AFRICAN PETROLEUM PLC V. NIVISCO AND COMPANY LTD
(2011)LCN/4513(CA)
In The Court of Appeal of Nigeria
On Monday, the 23rd day of April, 2001
CA/B/14/98
RATIO
ISSUES FOR DETERMINATION: WHETHER ISSUES FOR DETERMINATION MUST BE BASED ON AND BE PERTINENT TO THE GROUND OR GROUNDS OF APPEAL THAT GIVE LIFE TO THE APPEAL; CONSEQUENCE OF THE ISSUE OR ISSUES FOR DETERMINATION NOT CONFORMING WITH THE GROUNDS OF APPEAL
It is now settled that any issue or issues for determination formulated, in either the brief of argument of the appellant or respondent, in any case, must be based on and be pertinent to the ground or grounds of appeal that give life to the appeal. If the issue or issues do not conform with the grounds of appeal, then they can not stand for being irrelevant. It follows, therefore, that any argument in the brief based on the faulty issue for determination is equally irrelevant to the appeal. See Omagbami v. Guinness (Nig) Ltd (1995) 2 NWLR (Pt.377) 258. 266-267. PER BA’ABA, J.C.A.
GROUNDS OF APPEAL: NATURE OF THE GROUNDS OF APPEAL AND THE AND THE ISSUES FORMULATED IN THE BRIEF ; ATTITUDE OF THE APPELLATE COURTS TOWARDS GROUNDS OF APPEAL AND ISSUES WHICH ARE GENERAL IN TERMS, VERBOSE, LARGE, RIGMAROLE, OR VAGUE
It is trite law that both the grounds of appeal in the Notice of Appeal and the issues formulated in the brief should be precise, concise, cogent and accurate. Where grounds of appeal and issues are general in terms, verbose, large, rigmarole, vague, an appellate court will ignore them. See generally U.I.C. Ltd. v. T.A. Hammond (Nig.) Ltd. (1998) 9 NWLR (Pt.565) 340; Okudo v. I.G.P. (1998) 1NWLR (Pt.533) 335: Ayalogu v. Agu (1998) 1 NWLR (pt.532) 129: Guda v. Kitta (1999) 12 NWLR (Pt.629l 21; P.H.M.B. v. Utomi (1999) 13 NWLR (Pt.636) 572. PER TOBI, J.C.A.
JUSTICES
NIKI TOBI Justice of The Court of Appeal of Nigeria
BABA ALKALI BAABA Justice of The Court of Appeal of Nigeria
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
Between
AFRICAN PETROLEUM PLC Appellant(s)
AND
NIVISCO AND COMPANY LTD Respondent(s)
BA’ABA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Delta State High Court, sitting at Effurun Judicial Division, delivered on the 27th day of May, 1997. The respondent, a limited liability company, as the plaintiff instituted an action against the appellant also a limited liability company, which was the defendant under the undefended list procedure and claimed as per the writ of summons as follows:-
“The plaintiffs claim against the defendant is for the total sum of N871.570.00 (Eight Hundred and Seventy-One thousand, Five Hundred and Seventy Naira), being defendant’s indebtedness to the plaintiff for jobs done by plaintiff for defendant, upon the latter’s demand, including charges for defendant’s hire of plaintiff’s Welding Machine as detailed hereunder:-
(I) N27.580.00 for AP. support Deck painting.
(2) N309.990.00 for Welding of damaged barge, belonging to A.P. at Okerenko, Escravos River.
(3) Hire fee for welding machine from 26/3/96 till 10/9/96, at the rate of N3,000.00 per day, totalling N534.000.00.
The agreement for the jobs, was made between the parties at Effumn in 1995 and 1996 within the jurisdiction of this Honourable Court. Defendant has failed to settle the indebtedness despite repeated demands.
Dated this 13th day of December, 1996.”
By an order of the trial court dated 17/1197, following an ex-parte application, the suit was placed under the undefended list. Thereafter, upon being served with the process in the matter, the appellant as defendant, filed a motion on notice, seeking for the following orders:-
(1) Leave to defend the action out of time.
(2) Deeming as properly filed and served the notice of intention to defend together with the attached affidavit marked Exhibit ‘RC1’ as properly filed and served the appropriate filing fees having been paid.
(3) Leave to defend this action and remove the action from the undefended list and place on the cause list.”
There were two affidavits in support of the motion, both deposed to By Mrs. Roli Craig, Counsel to the defendant/appellant. The motion was argued and the learned trial judge in his judgment delivered on 27/5/97, gave judgment in favour of the respondent/plaintiff as claimed.
