CHIEF JOSHUA CHIBI DARIYE v. FEDERAL REPUBLIC OF NIGERIA
(2010)LCN/4140(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 15th day of December, 2010
CA/A/354/2009
RATIO
ISSUES FOR DETERMINATION: EFFECT OF ISSUES DISTILLED FROM EITHER INCOMPETENT GROUNDS OR FROM A COMBINATION OF COMPETENT GROUNDS AND INCOMPETENT GROUNDS OF APPEAL
The position of the law as is now common knowledge, is that issues distilled from either incompetent grounds or from a combination of competent grounds and incompetent grounds of appeal are in themselves not competent and also liable to be struck out. See: GEOSOURCE (NIG.) LTD. v. BLARAGBARA (1997) 5 NWLR (506) 607; JOHN HOLT VENTURES V. OPUTA (1996) 9 NWLR (470) 101; OGUNDIPE v. ADENUGA (2006) ALL FWLR (330) 206. The learned Counsel had also indicated that the Issue 3 was distilled from ground 5, which I have found to be incompetent, so the said issue 3 is caught up and fatally infected by the incompetence of the ground from which it was said to have come. It is also incompetent. See: EGBE V. ALHAJI (1990) 1 NWLR (128)546; ONOMIARU V. RCC (1995) 7 NWLR (406) 214.
WHETHER A COURT OF LAW HAS A DUTY TO EXTRACT ARGUMENT IN RESPECT OF THE VALID GROUNDS WHERE ISSUES ARE FORMULATED FROM A COMBINATION OF COMPETENT AND INCOMPETENT GROUNDS OF APPEAL
In cases which include AYALOGU v. AGU (1998) 1 NWLR (532) 129: BAFFA v. ODILLI (2001) 15 NWLR (737) 709 and SEHINDEMI v. GOV. OF LAGOS STATE (2006) 10 NWLR (987) 1, it was held that it is not the duty of the Court to sift submissions by learned Counsel made on issues raised from competent and incompetent grounds of appeal. This Court in the case of NGIGE v. OBI (2006) 14 NWLR (999) 1 at 165, had stated the position that:- “Where an issue formulated from an incompetent ground of appeal is argued in the brief of argument with those from competent ground or grounds of appeal, it is not the duty of the Court to extract argument in respect of the valid grounds from the incompetent ones. Rather, the Court should discountenance the argument in its entirety.” Inter alia, the case of BAKARE v. ACB (1996) 3 NWLR (20) 47 was cited by the full panel of the Court as authority for that position. The unavoidable consequence of arguing incompetent and competent grounds of appeal or issues arising therefrom together in a brief of argument is that the arguments would be discountenanced since the Court owes no legal duty to sieve and sift through the arguments for the purpose of determining where the ones affecting each of the competent and incompetent issues started or ended.
POSITION OF THE LAW ON COMPLIANCE WITH THE RULES OF THE COURT
… the parties have the duty to comply with the Rules of Court in the conduct of their cases and the Court has the duty to ensure that its Rules which are deliberately and purposefully made to regulate practice and procedure in proceedings before it, are obeyed and complied with by the parties that come before it. The Rules of Court are not made and meant to merely adorn the papers on which they were written or the shelves of the Court and for the parties to nonchalantly ignore them in preparing processes they file in the Court. Rather the law is trite that the Rules of Court must be obeyed by the parties always in the conduct of their cases from the beginning to the end. See. DAWASH v. DAWAN (1996) 1 NWLR (427) 751; ONYALI v. OKPALA (2001) 1 NWLR (694) 282; AINA v. ABIODUN (2005) 10 NWLR (933) 373. In the recent case of OWNER v. INSURANCE (2008) 5 SCNJ 109, the Supreme Court had this to say on the Rules of Court at page 120:- “Rules of Court are not mere rules but they partake of the nature of the subsidiary legislations by virtue of Section 18(1) of the Interpretation Act and therefore have the force of law. Rules of Court must be obeyed. This is because when there is non-compliance with the Rules of Court, the Court should not remain passive and helpless, there must be a sanction, otherwise, the purpose of the rules will be defeated. Rules of Court are not only meant to be obeyed, they are also binding on all the parties before the Court.” Several cases were referred to by the apex Court on the above position, including: AKANBI