CLEMENT IHEBUZOAJU EZEANOCHIE v. IGWE IGNATIUS O. OFOBUIKE & ANOR (2012)

CLEMENT IHEBUZOAJU EZEANOCHIE v. IGWE IGNATIUS O. OFOBUIKE & ANOR

(2012)LCN/5763(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 19th day of December, 2012

CA/E/36/1991

RATIO

APPEAL: NATURE OF AN APPEAL

The law is settled as what an appeal is, or connotes. An appeal to an appellate court is a challenge against the decision of the lower court and it is basically to be predicated upon what the lower court has decided in its judgment or ruling and not on what the lower court has not decided in the judgment or ruling. See OLORUNTOBA-OJU V. ABDUL-RAHEEM (2009) ALL FWLR (PT.497) 1. It is however now clear that an omission or some other infraction of the law or procedure, committed by a lower court in the course of entertaining a matter that ends in a ruling or judgment, (and which obviously cannot be what the court decided), can equally be the subject of an appeal, in an appeal against the said ruling or judgment. In this regard see the case of AKPAN V. BOB (2010) 17 NWLR (PT.1223) 421 at pages 464 – 467, wherein the Supreme Court dwelling on appeals, per Muhammad, JSC; amongst others, stated thus:-
“Although many authorities lay emphasis that a ground of appeal must stem from the of the judgment (ipsissima verba), …., such decisions in my humble view, by no means limit the scope of a ground of appeal. And from the general definitions, a ground of appeal, can arise in a number of situations such as the following:
(a) from the of the decision appealed against (ipsissima verba)
(b) from the procedure under which the claim was initiated
(c) from the procedure under which the decision was rendered or
(d) from other extrinsic factors such as issue of jurisdiction of a court from which the appeal emanates
(e) from commissions or omissions by the court from which an appeal emanates in either refusing to do what it ought to do or doing what it ought not to do or even in overdoing the act complained of.The ideal thing is to have a pronouncement from the court from which the appeal emanates. But, where that court fails to make pronouncement such as where motions or objections filed before it are still pending, where it ought to have made one, that will give rise to a ground of appeal. In other situations, the court from which the appeal emanates may not have to make a pronouncement as it may not have had the opportunity to do so for instance where a judgment was delivered outside the 90 days period in contravention of section 258(1) of the 1979 Constitution, but now section 294 of the 1999 constitution, if non-delivery within the time limit can cause a miscarriage of justice. Equally, in a case where a Judge delivers his judgment after having fully known that he has ceased to be a judicial officer or that he has been elevated to a higher court. This may furnish a ground of appeal, or still, where without genuine cause, proceedings or judgment were conducted or delivered in chambers…” PER AYOBODE LOKULO-SODIPE, J.C.A.

APPEAL: ESSENCE OF A GROUND OF APPEAL

The law is settled in many respects as it relates to appeals. A ground of appeal is to accentuate the error of law or fact alleged by an appellant as the defect in the judgment appealed against and relied upon to set the same aside. In other words, there must be a separate and distinct ground of appeal for each error of law or fact a court is alleged to have committed in its judgment or ruling, and upon which an appellant relies to have the judgment or ruling set aside. Particulars of error of a ground of appeal serve the purpose of particularizing in specific and clear language the ground of appeal. Particulars of error are intended to highlight the complaint against the judgment on appeal. They are the specification of the error or misdirection, in order to make clear how the complaint is going to be argued in an attempt to demonstrate the flow in a relevant aspect of the judgment. See ORJI V. DORIJI ILES MILLS (NIG.) LTD (2010) ALL FWLR (PT.519) 999 AT 1030; IWUOHA V. NIGERIAN POSTAL SERVICES LTD (2003) 4 SC (PT.II) 37 AT 54; AND MADUMERE V. NWOSU (2010) ALL FWLR (PT.545) 263. PER AYOBODE LOKULO-SODIPE, J.C.A.

