ASSOCIATION OF SENIOR CIVIL SERVANTS OF NIGERIA v. THE GOVERNOR OF BAYELSA STATE & ORS
(2019)LCN/12538(CA)
In The Court of Appeal of Nigeria
On Monday, the 21st day of January, 2019
CA/PH/679/2014
RATIO
COURT AND PROCEDURE: GROUND OF APPEAL
“The validity of a ground of appeal depends largely on how a counsel carefully and meticulously frame and relates it to the judgment or decision under challenge. The ground of appeal must as of necessity be a complaint against the decision of the trial Court. In CCB Plc V. Ekperi (2007) 3 NWLR (Pt 1022) 493 @ 509, the Supreme Court per Onnoghen, JSC (as he then was) held that:
‘It is settled law that for grounds of appeal to be valid and competent, they must be related to the decision being appealed against and should constitute a challenge to the ratio of the decision on appeal. It is still good law that where a ground of appeal as formulated does not arise from the Judgment and purports to raise and attack an Issue not decided by the Judgment appealed against as is evident in the instant appeal, the same becomes incompetent and liable to be struck out.'” PER ABUBAKAR MUAZU LAMIDO, J.C.A.
COURT AND PROCEDURE: WHERE THE DECISION OF THE COURT IS PREDICATED ON AFFIDAVIT
“The law has since moved on and the correct position is that where the decision of a Court is predicated on affidavits filed by parties, then an omnibus ground of appeal can be properly couched to challenge the evaluation of facts in the affidavit. See Oduola & Ors V. Coker (1981) 5 SC 197; Neimogha & Anor V. Orubayi (2015) LPELR 24526 and Adebayo & Ors V. PDP & Ors (2012) LPELR 8430. Therefore to my understanding of the principles enunciated in the above decisions, an omnibus ground of appeal can be valid and competent where there is an evaluation or non evaluation of evidence led at the trial.” PER ABUBAKAR MUAZU LAMIDO, J.C.A.
JUSTICES
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria
ABUBAKAR MUAZU LAMIDO Justice of The Court of Appeal of Nigeria
Between
ASSOCIATION OF SENIOR CIVIL SERVANTS OF NIGERIA Appellant(s)
AND
1. THE GOVERNOR OF BAYELSA STATE
2. STATE CIVIL SERVICE COMMISSION
3. MR. SURU OYARIDE
4. BARRISTER PREYE AGEDA
5. ATTONEY-GENERAL OF BAYELSA STATE Respondent(s)
ABUBAKAR MUAZU LAMIDO, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the decision of Boufini, J., of the High Court of Bayelsa State holden at Onopa, Yenogoa in Suit No YHC/190/2013 delivered on 21st May 2014.
The brief facts of this case are that the 1st respondent as the 1st Defendant through the 2nd Respondent/Defendant appointed the 3rd and 4th Respondents/Defendants as Permanent Secretaries in the Bayelsa State Civil Service on 7th January 2013. Aggrieved by the appointment of the 3rd and 4th Respondent/Defendant as Permanent Secretaries, the Appellant as Claimant in the lower Court instituted an action vide an originating summons against the Respondents/Defendants jointly and severally before the lower Court and seeking the determination of the following questions:-
1. Whether the power of a Governor of a State under Section 208 of the Constitution of the Federal Republic of Nigeria 1999 to appoint persons to hold or act in the office of a Permanent Secretary or other Chief Executive in any Ministry or Department of the Government of the State however designated is absolute such that the 1st Defendant can appoint any person outside the civil or public service of the state as Permanent Secretary in the state.
ALTERNATIVELY
1. Whether the appointment of persons outside the civil service or a non career civil servant as a permanent Secretary into the civil service of the Bayelsa State is within the contemplation of Section 208 (2)(c) of the 1999 Constitution such that the 1st defendant can appoint anybody who is not a civil servant as a Permanent Secretary in a Ministry of a State.
2. Whether the 1st Defendant can validly appoint persons who have never been appointed by the 2nd defendant in the civil service of the Bayelsa State in accordance with the Public Service Commission Rules and served therein up to the point of eligibility as Permanent Secretaries in the civil service of the Bayelsa State under Section 208(2)(c) of the Constitution and be paid salaries and wages in accordance with the public and political office holders (Executive) Remuneration, Salaries and Allowances Law Cap. 14 Laws of Bayelsa State of 2006 (as amended in 2007) and if the answer is in the negative, whether the appointment of such persons not having been so employed by the 2nd defendant is not irregular and liable to be set aside and the persons ordered to refund all payments made to them as salary, wages and or allowances.
3. Whether the 5th defendant as Attorney General and Commission for Justice and Chief Law Officer of the Bayelsa State does not owe a duty to advice the 1st and 2nd defendants on the position of the law with a view to seeing to the observance of the provisions of the 1999 Constitution and other laws so as to safeguard the Constitution in the interest of good governance.