v. ALAO (1989) 5 SCNJ 1 at 10, BANCO V. CHADO (1998) 9 NWLR (564) 139, OBA AROMOLARAN V. OLADELE (1990) 7 NWLR (162) 359, AJAYI V. OMOROGBE (1993) 7 SCNJ (PT.1) 168, DUKE V. AKPABUYO v. L.G (2005) 12 SCNJ 280 at 290-8; (2005) 19 NWLR (959) 130 at 148. Because the courts are creatures of the law and are governed or regulated in their practice and procedure in the discharge and exercise of the jurisdiction vested in them by law, including the Constitution, they are courts of law whose primary and therefore binding duty and obligation is to decide matters that come before them in accordance with the law. The constitutional and statutory function of the courts is in these premises, to do justice in accordance with the law and the Rules of practice and procedure specifically provided for them in matters that come before them for decision. The Courts have no legal duty to decide matters before them which did not meet or comply with the provisions of its Rules in the pre of doing “substantial justice” which is purely sentimental or abstract and outside the contemplation of the Rules of Court. Be that as sit may, a party who did not comply with the Rules of Court can only have himself to blame on the consequence of such noncompliance and cannot find salvation in the fact that he was not invited to address the Court in such non-compliance before the Court deals with it. After all, it is not every failure or omission to hear a party in a matter that is fatal to the proceedings, but only where a miscarriage of justice according to law, is occasioned to him. See: ATOYEBI v. GOVERNOR OYO STATE (1994) 5 SCNJ 62 at 84; IBRAHIM v. JSC, KADUNA STATE (1998) 14 NWLR (584) 1; CITIZENS INT’L BANK v. SCOA (2006) ALL FWLR (323) 1608 at 1702.
MISCARRIAGE OF JUSTICE: WHEN CAN A MISCARRIAGE OF JUSTICE BE OCCASIONED ON A PARTY; MEANING OF MISCARRIAGE OF JUSTICE
A miscarriage of justice according to law can only be occasioned on a party who had duly obeyed or complied with the Rules in all the processes filed in his case. In the case of JINDU v. ESUROMBI-ARO (2005) 14 NWLR (944) 142 at 194, miscarriage of justice was defined to mean, inter alia:- “A miscarriage of justice means such a departure from the rules which permeates a judicial procedure as to make it that which happened not in the proper sense of the word a judicial procedure at all”
FORMULATING ISSUES FOR DETERMINATION: MAIN PURPOSE OF FORMULATING ISSUES FOR DETERMINATION
The main purpose of formulating issues for determination is to enable the parties focus on the real questions in controversy in the grounds of appeal. See Sha v. Kwan (2000) FWLR (Pt.11) 1798. It is therefore trite that only issues formulated from the grounds of appeal and stemming from the decision appealed from are competent to be ventilated. Onah v. Onyia (1989) 2 SCNJ 69. PER HON JUSTICE REGINA OBIAGELI NWODO, J.C.A
ISSUES FOR DETERMINATION: EFFECT OF AN ISSUE FOR DETERMINATION NOT BEING RELATED TO THE GROUNDS OF APPEAL
Once issue is not related to the ground of appeal, that issue becomes irrelevant and liable to be struck out. See Abgakoba v. I.N.E.C. (2008) 18 NWLR Pt.1119 SC 489. PER HON JUSTICE REGINA OBIAGELI NWODO, J.C.A
Before Their Lordships
MOHAMMED LAWAL GARBAJustice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJEJustice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODOJustice of The Court of Appeal of Nigeria
Between
CHIEF JOSHUA CHIBI DARIYEAppellant(s)
AND
FEDERAL REPUBLIC OF NIGERIARespondent(s)
MOHAMMED LAWAL GARBA. J.C.A. (Delivering the Leading Judgment): The Appellant had filed an application before the FCT High Court (to be called High Court after now) praying for the following reliefs:-
“i. An order varying the accused Applicant’s conditions of bail by rescinding the condition that the applicant should report to the Economic and Financial Crimes Commission every week.
ii. An order directing the release of the Applicant’s International Passport and other travelling documents submitted by him in fulfillment of the bail condition imposed by this Honouruble Court.
iii. An order permitting the Applicant to travel outside the country where he will get medical attention and treatment.