APPEAL: NATURE OF ISSUES FOR DETERMINATION

The trite position of law is that appeals in the supreme court of Nigeria and this court pursuant to the respective Rules of the aforementioned courts are argued on issues and not on grounds of appeal. It is against the backdrop of this position, that there are authorities galore to the effect, that like pleadings, Issues formulated in an appeal, being intended to accentuate the real issues for determination before the court; must therefore fall within the purview of the grounds of appeal. See OLOWOSAGO V. ADEBANJO [1988] 9 SC 87 at 92. Issues for determination in an appeal therefore must not only flow or be distilled from the grounds of appeal, but must also be circumscribed by the complaint in the grounds of appeal and as highlighted in their particulars. Issue for determination of an appeal not covered by any ground of appeal is/are therefore incompetent and will be struck out. See the cases of AGALA V. EGWERE (2010) ALL FWLR (PT.532) 1609; AMIMIKE INVESTMENT LTD V. LADIPO (2008) ALL FWLR (PT.426) 1929 AT 1943; and IDRIS & ORS. V. AUDU (supra) at 1147. Indeed, the relationship of a ground of appeal vis-a-vis issue or issues formulated for the determination of an appeal was dwelled upon this Court in the case of USHIE v. EDET ALL FWLR (Pt.547) per Orji-Abadua, JCA, when the learned jurist stated thus at pages 740 -741: –
“It is trite law that a party who wishes to rely on any ground of appeal in an appeal must raise such ground specifically and clearly as a ground of appeal in his notice of appeal or cross-appeal. He must not raise it as a particular to a ground of appeal because particulars of a ground of appeal are complimentary to and dependent on the ground of appeal. Consequently, one particulars of a ground of appeal speak a different language outside the contemplation of the ground of appeal, they are no more particulars of relevant ground and go to no issue: ANAMMCO v. First Marina Trust Ltd (2000) 1 NWLR (Pt.640) the purpose of a ground of appeal is to give the respondent notice of the exact complaint the appellant has against the decision. Therefore, a good ground of appeal should be drawn up with the greatest legal skill, accuracy, elegance and expertise which a solicitor must muster. Particulars of error to a ground of appeal must flow from the ground of appeal and must support it. Particulars not so related are incompetent and ought to be disregarded. If all the particulars to a ground of appeal are unrelated to the ground, the later is incompetent and ought to be struck out: cross River Basin & Rural Development Authority v. Sule (2001) 6 NWLR (pt.708) 194.” PER AYOBODE LOKULO-SODIPE, J.C.A.

APPEAL: ATTITUDE OF THE COURT TOWARDS PROLIFERATION OF ISSUES FOR DETERMINATION

This court on several occasions has frowned at proliferation of issues for determination which is in excess of the numbers of grounds of appeal filed. In the case of Yadis Nigeria Ltd v. Great Nigeria insurance company Ltd (2007) All FWLR (pt.370) 1348, (2007) SCNJ 86, where a similar situation (sic) in this case occurred, this court held follows: page 109, 2nd to the last paragraph when Onnoghen JSC, stated thus:
“I have to observe that there is only one ground of cross-appeal as is contained in the notice of cross-appeal filed on 5 October 2006. It is settled law that a party is not allowed to formulate more than one issue for determination out of a ground of appeal even though he can combine two or more grounds of appeal in formulating an issue for determination. This is the principle against proliferation of issues for determination. In the instant case, reamed counsel has submitted two issues out of the single ground of appeal for determination thereby rendering the issues incompetent”.
In the case of Orji v. State (2008) 4 SCNJ 85, this court, per Mukhtar JSC held as follows at page 94:
“Issues for determination are supposed to be distilled from the grounds of appeal filed by an appellant and not raised capriciously. They must not outnumber the grounds of appeal, for where they so outnumber them, there is the danger that some issues do not derive their source from the grounds of appeal, and therefore not related to one another. It is trite that an issue, that does not so relate will not be tolerated… PER AYOBODE LOKULO-SODIPE, J.C.A.

JUSTICES

ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

Between

CLEMENT IHEBUZOAJU EZEANOCHIE Appellant(s)

