs Nyako (2011) 12 NWLR (Pt. 1262) 439. In Edonkumoh Vs Mutu (1999) 9 NWLR (Pt. 620) 633, Ibiyeye, JCA stated at 652 E-F thus:
“It is pertinent to point out that the learned counsel for the first respondent did not proffer any response to this issue in his brief of argument. It follows therefore that he has little to urge on it. The fact that there is want of response by the first respondent is no licence to accede to the arguments and submissions of learned Counsel for both the appellant and the second to fourth respondents. Those submissions will still be meticulously considered and opined upon accordingly.”
This Court shall consider the merits of the notice of the preliminary objection. The counsel to the Appellants stated in his brief of arguments that the first issue for determination was formulated from ground two of the notice of appeal while the second issue for determination was formulated from ground three of the notice of appeal. Ground two of the notice of appeal reads thus:
“The learned trial Chief Judge erred in law by separating the issue of tide with that of use.
Particulars
a. The Appellants reliefs seeking for declaration as the traditional custodians of the water ponds are claims in title.
b. Section 4 of the Fisheries Law of Jigawa State Cap 56 has divested ownership of the customary right from the Miga Local Government Authority to grant license to fish.”
The issue the Appellants distilled from this ground of appeal was – “whether on the affidavit evidence adduced before the learned Trial Judge the Appellants have made out a case for the grant of interlocutory injunction.”
Ground three of the notice of appeal states:
“The learned Chief Judge erred in law when he held that section 4 of the Fisheries Law of Jigawa State Cap 56 gave the 8th Respondent the Power to license the 1st – 6th Respondents the right to fish in water ponds the subject of customary rights.
Particulars
a. The Appellants were the traditional custodians of the customary rights of the water ponds from time immemorial.
b. The water ponds at Kufasa, Madiga, Bindadau, Gwayi and Kakum are covered by customary rights of occupancy granted or deemed to be granted by Miga Local Government.
c. The 8th Respondent is Ministry of Agriculture of the Jigawa State.
d. The combined effect of sections 6 and 36 of the Land Use Act Cap 202 gave Miga Local Government power to grant customary rights of occupancy in respect of the land in Kufasa, Madiga-Bindadau, Gwayi and Kakum.”
The issue distilled by the Appellants from this ground of appeal was – “whether the learned trial Chief Judge was right by holding at the stage of interlocutory injunction that by section 4 of the Fisheries Law of Jigawa State Cap 56 of 1998 the relevant authority to give license is the 8th Respondent.”
It is settled law that an appeal is an invitation to a higher court to review the decision of a lower Court in order to find out whether, on proper consideration of the facts placed before it and the applicable law, the lower Court arrived at the right decision – Oba Vs Egberongbe (1999) 8 NWLR (Pt 685) 485, Nigerian Navy vs Labinjo (2012) 17 NWLR (Pt 1328) 56, Ombugadu Vs Congress for Progressive Change (2013) 3 NWLR (Pt 1340) 31.
The law is that the only known and legitimate way or method of laying a complaint before a higher court or tribunal, to show grievances of an aggrieved party against a decision taken by an inferior court or tribunal, is by filing a notice of appeal which contains the grounds of appeal against that decision – Aderibigbe vs Abidoye (2009) 10 NWLR (Pt 1150) 592, Akpan vs Bob (2010) 17 NWLR (Pt 1223) 421, Dingyadi vs Independent National Electoral Commission (No 1) (2010) 18 NWLR (Pt.1224) 1.
Thus, to be useful in an appeal, an issue for determination must pivot and propel a specific complaint contained in the grounds of appeal. There must be a direct correlation between an issue for determination and the core complaint contained in the ground of appeal it is distilled from. Any issue for determination formulated outside the grounds of appeal is irrelevant and liable to be struck out – Shipcare Nigeria Limited, Owners of the “M/T African Hyacinth” Vs The Owners of the “M/V Fortunato” (2011) 7 NWLR (Pt 1246) 205, Ebute vs Union Bank of Nigeria Plc (2012) 2 NWLR (Pt 1284) 254 and Odusote V Vs Odusote (2012) 3 NWLR (Pt 1288) 478.