The Appellant as Claimant claims the following reliefs:-
1. A DECLARATION that the powers of the 1st defendant appointing persons to hold or act in the office of a Permanent Secretary in the Civil Service of the Bayelsa State is not absolute such that the 1st defendant can appoint any person or persons even outside the Civil Service of the State into that office, such as the 1st defendant’s appointment of the 2nd and 3rd defendants who are not persons in the Civil Service of the State as Permanent Secretaries vide the 2nd defendant?s letters CCS/PP/9086/Vol.1/02 and CCS/PP/90847/Vol.1/02 both of 7th January 2013 is unconstitutional, illegal, null and void.
2. A DECLARATION that not being persons contemplated by or eligible to be appointed to hold or act in the office of a Permanent Secretary in the Civil Service of Bayelsa State, the 3rd and 4th defendants who were appointed Permanent Secretaries vide 2nd defendant?s letters CCS/PP/9086/Vol.1/02 and CCS/PP/90847/ Vol.1/02 both of 7th January, 2013 signed by the Chairman of the 2nd defendant on the instructions of the 1st Defendant are not entitled to be paid salary and other allowances from the State in accordance with Political Office Holders (Executive) Remuneration, Salaries and Allowances Law Cap. 14 of 2006 as amended in 2007.
3. A DECLARATION that the action of the 1st Defendant in purporting to appoint 3rd and 4th defendants from outside the Civil Service of Bayelsa State vide 2nd defendant?s letters CCS/PP/9086/Vol.1/02 and CS/PP/90847/Vol.1/02 both of 7th January 2013 for the 1st defendant amounts to an abuse of power contrary to Section 15(5) of the Constitution of the Federal Republic of Nigeria 1999 as well as taking over the Government of Bayelsa State otherwise than in accordance with the Provisions of the Constitution and the same is a violation of Section 1 (2) of the Constitution.
4. A DECLARATION that the failure, refusal and or neglect by the 2nd and 5th defendants to advice the 1st defendant and prevent abuse of power by the 1st defendant in the matters of appointment of a Permanent Secretaries under Section 208(2)(c) of the 1999 Constitution is a failure of public duty and the same is against public interest and good administration.
5. AN ORDER setting aside the purported appointment of the 3rd and 4th defendants by that 1st defendant as Permanent Secretaries in the Civil Service of Bayalsa State vide 2nd defendant’s letters CCS/PP/9086/ Vol.1/02 and CS/PP/90847/ Vol.1/02 both of 7th January 2013.
6. AN ORDER OF PERPETUAL Injunction restraining the 1st, 2nd and 5th defendants whether by themselves, their servants, and agents or privies howsoever described from appointing persons from outside the Civil Service of the Bayelsa State as Permanent Secretaries in the State.
The 1st, 2nd and 5th Respondents/Defendants filed a notice of preliminary objection, the 3rd and 4th Respondents/Defendants severally filed their notices of preliminary objection and after hearing arguments on the various objections, the learned trial Judge held that the appellant/claimant has no locus standi to institute the action, declined jurisdiction to hear and entertain the case of the Appellant/Plaintiff and struck it out.
Dissatisfied with the decision of the trial Court, the Appellant/Plaintiff lodged his notice and grounds of appeal on 13/08/14. The said notice of appeal contains seven grounds of appeal. The 1st, 2nd and 5th Respondents/Defendants filed a Respondents notice pursuant to Order 9 Rules 2 of the Court of Appeal Rules 2011 on 05/09/14. In the said notice, the 1st, 2nd and 5th Respondents contended that the appellant’s suit was statute barred and that the original summons was incompetent and did not comply with Order 6 Rules 2(1) of the Bayelsa State High Court Rules 2010. The 4th Respondent also filed a Respondent’s notice pursuant to Order 9 Rules 2 of the Court of Appeal Rules 2011 and contended that the Appellant’s suit is incompetent as the trial Court lacked the jurisdiction to hear and determine same since the originating summons by which the suit was commenced did not comply with the mandatory provisions of Order 3 Rules 8(2)(a) of the Bayelsa State High Court Rules 2010 and Section 13 and the 1st Schedule to the Oaths Act 2010.
The Appellant filed his appellant’s brief of argument on 13/02/15 but deemed filed on 06/02/17. The 1st, 2nd, 5th Respondents filed their brief of argument on 10/04/15 but deemed filed on 06/02/17. They also filed a Respondent’s notice and a Preliminary Objection and argued the said objection in their brief. The 3rd Respondent also filed a notice of Preliminary Objection to the competence of the appeal and argued same in his brief of argument filed on 20/03/16 but deemed filed on 06/02/17. The 4th Respondent also filed a notice of preliminary objection and a Respondent’s notice. The brief of argument of the 4th respondent was filed on 13/06/17 but deemed filed on 31/10/17.
In their preliminary objection, the 1st, 2nd and 5th Respondents raised the issue of competence of grounds 3, 4, 5, 6 and 7 of the appellant’s grounds of appeal having arisen from an interlocutory decision of the trial Court and urging the Court to strike out issues (ii), (iii) and (v) distilled from those grounds of appeal and arguments relating to the issues as can be seen from 5 – 15 of the appellant’s brief of argument. Both the 2nd and 4th Respondents challenged the competence of grounds 3,4,5 and 7 in the appellant’s notice of appeal and urged this Court to strike them out on the ground that they do not arise from the decision of the trial Court, and in consequence strike out issues 1 – 5 and all arguments predicated on those issues.