As required by the Rules of the High Court, the application was supported by affidavit evidence. It was opposed by the Respondent who filed a counter-affidavit and so the High court ordered parties to the application to file written addresses to support their respective positions.
After a consideration of the affidavit evidence and addresses of the learned Counsel for the parties, the high Court in its ruling delivered on 10/11/09 granted the 1st but refused the 2nd and 3rd reliefs sought by the Appellant.
Being dissatisfied with the part of the ruling refusing reliefs 2 and 3 contained on the face of the application, the Appellant caused a Notice of Appeal to be filed on the 18/11/09. The notice of appeal contains five (5) grounds upon which the dissatisfaction was premised and from which three (3) issues were distilled by the learned Counsel for the Appellant in the Appellant’s brief filed on 13/1/10. The issues submitted for determination in the appeal at paragraph 3.0.0 on pages 3-4 of the Appellant’s brief settled by G.S. Pwul Esq., are thus:-
“1. Having regard to the fact first the lower Court relied on a warrant of arrest issued by the London Metropolitan Police and Section 19(2)(b),(c) of the Economic and Financial Crimes Commission (Establishment Act), 2004 to refuse the Appellant’s application, whether it did not act on extraneous, irrelevant and speculative mutters. (Grounds 1, 2, and 3).
2. In view of the fact that the lower Court failed to take into account or give sufficient consideration to Exhibit “JDA” (letter from JUTH) and other facts in the Affidavit supporting the Appellant’s application, whether it did not ignore or failed to accord sufficient consideration to relevant and material factors. (Ground 4).
3. Whether in refusing the Applicant’s application, the lower Court used its discretion judicially and judiciously having regard to all the materials placed before it. (Ground 5).
The Respondent’s brief of argument prepared by Rotimi Jacobs, Esq., was dated and filed on the 20/10/10 but deemed filed on the 13/10/10 when time was extended by the Court for filing same. A single issue was said to arise for determination in the appeal at paragraphs 3.0 on page 3 of the said brief as follows:-
“Whether the discretion of the learned trial Judge was not properly exercised as to warrant an interference by this Honourable Court”
Before a consideration of what the crucial issue/s fall/s for determination in the appeal, I have observed that the grounds ONE, TWO and FIVE contained in the Notice of Appeal at pages 40-45 of the record of appeal are mere quotation of extracts from the ruling appealed against by the Appellant.
In the case of ALADE v. OGUNDOKUN (1992) 5 NWLR (92) (239) at 52. Salami, JCA (now PCA) had stated the law thus:-
“The requirements of Order 3 rule 2(2) of the Court of Appeal Rules 1981 are not complied with by merely repeating passages from judgment of the trial Court. The Appellant has a duty to supply full and substantial particulars of and nature of error of law or, in appropriate cases, of misdirection alleged in the ground of appeal. It is not sufficient if the grounds of appeal merely assert, as in the instant appeal, that “The learned trial Judge erred in law when he held” and then subjoined by a profuse quotation from the judgment without the particulars or nature of the error. The grounds ate therefore improperly drafted und deserve to be struck out.”
His Lordship cited three cases of:
ANYAOKE V. DR. ADI (1986) 3 NWLR (31) 731; ATUEYEYE v. ASHAMU (1987) 2 NWLR (49) 267 at 268 and
AMAJIDEOGU v. ONONAKU (1988) 2 NWLR (78) 614 for that position.
