ALH. ALIYU IBRAHIM SHINKAFI v. M.C. AGUWA NIGERIA LIMITED
(2018)LCN/12178(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 28th day of November, 2018
CA/S/148/2017
RATIO
APPEAL: WHERE THE GROUND OF APPEAL IS WRONG
“The position of the law on the subject is that this rule against the wrong couching of a Ground of Appeal which is supposed to have been done otherwise relates directly against grounds, which are vague and expressed in general terms thereby disclosing no reasonable Grounds of Appeal and this Court has the power under Order 7 Rule 6 of the Court of Appeal Rules, 2016 to strike out any such vague Ground of Appeal which is expressed in general terms such that the ground disclosed no reasonable ground of Appeal. Against the backdrop of this position, the two grounds of Appeal filed by the Appellant having been found to be incompetent are hereby struck out. In the final analysis, the Notice of Preliminary Objection is hereby sustained. Appeal is once again struck out with cost of N50,000.00 against the Appellant and in favour of the Respondent.” PER FREDERICK OZIAKPONO OHO, J.C.A.
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
ALH. ALIYU IBRAHIM SHINKAFI Appellant(s)
AND
M.C. AGUWA NIG. LTD Respondent(s)
FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment):
This Appeal is against the judgment of the High Court of Zamfara State sitting at the High Court 5 Gusau Judicial Division, Gusau Zamfara State delivered on the 28-03-2017, by BELLO MUHAMMAD TUKUR, J. where the Court entered judgment in favor of the Respondent as Plaintiff against the Appellant as Defendant. See page 69 of the Record of Appeal.
It is important to mention at this stage that this matter was first initiated under the Undefended List Procedure of the Court but was later transferred to the General Cause List upon the satisfaction of the necessary conditions for that to be done by the Appellant as Defendant.
By paragraph 14 of statement of claim, the Plaintiff claims the sum of N2.1 million as a refund for failed consideration by the Defendant to secure and handover to the Plaintiff a contract approved by the Finance and General Purpose Committee (F.G.P.C.) for the construction of a PROTOTYPE VETERINARY clinic at SHINKAFI, Zamfara State. The Plaintiff also claimed cost of the action. See page 16 of Records of Appeal.
The parties filed their pleadings at the Court below and subsequently joined issues on a number of issues. The matter proceeded to trial and the Respondent calling a sole witness, one Alhaji Mohammadu Madaro Kurya (see pages 47-52 of records) and through him tendered four (4) exhibits. See pages 7-13 of records. On the part of the Defendant, he testified for himself and called no witnesses. (See pages 56-58). At the close of trial, learned Counsel to the parties filed, exchanged and adopted their written addresses. On the 28-3-2017, the learned trial Judge of the Court below, delivered a well considered judgment in favour of the Plaintiff.
Dissatisfied with the Judgment of the Court below, the Appellant has Appealed to this Court vide his Notice of Appeal filed on the 22-5-2017 containing two (2) Grounds of Appeal. See pages 70-72 of the record. These Grounds of Appeal are reproduced here without their particulars as follows;
GROUNDS OF APPEAL;
1. The trial Court failed to properly evaluate the implied and express contract and agreements before it to see that an illegal agreement/contract cannot be enforced by Court (sic), this led the Court to a wrong conclusion that led to Miscarriage of Justice.
2. That judgment of the trial Court is manifestly unsupportable, unreasonable and un-warranted having regards to the pleadings, processes and evidence before the Court.
ISSUES FOR DETERMINATION:
A total of two (2) issues were nominated for the determination of this Appeal by the Appellant as follows;
1. Whether by the content of Exhibit A, the appellant is said to be in breach of contract and entitled to return failed consideration (Ground one).
2. Whether in view of the peculiar facts of this case, the Court below was right to grant prayers/reliefs sought by the Respondent (Ground two).
On the part of the Respondent, a sole issue was nominated for the determination of this Appeal thus:
Whether the lower Court was right to enter judgment for the Respondent in the sum claimed? (Grounds one and two).
In addition to this sole issue nominated by the Respondent, there is also raised a Notice of Preliminary Objection to the hearing of this Appeal on the ground that this Appeal is incompetent and that the said incompetence robs this Court of the jurisdiction to entertain this Appeal.