In arguing his objection, learned counsel for the 1st, 2nd and 5th Respondents, Kemasuode Wodu, Esq., Hon. Attorney General of Bayelsa State formulated four issues for determination. These issues are:
(i) Whether grounds 3 and 4 of the appellant’s appeal (being appeal against an interlocutory decision of the trial Court) are competent in the absence of leave to appeal or extension of time to appeal on the said grounds;
(ii) Whether grounds 5 and 6 of the appellant’s appeal are competent not having arisen from the decision of the trial Court or any argument before the said Court.
(iii) Whether the appellant’s ground 7 is competent when the Particulars thereof are unrelated to the ground and in the absence of any evaluation of evidence in the ruling leading to this appeal; and
(iv) Whether pages 5 – 21 of the appellant’s brief is not liable to be struck out since all arguments contained therein are founded on a combination of competent and incompetent grounds and issues.
In the 3rd Respondent’s brief of argument settled by Somina Peter Johnbull Esq., four Issues for the determination of the 3rd Respondent’s preliminary objection were formulated in the following ways:
1. Whether grounds 3, 4, 5 and 7 of the notice of appeal are not incompetent?
2. Whether Issues 2, 3, 4 and 5 in the appellant’s notice of appeal are not incompetent?
3. Whether arguing Issue No 1 with Issues 2 and 3 in the Appellants notice of appeal has not corrupted it (Issue 1)?
4. Whether the appeal should not be dismissed.
The 4th Respondent formulated four Issues for the determination of the preliminary objection. The Issues as settled by Inemo Oruebimie Kumo, Esq are as follows:
(i) Whether grounds 3, 4, 5 and 7 of the grounds of appeal which do not arise from the Judgment of the trial Court are not incompetent.
(ii) Whether arguing Issue 1 jointly with Issues 2 and 3 which are distilled from incompetent grounds 3 and 4 has not rendered all three Issues incompetent.
(iii) Whether Issue 4 is not incompetent having been formulated from an incompetent grounds 5 and a good ground 6.
(iv) Whether lumping Issues 4 and 5 together in one argument has not rendered the entire argument worthless and incompetent.
It is observed that the appellant did not file any reply brief in response to the various objections filed by the respondents. I will later in the course of this Judgment comment on the willful failure of the appellant to file any reply to these objections.
In determination of this objection, it is my humble opinion that two Issues can determine the fate of the objections.
These issues are:
(1) Whether grounds 3, 4, 5, 6 and 7 in the notice of appeal are competent grounds.
(2) If the answer to the above issue is in the negative, whether Issues formulated in support of those grounds and arguments predicated on those Issues are competent.
Learned counsel for the 1st, 2nd and 5th respondents submitted that grounds 3 and 4 in the appellant’s notice of appeal related to an interlocutory decision of the trial Court for which the appellant ought to seek leave of the Court or extension of time to file and argue same. Counsel further submitted that the trial Court’s decision to refuse to hear the appellant’s notice to arrest the Court’s ruling is an interlocutory decision. He referred to Sections 241 (a) and (b) and 242 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended); Khalil V. Yar’adua (2004) All FWLR (Pt 225) 111 @ 138; Olosunde V. Eyialegan (2005) All FWLR (Pt 242) 503 511.
Counsel argued further that by Section 25 (2) of the Court of Appeal Act, the appellant had 14 days within which to appeal against the interlocutory decision of the trial Court and in the present appeal, the appellant filed his appeal without seeking for leave or extension of time. He referred to Ogigie V. Obiyan (1997) 10 SCNJ 1 @ 15.
Learned counsel argued further that grounds 5 and 6 in the appellant’s notice of appeal are incompetent having not arisen from the decision of the trial Court. He stated that the law is settled that for a ground of appeal to be valid it must be predicated on the Judgment of the trial Court. He referred to CCB PLC V. Ekperi (2007) 3 NWLR (Pt 1022) 493; Dalek Nig Ltd V. OMPADEC (2007) All FWLR (Pt. 364) 204 @ 226 and Owners of MV Gongola Hope & anor V. S.C. (Nig) Ltd & anor (2007) 15 NWLR (Pt 1056) 189.
Learned counsel also argued that ground 7 is incompetent in view of the fact that the Particulars therein are unrelated to the ground. Moreso, ground 7 is crafted in the nature of an omnibus ground of appeal and the Particulars thereof are not in any way related to the ground of appeal. He referred to Omotosho V. Ojo (2008) 42 WRN 181 @ 193; Kano ile Plc V. G. & H (Nig) Ltd (2002) 7 WRN 87 and; Udoete V. Heil (2002) 13 NWLR (Pt 783) 64 and Ajibona V. Kolawole (1996) 12 SCNJ 270 @ 280. Counsel urged the Court to strike out ground 7.