Reading grounds two and three of the grounds of appeal of the Appellants closely and along with two issues for determination formulated by the Appellants, it is very clear that there is no direct correlation between the complaints of the Appellants in the two grounds of appeal and the two issues distilled from them. While the first issue for determination is a direct challenge to the core of the ruling appealed against, it has no relationship with the ground of appeal it emanated from. The second issue for determination confronted a peripheral matter in the ruling and it is only tangentially related to the ground of appeal it arose from. This is not a case of inelegant drafting of issues for determination which this Court can, for the purpose of doing justice on the merits of the appeal, accept as valid and reframe – Ogboru Vs Uduaghan (2012) 11 NWLR (Pt 1311) 357. The issues formulated by the Appellants and the arguments they proffered thereon are alien to the complaints in this appeal as contained in the notice of appeal. The issues for determination must thus be struck out and the arguments thereon discountenanced. The notice of preliminary objection of the seventh to the ninth Respondents succeeds and the two issues for determination formulated by the Appellants are hereby struck out.
The net effect of these is that the Appellants have no viable issue for determination and/or useful arguments before this Court in this appeal. It is trite that issues for determination are essential, important and integral part of every brief of arguments filed in the appellate Court and this is because appeals in the Supreme Court and in this Court are argued on the issues formulated by Counsel as arising from the grounds of appeal – Daniel Tayar Transport Enterprises Nigeria Company Ltd Vs Busari (2011) 8 NWLR (Pt 1249) 387. Thus, it has been held that where an appellant has presented no issues for determination before an appellate Court in a brief of arguments, it is sufficient by itself to render the brief incompetent, and the appeal liable to be struck out – Orji vs Zaria Industries Ltd (1992) 1 NWLR (Pt 216) 124, Adehi Vs Atega (1995) 5 NWLR (Pt 398) 656, Nigerian Air Force vs Shekete (2002) 18 NWLR (Pt 798) 129, Abayomi vs Attorney General, Ondo State (2006) 8 NWLR (Pt.982) 211. The Courts have a]so held that this is not an issue of technicality but an established principle and settled law – Oyegun Vs Nzeribe (2010) 16 NWLR (Pt.1220) 568. This appeal is thus incurably bad and is liable to be struck out.
This appeal was commenced in 2000 and it has taken fourteen years to dispose off. The records of appeal show that the lower court granted the Appellants leave to file this on appeal 13th of April 2000 and also that sequel to and consequent on this appeal, the lower Court granted a stay of further proceedings in the substantive matter on the 30th of May, 2000. Thus, the matter in the lower Court has been stalled for the last fourteen years over an interlocutory appeal against the refusal to grant an order of interlocutory injunction. Trial Courts have to be a lot more circumspect in granting leave to appeal and stay of proceedings. Neither of these orders should be granted as a matter of course. They are orders that have the potentials of discrediting the administration of justice system and as such parties seeking them must be subjected to very high standards and rigorous examination. Also, the fact that it took this Court fourteen years to dispose of the appeal, leaves a lot to be desired. No appeal should be allowed to last even half that length of time. Matters of this nature very easily bring the system of administration of justice into disrepute and it is essential for all the actors in the system to guide against such occurrences as in this present case.
In conclusion, this appeal fails and it is hereby struck out. The Appellants have failed to give this court any reason to tamper with the decision contained in the ruling of the High Court of Jigawa State in Suit No JDU/9/2000 delivered by Honorable Justice Tijjani Abubakar on the 7th of April, 2000 and the decision is hereby affirmed. The first to the sixth Respondents are entitled to the costs of this appeal assessed at N50,000.00. These shall be the orders of this Court.
ABDU ABOKI, J.C.A.: The lead judgment of my learned brother, H.A.O. ABIRU, JCA, was made available to me before now. I agree with his conclusion that the appeal should be struck out. I too affirmed the decision of the High Court of Jigawa State in suit No. JDU/9/2000 delivered by Hon. Justice Tijjani Abubakar on the 7/4/2000.
I also abide by the consequential orders as to costs contained in the lead judgment.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I had the opportunity of reading before now, the leading judgment in this appeal written by my learned brother, Abiru, J.C.A., and I agree that this appeal is bound to fail. The same is hereby dismissed by me with the costs awarded in the leading judgment.
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Appearances
No appearanceFor Appellant
AND
Mr. E. S. Ukuede for the first to the sixth Respondents
Mr. Sule Umar, DPP Jigawa State, with Hussaini Abdullahi for seventh to the ninth RespondentsFor Respondent