In his arguments in support of the preliminary objection raised, learned Respondent?s Counsel submitted that the two grounds of Appeal, which appear at pages 70 and 71 of the record of appeal are incompetent and that since they are the only grounds of Appeal in the Notice of Appeal, the appeal is lacking a valid Ground of Appeal and therefore incompetent and liable to be struck out.
In order to buttress his arguments in support of the Preliminary Objection, Counsel took time to reproduce ground one thus;
“The trial Court failed to properly evaluate the implied and express contract and agreements before it to see that an illegal agreement/contract cannot be enforced by Court, this led the Court to a wrong conclusion that led to Miscarriage of Justice.”
Counsel also reproduced ground two (2), obviously for good measures, which he also said is incompetent thus;
“That judgment of the trial Court is manifestly unsupportable, unreasonable and unwarranted having regards to the pleadings, processes and evidence before the Court.”
Learned Respondent’s Counsel, in addition reproduced the two issues distilled by the Appellant from the two grounds as follows;
ISSUE ONE;
Whether by the content of Exhibit A, the Appellant is said to be in breach of contract and entitled to return failed consideration.” (Ground one).
ISSUE TWO;
Whether in view of the peculiar facts of this case, the Court below was right to grant prayers/reliefs sought by the Respondent (Ground two).”
In his arguments, learned Respondents Counsel drew attention to the Grounds of Appeal filed, especially ground one, and contended that the ground does not, in the first instance emanate from the judgment of the trial Court. According to Counsel, even the issues formulated from the grounds 1 and 2 do not also emanate from the Grounds of Appeal filed, ditto the arguments in support.
To establish the aforementioned disclosures made by the learned Respondent’s Counsel about what transpired at the Court below, he further disclosed that at the conclusion of hearing, the Appellant as Defendant formulated the following issues for determination at page 23 of the record:
“Whether having regard to the state of the pleadings and evidence led, the Plaintiff has discharged the onus of proof to be entitled to judgment in his favour While the Respondent at page 30 of the record raised the following issue;
‘Whether in the circumstances of this case, the Plaintiff was not entitled to the refund of N2,100,000.00 paid by it to the Defendant.’ It was further disclosed how the Court at page 67 of the record reframed the issues for determination as follows:
Whether the Plaintiff herein has proved his case against the Defendant to entitle him to the relief claimed?”
Against the backdrop of this position, Counsel submitted that the issue of illegality now strongly canvassed by the Appellant was never raised by either of the parties or the Court and was never pronounced upon and could not have been because by Order 24 Rule 6(1) of the Sokoto State High Court Rules, 1987 then applicable in Zamfara State, it is provided as flows;
“A party shall plead specifically any matter for example, performance, release, any relevant statute of limitation, fraud, or any fact showing illegality of which, if not specifically pleaded, might take the opposite party by surprise.”
The contention of Counsel however, is that failure to so plead illegality before the lower Court means that it cannot be relied upon in that Court and that even if it must be raised in this Court, it has to be raised as a new issue with the leave of this Court which leave was neither sought nor obtained.
In the case of ground two, which is an Omnibus Ground, Counsel contended that there are two problems: Firstly, he said that ground two is not a valid Omnibus Ground of Appeal in a civil case. He cited the case of ALI & ANOR vs. DANDOGARI (2013) LPELR- 21919. Secondly, Counsel contended that being an Omnibus Ground, it cannot give rise to arguments on substantive issues of facts and as it cannot be used to complain against a finding of fact. See STATOIL NIG LTD vs. INDUCON NIG LTD (2014) 9 NWLR (PT. 1411) 43 where this Court sitting in Lagos held thus;
“Where the Omnibus Ground of Appeal is raised to wit: that the judgment is against the weight of evidence, the Appellant is in fact complaining against the totality of the evidence adduced at the trial but cannot use the ground to complain against an error of law or finding of fact made by the trial judge.”
The argument of Counsel is that an appeal can only lie against issue or issues canvassed or determined by a lower Court. He said that the authorities are clear on the position of the law that a Ground of Appeal is essentially the complaint of an Appellant against the judgment being appealed against; that Ipso facto, it consists of error of law or facts alleged by an Appellant as the defect in the judgment being appealed against and which the Appellant wants the Appellate Court to set aside. See FMBN vs. NDIC (1999) 2 SCNJ 57.