Order 3, Rule 2(2) of the 1981 Court of Appeal Rules are now Order 6, Rule 2(2) of the Court of Appeal Rules, 2007 which in brief, requires that where an error or misdirection in law is alleged in a ground of appeal, the nature and particulars of the misdirection or error shall be clearly stated. In the present appeal, Ground One alleges a misdirection in law while Grounds Two and Five alleged errors in law, but the passages set out as the grounds of appeal do not contain the nature of the alleged misdirection or errors All the particulars set out under each of the grounds are basically arguments and not particulars of the misdirection and errors alleged by the Appellant. The manner in which the grounds appear on the notice of appeal does not only affect the form in which they were drafted but the substance of the complaints therein which are not concise and clear as required by Order 6, Rule 2(3). There is the need to invite the affected grounds to speak for themselves for a full appreciation of their state. They are:-
‘GROUND ONE
The learned Judge of the trial Court misdirected himself in law when the held as follows:-
‘There is indeed a warrant of arrest issued out against the accused person/applicant dated 17th day of December, 2004 by the Metropolitan Police in London signifying that the applicant is to be arrested immediately. The applicant was silent about this warrant in his affidavit deposed to in support as well us his Counsel’s written address before the Court. As earlier stated, this averment was neither contradicted nor challenged by the applicant and must be deemed true. There is no further evidence adduced by him that this warrant of arrest had been discharged.’
GROUND TWO
The learned Judge of the lower Court erred in law when he held thus:-
‘Under Section 19(2)(c) of the Economic and Financial Commission (Establishment Act) 2004, it is provided that the Court shall have power, notwithstanding anything to the contrary in any other
enactment:
(b) To ensure that all matters brought before the Court by the Commission against any person, Body or authority shall be conducted with dispatch and given accelerated hearing.
There is nothing adduced by the applicant to contradict the complainant’s assertion that if arrested abroad, the criminal proceedings against the applicant in this Court will not be stalled.
(c) To adopt all legal measures necessary to avoid unnecessary delays and abase in the conduct of matters brought by the Commission before it or against any person or authority.
Based on the uncontroverted evidence as to his possible arrest and detention, it is clear that the applicant may not be available to stand his trial here in Nigeria with dispatch.’
GROUND FIVE
The lower Court erred in law when it held as follows:-
‘The Applicant needed to have adduced sufficient evidence to convince the Court that his quest for medical treatment abroad is a complete and concluded pursuit.
The permission to travel cannot be granted in a vacuum, and the allegation made by the Applicant that there are no competent medical personnel or adequate medical facilities in Nigeria still needs to be confirmed in writing by the Federal Ministry of Health before this Court can take judicial notice of lack of competent medical personnel and adequate medical facilities in Nigeria.’
Thereby arriving at the wrong conclusion.
PARTICULARS OF ERROR
i, Exhibit “JDA” which remained uncontroverted was sufficient evidence of the Appellant’s quest for medical treatment in Israel.
ii. There was no letter from Israel rejecting or declining the appointment.
iii. The release of the Appellant’s travelling documents would facilitate the conclusion of the Appellant’s trip to Israel
iv. There was no letter or any other written documents from the Federal Ministry of Health to show that competent medical personnel or adequate medical facilities exist in Nigeria.”
I am in no doubt that the nature of the misdirection alleged in ground one is not discernable from the portion of the Ruling of the High Court quoted as the ground of appeal. In addition, the so called particulars set out thereunder are arguments which were in fact included in the Appellant Counsel’s submissions on his Issue I in the Appellant’s brief.
The same defects affect the passages of the Ruling set out as grounds Two and Five with no clear nature of the errors of law alleged by the Appellant to be discerned from them. The particulars set out under each of them are arguments against the passages of the Ruling repeated as grounds of the appeal.
In the premises of the position of the law stated in the ALADE v. OGUNDOKUN (supra) the said grounds of appeal are not only improperly drafted, but also his complete disregard of the provisions of Order 6 Rule 2(2) and (3) of the Court of Appeal Rules, 2007. The said grounds and therefore incompetent grounds of appeal under the said provisions are consequently liable to be struck out. See:
GARABI (2000) 13 NWLR (684) 228, OBI-ODU v. DUKE (2006) 1 NWLR (961) 375: IDEH v. ONYEJESE (1997) 8 NWLR (518) 610.
For being incompetent, the grounds ONE, TWO and FIVE set out above are struck out.
The learned Counsel for the Appellant had indicated in his brief that his issue 1 was formulated from grounds 1, 2 and 3 of the notice of appeal. With my decision that grounds 1 and 2 inter alia are incompetent, it means that the Appellant’s issue I was formulated from both incompetent grounds as well as ground 3.