Learned counsel for the 3rd Respondent submitted that the law is clear that grounds of appeal must challenge the decision or the ratio of the judgment of the lower Court. He referred to Onafowokan V. Wema Bank Plc (2011) 12 NWLR (Pt 260) 24; African Petroleum Plc V. Adeniyi (2011) 15 NWLR (Pt 1271) 560 and Garuba V. Omokhodion (2011) 14 NWLR (Pt 1269) 145. Counsel stated that since those grounds are extraneous to the Judgment of the trial Court, the said grounds are incompetent and ought to be struck out. He referred to Okolie V. Marinho (2006) 15 NWLR (Pt 1002) 316; Obi V. INEC (2007) 11 NWLR (Pt 1046) 436 and Balonwu V. Governor Anambra State (2008) 16 NWLR (Pt 1113) 236.
On ground 7 which is an omnibus ground, counsel argued that an omnibus ground cannot challenge a ruling in which there is no evaluation of evidence this is because by its nature, it clearly admits of a competent trial but only that the decision of the Court amongst others is not supported by the evidence placed before it or that the interference or conclusion reached by the trial Court based on accepted evidence is not justified. He referred to Osolu V. Osolu (2003) 11 NWLR (Pt 832) 608 and Ajibona V. Kolawole (supra).
Learned counsel for the 4th Respondent on his part argued that grounds 3, 4, 5 and 7 in the notice of appeal do not constitute an attack on the decision of the lower Court and so they are incompetent.
The said grounds complained primarily on what the trial Court failed to do in an interlocutory application which has no bearing with the trial Court’s decision under challenge. He referred to Trustees P.A.W. Inc. V. Trustees A.A.C.C.C.(2002) 15 NWLR (Pt 790) 424.
On ground 7, learned counsel submitted that being an omnibus ground, it is a ground of fact and does not raise any question of law. He referred to Golok V. Diyalpwan (1990) 5SC (Pt II) 20; and Odufunade V Rossek (1962) NSCC (Vol 2) 65. Counsel then urged the Court to strike out these grounds of appeal.
As I noted earlier in this Judgment, the appellant did not file any reply brief in response to the various objections raised by the respondent. Infact, at the hearing of this appeal, learned counsel for the appellant informed the Court that they did not file any reply brief in response to the objections raised by the respondents. This being the case, I can only conclude that failure on the part of the appellant to respond to the objections raised by the respondents by refusing to file a reply brief signifies his acceptance of all the Issues raised and canvassed in the preliminary objection. See Nigerian Navy & Ors V. Garrick (2005) LPELR 7555; Khalil V Yar’adua (2004) All FWLR (Pt 225) 111 and Nnamani V. Nnaji (1999) 7 NWLR (Pt 610) 313. This notwithstanding, the Courts are enjoined to proceed and resolve the objection on its merits the absence of a response notwithstanding.
This will lead me to examine all the grounds of appeal filed by the appellant in the present appeal. It is only upon a close examination of these grounds that a decision on whether the objections are well placed or not can be arrived at. The grounds of appeal are as follows:-
GROUND ONE
The learned trial Judge erred in law and acted in bad faith when he identified the Issue of locus standi as fundamental among the issues raised by the defendants/respondent’s Preliminary Objections to the suit and yet failed to determine the issue but merely said. hold the submission of the counsel for the defendants and accordingly this suit is hereby struck (sic) out for want of jurisdiction.
PARTICULARS OF ERROR AND BAD FAITH
(i) The learned trial Judge only . read through the submission of the counsel for the defendants in support of the Preliminary Objection and the authorities cited therein? rather than the appellant’s originating process and held thus:
Among all the issues raised the Issue of locus standi is more fundamental as it touches on the Issue of jurisdiction.”
(ii) The learned trial Judge failed to consider and hold that the respondents having not filed a statement of defence could not validly raise or challenge the locus standi of the appellant to institute the suit.
GROUND TWO
The learned trial Judge erred in law and acted in bad faith when he failed to look at and scrutinize the appellant’s originating process and determine whether the appellant has locus standi to institute the suit as well as whether the Court had jurisdiction to entertain the case.
PARTICULARS OF ERROR AND BAD FAITH
(i) The learned trial Judge went through the respondent?s submissions together with the reply on points of law but failed to examine the claimants/Appellants originating process and hold that the same disclosed a locus standi to institute the action.
(ii) The learned trial judge in bad faith over sighted the elementary principle of law as restated in several authorities such as Amaechi V. INEC No 1 (2007) 18 NWLR (Pt 1065) 42 that it is the plaintiff’s claim that determines the locus standi of the plaintiff and jurisdiction of the Court.
GROUND THREE
The learned trial Judge erred in law and acted in bad faith when he took arguments off record, including various authorities cited by counsel like UKACHUKWU V. PDP (2014) 4 NWLR (Pt 1396) 65 and Newswatch Communications Ltd V. Atta (2006) 12 NWLR (Pt 993) 144 on whether to set aside the proceeding of 2nd April 2014 and refused to hear the claimants/appellants’ Motion of 25th April 2014 thereby denying the appellant the fundamental right to a fair hearing guaranteed under Section 36(1) of the 1999 Constitution as amended.