The contention of Counsel is that where a Ground of Appeal does not arise from issues decided by the lower Court, it is incompetent and ought to be struck out. See OKAFOR vs. ABUMOFUANI (2016) 66 (PT. 1) NSCQR 162 at 186-187 where the Supreme Court said:
“It is also a trite law that where a ground of appeal formulated, does not arise from the judgment and purports to raise and attack an issue not decided by the judgment appealed against as shown in this instant Appeal, the same, therefore becomes incompetent and liable to be struck out. Therefore, the Appellant’s ground of appeal no. 1 in his Notice Appeal, which did not arise from the judgment of the Court below, is incompetent as well as issue no. 1, which was formulated from the said ground of appeal.”
In bringing the points made here above and applying them to the instant Appeal, Counsel argued that ground one of the Appellant’s ground raises the issue of illegality of the contract between the Appellant and the Respondent, an issue which was not raised at the trial Court either in the pleadings, the evidence before the Court or in the address of Counsel and which the trial Court did not pronounce upon in its judgment. For this reason, he submitted that the said ground is incompetent as well as the issue culled from it and Counsel urged this Court to so hold.
With regards to ground two, Counsel submitted that it is incompetent. He cited the case of PWAJOK vs. NYAM (1994) 2 NWLR (PT. 324) 81, where the Appellant framed his Omnibus Ground in the following terms: “The judgment is altogether unreasonable and cannot be supported having regards to the weight of evidence.” The argument of learned Counsel is that this Court sitting in the Jos Division held that the ground was incompetent.
In applying Order 3 Rule 2(4) of CAR 1981 which is impari materia with Order 7 Rule 3 of CAR 2016, the Court said; “This rule relates directly against grounds, which are vague and expressed in general terms thereby disclosing no reasonable Grounds of Appeal. The last mentioned sub-rule expressly saves from invalidity appeals in civil cases on the ground that “the judgment is against the weight of evidence” the Supreme Court stated the principle clearly in the following decisions. ELIJAH OKEZIE V THE QUEEN (1963) 1 SCNLR 24, 1963 1 ALL NLR 1 at p. 31, MOBIL OIL NIGERIA LTD v COKER (1975)3 SC 175. The ground which is reproduced above is incompetent in civil appeals.”
Against the backdrop of this position, Counsel submitted that the two Grounds of Appeal filed by the Appellant having been found to be incompetent, this appeal is incompetent and this Court has power under Order 7 Rule 6 of the extant rules of this Court to strike same out. See EMECHETA vs. OGUERI (1998) 12 NWLR (PT. 579) 502. It is further submitted that a Notice of Appeal is the very foundation of an appeal and that it represents the condition precedent to an effective Appeal against any appealable decision. It is also contended that where, therefore, a Notice of Appeal is defective, the Court of Appeal lacks the legal competence to entertain the Appeal since the Notice of Appeal is a nullity and a fortiori, there never was any Appeal lodged or filed ab initio.
In that circumstance, Counsel argued that the Court of Appeal will strike out the Appeal and he urged this Court to so hold. See OLOWOKERE vs. AFRICAN NEWSPAPERS OF NIG. LTD (1993) 5 NWLR (PT. 295) 583 at 586. Counsel finally urged this Court to strike out the two Grounds of Appeal and consequently the entire Appeal.
In his reply to the Notice of Preliminary Objection, learned Appellant’s Counsel filed an Appellant’s Reply in which he joined issues with the arguments of Respondent’s Counsel regarding the Notice of Preliminary Objection. On the Respondent’s objection taken to the competence of ground one, which Counsel said does not emanate from the judgment of the trial Court and that the issues formulated are also not from the grounds and ditto the arguments in support, Counsel argued that these submissions are far stretched technical objection, that is not legally founded and he urged this Court to ‘discountenance’ same and consider this very direct and concise grounds of Appeal on its merit, as the days of technical justice are long gone. He cited the cases of BRITISH-AMERICAN INSURANCE CO. LTD vs. EDEMA SILLO (1993) 2 NWLR (PT. 277) 570-637 RATIO 4; OGBORU vs. ARTHUR (2017) EJSC (VOL. 59) 60 AT 77, per MUSA DATTIJO MUHAMMAD, JSC, when he held that;
the true function of a Ground of Appeal is indeed to give the Respondent the necessary notice of the grudges the Appellant has against the judgment he appeals against. Once a Ground of Appeal gives the Respondent the necessary notice of the grudges the Appellant has against the decision on appeal and leaves no room for any surprise to be thrust on the Respondent on the issues to be raised in the Appeal, the ground is valid and competent. In the instant case, whether the grounds of Appeal in contention herein are valid depends on their meeting the foregoing enabling principles.”
