ANIETIE UDO AKPAN V. DR. GABRIEL UDO UDO ATTA
(2012)LCN/5287(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 3rd day of April, 2012
CA/C/80/2009
RATIO
APPEAL: DUTY OF COUNSEL IN RELATION TO ISSUES OF DETERMINATION
As may be observed, the learned counsel did not indicate from which of the three (3) grounds of appeal any of the above issues was distilled as required by diligent practice in brief writing. Because issues for determination of an appeal by law must arrive or arise from the grounds of the appeal and therefore cannot be at large, it is the duty of counsel to clearly indicate in the brief of argument from which of the grounds of the appeal each issue which they identity as arising or calling for decision in the appeal, arises or was distilled. Even where the number of issues raised by counsel in their briefs of argument is the same as the number of the grounds of appeal contained in a notice of appeal, it is necessary that such an indication be made specifically to tie each issue to a particular ground of appeal as it would be merely simplistic to assume that the issues arise from the corresponding numbers of the grounds of appeal. PER MOHAMMED LAWAL GARBA, J.C.A
APPEAL: LEGAL CONSEQUENCE OF FRAMING A GROUND OF APPEAL WHICH DID NOT ARISE FROM DECISION OF THE LOWER COURT
The legal consequence or effect of framing a ground which did not arise from the decision against which the notice of appeal was filed is simply that such a ground of appeal is incompetent and liable to be struck out. See BANKOLE v. PELU (1989) 8 NWLR (211) 525 at 537; IKE v. ENANG (1999) 5 NWLR (602) 261; KANO ILE PRINTERS v. GLOEDE & HOFF (2005) 5 SC (Pt. 11) 140 at 144; C.S.S, BOOKSHOPS LTD. v. REG. TRUSTEES, M.C.R.S. {2006} ALL FWLR (319) 819 at 851. PER MOHAMMED LAWAL GARBA, J.C.A
APPEAL: EFFECT OF ANY ISSUE FORMULATED FROM AN INCOMPETENT GROUND OF APPEAL
Any issue which was formulated from an incompetent ground of appeal would itself be, as a matter of course, incompetent in law. See EGBE v. ALHAJI (1990) 1 NWLR (128) 546; JOHN HOLT VENTURES v. OPUTA (1996) 9 NWLR (470) 101; UBA PLC V. AKPARABONG C. BANK (2006) ALL FWLR (320) 1099 at 1121. PER MOHAMMED LAWAL GARBA, J.C.A
COURT: DUTY OF A COURT IN THE DETERMINATION OF ISSUES BEFORE IT
I should however point out that a court of law in the determination of any issues canvassed before it by disputing parties had the legal duty and obligation to expressly and clearly state the reason/s for its views, findings or decision on such issues. The reasons for deciding the issues one way or the other have to be clearly set out and distinctly stated in the decision so as to enable the parties know the basis or grounds upon which the issues were decided the way they were decided. The court does not properly discharge that duty by merely stating or casually mentioning its decision without setting out clearly, the reason for the decision, which together form the ratio decidendi of the decision on the issues decided. This court in the case of ILOABACHIE V. ILOABACHIE (2005) 9 NWLR (930) 362 at 367 had held that:-
“A court of law must always give reasons for its decision. Decisions of a court should not be arbitrary but must be based on sound reasoning and conclusion.” PER MOHAMMED LAWAL GARBA, J.C.A
PROCEDURE: EFFECT OF INCOMPETENT APPLICATIONS
Incompetent applications or proceedings before Courts are usually struck out. See Odiase & Ors V. Agbo & Ors (1972) 1 All NLR (Pt.1) 170 at 177. PER UZO I. NDUKWE-ANYANWU, J.C.A
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
Between
ANIETIE UDO AKPAN Appellant(s)
AND
DR. GABRIEL UDO UDO ATTA Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A (Delivering the Leading Judgment): This appeal is against the decision of the Cross River State High Court sitting at Calabar contained in a ruling delivered on the 9/10/2008 in motion No. HC/MISC/258/2005.
From the facts narrated in the briefs of argument filed by the learned counsel for the parties to the appeal, a judgment was entered by a Magistrate Court against the Appellant who later applied to that court to set aside it. When the Magistrate Court refused the application to set aside its Judgment, the Appellant appealed against the refusal in appeal No. HC/7A/2006 and while that appeal was pending, he filed the motion mentioned above for extension of time to appeal against the judgment of the Magistrate Court. The appeal No. HC/7A/2006 was dismissed and subsequently, the Appellant’s motion No. HC/MISC/258/2005 was also dismissed.