PARTICULARS OF ERROR AND BAD FAITH
(i) On 21st of May 2014, the learned trial Judge took extensive arguments off record from all the counsel including judicial authorities on whether to hear the appellant’s motion of 25th April 2014 to set aside the proceeding of 2nd April 2014 together with the appearance entered and processes filed for the 1st and 2nd defendants for incompetence as well as to enable appellant file some processes in reply to the 1st, 2nd and 5th defendants but declined off record hearing the same thereby subverting the law that every motion properly filed before the Court must be heard.
(ii) The learned trial Judge acted in bad faith when he failed to consider the provision of Section 36(1) of the 1999 Constitution cited in support of the motion thereby denying the appellant the right to a fair hearing.
(iii) The learned trial Judge, in bad faith, adopted off record the decision in UKACHUKWU V. PDP (2014) 4 NWLR (Pt 1396) 65 cited and relied on by the 5th defendant/respondent for self as well as 1st and 2nd defendants and failed to distinguish the facts as well as examine the case of Newswatch Communications Ltd V. Atta (2006) 12 NWLR (Pt 999) 144 cited by the appellant.
GROUND FOUR
The learned trial Judge erred in law and acted in bad faith when he refused to hear the claimant?s/appellant?s preliminary objection of 25th April 2014 to the competence of the 5th defendants/respondents legal representation of, including the filing of processes for the 1st and 2nd defendants/respondents thereby denying the appellant the right to a fair hearing guaranteed under Section 36(1) of the 1999 Constitution as amended.
PARTICULARS OF ERROR AND BAD FAITH:
(i) On 21st May 2014, the learned trial Judge took extensive arguments off record from all the parties including judicial authorities but declined hearing the preliminary objection thereby subverting the law that every motion properly filed before the Court must be heard.
(ii) The learned trial judge acted in bad faith when he failed and or refused to consider the provision of Section 36(1) of the 1999 Constitution thereby denying the appellant the right to a fair hearing.
GROUND FIVE
The learned trial Judge erred in law and acted in bad faith when he failed to follow the authorities of Tanko V. UBA Plc (2010) 17 NWLR (Pt 1221) 80 and Food Fars Nig Ltd V. NNPC (2009) 12 NWLR (Pt 115) 387 @ 409 duly cited before him and hear the case on the merits together with the defendants/respondents preliminary objections in accordance with modern trend of the law thereby causing the appellant a miscarriage of justice.
PARTICULARS OF ERROR AND BAD FAITH
(i) The learned trial Judge deliberately ignored the appellants? motion written address together with the authorities Tanko V. UBA Plc (2010) 17 NWLR (Pt 221) 80 and Food Fars Nig Ltd V. NNPC (2009) 12 NWLR (Pt 115) 387 @ 409 duly cited before him but ignored the same deliberately.
(ii) The law was restated in the recent case of Iwunze V. FRN (2014) 2 SC (Pt 1) 113.
GROUND SIX
The learned trial Judge erred in law when he held that the Court has no jurisdiction to entertain the suit and consequently struck out the suit for lack of jurisdiction.
PARTICULARS OF ERROR
(i) The learned trial judge failed to examine the originating process for a proper appreciation of the claimants/ appellants case thereby subverting the law on the determination of Issue of jurisdiction.
(ii) The learned trial Judge only examined the defendants/ respondents’ submission to the neglect of the claimants/ appellants processes together with the submissions and resolved the Issue of jurisdiction thereon.
(iii) The learned trial Judge did not advert to the judicial authorities of Superior Courts such as Madukolu V. Nkemdilim (1962) 2 SC 341 as to ascertainment of Issue of jurisdiction of a Court and hold that the Court had jurisdiction to entertain the suit.
(iv) The learned trial Judge failed to advert to law in the judicial authorities such as Dosumu V. NNPC (2014) 6 NWLR (Pt 1403) 282 @ 305 that jurisdiction of the Court must be judiciously guarded and not lightly thrown away.
GROUND SEVEN
The decision of the learned trial Judge is perverse and against the weight of evidence.
PARTICULARS OF ERROR
(i) The decision is not based on the appellants’ pleadings and evidence before the Court.
(ii) The learned trial Judge ignored obvious material facts of the case.
(iii) The learned trial Judge acted on or relied on incompetent processes of the 1st, 2nd and 5th respondents.
The respondents herein challenged the competence of grounds 3, 4, 5, 6 and 7 in the notice of appeal on the grounds that grounds 3, 4, 5 and 6 have no bearing with the trial Court’s ruling under challenge, and ground 7 being an omnibus ground cannot challenge the trial Court’s Ruling where there is no evaluation of evidence.
Ground(s) of appeal is the challenge on the judgment or Ruling of a trial Court. They in essence represent the complaint wholly or partially of the trial Court’s decision and as such are considered as the pillars on which the entire appeal stands. In the determination of an appeal, parties and the Court are bound by the grounds filed and cannot go outside the grounds of appeal. See FMBN V. NDIC (1999) LPELR 1270; AP Plc V. Jerry & KOS Enterprises Ltd (2013) LPELR 20801; Fasuyi & Ors V. PDP & Ors (2017) LPELR 43462 and Ikweki & Ors V. Ebele & Anor (2005) LPELR 1490.
