CHIEF FRIDAY PETER IDAH & ORS. v. CHIEF PASTOR S. N. UMOH ORS.
(2012)LCN/5698(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 4th day of December, 2012
CA/C/230/2011
RATIO
APPEAL: WHERE SHOULD A GROUND OF APPEAL RELATE TO
In Azazi v. Adhekegba (2009) ALL FWLR pt 484 pg 1545 at 1566 the court held:
“Grounds of appeal against a decision must be related to the decision being appealed against and should constitute a challenge to the ratio of the decision. Grounds of appeal are not formulated in abstract. Where a ground of appeal as in the instant case does not arise from or relate to the judgment appealed against, it becomes incompetent and liable to be struck out”
See also Essien v. Etukudo (2009) ALL FWLR pt 496 pg 1886 per Omokri, J.C.A.
“A ground of appeal must arise from the decision appealed against and when it does not, it is incompetent and must be struck out. Grounds of appeal must be based on the decision of a court and the issues for determination must arise from a competent ground of appeal”
See also the Registered Trustees of the Lutheran Church Nigeria v. Obot (2009) ALL FWLR pt 477 Pg 67, Adelumo v. Oganla (2009) ALL FWLR pt 451 pg 992. PER UZO I. NDUKWE-ANYANWU, J.C.A.
APPEAL: POWERS OF THE COURT OF APPEAL
The powers of the Court of Appeal when it comes to appeal is that of re-hearing of the case. This means examining both oral and documentary evidence tendered before the trial court. The Court of Appeal is entitled to evaluate the evidence and may reject conclusions reached by the trial court if they are perverse Inakoju v. Adeleke v. (2007) 4 NWLR pt 1025 page 423, Jadesimi v. Okotie-Eboh (1986) 1 NWLR pt 16 page 264. PER UZO I. NDUKWE-ANYANWU, J.C.A.
WORDS AND PHRASES: MEANING OF AN AMENDMENT
Amendment means:
“a formal revision or addition proposed or made to a statute, constitution, pleading, order, or other instrument. It also means a change made by addition, deletion, or correction.”
An amendment of any process means that there is in existence something. One cannot amend nothing. There must therefore be a competent ground of appeal to amend by addition, deletion or correction. Without a competent ground none of these things can happen. PER UZO I. NDUKWE-ANYANWU, J.C.A.
APPEAL: NATURE OF AN APPEAL
An appeal is usually against the Ratio Decidendi of the judgment of a lower court and nothing more. Saude v. Abdullahi (1989) 4 NWLR pt 116 Page 387.
“An appeal is generally limited to the consideration of the issue(s) canvassed in the trial court. With a view to determining whether on a careful consideration of the material placed before the trial court, it arrived at a correct decision of the issue. An appellate court therefore is not a place to adduce fresh testimony to canvass new issues at large” Kadzi Int’l Ltd. v. Kana Tannery Co. Ltd. (2004) 4 NWLR pt 804 page 545″. 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
1. CHIEF FRIDAY PETER IDAH
2. DAVID TOME IKOT OKPO
3. SUNDAY JACKSON EDOHO
4. MRS. ADIAHA J. EKANEM
5. FRIDAY JACOB IDAH Appellant(s)
AND
1. CHIEF PASTOR S. N. UMOH
2. CHIEF UBOKUDOM UBOKUDOM BEN
3. CHIEF INYANG BEN NSIEN
4. COMRADE UDO WARRIE EKPENYONG Respondent(s)
UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the leading Judgment): This is a motion on notice filed on 22nd September, 2011 brought pursuant to 07 Rule 2, 10(1) and (2) of Court of Appeal Rules 2011 praying for the following orders
a) An order for an extension of time within which to seek leave to appeal against the judgment of Honourable Justice Ekerette Ebienye of the High Court of Akwa Ibom State, Eket sitting in its appellate jurisdiction and dated the 18th day of October 2010.
b) An order granting leave to the applicant herein to appeal against the aforementioned decision.
c) An order enlarging the time within which the applicants may file their appeal against the aforesaid decision.
d) An order granting leave to the applicant to raise and argue fresh points of law that were not canvassed of the trial or lower courts for the first time on appeal.
(e) And for such further order(s) as this Honourable Court may deem fit to make in the interest of substantial justice.
In support of the motion is a 16 paragraphs affidavit with 6 annexures marked a – f. Counsel relies on all the paragraphs of the affidavit and all the 6 annexures. Also filed on 7th May, 2012 is a further and better affidavit. By the order of this court, the appellants filed their written address captioned “Written Argument” on 7th May, 2012. Also filed is o Reply on 3rd July, 2012 captioned “Rejoinder” Counsel adopts the two addresses and urged the court to grant his prayers.