The High Court in the ruling dismissing the Appellant’s motion, after reviewing the submissions by the learned counsel for the parties therein, had stated thus:
“This application as stated already is narrowed down to prayer for extension of time to appeal; giving reason as nor service of court processes. Honourable Ita- Judge stated in his judgment dated 16/4/2004 on pages 2 and 5 as follows:
“I think I should clear that this appeal is against the ruling refusing to set aside the Judgment and not against the Judgment itself.
For the above reasons this appeal fails on all grounds and it is hereby dismissed.”
From the foregoing, there is no need to grant extension of time to appeal, so this application is without merit and is struck out without cost.
Being aggrieved with the above decision, the Appellant filed a notice of appeal containing three (3) grounds which I can afford to set out in detail. They are as follows:-
GROUNDS OF APPEAL
GROUND 1: The Learned Judge at the Court below misdirected himself in law when he struck out the Motion HC/MISC.258/2005 for extension of time which was pending before him by holding that another court presided by the Honourable Justice E.E. Ita, had by his judgment delivered on 16th April, 2006 decided the issue in HC/MISC.258/2005.
PARTICULAR OF MISDIRECTION
(a) The issue in HC/7A/2006 was different from the issue in HC/MISC.258/2005 which was for extension of time to appeal from the judgment of the Learned Chief Magistrate, Calabar delivered on 15th June, 2005 without the processes leading to judgment having not been served on the Appellant.
(b) The Appellate Judge in HC/7A/2006 made it clear that his Judgment was not against the judgment of the Learned Chief Magistrate. (page 2 lines 13 and 14) of the judgment.
(c) There was nothing to rob the Learned Judge at the Court below of his jurisdiction.
Ground 2: The Learned Judge at the Court below erred in law to hold that the Motion for extension of time – HC/MISC.258/2005 was an abuse of process.
PARTICULAR OF ERRORS
(a) The issue in HC/7A/2006 and HC/MISC.258/2005 were not the same.
GROUND 3: The Learned judge at the court below misdirected himself in law by holding that he had inherent power to rob himself of the jurisdiction of the court.
In the Appellant’s brief filed on 12/10/09, but deemed on 20/5/10, R. N. Akpan, learned counsel for the Appellant had listed two (2) issues for determination thus:-
1. Whether the issue in HC/MISC.258/2005 and HC/7A/2006 were the same.
2. Whether striking out the motion of extension of time was a proper exercise of discretion having regard to the circumstances of the matter before His Lordships at the court below.
As may be observed, the learned counsel did not indicate from which of the three (3) grounds of appeal any of the above issues was distilled as required by diligent practice in brief writing. Because issues for determination of an appeal by law must arrive or arise from the grounds of the appeal and therefore cannot be at large, it is the duty of counsel to clearly indicate in the brief of argument from which of the grounds of the appeal each issue which they identity as arising or calling for decision in the appeal, arises or was distilled. Even where the number of issues raised by counsel in their briefs of argument is the same as the number of the grounds of appeal contained in a notice of appeal, it is necessary that such an indication be made specifically to tie each issue to a particular ground of appeal as it would be merely simplistic to assume that the issues arise from the corresponding numbers of the grounds of appeal.
Looking at the extract of the decision appealed from as set out above, “it is clear as crystal” that the grounds of appeal No. 2 and 3 do not arise or enure from it. In respect of ground 2 in the entire ruling which appears at pages 75 – 78 of the record of the appeal, the High Court only mentioned abuse of the court process while reviewing the submissions by the learned counsel in the application, particularly at page 77, lines 2 – 3.
The portion of the ruling set out above which represents the decision of the High Court in the application, there was no finding and or reason that the application was dismissed because it was an abuse of the court process. The ground 2 therefore did not arise or come from the decision appealed against.
The same thing applies to the ground 3, because no where in the said portion of the ruling or at all, did the High Court hold that it had no jurisdiction to hear the application in question or that it had the inherent power to rob itself of jurisdiction.