The validity of a ground of appeal depends largely on how a counsel carefully and meticulously frame and relates it to the judgment or decision under challenge. The ground of appeal must as of necessity be a complaint against the decision of the trial Court. In CCB Plc V. Ekperi (2007) 3 NWLR (Pt 1022) 493 @ 509, the Supreme Court per Onnoghen, JSC (as he then was) held that:
‘It is settled law that for grounds of appeal to be valid and competent, they must be related to the decision being appealed against and should constitute a challenge to the ratio of the decision on appeal. It is still good law that where a ground of appeal as formulated does not arise from the Judgment and purports to raise and attack an Issue not decided by the Judgment appealed against as is evident in the instant appeal, the same becomes incompetent and liable to be struck out.”
Now an examination of the appellant’s ground 3 will reveal that the complaint therein relates to the refusal of the trial Court to hear and determine the appellant’s motion filed on 02/04/14 after hearing parties off record. Ground 4 is challenging the refusal of the trial Court to hear the appellant’s Preliminary objection and ground 5 is a challenge on the trial Court’s failure to hear the appellant’s motions together with the substantive suit. A perusal of the Ruling of the Court delivered on 21/05/15 will reveal that none of the Issues in grounds 3, 4 and 5 of the appellant’s notice of appeal ever formed part of the trial Court’s ruling. The only live issue in the trial Court’s decision of 21/05/14 is the Issue of locus standi which the trial Court held the appellant lacked in instituting the action.
The position of the law on the validity and competence of a ground of appeal in relation to the decision appealed against has been long settled. InOkafor V. Abumofuani (2016) LPELR 40299 @ 15, Sanusi, JSC; held that:
‘There is long unending claim of authorities which established that for a ground of appeal to be valid and competent, it must be related to the decision being appealed against and should constitute a challenge to the ratio of the decision on appeal.’
In Trustees P.A.W. Inc V. Trustees A.A.C.C. (2002) 15 NWLR (Pt 790) 424 @ 455 Ekpe, JCA held inter alia, that:
“I have examined the above grounds of cross appeal and I do not see anything therein that even remotely suggests a valid ground of appeal. An appeal is a challenge against the decision of a trial Court and it is never predicated upon what a Court has not decided in its judgment or ruling. A ground of appeal must attack the decision of the lower Court only in Issue(s) decided by the Court of trial Grounds one and two of the cross appeal are not framed on what the learned trial judge decided but on what he failed to hold or decide. In my view therefore, the two grounds of appeal do not challenge the decision of the learned trial Judge. They are incompetent and are struck out!!”
It seems the above ratio is at par with the appeal at hand. The challenges in grounds 3, 4 and 5 in the present appeal all related to what the learned trial Judge didn?t do in the course of hearing the matter. None of the grounds remotely have any bearing with the decision of the trial Court. They are accordingly invalid, incompetent, liable to be and are accordingly struck out for being incompetent.
Ground 7 is on a different pedestal. It is a challenge on the weight of evidence hence an omnibus ground. According to the three set of respondents’ counsel, in an action founded on originating summons an omnibus ground cannot be a valid ground of appeal in view of the fact that no evidence is expected to be led and evaluated by the trial Court. This is an obsolete statement of the law. The law has since moved on and the correct position is that where the decision of a Court is predicated on affidavits filed by parties, then an omnibus ground of appeal can be properly couched to challenge the evaluation of facts in the affidavit.
See Oduola & Ors V. Coker (1981) 5 SC 197; Neimogha & Anor V. Orubayi (2015) LPELR 24526 and Adebayo & Ors V. PDP & Ors (2012) LPELR 8430. Therefore to my understanding of the principles enunciated in the above decisions, an omnibus ground of appeal can be valid and competent where there is an evaluation or non evaluation of evidence led at the trial.
In the Ruling of the trial Court culminating into the present appeal, there was no evidence be it oral or affidavit evidence led at the trial Court. The 1st, 2nd and 5th respondents, the 3rd respondent and the 4th respondents raised a preliminary objection and on the strength of the said notice and grounds of objection, the trial Court delivered its ruling. There were no affidavit accompanying the said notices of preliminary objection. It can also be seen that the Particulars of error in ground 7 clearly admitted that the ruling of the trial Court was neither based on pleadings nor on evidence before the trial Court. Secondly, the particular of that ground complains about the trial Court’s reliance on an incompetent process filed by the 1st, 2nd and 5th Respondents. This to my mind relate to issue of law which ought not be raised under the omnibus ground. In Ochedi V. UBN Plc (2012) LPELR 8596 @ 12, Tsamiya JCA held that:
“It is firmly settled that an appeal predicated on omnibus/general ground is not at large. It cannot be used to raise an issue or issues of law. Such issue of law must be raised as separate ground of appeal and not an adjunct to the omnibus general ground.”
SeeCalabar East Co-op Thrift Credit Society Ltd & Ors V. Ikot (1999) LPELR 826. Now, having raised the issue of using an incompetent process in the course of hearing the preliminary objection culminating in the ruling giving rise to this appeal, I think the appellant’s counsel has gone at large. He ought to have raised that issue of law as a separate ground and having tied it with the omnibus ground has the effect of corrupting the said ground. This is so because an omnibus ground can stand alone without any Particulars, it is complete in itself. See Saraki V. Kotoye (1990) 4 NWLR (Pt 143) 144.