The Respondent in opposition filed a 13 paragraphs counter affidavit. Also filed is the Respondent’s written address on 18th April, 2012 but deemed properly filed and served on 26tn June 2012.
The Applicant/Appellant articulated one issue “whether this Honourable Court can grant the orders as prayed”
The court was urged to grant the four orders as prayed in the motion paper.
In reply the respondent articulated 2 issues for determination as follows:
(i) “Whether the court can grant leave to a party to argue fresh issues which were not raised at the 2 lower appellate courts”?
(ii) “Whether all the grounds of appeal which do not arise from the decision appealed against are competent”?
Learned counsel for the Respondents submitted that an application for extension of time to appeal has to be supported with an affidavit showing the following reasons which must co-exist for such an application to succeed. These are
1. Good and substantial reasons for failure to appeal or seek leave to appeal within the prescribed period.
2. Grounds of appeal which primo facie show good cause why the appeal should be heard. See Order 7 Rule 10(2) Court of Appeal Rules 2011.
The above must be complied with before the court con exercise its discretionary powers see Kabbs Multipurpose Co-operation Union Ltd v. Irewole Multipurpose Coop Union Ltd. (2009) ALL FWLR pt 500 pg. 622.
Counsel submitted that the Applicants/Appellants were tardy in the prosecution of their appeals both in the Magistrate Court, High Court and in Court of Appeal. Counsel therefore urged the court to refuse this application in its entirety.
The tripod orders prayed for are of the discretion of the court to grant same. The Appellants must disclose the reasons for failing to appeal within the time provided in the rules in his affidavit. I have gone through the affidavit of the Applicants/Appellants and found out that it is the counsel to the Applicants that is tardy. Where a litigant has paid his counsel, he should not be made to suffer for counsel’s inadvertence.
Pardonable inadvertence of counsel acceptable as a good and substantial reasons for failure to appeal within time. Doherty v. Doherty (1964) 1 All NLR 299 Bowaye v. Adediwura (1976) 6 SC page 143.
The grant of leave to appeal involves the exercise of the discretionary powers of the court. The power must be exercised judiciously and judicially based on the reasons placed before the court.
See Alamieyeseigha v. CJN (2005) 1 NWLR pt 906 pg. 60 it is trite law that both the leave to appeal and the notice of appeal must be filed within three months as prescribed by the rules of court. See Owoniboys v. John Holt (2001) 1 WRN pg 162
The court is therefore always minded to grant the tripod prayers to allow Appellants to ventilate their dissatisfaction in the Court of Appeal.
In the 4th prayer, the Appellants asked for leave to raise and argue fresh points of law that were not canvassed of the trial or lower courts f or the first time on appeal. Counsel submitted that reasons for the fresh grounds of appeal is to give notice to the other party, of the case they have to meet in the appellate court. See National Investment Properties Coy Ltd v. Thompson Organization Ltd. (1969) NMLR pg 99 at 103.
Counsel submitted that the Appellants/Applicants have raised fresh points of law that were not raised and argued in the courts below see Okenwa v. Military Gov, Imo State (1996) 6 SCNJ pg 221 Counsel stated that the fresh issues raised would not in any way overreach the Respondents, neither will it require fresh and additional evidence Oredoyin v. Arowolo (1989) 4 NWLR pt 114 pg 172: Djukpon v. Orovuyoube (1967) NSCC pg 151. Counsel urged the court to grant this 4th prayer.
In reply to the 4th prayer, learned counsel to the Respondents submitted that the proposed grounds of appeal as per Exhibit F in the Appellants’ supporting affidavit are entirely fresh and introduces new issues which do not arise from the decision of the lower court. No single ground of appeal is from the decision of the lower court. Counsel submits that this appeal for which no ground of appeal emanates from the decision of the lower court cannot be sustained. It is incompetent and should be struck out. In Azazi v. Adhekegba (2009) ALL FWLR pt 484 pg 1545 at 1566 the court held:
“Grounds of appeal against a decision must be related to the decision being appealed against and should constitute a challenge to the ratio of the decision. Grounds of appeal are not formulated in abstract. Where a ground of appeal as in the instant case does not arise from or relate to the judgment appealed against, it becomes incompetent and liable to be struck out”
See also Essien v. Etukudo (2009) ALL FWLR pt 496 pg 1886 per Omokri, J.C.A.