The legal consequence or effect of framing a ground which did not arise from the decision against which the notice of appeal was filed is simply that such a ground of appeal is incompetent and liable to be struck out. See BANKOLE v. PELU (1989) 8 NWLR (211) 525 at 537; IKE v. ENANG (1999) 5 NWLR (602) 261; KANO ILE PRINTERS v. GLOEDE & HOFF (2005) 5 SC (Pt. 11) 140 at 144; C.S.S, BOOKSHOPS LTD. v. REG. TRUSTEES, M.C.R.S. {2006} ALL FWLR (319) 819 at 851. I am in no doubt that the grounds 2 and 3 contained in the Appellant’s notice of appeal did not arise or come from the ruling of the High Court against which it was fifed and so the said grounds are incompetent. They are struck out.
In the Respondent’s brief filed on 21/10/2011 but deemed on the 8/2/2012 a single issue submitted for decision in the appeal as follows:
Whether the Appellant’s appeal is not an abuse of court process his appeal having being dismissed and he is asking for extension of time to appeal.
Taken the way it was couched, the issue does not arise from any of the grounds of appeal including the ones struck out for being incompetent. The issue seeks to challenge the appeal on ground of being an abuse of the court process. Without the need to waste verbiage, the Appellant’s appeal is not an abuse of the court process because he has the constitutional right to appeal against the decision of the High Court with which he was dissatisfied, to this court. The notice of appeal filed by the Appellant has a balance of a competent ground of appeal which can sustain the appeal in law. I do not want to speculate that the learned counsel did not intend to say that the appeal rather than the application before the High Court was an abuse of the court process in his issue for determination. I would just emphasise that counsel should be diligent and fastidious in the use of words while preparing any processes that are to be filed in and for use by the courts in judicial proceedings.
For not arising from the grounds of appeal, the respondent’s issue is incompetent and accordingly struck out. The Appellant’s ground 1 appears to cover the two issues raised in the Appellant’s brief but which can be more precisely and concisely put thus:
“Whether the High court was right in dismissing the Appellants motion No. HC/MISC/258/2005 having regard to the circumstances of the matter.”
The one (1) page submissions by the learned counsel for the Appellant on the two (2) issues he formulated in the Appellant’s brief are that because the High Court had stated that the appeal dismissed in HC/7A/06 was not against the judgment itself, that court misdirected itself and did not seem to appreciate the fact and law when it stated in the ruling appealed against that there is no need to grant extension of time to appeal. The cases of CHIDIAK V. LAGUDA (2004) NMLR 123 and UMORU V. ZIBRI (2003) 112 LRCN, 2353 were cited.
On issue 2, it was said that the exercise of the discretion by the High Court must be according to law and justice, relying on ASSURANCE SKULD V. M.V. SEALION (2006) 5 NWLR (973) 286. We were urged to resolve the issue in favour of the Appellant.
The other two sentences made in the issue relate to the grounds of appeal 2 and 3 which were struck out for being incompetent.
For the Respondent, the entire submissions in the respondent’s brief are based on the sole issue formulated by the learned counsel which it may be recalled, I have found to be incompetent for not being from any ground of appeal which arose from the decision appealed against. Let me reiterate that the High Court did not make a finding in the ruling appealed against that the Appellant’s application before it was an abuse of its process or whether the application was an abuse of its process. Like I said before now, issues for determination in an appeal must be shown to derive from competent grounds of an appeal and are not left at large; at the whims of counsel. Any issue which was formulated from an incompetent ground of appeal would itself be, as a matter of course, incompetent in law. See EGBE v. ALHAJI (1990) 1 NWLR (128) 546; JOHN HOLT VENTURES v. OPUTA (1996) 9 NWLR (470) 101; UBA PLC V. AKPARABONG C. BANK (2006) ALL FWLR (320) 1099 at 1121.
I would start a consideration of the reframed issue by saying that in the decision appealed against, the High Court did not profer reason/s why it held the view and found that “there is no need to grant the extension of time to appeal and so this application is without merit and it is struck out without cost.”
The High court had made the above statement after setting out an extract of the decision in appeal No. HC/7A/2006, as seen earlier, giving the impression thereby that its decision was based on the said extract. I should however point out that a court of law in the determination of any issues canvassed before it by disputing parties had the legal duty and obligation to expressly and clearly state the reason/s for its views, findings or decision on such issues. The reasons for deciding the issues one way or the other have to be clearly set out and distinctly stated in the decision so as to enable the parties know the basis or grounds upon which the issues were decided the way they were decided. The court does not properly discharge that duty by merely stating or casually mentioning its decision without setting out clearly, the reason for the decision, which together form the ratio decidendi of the decision on the issues decided. This court in the case of ILOABACHIE V. ILOABACHIE (2005) 9 NWLR (930) 362 at 367 had held that:-
“A court of law must always give reasons for its decision. Decisions of a court should not be arbitrary but must be based on sound reasoning and conclusion.”
