AMADI v. RUFUS & ORS
(2021)LCN/14974(CA)
In The Court Of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Monday, January 04, 2021
CA/PH/462/2016
RATIO
APPEAL: ATTITUDE OF THE APPELLATE COURTS ON PROLIFERATION OF ISSUES
Let me restate here that proliferation of issues is not permitted by our appellate Courts and this is because a party is allowed to raise one issue from one ground of appeal or from more than one ground of appeal but a single ground of appeal cannot generate more than one issue determination. See ESSIEN V. COLLEGE OF EDUCATION ORO (2014) LPELR 23784 (CA). PER ISAIAH OLUFEMI AKEJU, J.C.A.
EVIDENCE: ON WHOM LIES THE BURDEN OF PROVING LACK OF FAIR HEARING
It has become settled that the burden of proving lack of fair hearing lies on the party who alleged the breach to establish same and not to merely scream such breach. See MACHIKA V. SHEHU IMAM (2010) LPELR-4448. PER ISAIAH OLUFEMI AKEJU, J.C.A.
Before Our Lordships:
Isaiah Olufemi Akeju Justice of the Court of Appeal
Tunde Oyebanji Awotoye Justice of the Court of Appeal
Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal
Between
ANAYO AMADI APPELANT(S)
And
- MR. UWADIEGWU RUFUS 2. MR. ONE NIGERIA RUFUS 3. MR. OLIVER RUFUS 4. MR. THANKGOD RUFUS 5. MR. CONFIDENCE RUFUS 6. MR. CHUKWUMA RUFUS 7. MR. ABA CHIJIOKE 8. MR. IKECHUKWU CHIJIOKE 9. MR. ANELE CHIJIOKE 10. MR. OGONDA CHIJIOKE RESPONDENT(S)
ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment): This appeal is against the Ruling of the High Court of Rivers State, delivered on 1st day of June, 2016 in Suit No PHC/2330/2012 which the Appellant as claimant commenced through the writ of summons filed on 19/10/2012 for the following Reliefs against the Respondents as Defendants.
“1. A declaration that the Claimant is the owner of all that piece of land called Ohia Milita Land in Rumosi Community, Obio/Akpor Local Government Area of Rivers State.
2. An order of this Honourable Court directing/compelling defendants to return to the defendants (sic) the amount representing the current market value of four (4) plots of land they sold in that Ohia Milita Land.
3. An order of this Honourable Court directing the defendants to remove the building erected on the said land by the Defendants or the person or persons they sold that four (4) plots of land to.
4. An order of injunction restraining the defendants, his (sic) servants, agents, privies from further trespassing on the said land or in anyway or manners whatsoever restricting the Claimant his servants, successors in
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title or assigns from using or continue to use the said land.”
These Reliefs were also stated in paragraph 24 of the Statement of Claim filed with the Writ of Summons.
From the proceedings of the lower Court at pages 176 to 194 of the record of appeal, the claimant applied by a motion on Notice to amend the Statement of Claim but the application was refused. Meanwhile the defendants had filed their joint Statement of Defence on 1/3/13 as shown on pages 94 – 126 of the Record of Appeal.
The basis for this appeal is that at page 192 of the Record of Appeal, the lower Court dismissed the Appellant’s application for amendment of Statement of Claim and also at page 193 the lower Court dismissed the suit with costs assessed at N50,000.00 in favour of the Respondents and sequel to which orders the Appellant filed his Notice of Appeal on 2/8/16 with three grounds of appeal, following which the Appellant filed his Brief of Argument which was subsequently amended by the Amended Appellant’s Brief of Arguments filed on 11/2/2020. The Amended Respondents Brief of Argument was filed on 18/9/2020 while the Appellant’s Amended Reply
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Brief on Points of Law was filed on 30/9/2020.
From the grounds of appeal, the Appellant raised two issues for determination thus:
1. Whether or not the lower trial Court has the jurisdiction to entertain this suit which was not initiated or commenced by due process law (sic) and rightly made an order of the dismissal of this suit, which abinitio it lacks the requisite jurisdiction to hear and determine.
2. Whether assuming but without conceding that the lower trial Court has the jurisdiction to entertain this suit, the order of 1st June, 2016 made by the lower trial Court without hearing from the Appellant does not amount to denial of fair hearing.
In the Amended Respondents’ Brief, the Respondents stated the issues for determination as follows:-
1. Whether or not this suit which the writ of summons was not signed by the legal practitioner contrary to Order 6 Rule 2 (3) of the Rivers State High Court (Civil Procedure) Rules 2010 was instituted or commenced by due process of law.
2. Whether or not the lower trial Court has the jurisdiction to entertain this suit which was not initiated or commenced by due process of law.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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- Whether or not the lower trial Court was right to have made an order of dismissal of this suit, which abinitio it lacks the requisite jurisdiction to hear and determine.
4. Whether or not assuming but without conceding that the lower trial Court has the jurisdiction to entertain this suit, the order of 1st June, 2016 made by the lower trial Court without hearing from the Appellant does not amount to denial of fair hearing.
Let me restate here that proliferation of issues is not permitted by our appellate Courts and this is because a party is allowed to raise one issue from one ground of appeal or from more than one ground of appeal but a single ground of appeal cannot generate more than one issue determination. See ESSIEN V. COLLEGE OF EDUCATION ORO (2014) LPELR 23784 (CA). The Respondents are wrong in law to have raised more issues than the grounds of appeal.