The ground also alleges that the decision of the trial Court is perverse. A decision is said to be perverse when inter alia it failed to appreciate or refused to follow a principle of law or procedure which is binding on the Court. See Emmanuel V. Umanah (2016) LPELR 40037. The appellant ought to have framed the omnibus ground challenging the weight of evidence simpliciter. This is so because by its nature, the omnibus ground is a general ground of fact complaining against the totality of evidence adduced at the trial. It is not against a specific finding of fact or any document. It cannot also be used to raise any issue of law or error of law as was done in this appeal. A perverse finding is an issue of law which ought to attract a separate ground of appeal. See Ihebie V. Nwoba (2013) LPELR 21950. Ground 7 is also incompetent and struck out. In the light of these observation the first issue for determination as formulated is hereby resolved in favour of the respondents and against the appellant.
On the second issue for determination of this objection, it seems the striking out of grounds 3, 4, 5 and 7 of the notice of appeal is not without some attendant consequences. This is so because though an appellant is required to file a notice and grounds of appeal against any decision he is not satisfied with, appeals are not argued on grounds of appeal filed but rather on issues. And where ground(s) of appeal is/are struck out; it follows that any issue for determination predicated on the ground(s) of appeal remain incompetent and ought to be struck out as well. This is so because issues for determination derive their support from the grounds. In Agbaka & Ors V. Amadi & Anor (1998) LPELR 231 @ 8; Ogwuegbu, JSC held that:
“Where a ground of appeal is incompetent, any issue for determination based on the incompetent ground goes to no issue and should be struck out as incompetent. An issue for determination derives its support from the ground of appeal and cannot exist independent of the ground of appeal. It automatically collapses when the ground of appeal ceases to exist.”
Also in Mobil Producing Nig UnLtd V. Johnson & Ors (2018) 14 NWLR (Pt 1639) 329 @ 355, Okoro, JSC, held that:
“Any issue for determination which is formulated from an incompetent ground of appeal suffers the same fate with the incompetent ground of appeal. This is to say, an incompetent ground of appeal cannot give birth to a competent issue. In effect, both the incompetent ground of appeal and the issue distilled therefrom are liable to be struck out.”
In the appellants brief of argument, five issues were formulated in respect of seven (7) grounds of appeal and an issue was distilled from two grounds of appeal. For instance issue 2 is distilled from ground 3; issue 3 is distilled from ground 4; Issue 4 is distilled from grounds 5 and 6 and issue 5 is distilled from ground 7. Issues 2, 3, 4 and 5 having been distilled from grounds 3, 4, 5 and 7 which have been held to be incompetent are also incompetent and liable to be and are hereby struck out.
Now, counsel to the respondents urged the Court to strike out arguments predicated on the incompetent issues; this is automatic. Where an issue for determination has been found to be incompetent, it looses all physical strength to stand on its feet. It ought to be struck out and all arguments founded upon such an incompetent issue ought to be disregarded or discountenanced. In Ibeto V. Aminu (2006) LPELR 9814 @ 18; Sanusi, JCA (as he then was) held that:
“I have earlier in this Judgment held that the second ground of appeal is incompetent. I therefore uphold the Preliminary Objection of the respondent on that leg. The said ground of appeal is therefore hereby struck out. The issue raised on it and all arguments advanced thereon must also be and are accordingly struck out since nothing can be built on or from nothing.”
See also Kayode V. FRN (2017) LPELR 41865. In consequence all arguments predicated on issues 2, 3, 4 and 5 are hereby struck out.
It seems the competence of grounds 1, 2 and to some extent 6 have survived the onslaught of the respondents albeit for a short period of time. Grounds 1 and 2 are covered by Issue 1. However in arguing the issue, learned counsel for the appellant argued issues 1, 2 and 3 together, lest we forget that issues 2 and 3 have been earlier struck out. It seems for the court to rely and act on issue 1, the Court must peruse the argument canvassed in respect of issues 1, 2 and 3 and extract argument made in respect of issue 1. But the Court has no monopoly of such luxury to embark on such an exercise. The best possible way of resolving this type of quagmire has been resolved in earlier decisions. In Ayalogu V. Agu (1998) 1 NWLR (Pt 539) 129 @ 143; Salami, JCA held that:
‘This is the mixed grill served and I am of the firm view that it is not the business of the Court to sift the chaff from the grain by performing a surgical operation on the appellant?s brief to extract argument in respect of the valid grounds from the invalid ones, as such an exercise may involve the Court in descending to the arena and the dust arising therefrom may of necessity becloud its Judgment. The duty of the Court is that of an umpire whose function in the interest of justice is to tend the rope and not step into the brawl by exercising argument on good grounds of appeal from those bad ones’.See CPC & Anor V. Ombugadu & Anor (2013) LPELR 21007 and Khalil V. Yaradua (2003) 16 NWLR (Pt 847) 446 and Omotosho V. Ojo (2008) All FWLR (Pt 408) 389.