It also need to be noted that in trial and intermediate courts, the reasons given for decisions reached or findings made on issues canvassed by the parties would from the basis or foundation of the grounds of an appeal in the event that any of the parties was not satisfied therewith. In the present appeal, failure or omission by the High Court to state the reasons for its decision that there was no need to grant the application for extension of time to appeal, may have accounted for the inability to specifically attack the decision on any precise ground of appeal which arises directly from the ruling appealed against.
However, since there is no complaint from the Appellant on the failure or omission on the part of High Court to give reason for its decision in this appeal, I would just emphasise that a court of law has the duty to always give reasons for its decision of the issues in dispute between the parties that come before court for determination.
Now in the appeal No. HC/7A/2006, the Appellant had prayed the High Court to set aside the ruling of the Magistrate Court in which it refused to set aside the judgment it entered against the Appellant. If that appeal had succeeded, the eventual consequence, would have been the setting aside of the judgment of the Magistrate Court against the Appellant, arising from the order to set aside the ruling of the Magistrate Court appealed against in the appeal. However because that appeal “fails on all grounds”, it was dismissed by the High Court in the judgment delivered on the 16/04/07.
In the Appellant’s motion No. HC/MISC.258/05, which appears at page 1 of the record of appeal, the following reliefs were sought:-
1. An Order for extension of time to apply to this Honourable Court to appeal against the judgment of the Learned Chief Magistrate delivered on 16th June, 2005 in Suit No. MC/554/2005: Dr. Gabriel Udo Udo Affah suing by his Attorney Barrister Clement Ukaegbu.
2. An Order setting aside the said judgment.
3. An Order setting down Suit No. MC/544/05 for trial on the merits.
4. For such further Order/Orders as this Honourable Court may make in the circumstance of this case.
The Appellant had personally deposed to an affidavit in support of the above reliefs, but particularly in paragraph 20 where he averred thus:-
”20. That I have been informed by my counsel whom I truly {sic} believe that I can apply to this Honorable Court for extension of time to appeal from the judgment of the Chief Magistrate’s Court, set aside that judgment and put down the Case for fair hearing and determination.”
At the hearing of the motion, learned counsel for the Appellant had abandoned reliefs 2 and 3 above and relied on relief 1. In the ruling appealed against, the High Court had stated that:
“This application as already stated is narrowed down to prayer for extension of time to appeal; giving reason as non service of court processes.”
The appeal for which the Appellant sought extension of time to file was against the same decision of the Magistrate Court entered against the Appellant in respect of which his appeal No. HC/7A/05 on the same ground of non service of court processes, said to be denial of fair hearing, was dismissed by the High Court. Though, prima facie the reliefs sought in the appeal and the application for extension of time were couched differently, both were premised and founded on the same ground; i.e. non service of the Magistrate Court processes in the case, on the Appellant. The two (2) reliefs are therefore insipid and merely used to beguile the court from the real effect of the two so as to provide the Appellant an alternative way to have a second bite at the cherry. The genuine aim and object of both the appeal and the application by the Appellant was to get the High Court to set aside the judgment of the Magistrate Court entered against him on the sole ground of non service of the court processes on him. With the dismissal of the appeal, the wind had been taken away from the application for extension of time to appeal against the same judgment on the same ground. Perhaps it may be worthy of note that the judgment entered against the Appellant by the Magistrate Court, was a default one which he had hoped to get the High Court either by the appeal or the application, to set aside. The High Court was in the circumstances right to have found that there is no need to grant extension of time to appeal since the appeal had been dismissed.
In the result, I find no merit in this appeal and dismiss the grounds upon which it was filed. There shall be costs assessed at N30, 000.00 in favour of the Respondent.
UZO I. NDUKWE-ANYANWU, J.C.A: I had the privilege of reading in draft form the judgment just delivered by my learned brother Mohammed Lawal Garba, JCA. I agree with his reasoning and conclusions. I also dismiss this appeal. I abide by the order as to costs contained therein.