Consequently, the two issues formulated by the Appellant are adopted and will be used for the consideration and determination of this appeal.
The contention of the learned counsel for the Appellant on the first issue is that the suit was not initiated in compliance with the
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conditions laid down by the law as stated in S.L.B CONSORTIUM LTD V. N.N.P.C (2011) 9 NWLR (PT. 1252) 317 AT 322 and MADUKOLU V. NKEMDILIM (1962)1 ALL NIR 581.
It was the contention of the learned counsel that on the discovery of the defect in the case, the Appellant rightly applied to withdraw same. The learned counsel submitted that it will amount to a futile exercise or proceeding where a Court embarks on hearing and conclusion of a case without jurisdiction. See OKAFOR V. NWEKE (2007) 10 NWLR (PT. 1043) 521; UMANAH V. ATTAH (2006) 17 NWLR (PT.1009)503.
The contention of learned counsel is that the proper order of the Court in the circumstances of this case is that of striking out of the case and not of dismissal. See GALADIMA V. TAMBAI (2000) 6 SC (PT.1) 196; OLOBA V. AKEREJA (1988)3 NWLR (PT. 84) 508.
On the second issue, the Appellant’s counsel argued that the decision of the lower Court without hearing the Appellant amounted to denial of fair hearing. See USANI V. DUKE (2004) 7 NWLR (PT. 871) 116; BAMGBOYE V. UNIVERSITY OF ILORIN (1999) 10 NWLR (PT.622)290.
The learned counsel for the Respondents submitted that it is an abuse of Court Processes for
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the Appellant to file a notice of discontinuance and have his way in a new suit. See OLAWORE V. OLANREWAJU (1998)1 NWLR (PT.534)455.
The learned counsel contended that by virtue of the stage of the trial when the action was discontinued, the order of dismissal was the appropriate order. He relied on Order 23 Rule 1 of Rivers State High Court (Civil Procedure) Rules, 2010 as well as the cases of EGWU V. MODUNKWU (1997)4 NWLR (PT.501) 579; NWOKEDI V. ROXY TRAVEL AGENCY LTD (2002) 6 NWLR (PT.762) 181. It was then submitted that a plaintiff who has voluntarily withdrawn his case at that stage should not be allowed to re-litigate the same action against the same defendants. See TRANS NAB LTD V. BAYO JOSEPH (1997) 5 NWLR (PT.504) 176; ERONINI V. IHEUKO (1989)2 NWLR (PT. 101)46.
It was contended that there is nothing from the Appellant to show any breach of his right to fair hearing because the burden was on him to establish that his right to fair hearing had been breached. See ADEYEMI V. STATE (2011)5 NWLR (PT. 1239) 1; VESSEL SAINT ROWLAND ADEFEMI V. OSINLOYE (1997)4 NWLR (PT.500) 387. The Learned Counsel submitted that once a process which requires the pronouncement of
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the Court has been duly served, the Court is at liberty to take the process as argued in the absence of that party. Order 31 Rule 4 Rivers State High Court (Civil Procedure) Rules, 2010; ODUMESI V. OYENOLA (1998)8 NWLR (PT.563) 601.
The Amended Appellant’s Reply Brief is a re-argument of appeal as it had not answered any new issue by the Respondents. It is accordingly discountenanced. A Reply Brief is necessary when an issue of law or new questions are raised in the Respondents Brief. See OJIOGU V. OJIOGU (2010)9 NWLR (PT.1198) 1.
In the first place, the appellants complained of denial of fair hearing by the lower Court but this is not made out from the record of appeal. I agree with the learned counsel for the Respondents that having placed his notice of discontinuance before the lower Court, there was nothing for that Court to hear again in that matter. It has become settled that the burden of proving lack of fair hearing lies on the party who alleged the breach to establish same and not to merely scream such breach. See MACHIKA V. SHEHU IMAM (2010) LPELR-4448.
The Appellant has failed to proof the breach of his right to fair hearing and the issue is resolved against him.
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I also cannot find any substance in the contention of the Appellant that the lower Court ordered a dismissal instead of striking out of the case upon the Appellant filing a notice of discontinuance of the action. This is because the dismissal was not ordered upon the merit of the case and therefore can only have the effect of a striking out. In ONYEKAONWU V. UDEGBUNAM (2009) LPELR-8344 CA, SANUSI JCA (as he then was) put the position clearly thus, “…….. it is not in all cases where a matter is dismissed that such dismissal would completely terminate the case. This is for instance where a case is dismissed in the High Court but the circumstances of the dismissal show that the dismissal could not possibly connote or denote the determination as to put finality to the case, in such situation, such dismissal merely amount to striking out. SeeOBASI BROS CO. LTD V. MBAS LTD (2005) 9 NWLR (PT.929) 117.”
This issue is also resolved against the Appellant.
Consequent upon the foregoing findings and holdings, I find no merit in this appeal and it is dismissed. Parties are to bear their costs.
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TUNDE OYEBANJI AWOTOYE, J.C.A.: I have the privilege of reading before now the draft judgment of my learned brother I. O. Akeju, JCA.
I am in full agreement with the reasoning and conclusion, therein. I have nothing more to add.
I also resolve the two issues adopted in the leading judgment against the Appellant.
This Appeal lacks merit. It is accordingly dismissed. I abide by the consequential Orders as to costs in the leading judgment.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I agree.
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Appearances:
P. Chukwu Esq. For Appellant(s)
Chief M. R. Horsfall Esq. For Respondent(s)