The appellant has made a mistake of arguing issue 1 which is a competent issue with the incompetent and struck out issues. The consequence of such error is to render an otherwise competent issue incompetent and liable to be struck out as well. Issue 1 is accordingly struck out. Since appeals are heard on the strength of issues for determination, it follows therefore that grounds 1 and 2 have no valid issue to sustain them. They are accordingly struck out.
Ground 6 has also survived the respondents’ onslaught but since issue 4 has been struck out which is distilled from grounds 5 and 6 of the ground of appeal, it follows therefore, the said ground has no issue for determination to support it. In Galadima V. State (2018) 13 NWLR (Pt 1636) 357 @ 373 – 374; Ariwoola, JSC held that:
‘By the rules of practice and procedure of the appellate Courts, appeals are to be determined on the issues distilled from the competent grounds of appeal raised against the Judgment being appealed. Therefore, any ground of appeal from which no issue is formulated is deemed to have been abandoned and is liable to be discountenanced and struck out by the Court.’
There seems to be no issue for determination to cover Ground 6 in the appellant’s notice of appeal. The ground ought to be deemed as abandoned, the Court must declare it incompetent and strike it out. See Tukur V Government of Taraba State (1997) 6 NWLR (Pt 510) 549 and Akinsipe V. Adetoroye (1999) LPELR 13081.
The ground without any supporting issue is hereby struck out. This issue is accordingly resolved in favour of the respondents and against the appellant.
The two issues as formulated by the Court are all resolved in favour of the respondents and against the appellant. Though this brings to an end the resolution of all issues in the notice of preliminary objection, I cannot end this Judgment without showing my alarm at the callousness in which learned counsel to the appellant cast serious aspersions on the integrity of the learned trial Judge both in his grounds of appeal and his appellant’s brief of argument by imputing that the learned trial Judge acted mala fide or in bad faith and even gave so called ‘Particulars of error and bad faith’ in most of his incompetent grounds of appeal. Johnson O Esezoobo, Esq has in so many places referred the judicial act made by the learned trial Judge as acts made in bad faith. No matter how counsel viewed the decision of the trial Court, that gives him no license to cast aspersions on the integrity of the learned trial Judge; it is most uncharitable. Where a counsel wants to ventilate his grievances, the only professional way to do so is by lodging an appeal like is done in this case. Using foul language on a person who has no right of reply is cowardly and unprofessional.
It should be remembered that the learned trial Judge subscribed to an oath of office before he assumed duty to be fair to all manner of people without fear or favour. To launch an attack on the learned trial Judge’s integrity by stating that he acted in bad faith in the course of performing his judicial function is to say the least uncouth. In the words of Gumel, JCA; inAkinbode V. Oyebamiji & Anor (2014) LPELR 24410 @ 15-16, a counsel ‘has right and indeed the duty to present his case to the best of his ability, however he has to do so within the bounds of professional ethics. The duty he owes his client is subject to a higher duty he owes to a higher cause – the course of justice’.. It is a breach of professional ethics for counsel to conduct himself as he did in this matter by casting aspersion on the integrity and impartiality of a Judge or using foul and indecorous language against any judicial officer.’
We belong to a learned profession which is honourable, distinct and where decorum and etiquette ought to guide our daily activities. It is bad if a party to a matter pour such venomous content on our Judges but certainly worse if the venom came from the spit of a legal practitioner. No legal practitioner worth his salt shall descend so low to engage in such an act. This type of conduct is condemned in the highest terms. Counsel ought to retrace his steps and conduct his matters in a civilized and professional manner. I say no more.
Coming back to the appeal at hand, in view of striking out grounds 3, 4, 5, 6 and 7 and all issues for determination as formulated by learned counsel for the appellant, there seems to be nothing left to sustain this appeal. The respondents Preliminary Objection succeeds and it is hereby upheld. There being no feature to sustain this appeal, it is accordingly struck out for incompetence. Cost of N50,000.00 to each of the three sets of respondents.
APPEAL STRUCK OUT.
ALl ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the advantage of reading before now the lead judgment of my learned brother, Lamido, JCA. I fully agree with his reasoning and conclusion. For want of better words, I adopt them as mine to also uphold the notice of preliminary objection of the Respondents. I abide by all the consequential orders of my learned brother, except the order on cots.
MOHAMMED MUSTAPHA, J.C.A.: I had the privilege of reading in draft the lead Judgment just delivered by my Learned brother, ABUBAKAR MU’AZU LAMIDO JCA. I agree that the Respondents preliminary objection succeeds while the appeal lacks merit and is accordingly dismissed.
I also abide by all the consequential Order including cost of N50,000,00 to each of the three set of Respondents.
Appearances:
Oluwatosin Olumide, Esq.For Appellant(s)
Kemasuode Wodu, Esq. (Hon. Attorney General, Bayelsa State) with him, I. M. Max-Alagoa (Miss), P.M. Cuta, Esq. for 1st, 2nd and 5th Respondents.
Somina Johnbull, Esq. for the 3rd Respondent.
D.O. Appah, Esq for the 4th RespondentFor Respondent(s)