The plaintiff being dissatisfied with the said judgment appealed to this court by its Notice and grounds of appeal, containing two grounds of appeal. The two grounds read as follows:-
1. The learned trial Judge erred in law and on the facts when he proceeded to give judgment for plaintiff based on Exhibits A, B, C, D, E, F & G and held that, there was a valid contract between the plaintiff and the defendant.
PARTICULARS
A. The contents of Exhibit A, show a cash invoice of a NIVISCO & CO (NIG.), a completely different name from that on the writ. This said Cash Invoice contained no LPO no, as required nor Customers signature to ensure consent of the defendant to the tune of N27,580.00.
B. Exhibit ‘B’ which is a Store Delivery Voucher emanating from the defendant, contains the Supply of paints to the plaintiff but has no plaintiff’s claim for over N800.000.
C. Exhibit ‘c’ is merely a quotation from NIVISCO & COMPANY LTD different from that in Exhibit A and the said Exhibit, is not signed but obviously made for this case and has no conclusive bearing on the alleged contract between the plaintiff and the defendant.
D. Exhibit ‘D’ is a Cash Receipt for N65,000 which is clearly stated to be advance payment for the welding of Leakage Barge at Okerenko, but states no “balance” whatsoever.
E. Exhibit ‘E’ was never received by the defendant and is a document made for this case.
F. That Exhibit ‘F’ Memo dated 10/9/96 to J.P. Owenje from Engr. Odoh, is not an admission for the hire of the welding machine on board, the damaged Joemudia VII. This is not an agreement for the hire of the machine for N3,000 per day from 26/3/96 to 10/9/96, totalling N534,000.00 for which it can be held that, there was a valid contract.
G. That Exhibit ‘G’ letter dated 25th September. 1996, from plaintiffs solicitor, is merely a demand and cannot be held as evidence by the Judge.
2. That the learned trial Judge erred in law, and fact
A. That this is a matter wherein the Justice of this case can only be met by the trial Judge, ordering pleadings and hearing evidence particularly, after the trial Judge has agreed that “Another issue raised by the defendant is that the plaintiff did not attach his contract papers.”
B. See Olubusola Stores v. Standard Bank ANLR 1975, 123 at 127 paragraph 2. Summons received on 5th March, 1997, and passed to counsel on 6th, 1997, and defendant filed on 7th March, 1997.
See also Belgore JSC. In U.T.C. Nig. Ltd. v. Pamotei 2 NWLR (Pt.103) 244 at 296 paragraphs F – G.
“Rules of procedure are made for the convenience and orderly hearing of cases in court. They are made to help the cause of justice and not to defeat justice. The rules are therefore, aids to the court and not masters of the court. For courts to read rules in the absolute without recourse to the justice of the cause, to my mind, will be making the courts slavish to the rules. This certainly is not the raison d’etre of rules of court.”
In accordance with the rules of practice and procedure in this court, briefs of argument were filed and exchanged by the parties.
When the appeal came up for hearing on 14/2/2001, each counsel adopted and relied on his brief.
In the appellant brief dated 20/11/98, filed the same date, two issues were formulated for the determination of this court state:-
“1. Whether or not the learned trial Judge was right in holding that the defendant’s/appellant’ s affidavit in support of its Notice of intention to defend, did not disclose a defence on the merits.
2. Whether or not the learned trial Judge was right in proceeding thereafter, to enter judgment for the plaintiff/respondent.”
The respondent, pursuant to Order 3 rules 2(3), (4), 7 and 15(1) of the rules of this court, 1981, filed a Notice of preliminary objection on 3/7/99, which he argued at pages 4-8 of the respondent’s brief of argument, deemed properly filed and served on 22/4/99 subject to the preliminary objection, from the two grounds of appeal, filed by the appellant, formulated a lone issue which states:
“Whether from the affidavit in support of intention to defend of the defendant (Appellant here), the learned trial Judge was not right in giving judgment in favour of the plaintiff, under the undefended list procedure.”
The notice of the preliminary objection reads:-
“PLEASE TAKE NOTICE that at the hearing of this appeal, the PLAINTIFF/RESPONDENT shall contend by way of Preliminary Objection that this appeal is incompetent and should be struck out or dismissed on the following grounds:
(a) The two Grounds of Appeal are vague and/or general in terms and are argumentative.
(b) Issues (1) and (2) for determination as formulated by the appellant are broad issues that have no specific relevance to this appeal.
