ADAMU & ORS v. BAJU II & ORS (2021)

ADAMU & ORS v. BAJU II & ORS

(2021)LCN/15190(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Wednesday, April 14, 2021

CA/YL/159/19

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Jamilu Yammama Tukur Justice of the Court of Appeal

Between

1. ALHAJI SHEHU ARDO ADAMU 2. ALHAJI MUSA ARDO ADAMU 3. ALHAJI DAUDA ARDO ADAMU 4. ALHAJI AHMED ARDO ADAMU 5. BABA ARDO ADAMU APPELANT(S)

And

ALHAJI (DR.) SHEHU AUDU BAJU II 2. SARDAUNA TRADITIONAL COUNCIL 3. ALH. SAIDU BAWA 4. ABUBAKAR MOHAMMADU MANSUR (Representing Muhammadu Mansur Ruling House) 5. GOVERNOR OF TARABA STATE 6. ATTORNEY-GENERAL OF TARABA STATE RESPONDENT(S)

RATIO

WHETHER A PRELIMINARY OBJECTION WHERE RAISED BY A PARTY, SHOULD FIRSTLY BE DETERMINED BEFORE THE DETERMINATION OF THE SUBSTANTIVE APPEAL

Where a preliminary objection has been raised challenging the competence of the appeal or case, whatever the case may be, it has to be looked into and resolved first before going into the main appeal if need be, depending on the outcome of the preliminary objection, which would have the effect of terminating the appeal if it succeeds. I will therefore first look into the viability or otherwise of the preliminary objection. See, FBN PLC vs. T.S.A. INDUSTRIES LTD. (2010) LPELR – 1283 (SC) P. 13, PARAS. B-E, DUROWAIYE vs. UBN (PLC.) (2014) LPELR – 24309 (CA) PP. 13 – 14, PARAS. E-A and summed up in the Apex Court in OKOROCHA vs. UBA BANK & ORS. (2018) LPELR – 45122 (SC) P. 13, PARAS. E-F, where his lordship Sanusi, JSC held thus: “It is settled law, that Preliminary Objection where raised by a party, should firstly be determined before determining the substantive appeal if the need to do so arises.” See, also ALL STATES TRUST BANK LTD. vs. KING DAVIDSON ENTERPRISES (NIG.) LTD. (2000) LPELR – 10631 (CA) P.5, PARAS. B-C and DARAMOLA vs. NIGERIA POLICE (CID), IDIMU POLICE DIVISION & ORS. (2019) LPELR – 46503 (CA) PP. 12 – 13, PARAS. E-A. PER CHIDI NWAOMA UWA, J.C.A.

WHETHER MORE THAN ONE ISSUE CAN BE FORMULATED FROM ONE GROUND OF APPEAL

It is trite that more than one issue cannot be formulated from one ground of appeal but, more than one ground of appeal could be utilized in the formulation of an issue for determination. A single ground of appeal cannot be split from which more than an issue for determination of the appeal is distilled from. It makes no difference that other grounds of appeal were involved. The position of the law was summed up by the Supreme Court in YUSUF & ORS. vs. AKINDIPE & ORS. (2000) LPELR– 3532 (SC) P. 8, PARAS. A-B, where his lordship Ogwuegbu, JSC held thus: “Issues (b) and (c) can be considered as arising from grounds of the grounds of appeal. It is however not permissible to formulate more than one issue from a ground of appeal even though several grounds of appeal can be covered by one issue for determination.” See, DUWIN PHARMACEUTICAL & CHEMICAL CO. LTD. Vs. BENEKS PHARMACEUTICAL & COSMETICS LTD & ORS (2008) LPELR – 974 (SC) STATE vs. OMOYELE (2016) LPELR – 40842 (SC) P. 33, PARAS. B-D, CITIBANK NIGERIA LIMITED vs. ABIA STATE INTERNAL REVENUE SERVICE (2018) LPELR – 46246 (CA) PP. 13 – 14, PARAS. D-A and BILLE vs. STATE (2016) LPELR – 40832 (SC) PP. 6 – 7, PARAS. B-E. It is trite that where two or more issues are formulated from a ground of appeal, as has happened in this appeal, where all three issues formulated by the Appellants were partly distilled from ground two (2) of the grounds of appeal, it is what the law regards as proliferation of issues and consequently frowns upon it. As I stated earlier in this judgment whereas counsel may formulate an issue out of a ground of appeal or a combination of grounds of appeal, he is not permitted to formulate more than an issue out of a ground of appeal, this is the basis of the preliminary objection on behalf of the 3rd and 4th Respondents, it is well founded in law. In YISI (NIG.) LTD. vs. TRADE BANK PLC (2013) LPELR – 20087 (SC) P. 22, PARAS. D-F. his lordship Rhodes-Vivour, JSC explained the effect of more than one issue being formulated from a single ground of appeal 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 vs. THE LAGOS STATE EXECUTIVE COUNCIL & ORS (1990) 6 SCNJ PT. 1 P. 12. TANEREWA NIG. LTD. vs. PLASTIFORM LTD. (2003) 14 NWLR PT. 840, P. 369.” See also GARBA vs. THE STATE (2000) 4 SCNJ 315, NWACHUKWU & ANOR. vs. ANELE (2019) LPELR – 46609 (CA) PP. 26 – 33, PARAS. D-B. PER CHIDI NWAOMA UWA, J.C.A.