Counsel urged this Court to so hold and uphold the grounds as valid by this score.
Learned Counsel also argued that the Respondent in contending that the Appellant’s ground one of Appeal is incompetent failed to mention anything about the particulars thereto, which he said are the expansion as to every grounds of Appeal, which must always be looked at together to understand the Complainant of the Appellant. Against this background Counsel further contended that where parties to an Appeal and the Court are not misled by the content of a Ground of Appeal, complaint about its form becomes a technicality, which does not occasion a Miscarriage of Justice and is inconsequential. He cited the case of OLEKSANDR vs. L.D. CO. LTD (2015) ALL FWLR (PT. 793) 1824 @ PP. 1836-1840 PARA H-A. See page 70-71 of the Record of Appeal.
On the contention of the Respondent that there is a particular way or format of framing the Omnibus Ground in Civil Appeals, Counsel disagreed as he stated categorically that it is untrue and he urged this Court to ‘discountenance’ this position too. He cited the case of S.C.O.A. NIG PLC vs. MOHAMMED (2004) 3 NWLR (PT. 862) 20 RATIO 3 @ 42-43. According to learned Counsel, in respect of the further contention that the Omnibus Ground cannot also sustain an an issue in an Appeal, issue in an Appeal, Counsel said that it is also not correct, as this Court sitting in Akure held that “An Appeal can be sustained by an Omnibus Ground of Appeal”, in the case of OJO vs. OYENEYIN (2015) ALL FWLR (PT.785) 248 AT 260.
RESOLUTION OF NOTICE OF PRELIMINARY OBJECTION;
The first point of objection raised by the Respondent is that of the two Grounds of Appeal filed, ground one does not in any way emanate from the judgment of the Court below. To be sure, the proper approach will be to reproduce ground one filed by the Appellant thus;
“The trial Court failed to properly evaluate the implied and express contract and agreements before it to see that an illegal agreement/contract cannot be enforced by Court, this led the Court to a wrong conclusion that led to Miscarriage of Justice.”
The settled position of the law is that an Appeal can only lie against issue or issues canvassed or determined by a lower Court. A ground of Appeal is essentially the complaint of an Appellant against the judgment being appealed against. The ground must therefore consist of errors of law or facts alleged by an Appellant as the defect in the judgment being appealed against and which the Appellant wants the Appellate Court to set aside. Where a Ground of Appeal therefore, does not arise from issues decided by the Court below, the said ground is incompetent and ought to be struck out. In short, where the ground does not attack the ratio decidendi of the decision appealed against, the said ground is incompetent and it is liable to be struck out.
The seriousness of the situation is further felt where any issue for determination is nominated from a defective or incompetent Ground of Appeal. Such an issue shall equally be adjudged incompetent and shall be liable to be struck out. See LAMBERT vs. NIGERIA NAVY (2006) 7 NWLR (PT.980) 514; PETER vs. OKOYE (2002) FWLR (PT.110) 1864; UGO vs. OBIEKWE (1989) 1 NWLR (PT. 99) 514 and OKAFOR vs. ABUMOFUANI (Supra) where the Supreme Court had this to say;
“It is also a trite law that where a Ground of Appeal formulated, does not arise from the judgment and purports to raise and attack an issue not decided by the judgment appealed against as shown in this instant Appeal, the same, therefore becomes incompetent and liable to be struck out.”
In the instant Appeal, it is obvious that ground one of the Appellant’s grounds raises the issue of illegality of the contract between the Appellant and the Respondent. A very close observance of the records show that this is an issue which was neither raised nor argued at the Court below either in the pleadings, the evidence before the Court or in the address of Counsel. Consequently, it is also an issue which the Court below made no pronouncements upon in its judgment. I am therefore not in any position to disagree with the learned Respondent’s Counsel on this point of objection. For this reason, the said ground one of Appeal is adjudged incompetent and it is accordingly struck out.