AND

1. IGWE IGNATIUS O. OFOBUIKE
(The Ezeora 1 of Umuchu)
2. FELIX OKWARA-AUNNE OKWARAEKE Respondent(s)

AYOBODE LOKULO-SODIPE, J.C.A.: (Delivering the Leading Judgment): This appeal is against the order dismissing suit No.AA/42/89 – Clement Ihebuzoaju Ezeanochie vs. Igwe Ignatius O. Ofobuike & Anor., made on 14/2/1990, by Hon’ Justice M’N’ Ekwerekwu (hereafter simply referred to as “the learned trial Judge”) of the High court of Enugu state of Nigeria (hereafter simply referred to as “the lower court”).
The above mentioned suit No. AA/42/89 was instituted by the Appellant against the Respondents vide “claim” dated 1/2/1989 and filed on 17/3/1989. Therein, the Appellant claimed declarations in respect of the Ichie of Isieke kindred title, injunction and damages, against the Respondents jointly and severally. On the same date the “claim” was filed, the Appellant filed a motion ex-parte seeking for injunctive reliefs against the Respondents as well as a motion on notice for the same reliefs being sought in the motion ex-parte. The Respondents duly caused appearance to be entered for them in the suit of the Appellant. They also filed a counter affidavit apparently in response to the motion on notice of the Appellant that was served on them; and this provoked the filing of a further affidavit by the Appellant. The Appellant’s motion on notice came up for hearing before the lower court on 12/10/1989, and was on that day adjourned till 19/2/1990 for continuation of hearing. Before the adjourned date of the Appellant’s motion on notice, the Respondents on 29/1/1990 filed a motion on notice dated 23/1/1990 praying the lower court for “an Order of Court dismissing the Suit for Plaintiff’s failure to file the statement of claim”. Having first noted to the effect that the Respondent in the motion (i.e. Appellant herein) though served was not represented by counsel, the lower court proceeded to entertain the motion before it on 14/2/1990. The Applicants in the motion (Respondents herein), duly moved the motion on notice brought pursuant to order 8 Rule 20 and Order 9 Rules (9)(2) and 42(1)of the Anambra state of Nigeria High Court Rules 1999 (then applicable in Enugu state), and prayed the lower court to dismiss the suit because the plaintiff/respondent (i.e. Appellant) failed to file a statement of claim. The learned trial Judge granted the application and dismissed the suit with N50.00 costs to the applicants. (i.e. Respondents) and against the plaintiff/respondent (i.e. Appellant). (see pages 32 and 33 of the record of appeal).
Being aggrieved by the order dismissing his suit, the Appellant lodged a Notice of Appeal dated 26/2/1990 and filed on the same date against the decision of the learned trial Judge in that regard. The Notice of Appeal contains two grounds of appeal. I consider it expedient to reproduce the grounds of appeal and their respective particulars as there will be need to examine them closely or thoroughly, later in the judgment. The grounds of appeal and their respective particulars read thus: –
“GROUNDS OF APPEAL
(1) ERROR IN LAW: The learned trial judge erred in law in dismissing suit no.AA/42/89; which was then pending before him, since no evidence on the substantive suit had been adduced.
PARTICULARS OF ERROR
(i) The plaintiff did not file his pleadings within the time prescribed by the Anambra state of Nigeria High Court Rules, 1988
(ii) The defendant’s then applied to the trial court under the Rules for dismissal of suit by virtue of order g rule 421 of the said Rules.
(iii) The application was served on one of the typists of the appellant’s counsel who failed to draw the attention of the appellant’s counsel’s diary.
(iv) No application for extension of time was filed by the appellant or counsel praying the court for extension of time within which to file appellant’s pleading.
(v) Neither the appellant who did not know of the application for dismissal, nor his counsel was present in court on 14n of February, 1990 when the application for dismissal was taken.
(vi) There had been no hearing by the trial court of the substantive suit at all,
(vii)The writ of summons discloses a reasonable cause of action.
2. ERROR IN LAW: The learned trial court mis-construed the provision of order 9 rule 42(1) aforesaid and thereby erred in law.
PARTICULARS:
(i) The dismissed suit was competent before the trial court in that among other reliefs sought, the appellant was claiming to be exclusively entitled to the Ichie Title of Isieke Kindred in Umuchu Town of Aguata L.G.A. of Anambra State.
(ii) A reasonable cause of action was disclosed in the writ.
(iii) No scintilla of evidence had been taken in the matter.
(iv) The dismissal has finally disposed of the suit.”
The relief which the Appellant seeks in the appeal is for this Court “To set aside the order of dismissal by the learned trial judge and make an order merely striking out the suit, or direct the lower Court to strike out the suit”. (Italics provided by me),
Parties duly filed and exchanged their Briefs of Argument in compliance with the Rules of this court. Appellant’s Brief of Argument is dated 25/3/2008 and filed on 29/7/2010 but deemed as having been properly filed on 8/11/2010. Appellant’s Reply Brief is dated 19/3/2012 and filed on 22/3/2012. Both Briefs were settled by Chief H. B. Onyekwelu. Respondents’ Brief of Argument dated 10/11/2010 and filed on the same date was settled by G. E. Ezeuko (Jnr.). The appeal was entertained on 10/10/2012 and I. C. Ejinkonye of counsel for the Appellant, as well as G. E. Ezeuko (Jnr.) learned lead counsel for the Respondents respectively, adopted and relied on the 8riefu of Argument as hereinbefore identified, in support of their positions in the appeal.
In his Brief of Argument the Appellant formulated four issues for determination in the appeal from the two grounds of appeal. The four issues read thus: –
1 Whether the learned trial judge was right in dismissing the suit in the circumstances.
2 Whether the proper order to make in the circumstance was not an order of striking out the suit.
3 Whether the service of the motion paper on the clerk and not on appellant’s Counsel personally was right.
4 Whether there was fair trial.
On their own part, the Respondents formulated three issues for determination in the appeal in their Brief of Argument. The three issues read thus: –
“(1) Whether the learned trial Judge was right in dismissing the suit in view of the application before the court.
(2) Whether service of the motion on the clerk of Plaintiff/Appellant’s counsel was sufficient service under the Rules.
(3) Whether there was fair hearing.”
The first exercise I consider it pertinent to embark upon, is to determine which of the issue/issues for the determination of the appeal as formulated by the parties, is/are most appropriate for the determination of the appeal; or whether to formulate an issue or issues which I believe will determine the main complaints or grievances in the appeal. See IDRIS & ORS. V. AUDU (2008) ALL FWLR (PT.422) 1122 AT 1148 – 1149. This is against the backdrop of the obvious fact that both the Appellant and Respondents in their respective Briefs of Argument, have glaringly engaged in the proliferation of issues for determination in the appeal, as they have formulated more issues than there are grounds of appeal. In this regard, I cannot but emphasis that the Appellant has no other grounds of appeal from which he can properly distill or formulated issue(s) for the determination of his appeal, save the grounds of appeal contained in his Notice of Appeal. In the same vein, as the Respondents have no cross-appeal, they are by law not only obligated to distill or formulate the issues for the determination of the appeal from the grounds of appeal in the Appellant’s Notice of Appeal, but are deemed to have done so. See the cases of OGUNSOLA V. NICON (2010) ALL FWLR (PT.536) 423 (SC); AGBOR V. THE POLYTECHNIC, CALABAR (2010) ALL FWLR (PT.533) 1998; and SAMBAKIU V. SANNI (2010) ALL FWLR (PT.505) 1629.
The law is settled as what an appeal is, or connotes. An appeal to an appellate court is a challenge against the decision of the lower court and it is basically to be predicated upon what the lower court has decided in its judgment or ruling and not on what the lower court has not decided in the judgment or ruling. See OLORUNTOBA-OJU V. ABDUL-RAHEEM (2009) ALL FWLR (PT.497) 1. It is however now clear that an omission or some other infraction of the law or procedure, committed by a lower court in the course of entertaining a matter that ends in a ruling or judgment, (and which obviously cannot be what the court decided), can equally be the subject of an appeal, in an appeal against the said ruling or judgment. In this regard see the case of AKPAN V. BOB (2010) 17 NWLR (PT.1223) 421 at pages 464 – 467, wherein the Supreme Court dwelling on appeals, per Muhammad, JSC; amongst others, stated thus:-
“Although many authorities lay emphasis that a ground of appeal must stem from the of the judgment (ipsissima verba), …., such decisions in my humble view, by no means limit the scope of a ground of appeal. And from the general definitions, a ground of appeal, can arise in a number of situations such as the following:
(a) from the of the decision appealed against (ipsissima verba)
(b) from the procedure under which the claim was initiated
(c) from the procedure under which the decision was rendered or
(d) from other extrinsic factors such as issue of jurisdiction of a court from which the appeal emanates
(e) from commissions or omissions by the court from which an appeal emanates in either refusing to do what it ought to do or doing what it ought not to do or even in overdoing the act complained of.The ideal thing is to have a pronouncement from the court from which the appeal emanates. But, where that court fails to make pronouncement such as where motions or objections filed before it are still pending, where it ought to have made one, that will give rise to a ground of appeal. In other situations, the court from which the appeal emanates may not have to make a pronouncement as it may not have had the opportunity to do so for instance where a judgment was delivered outside the 90 days period in contravention of section 258(1) of the 1979 Constitution, but now section 294 of the 1999 constitution, if non-delivery within the time limit can cause a miscarriage of justice. Equally, in a case where a Judge delivers his judgment after having fully known that he has ceased to be a judicial officer or that he has been elevated to a higher court. This may furnish a ground of appeal, or still, where without genuine cause, proceedings or judgment were conducted or delivered in chambers…”