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment of the Taraba State High Court delivered on 30th April, 2019 by Y. A Bashir, J (hereafter referred to as the trial Court) wherein the trial Court dismissed all the claims of the Appellants who were the Plaintiffs while the Respondents were the Defendants.

The Appellants who were dissatisfied with the judgment of the trial Court appealed to this Court upon three grounds of appeal, vide the Notice of Appeal filed on the 10th of July, 2019, at pages 702 – 708 of the printed records of appeal.

The Appellants commenced the suit by a writ of summons in which the following reliefs were jointly claimed:
a. “A Declaration that the nomination/appointment of the 3rd Defendant as Wakilin Fulani by the 2nd and 4th Defendants and their agents is unlawful, illegal, null and void.
b. A Declaration that the 3rd Defendant is not from any ruling house in the Mambilla Chiefdom of Sardauna Local Government Area of Taraba State and not entitled to be nominated, appointed and turbaned as Wakilin Fulani/Sarki Fulani.
c. A Declaration that the

Plaintiffs’ family is a ruling house in Mambilla Chiefdom to be appointed as Wakilin Fulani/Sarki Fulani in Mambilla Chiefdom of Sardauna Local Government Area of Taraba State.
d. A Declaration that the Plaintiffs’ family is the only known ruling house in Mambila Chiefdom entitled to the position of Wakilin Fulani by virtue of the rectification of its entitlement by virtue of the letter issued to late Ardo Adamu Gembu in 1977 by Major General Muhammadu Jega (Rtd.)
e. An Order removing 3rd Defendant as Wakilin Fulani/Sarki Fulani forthwith having not been eligible to be nominated, appointed and turbaned as Wakilin Fulani/Sarkin Fulani.
f. A perpetual injunction restraining the 3rd Defendant from parading himself, acting or performing any rights, obligations, duties or responsibilities associated or related to the position of Wakilin Fulani/Sarkin Fulani.
g. A perpetual Injunction restraining the 3rd Defendant or any person from his family or lineage from ever contesting being nominated or appointed to the position of Wakilin Fulani/Sarki Fulani by the 4th Defendant or any of the Defendants
h. A perpetual injunction against

the 5th & 6th Defendants, their agents, parastatal, committee, agency, privies, officers, designates, or anybody acting through them or on their gazzeting the nomination, appointment of the 3rd Defendant.
i. An Order restraining the 4th Defendant or anybody from the family nominating any candidate for the position of the Wakilin Fulani/Sarki Fulani becomes vacant except someone from the Plaintiffs’ family.
j. An Order directing the 2nd Defendant to effect the nomination, appointment of Alhaji Shehu Ardo Adamu as nominated vide a letter dated 17th of May, 2013 to the Secretary of the Sardauna Traditional Council from Ardo Adamu Gembu (Sarki Fulani) Ruling house.
k. An Order directing the 2nd Defendant to give effect to the nomination of the 1st Plaintiff or anybody from the Plaintiff’s family for the appointment to the position of the Wakilin Fulani.
l. An Order directing the 4th Defendant to nominate the 1st Plaintiff or anybody from the Plaintiff’s family to the position of the Wakilin Fulani
m. An Order directing the 5th and 6th defendants to give effect and ratify the nomination and appointment of the 1st

plaintiff or anybody from the Plaintiffs’ family by turbaning and issuance of relevant gazette in respect of the said nomination and appointment.
n. Any other ancillary orders/reliefs.
o. Cost of the action.”

The Appellant formulated the following three (3) issues for the determination of the appeal thus:
1. “Whether considering evidence led, the Learned Trial Judge was right when he held that the Appellants were not a ruling house in the Sardauna Traditional Council and therefore not entitled to be nominated and appointed as Wakilin Fulani/Sarki Fulani and thereby dismissed their claims. (Distilled from grounds 1 & 2 of the notice of appeal).
2. Whether the trial Judge was right to hold in the light of overwhelming evidence especially Exhibit PE14 that the position of Sarki Fulani/Wakilin Fulani (which means the king of Fulani) is not hereditary according to the customs of the Fulani’s of the Mambilla. (Distilled from grounds 2 and 3 of the notice of appeal).
3. Whether the trial Judge was right when he refused to accord probative value to the traditional history of the Fulani’s of the

Mambilla, thereby occasioning a fatal miscarriage of justice.” (Distilled from ground 2 and 3 of the notice of appeal).