I had the advantage of reading in draft the judgment delivered by my Lord, Mohammed Lawal Garba, JCA and I concur that the appeal lacks merit and ought to be dismissed.
Anietie Udo Akpan brought an application to the High Court of Justice, Calabar, Cross River State on 14-10-2005 praying for leave to appeal against the ruling of the learned Chief Magistrate delivered on 16-06-2005 refusing to set aside his judgment in suit No.MC/554/2005 viz Dr. Gabriel Udo Udo Affah suing by his Attorney Barrister Clement Ukaegbu and seeking sundry reliefs. The application came before His Lordship Hon. Justice E.O. Effiong sitting in the High Court of Justice, Calabar, Cross River State. On 15-01-2008 Dr. Gabriel Udo Udo Affah was able to show by counter-affidavit that the ruling of the Chief Magistrate which Anietie Udo Akpan was seeking that time be extended for him to appeal to the High Court had been heard and dismissed on 16-04-2004 by Honourable Justice E.E. Ita of the High Court of Justice, Calabar, Cross River State. The judgment on appeal and the orders of his Lordship were annexed as Exhibit “A” and “B” respectively.
In his ruling of 9th October, 2008 Effiong J., referred to the judgment of Ita J., where his Lordship held at page 2 and 5 to wit:
“I think I should clear that this appeal is against the ruling refusing to set aside the judgment and not the judgment itself.
For the above reasons this appeal fails on all grounds and it is hereby dismissed. ”
Effiong J. concluded at page 78 lines 1-3 of the printed record thus:
“From the foregoing, there is no need to grant extension of time to appeal, so this application is without merit and is struck out without cost.”
Anietie Udo Akpan’s Solicitor in person of R.N. Akpan Esq. filed Notice of Appeal against that ruling on 10-10-2008 supported by three grounds of appeal from which two issues were distilled for determination in the Appellant’s Brief filed on 12-10-2009. Barrister Clement Ukaegbu Esq. of Counsel filed Respondent’s Brief on 21-10-2011 identifying one issue for determination.
The reasons given by my Lord for striking out grounds 2 and 3 and the lone issue formulated by the Respondent for determination have support in the judgment of the Supreme Court in Atanda V. Ajani (1989) 2 NSCC 511 where Nnaemeka-Agu, JSC held at page 537 lines 25-43 of the judgment to wit:
“On further appeal to this Court each party set out what they called the issues for determination in the appeal. Upon a close scrutiny of their briefs, it appears to me that whereas those set out by the appellants relate to the issuer raised in the grounds of appeal, those raised by the respondents cannot properly be said to have arisen from any grounds of appeal before the Court. There is for an example, no cross-appeal or any grounds questioning the appellants’ appeal at all when there have been concurrent findings of fact by the two Courts below. Besides, the appellants had sought and obtained leave to appeal on grounds of fact and mixed law and fact. Nor is there any issue as to whether or not respondents’ case was supported by the appellants. Indeed none of the four issues for determination as formulated by the respondents has any relevance to the grounds of appeal before the Court. This Court has stated a number of times that a respondent’s primary duty is to support the judgment appealed against by showing that the contentions of the appellant as to the grounds of error are without merit Also, as they have not cross-appealed, they cannot formulate issues as it were, in nubibus hanging in the skies. They can only either adopt the issue as formulated by the appellants based on the grounds of appeal before the Court or, at best, recast them by giving them a slant favourable to the respondents’ point of view, but without departing from the complaints raised by the grounds of appeal.”
The issues for determination as formulated by the Appellant and the Respondent ought to flow from the Grounds of Appeal else may be discountenanced by the appeal Court. That is not the case in this appeal. The issue set out for determination by the Respondent has no bearing on the only competent ground of appeal.
Moreover, as Ita J., heard and dismissed the appeal against the ruling of the learned Chief Magistrate, the remedy of the appellant did not lie in an application for extension of time to appeal against that ruling; the remedy was to appeal against the judgment of Ita J., if the appellant was aggrieved by the decision. The application before Effiong J. was incompetent. Incompetent applications or proceedings before Courts are usually struck out. See Odiase & Ors V. Agbo & Ors (1972) 1 All NLR (Pt.1) 170 at 177. For the fuller reasons given by my Lord, this appeal lacks merit and is dismissed. I abide by the orders as to cost.
Appearances
For Appellant
AND
C. O. EzeibeFor Respondent