“A ground of appeal must arise from the decision appealed against and when it does not, it is incompetent and must be struck out. Grounds of appeal must be based on the decision of a court and the issues for determination must arise from a competent ground of appeal”
See also the Registered Trustees of the Lutheran Church Nigeria v. Obot (2009) ALL FWLR pt 477 Pg 67, Adelumo v. Oganla (2009) ALL FWLR pt 451 pg 992.Counsel submits that the proposed grounds of appeal not arising from the decision of the lower court are incompetent and should be struck out. All the grounds of appeal are on fresh issues for which the Applicants/Appellants are seeking the leave of court. The proposed notice of appeal is incompetent as no single valid ground contained in the notice of Appeal is valid.
Counsel urged the court to refuse this application as it cannot be granted.
The powers of the Court of Appeal when it comes to appeal is that of re-hearing of the case. This means examining both oral and documentary evidence tendered before the trial court. The Court of Appeal is entitled to evaluate the evidence and may reject conclusions reached by the trial court if they are perverse Inakoju v. Adeleke v. (2007) 4 NWLR pt 1025 page 423, Jadesimi v. Okotie-Eboh (1986) 1 NWLR pt 16 page 264.
An appeal is generally a continuation of the original suit rather than an inception of a new action. An appeal should be a complaint against the decision of a trial court. Thus, in the absence of such a decision on a point there cannot possibly be an appeal against what has not been decided against a party. NDIC v. S.B.N. Plc (2003) 1 NWLR pt 801 page 311, Oredoyin v. Anowoto (1989) 4 NWLR pt 114 page 172, Babalola v. State (1989) 4 NWLR pt 115 page 264, Junibo v. Bryanko Int. Ltd. (1995) 6 NWLR pt 403 page 545, Ngige v. Obi (2006) 14 NWLR pt 999 page.
The Applicants in their 4th prayer had prayed for an order to raise fresh issues and argue same which were not canvassed in the court below. All the grounds of appeal are fresh issues to be raised in this appeal. There is no issue against the decision of the lower court. An amendment to file more grounds will not be allowed if there is no competent ground of appeal. To amend presupposes that there is a competent ground to amend. Amendment means:
“a formal revision or addition proposed or made to a statute, constitution, pleading, order, or other instrument. It also means a change made by addition, deletion, or correction.”
An amendment of any process means that there is in existence something. One cannot amend nothing. There must therefore be a competent ground of appeal to amend by addition, deletion or correction. Without a competent ground none of these things can happen.
The Applicant by bringing in entirely fresh new grounds would mean starting a new case. An appeal is usually against the Ratio Decidendi of the judgment of a lower court and nothing more. Saude v. Abdullahi (1989) 4 NWLR pt 116 Page 387.
“An appeal is generally limited to the consideration of the issue(s) canvassed in the trial court. With a view to determining whether on a careful consideration of the material placed before the trial court, it arrived at a correct decision of the issue. An appellate court therefore is not a place to adduce fresh testimony to canvass new issues at large” Kadzi Int’l Ltd. v. Kana Tannery Co. Ltd. (2004) 4 NWLR pt 804 page 545″.
The amendment sought by the applicants is misconceived. It is no amendment. It is rather starting a fresh new case since none of the grounds emanates from the decision of the trial court. The Applicants’ counsel did not also show that any of the grounds is one on jurisdiction.
If any of the grounds was on jurisdiction then the court will consider it.
An amendment is a discretionary power of the court that must be exercised judicially and judiciously. When a court is called upon to exercise its discretion the applicant must place before the court credible materials to persuade it to exercise it. The applicants have nothing to place before the court. You cannot put something on nothing. There is no competent ground to hang the fresh new grounds in the amendment.
The fourth prayer is not grantable for the reasons above. Whereas this prayer has failed it would be useless granting the other three prayers. This application is refused in all its entirety.
Cost to the Respondents is assessed of N50,000.00.
MOHAMMED LAWAL GARBA, J.C.A.: For the reasons set out in the lead ruling, a draft of which I had read before today, this motion is bound to fail. When all the grounds on a notice of appeal do not arise or come from the decision of a lower court against which it was filed, the notice and the grounds become incompetent and liable to be struck out by the appellate ‘court. In the absence of a competent notice of appeal, there would be no competent appeal in which an appellate court can grant leave to raise and argue fresh points of law not canvassed before and considered by a lower court because there would be no foundation or basis upon which such points of law can be premised. It is a competent notice of appeal that properly invokes the requisite jurisdiction of an appellate court to exercise the judicial power and authority over the decision of a lower court by way of re-hearing and making or granting any discretionary reliefs therein. Incompetence of a notice of appeal robs an appellate court the necessary jurisdiction to undertake a rehearing of a decision by a lower court and cannot in particular grant leave to raise fresh issues in respect of such an incompetent appeal.