(c) The argument in appellant’s brief is a complete abandonment of the grounds of appeal and the issues distilled by the appellant from them.
AND TAKE FURTHER NOTICE that in arguing this preliminary objection, the plaintiff/respondent shall rely on its argument at pages 4 to 8 of the respondent’s brief of argument filed 11/2/99.”
Arguing the preliminary objection, C.J. Odjesa Esq, learned Counsel for the respondent, submitted that the two grounds of appeal in this case are vague and/or general in terms as the two grounds of appeal, do not attack a particular finding or statement of law by the trial court. He pointed out that, the two grounds of appeal were framed by the appellant to each constitute a general attack on the judgment of the court below. Learned Counsel for the respondent argued that the only general tenor is the omnibus ground and referred to order 3 rule 2(4) of the rules of this court, 1981.
It is further submitted that the appellant’s ground of appeal No.2, is even more general and equally vague. That it makes a nebulous complaint and went ahead under “PARTICULARS” to argue the ground as it were rather than stating particulars of appeal. He said ground of appeal No.1, is also vague and is not clear what the ground of appeal No.1 is complaining about. Learned Counsel for the respondent, further explained that while the opening words of the appellant’s ground of appeal No.1, appear to complain about the judgment based on Exhibits A, B, C, D, E, F, and G, its closing words complain about the finding of the trial court that, there is a valid contract between the plaintiff/respondent and defendant/appellant. He contended that ground of appeal No.1, is not only vague but contains two exclusive complaints, brought together under one ground of appeal.
It is the submission of the learned Counsel for the respondent, that ground of appeal No.2. taken together with its particulars is a “Brief of Argument” and not a ground of appeal.
Relying on the authority of Kwara State Military of Agriculture & Ors v. G.B. (Nig.) Ltd. & Ors, learned Counsel for the respondent further submitted that, the grounds of appeal in this case are unwieldy, prolific, narrative, argumentative and repetitive, which have offended the provisions of Order 3 Rule 2(3) of the rules of this court. On the issue formulated for determination, it is submitted that the issues formulated are so broad that, they have no specific relevance to this appeal, as a result the issues throw at large what the court is expected to decide and resolve. Submitting further relying on the authority of Aja v. Okoro (1991) 7NWLR (Pt.203) 260,272-273, learned Counsel submitted that an issue for determination in any appeal, must have a direct bearing on the ground of appeal from which it is distilled. That issues for determination are to project succinctly and clearly the substance of the complaints contained in the ground of appeal requiring resolution. He further contended that the issues formulated for determination by the appellant fall far short of the guidelines in Aja (supra). Learned Counsel for the respondent said the appellant in its brief of argument abandoned both the grounds of appeal and the issues formulated thereon.
Citing Shitta-Bey v. A.-G., Federation (1998) 10 NWLR (Pt.570) 392, learned Counsel submitted that arguments in an appeal should be based on issues for determination and the arguments should show how the issues relate to the grounds of appeal. In conclusion, he urged us to dismiss the appeal.
The appellant did not reply to the argument of the respondent on the preliminary objection.
I have to determine the preliminary objection before dealing with the appeal.
The first ground of preliminary objection of the respondent is that the grounds of appeal are vague and/or general in terms and are argumentative which offend Order 3 Rule 2(3) and (4) of the Rules of this court.
It is pertinent to reproduce the provisions of the order relied upon by the respondent Order 3 rule 2(3) and (4) read as follows:-
“Order 3 rule 2(3) and (4).
(3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively. No ground which is vague or general in terms or which discloses no reasonable ground of appeal shall be permitted, save the general ground that the judgment is against the weight of the evidence, and any ground of appeal or any part thereof which is not permitted under this rule may be struck out by the Court of its own motion or on application by the respondent.”
From a careful study of the two grounds of appeal, in this appeal, there is no doubt whatsoever, that the two grounds of appeal, are vague, general and argumentative. I agree with the example given by the learned Counsel for the respondent at page 6 of the respondent’s brief that, one may assume that in ground of appeal No.1, the appellant is complaining about the reliance of the learned trial Judge in his decision on the exhibits mentioned on the one hand and on the other hand, the appellant is complaining against the decision of the trial court that, there is a valid contract.