The argument of Appellant’s Counsel in opposition of the grant of this ground of objection, is that where parties to an Appeal and the Court are not misled by the content of a Ground of Appeal, complaint about its form becomes a mere technicality, which does not occasion a miscarriage of justice and is therefore not fatal. Perhaps, what learned Respondent’s Counsel ought to be made to understand is that a distinction must always be drawn between an unsubstantial technicality in proceedings and a substantial technicality which amounts to a condition precedent whose non-compliance with renders the entire proceedings manifestly incompetent. A proper example here is as in couching a Ground of Appeal which does not emanate from the decision of Court appealed against. This is hardly a mere issue of technicality in any way it is looked at.
In the case of ground two, which learned Appellant’s Counsel couched as follows;
“That judgment of the trial Court is manifestly unsupportable, unreasonable and unwarranted having regards to the pleadings, processes and evidence before the Court.”
It is rather clear that the ground is an omnibus Ground of Appeal which is cognizable in criminal Appeals and therefore, not a valid Omnibus Ground in Civil Appeals such as in the instant Appeal. In drawing a distinction between an Omnibus Ground of Appeal in civil cases and Omnibus Ground in criminal cases, the apex Court in ATUYEYE vs. ASHAMU (1987) NWLR (PT. 49) 267 held as follows;
“There is a long line of decisions of this and other Courts to the effect that in civil cases, the proper ground against findings of fact is the omnibus ground and that the judgment is against the Weight of Evidence and I need only to refer to a few of such cases. In ELIJAH OKEZIE vs. QUEEN (1963) 1 ALL NLR 1 AT 3, one of the three original grounds in criminal appeals was (2) the judgment of the learned trial judge convicting the accused appellant is unreasonable, unwarranted and cannot be supported having regard to the weight of evidence.”
A second flaw which learned Respondent’s Counsel pointed out is that an Omnibus Ground of Appeal cannot give rise to arguments on substantive issues of facts and that it cannot also be used to complain against a finding of fact. Counsel cited the case of STATOIL NIG LTD vs. INDUCON NIG LTD (Supra) decided by the Court at the Lagos Division. The apex Court per KALGO, JSC in the case of AKINLAGUN & ORS vs. OSHOBOJA & ANOR (2006) LPELR-348 SC, had this to say on the subject;
“An Omnibus Ground of Appeal is a general ground of fact complaining against the totality of the evidence adduced at the trial. It is not against a specific finding of fact or any document. It cannot be used to raise any issue of law or error in law.”
The position of the law on the subject is that this rule against the wrong couching of a Ground of Appeal which is supposed to have been done otherwise relates directly against grounds, which are vague and expressed in general terms thereby disclosing no reasonable Grounds of Appeal and this Court has the power under Order 7 Rule 6 of the Court of Appeal Rules, 2016 to strike out any such vague Ground of Appeal which is expressed in general terms such that the ground disclosed no reasonable ground of Appeal. Against the backdrop of this position, the two grounds of Appeal filed by the Appellant having been found to be incompetent are hereby struck out. In the final analysis, the Notice of Preliminary Objection is hereby sustained. Appeal is once again struck out with cost of N50,000.00 against the Appellant and in favour of the Respondent.
HUSSEIN MUKHTAR, J.C.A.: I have had the privilege of previewing the lead judgment just rendered by my learned brother Frederick O. Oho, J.C.A. I agree with entire reasoning therein and the conclusion that there being no competent ground of appeal, the preliminary Objection is bound to succeed with the resultant effect of extinguishing the appeal as a non-starter. The incompetent appeal is hereby struck-out. I subscribe to the consequential orders made in the judgment.
AMINA AUDI WAMBAI, J.C.A.: My learned brother, FREDERICK O. OHO J.C.A. obliged me a draft copy of the judgement Just delivered. Having before now read the said Judgement, I cannot but agree with his reasoning and conclusion that the preliminary objection raised by respondent attacking the competence of the appeal has to succeed. The two grounds upon which the appeal is predicated being incurably defective, the preliminary objection succeeds and this is the end of the road for the hearing this appeal. The appeal having no leg to stand on, must be struck out for being incompetent. It is accordingly struck out.
Appearances:
B.T. Aza, Esq.For Appellant(s)
Chief S.U. Nwoke For Respondent(s)