The position of the law as is now common knowledge, is that issues distilled from either incompetent grounds or from a combination of competent grounds and incompetent grounds of appeal are in themselves not competent and also liable to be struck out. See:
GEOSOURCE (NIG.) LTD. v. BLARAGBARA (1997) 5 NWLR (506) 607; JOHN HOLT VENTURES V. OPUTA (1996) 9 NWLR (470) 101; OGUNDIPE v. ADENUGA (2006) ALL FWLR (330) 206.
The learned Counsel had also indicated that the Issue 3 was distilled from ground 5, which I have found to be incompetent, so the said issue 3 is caught up and fatally infected by the incompetence of the ground from which it was said to have come. It is also incompetent. See: EGBE V. ALHAJI (1990) 1 NWLR (128)546; ONOMIARU V. RCC (1995) 7 NWLR (406) 214. The only surviving ground contained in the Appellant’s notice of appeal is now ground 4 from which issue 2 was said to have arisen. However, the said issue 2 was argued together with the incompetent issue 3 formulated from the incompetent ground of appeal FIVE which has been struck out.
Do I now embark on the task of separating the good from the bad submissions by learned Counsel in order to determine the competent issue from the combined submissions thereon by the learned Counsel? In cases which include AYALOGU v. AGU (1998) 1 NWLR (532) 129: BAFFA v. ODILLI (2001) 15 NWLR (737) 709 and SEHINDEMI v. GOV. OF LAGOS STATE (2006) 10 NWLR (987) 1, it was held that it is not the duty of the Court to sift submissions by learned Counsel made on issues raised from competent and incompetent grounds of appeal. This Court in the case of NGIGE v. OBI (2006) 14 NWLR (999) 1 at 165, had stated the position that:-
“Where an issue formulated from an incompetent ground of appeal is argued in the brief of argument with those from competent ground or grounds of appeal, it is not the duty of the Court to extract argument in respect of the valid grounds from the incompetent ones. Rather, the Court should discountenance the argument in its entirety.”
Inter alia, the case of BAKARE v. ACB (1996) 3 NWLR (20) 47 was cited by the full panel of the Court as authority for that position. The unavoidable consequence of arguing incompetent and competent grounds of appeal or issues arising therefrom together in a brief of argument is that the arguments would be discountenanced since the Court owes no legal duty to sieve and sift through the arguments for the purpose of determining where the ones affecting each of the competent and incompetent issues started or ended.
For that reason, the submissions by the learned Counsel for the Appellant on issues 2 and 3 which are competent and incompetent respectively together are liable to be hereby discountenanced.
Perhaps I should say that the learned Counsel for the parties had not adverted their minds to the competence of the grounds of appeal and eventual consequence of arguing competent and incompetent grounds or issues together as established in the cases cited on the points.
That they did not do so or that they were not invited by the Court for address thereon, would not change the principles of law on the points alluded to by the Court. This is because the parties have the duty to comply with the Rules of Court in the conduct of their cases and the Court has the duty to ensure that its Rules which are deliberately and purposefully made to regulate practice and procedure in proceedings before it, are obeyed and complied with by the parties that come before it. The Rules of Court are not made and meant to merely adorn the papers on which they were written or the shelves of the Court and for the parties to nonchalantly ignore them in preparing processes they file in the Court. Rather the law is trite that the Rules of Court must be obeyed by the parties always in the conduct of their cases from the beginning to the end. See. DAWASH v. DAWAN (1996) 1 NWLR (427) 751; ONYALI v. OKPALA (2001) 1 NWLR (694) 282;
AINA v. ABIODUN (2005) 10 NWLR (933) 373. In the recent case of OWNER v. INSURANCE (2008) 5 SCNJ 109, the Supreme Court had this to say on the Rules of Court at page 120:-
“Rules of Court are not mere rules but they partake of the nature of the subsidiary legislations by virtue of Section 18(1) of the Interpretation Act and therefore have the force of law. Rules of Court must be obeyed. This is because when there is non-compliance with the Rules of Court, the Court should not remain passive and helpless, there must be a sanction, otherwise, the purpose of the rules will be defeated. Rules of Court are not only meant to be obeyed, they are also binding on all the parties before the Court.”