Certainly, from the way the ground is couched, the complaint is not clear as it appears to have two separate complaints contained in one ground of appeal. I also agree that ground of appeal No.2, is vague, general and argumentative. Both grounds offend the provisions of Order 3 rule 2(3) and (4) reproduced above. The Supreme Court of Nigeria, in the case of Aja v. Okoro (1991) 7 NWLR (Pt.203) 260, per Akpata, J.S.C. (of blessed memory) dealing with the formulation of a broad issue in appeal had this to say;
“The only issue for determination as identified in the respondent’s brief reads:
“Whether or not the Court of Appeal was right in confirming the judgment of the trial court, having regard to the evidence before him and the findings of fact made by him.”
This issue as formulated to my mind is the broad issue which arises invariably in every appeal and has no specific relevance to the peculiar issues in this appeal. The issues for determination in any appeal must have a direct bearing on the grounds of appeal. They are to project succinctly and clearly the substance of the complaints contained in the grounds of appeal requiring resolution. There is no doubt that a number of grounds of appeal, may raise a single issue but it is over simplification of the issue in an appeal to say that the issue is whether or not the trial court or Court of Appeal was right in its judgment, having regard to the evidence and the findings of fact made.
The formulation of an issue in this manner is only appropriate if the only ground of appeal is that the judgment is against the evidence or weight of evidence as the case may be. Happily, the arguments in the respondents’ brief are directed at the issues formulated in the appellants’ brief.”
It is clear from the authority of Aja (supra), that the two issues formulated for determination in this appeal by the learned Counsel for the appellant are broad issues which do not appear to have direct bearing on the grounds of appeal as can be seen from both the grounds of appeal and the issues formulated thereon reproduced herein.
For example, in ground of appeal No.1, as earlier stated, the appellant’s complaint appears to be against the decision of the trial court, which based its decision on Exhibits A, B, C, D, E, F, & G as well as the trial court’s decision that, there was a valid contract between the plaintiff and the defendant. With respect to the learned Counsel for the appellant, I can not see how ground of appeal No.1, is related to issue No.1, formulated for determination. The same thing applies to ground of appeal No.2, which contains argument rather than a complaint pertaining to the decision, ascertaining the ground as argumentative.
It is now settled that any issue or issues for determination formulated, in either the brief of argument of the appellant or respondent, in any case, must be based on and be pertinent to the ground or grounds of appeal that give life to the appeal. If the issue or issues do not conform with the grounds of appeal, then they can not stand for being irrelevant. It follows, therefore, that any argument in the brief based on the faulty issue for determination is equally irrelevant to the appeal. See Omagbami v. Guinness (Nig) Ltd (1995) 2 NWLR (Pt.377) 258. 266-267.
The appellant in this appeal, in fact in the appellant’s brief of argument, abandoned both the grounds of appeal and the issues. Grounds of appeal No.1 and 2 in this appeal are incompetent because, the grounds are vague, general and argumentative. So also are the issues formulated thereon, as an issue can only stem from a valid grounds of appeal.
The two grounds of appeal and the two issues formulated thereon are therefore, struck out. The preliminary objection is upheld.
The result is that the appeal itself be and is accordingly, struck out with costs assessed at N2,000.00 to the respondent.
TOBI, J.C.A.: It is trite law that both the grounds of appeal in the Notice of Appeal and the issues formulated in the brief should be precise, concise, cogent and accurate. Where grounds of appeal and issues are general in terms, verbose, large, rigmarole, vague, an appellate court will ignore them. See generally U.I.C. Ltd. v. T.A. Hammond (Nig.) Ltd. (1998) 9 NWLR (Pt.565) 340; Okudo v. I.G.P. (1998) 1NWLR (Pt.533) 335: Ayalogu v. Agu (1998) 1 NWLR (pt.532) 129: Guda v. Kitta (1999) 12 NWLR (Pt.629l 21; P.H.M.B. v. Utomi (1999) 13 NWLR (Pt.636) 572.
I am of the view that, both the grounds of Appeal in the Notice of Appeal and the issues formulated in the appellanfs brief are vague in some material particular. I therefore, agree with my learned brother, Ba’aba, J.C.A., that the preliminary objection succeeds and is hereby, upheld. The appeal cannot be heard on its merits.
I abide by the order as to costs.
AKAAHS, J.C.A.: I was privileged to have read in advance the lead judgment just delivered by my learned brother, Ba’aba, J.C.A., and I entirely agree, that the appeal is incompetent and should be struck out. Apart from the issues being broad. They bear no relevance whatsoever, to the grounds of appeal. The preliminary objection is accordingly, upheld and the appeal struck out with N2,000.00 costs in favour of the respondent against the applicant.
Appeal struck out.
Appearances
Roli Craig (Mrs.)For Appellant
AND
G. J. Odjesa, Esq.For Respondent