For the reasons ably set out in the lead ruling, I too dismiss the motion for being unmeritorious and abide by the order on costs made therein.
JOSEPH TINE TUR, J.C.A.: This proceedings commenced in the Customary Court of Akwa Ibom state in the District court of Eket, holden at Eket on 24th September, 1998. The action was instituted by C. S. M. Bassey B. Etuk & 6 Ors. for themselves and on behalf of Ibeye clan sub-Group of the people of Eket versus Friday Peter Idah & 4 Ors. of Ata Idung Afaha Eket, Eket. The subject matter was “a declaration that the plaintiffs are entitled to customary right of occupancy to the plaintiffs large area of Akai Edoho and known and called as “Akai Edoho Akankwo Ibeye Obom” situate at Ata Idung Inyang Uso Ekong Village Eket tampered with by you defendants without the plaintiffs’ consent due March 2, 1996.” Plans were filed and exchanged between the parties. The matter proceeded to trial. On 29th December, 2003 the Customary Court entered judgment in favour of the plaintiffs (now Respondent) namely, that they were the customary owners of the land in dispute. N1000.00 damages and N217.00 costs were awarded against the defendants (now Applicants). The defendants appealed to the Chief Magistrate Court of Akwa Ibom State sitting at Eket on 31st December, 2003. The appeal was heard but dismissed on 21st May, 2007. A further appeal was lodged to the High Court of Justice, Eket, in Eket Judicial Division on 11th June, 2007. On 18th October, 2010 Hon. Justice Ekerete A. Abienyie – J., dismissed the appeal as lacking in merit. The appellants filed a Notice of Appeal to the court of Appeal against the order of dismissal on 20th December, 2010. Learned Counsel to the appellants discovered an error in the Notice of Appeal. On 7ffi June, 2011 learned Counsel applied and this Court struck out the said Notice of Appeal. On 22nd September, 2011 Counsel filed this application seeking the reliefs set out in the ruling of my Lord , Uzo I. Ndukwe-Anyanwu, J.C.A.
I agree with my Lord that the applicants are not entitled to any of the reliefs they seek in their motion paper. Section 242(1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 as altered reads as follows:
“242-(1) Subject to the provisions of Section 241 of this constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.
(2) The Court of Appeal may dispose of any application for leave to appeal from any decision of the Federal High Court or a High Court in respect of any civil or criminal proceedings in which an appeal has been brought to the Federal High Court or a High Court from any other Court after consideration of the record of the proceedings, if the Court of Appeal is of the opinion that the interests of justice do not require an oral hearing of the application.”
It is a fact that the applicants lost before the Customary Court, the Chief Magistrate Court and the High Court of Justice. The three Courts have all adjudged the Respondents to be the customary owners of the land in dispute. I have read the record of proceedings emanating from these Courts together with the proposed Notice and Grounds of Appeal. Order 7 Rule 10(2) of the Court of Appeal Rules, 2011 provides that:
“(2) Every application for an enlargement of time within which to appeal, shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal.”
The two conditions must co-exist for the applicants to be granted leave to appeal. See Chrisray (Nig.) Ltd. v. Elson & Neil Ltd. (1990) 3 NWLR (Pt.140) 630 at 640; Osinupebi v. Saibu & Ors. (1982) 7 SC 104 at 109 and John & Ors. v. Blakk & Ors. (1988) 4 NWLR (Pt.90) 539 at 549.
Where the application for extension of time to appeal is against the judgment of the High Court of Justice sitting and exercising her appellate or supervisory jurisdiction from any other Court, the applicant has the task of showing that upon a consideration of the record of proceedings from all the Courts below including the High Court, it would be in the interest of justice for the Court of Appeal to require an oral hearing of the application. If the applicant(s) cannot do so, the application stands to be dismissed under Section 242(2) of the Constitution of the Federal Republic of Nigeria, 1999 as altered.
Having read the judgments of the three Courts below, in addition to the reasons adumbrated by my Lord in the lead ruling and considering the materials placed before this Court, I am of the humble opinion that the interest of justice does not require an oral hearing of this application which I also dismiss. I abide by the orders made by my Lord in respect of the costs awarded in favour of the Respondents.
Appearances
Bassey Akpaettim, Esq. with P. I. Akpan Esq.For Appellant
AND
K. Olugbo Esq.For Respondent