The 3rd and 4th Respondents on their part, in reaction filed a Notice of Preliminary Objection on 5/10/2020. The grounds for the objection were as follows:
1. All the issues distilled by the Appellant are incompetent.
2. The Appellants’ brief of argument is incompetent.

In the alternative, should the objection fail, the 3rd and 4th Respondents distilled a sole issue for the determination of the appeal on its merit as follows:
“Whether Appellants proved their case on the preponderance of evidence regard had to the evidence adduced during trial?” (Distilled from ground 1, 2 and 3 of the grounds of appeal).

The 1st, 2nd, 5th and 6th Respondents did not file any brief of argument and had nothing to urge the Court.

The preliminary objection was argued at pages 4 – 5 of the 3rd and 4th Respondents’ brief of argument filed on 6/10/2020 which was adopted and relied upon by E. B. Kizito Esq. as his argument in support of his preliminary objection in urging us to strike out the

issues distilled by the Appellants in their brief of argument, and in consequence, the Appellants’ brief of argument. It was submitted that proliferation of issues for determination in an appeal is not allowed. See JOHN SHAY INTERNATIONAL LTD. Vs. F. H. A. (2016) 14 NWLR (PT. 1533) 1527, AKPATASON vs. ADJOTO (2019) 14 NWLR (PT. 1693) 501 at 513, PARAS. G – A and UKIRI vs. E.F.C.C. (2018) 1 NWLR (PT. 1599) 155 at 171, PARAS. C-E, where it was decided that the essence of formulating issues for determination is to narrow down the volume of counsel’s argument to vital issues in controversy between the parties. Also, that issues should be kept within the confines of the grounds of appeal, an issue could encompass more than one ground and not vice versa.

It was argued that in the present appeal, issues one, two and three were all distilled from ground 2 of the Appellants’ grounds of appeal. We were urged to strike out all the issues distilled for determination by the Appellants and when struck out there would be no Appellants’ brief of argument and nothing to decide on. We were urged to strike out the appeal.

In response, the learned counsel to the Appellants Ruth Gbaa, Esq. in her reply brief filed on 26/11/2020, at pages 2 – 3, responded to the argument of the 3rd and 4th Respondents in their preliminary objection, adopted and relied on same as her argument. It was submitted that the preliminary objection is misconceived and that the competence of a brief of argument was explained in the case of ODUNTAN vs. GENERAL OIL LTD. (1995) NWLR (PT. 387) SC, also STEYER (NIG.) LTD. vs. GADZAMA (1995) 7 NWLR (PT. 407) PAGE 305 (CA) and LABIYI vs. ANRETIOLA (1987) 4 NWLR (PT. 63) 34. Further, that the submission of the learned counsel to the 3rd and 4th Respondents is not the position of the law in respect of proliferation of issues. It was contended that the important point is that the numbering of issues for determination need not correspond with the grounds of appeal. It was concluded that the learned counsel to the 3rd and 4th Respondents misunderstood the rules on brief writing before the Appellate Court. We were urged to discountenance the preliminary objection and strike same out.

In respect of the main appeal, the learned counsel to the Appellants adopted and relied on her

brief of argument filed on 20/9/2019, deemed properly filed and served on 8/9/2020 and her reply brief filed on 26/11/2020 as her argument in the appeal in urging us to allow same.

In the alternative to the 3rd and 4th Respondents’ preliminary objection should they be over ruled, the learned counsel adopted and relied on his brief of argument as his argument in the appeal in urging us to dismiss the appeal for lacking in merit.

his lordship Sanusi, JSC held thus:
“It is settled law, that Preliminary Objection where raised by a party, should firstly be determined before determining the substantive appeal if the need to do so arises.”
See, also ALL STATES TRUST BANK LTD. vs. KING DAVIDSON ENTERPRISES (NIG.) LTD. (2000) LPELR – 10631 (CA) P.5, PARAS. B-C and DARAMOLA vs. NIGERIA POLICE (CID), IDIMU POLICE DIVISION & ORS. (2019) LPELR – 46503 (CA) PP. 12 – 13, PARAS. E-A.