Several cases were referred to by the apex Court on the above position, including: AKANBI v. ALAO (1989) 5 SCNJ 1 at 10, BANCO V. CHADO (1998) 9 NWLR (564) 139, OBA AROMOLARAN V. OLADELE (1990) 7 NWLR (162) 359,
AJAYI V. OMOROGBE (1993) 7 SCNJ (PT.1) 168, DUKE V. AKPABUYO v. L.G (2005) 12 SCNJ 280 at 290-8; (2005) 19 NWLR (959) 130 at 148. Because the courts are creatures of the law and are governed or regulated in their practice and procedure in the discharge and exercise of the jurisdiction vested in them by law, including the Constitution, they are courts of law whose primary and therefore binding duty and obligation is to decide matters that come before them in accordance with the law. The constitutional and statutory function of the courts is in these premises, to do justice in accordance with the law and the Rules of practice and procedure specifically provided for them in matters that come before them for decision.
The Courts have no legal duty to decide matters before them which did not meet or comply with the provisions of its Rules in the pre of doing “substantial justice” which is purely sentimental or abstract and outside the contemplation of the Rules of Court.
Be that as sit may, a party who did not comply with the Rules of Court can only have himself to blame on the consequence of such noncompliance and cannot find salvation in the fact that he was not invited to address the Court in such non-compliance before the Court deals with it. After all, it is not every failure or omission to hear a party in a matter that is fatal to the proceedings, but only where a miscarriage of justice according to law, is occasioned to him.
See: ATOYEBI v. GOVERNOR OYO STATE (1994) 5 SCNJ 62 at 84; IBRAHIM v. JSC, KADUNA STATE (1998) 14 NWLR (584) 1; CITIZENS INT’L BANK v. SCOA (2006) ALL FWLR (323) 1608 at 1702. A miscarriage of justice according to law can only be occasioned on a party who had duly obeyed or complied with the Rules in all the processes filed in his case.
In the case of JINDU v. ESUROMBI-ARO (2005) 14 NWLR (944) 142 at 194, miscarriage of justice was defined to mean, inter alia:-
“A miscarriage of justice means such a departure from the rules which permeates a judicial procedure as to make it that which happened not in the proper sense of the word a judicial procedure at all”
In the present appeal the Court is giving effect to the provisions of the Rules of Court and so acting in accordance with and not departing from them for the purpose of the above definition.
In the final result, for the reasons set out above my finding is that the appeal was argued on incompetent grounds and issues in the Appellant’s brief of argument. Since the appeal has orally been heard and the briefs of argument adopted by learned Counsel, it is hereby dismissed.
Each party to bear costs of the appeal.
PAUL ADAMU GALINJE, J.C.A.: I have had the privilege of reading in my learned brother, Garba, JCA and I agree that the appeal having been argued on incompetent grounds and issues in the Appellant’s brief, same should be dismissed. I accordingly dismiss the appeal and endorse the consequential order on cost therein.
HON JUSTICE REGINA OBIAGELI NWODO, J.C.A: I have been privileged to read in advance the Judgment just delivered by my learned brother GARBA, J.C.A. I agree with the reasoning contained therein and the conclusion arrived thereat. The main purpose of formulating issues for determination is to enable the parties focus on the real questions in controversy in the grounds of appeal. See
Sha v. Kwan (2000) FWLR (Pt.11) 1798. It is therefore trite that only issues formulated from the grounds of appeal and stemming from the decision appealed from are competent to be ventilated. Onah v. Onyia (1989) 2 SCNJ 69.
Once issue is not related to the ground of appeal, that issue becomes irrelevant and liable to be struck out. See Abgakoba v. I.N.E.C. (2008) 18 NWLR Pt.1119 SC 489.
In the present appeal there is no competent ground since all the incompetent grounds have no life, the appeal cannot be sustained. I also dismiss this appeal and abide by the Consequential Order on Cost.
Appearances
G. S. PAULFor Appellant
AND
Rotimi Jacobs, with him C. Ifegulike (Mrs)For Respondent
s