Looking at the issues formulated for the determination of the Appeal by the Appellants, ground two (2) was utilized in the formulation of issues 1 – 3, in addition to other grounds. It is trite that more than one issue cannot be formulated from one ground of appeal but, more than one ground of appeal could be utilized in the formulation of an issue for determination. A single ground of appeal cannot be split from which more than an issue for determination of the appeal is distilled from. It makes no difference that other grounds of appeal were involved. The position of the law was summed up by the Supreme Court in YUSUF & ORS. vs. AKINDIPE & ORS. (2000) LPELR

– 3532 (SC) P. 8, PARAS. A-B, where his lordship Ogwuegbu, JSC held thus:
“Issues (b) and (c) can be considered as arising from grounds of the grounds of appeal. It is however not permissible to formulate more than one issue from a ground of appeal even though several grounds of appeal can be covered by one issue for determination.”
See, DUWIN PHARMACEUTICAL & CHEMICAL CO. LTD. Vs. BENEKS PHARMACEUTICAL & COSMETICS LTD & ORS (2008) LPELR – 974 (SC) STATE vs. OMOYELE (2016) LPELR – 40842 (SC) P. 33, PARAS. B-D, CITIBANK NIGERIA LIMITED vs. ABIA STATE INTERNAL REVENUE SERVICE (2018) LPELR – 46246 (CA) PP. 13 – 14, PARAS. D-A and BILLE vs. STATE (2016) LPELR – 40832 (SC) PP. 6 – 7, PARAS. B-E. It is trite that where two or more issues are formulated from a ground of appeal, as has happened in this appeal, where all three issues formulated by the Appellants were partly distilled from ground two (2) of the grounds of appeal, it is what the law regards as proliferation of issues and consequently frowns upon it. As I stated earlier in this judgment whereas counsel may formulate an issue out

of a ground of appeal or a combination of grounds of appeal, he is not permitted to formulate more than an issue out of a ground of appeal, this is the basis of the preliminary objection on behalf of the 3rd and 4th Respondents, it is well founded in law.

In YISI (NIG.) LTD. vs. TRADE BANK PLC (2013) LPELR – 20087 (SC) P. 22, PARAS. D-F. his lordship Rhodes-Vivour, JSC explained the effect of more than one issue being formulated from a single ground of appeal 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 vs. THE LAGOS STATE EXECUTIVE COUNCIL & ORS (1990) 6 SCNJ PT. 1 P. 12. TANEREWA NIG. LTD. vs. PLASTIFORM LTD. (2003) 14 NWLR PT. 840, P. 369.”
See also GARBA vs. THE STATE (2000) 4 SCNJ 315, NWACHUKWU & ANOR. vs. ANELE (2019) LPELR – 46609 (CA) PP. 26 – 33, PARAS. D-B. The learned counsel to the Appellants seems to have forgotten that the crux of the objection is not that an issue cannot encompass more than one ground of appeal, it is the other way round. The Appellants

distilled three issues from one ground of appeal (Ground 2 of the grounds of appeal) which is proliferation of issues, which is not permitted, therefore the case of ODUNTAN vs. GENERAL OIL LTD. (1995) (SUPRA) cited and relied upon by the learned counsel to the Appellants is not applicable to this appeal. Also, the learned counsel to the Appellants had argued that the important point in relation to issues for determination is that its number need not correspond with the grounds of appeal. I am afraid that is not the basis for the 3rd and 4th Respondents’ preliminary objection. I discountenance the submission as it has no relevance to the present preliminary objection which is simply that more than one issue was formulated from a single ground of appeal. The learned counsel to the Appellants had no answer to it. The preliminary objection is sustained. The resultant effect is that the Appellants’ issues one (1), two (2) and three (3) for determination of the appeal are hereby struck out for being incompetent. See, IBRAHIM vs. OJOMO (2004) 4 NWLR (PT. 862) 89 at 104; IWUOHA vs. NIPOST LTD (2003) 8 NWLR PT. 822) 308 at 332; SHITTU vs. FASHAWE (2005) 14

NWLR (PT. 946) 671 at 687, MARK vs. EKE (2004) 5 NWLR (PT 865) 54 at 81 – 82 and NWANKWO & ORS. vs. YAR’ADUA & ORS (2010) LPELR – 2109 (SC) P. 21, PARAS. A-F. With the Appellants’ three issues struck out, there is no issue left for the determination of the appeal and there is nothing to urge this Court.

There would be no need going into the determination of the substantive appeal as there is nothing left of the Appeal and moreso there is no valid brief of argument, it would be purely academic and would be of no benefit to any of the parties. The Appellants’ brief of argument filed on 20/9/2019 is hereby struck out. The Appellants are free to file a fresh Appellants’ brief of argument since the Notice of appeal is still valid.
I award costs of N100,000.00 (One Hundred Thousand Naira) to the 3rd and 4th Respondents only.

BITRUS GYARAZAMA SANGA, J.C.A.: I agree.

JAMILU YAMMAMA TUKUR, J.C.A.: I had the privilege of reading in draft before today the lead judgment just delivered by my learned brother CHIDI NWAOMA UWA. I adopt the judgment as mine with nothing further to add.

Appearances:

Ruth Gbaa, Esq. holding the brief of Rodney Adzuanaga For Appellant(s)

B. Kizito, Esq. – for 3rd and 4th Respondents
1st, 2nd, 5th and 6th Respondents served but absent For Respondent(s)