The corollary of the position of the law in relation to grounds of appeal vis-a-vis issue(s) for determination, in my considered view therefore is not only that the particulars or any of the particulars of a ground of appeal can never metamorphose into a ground of appeal but also that like it obtains in a case tried on pleadings, that evidence at variance with pleaded facts goes to no issue, likewise, arguments proffered in respect of an issue or issues formulated for the determination of the appeal by the parties or any of the parties which is/are at variances with or not linkable to the complaint in the ground of appeal, go to no issue and must be discountenanced,
I have earlier stated in this judgment that both the Appellant and Respondents glaringly engaged in the proliferation of issues for determination in this appeal. proliferation of issues by parties in an appeal has consistently been condemned by both the Supreme Court and this court in a plethora of cases: see EKE V. IBE (2009) ALL FWLR (PT.488) 315. Indeed, in the case of AMODU V. THE COMMANDANT, POLICE COLLEGE, MAIDUGURI (2009) 195 at 203 – 204, the Supreme Court dwelled extensively on proliferation of issues for determination and stated per Muntaka-Coomassie, JSC; at pages 203 – 204 thus:-
” Before I proceed further, it will be necessary to point out that the appellant herein, in his notice of appeal dated 15 July 2003 contained only one ground of appeal, in which he questioned the judgment of the lower court as follows:
“The learned Justices of the Court of Appeal erred in law when they found that the evidence of DFW2 could not be correctly applied to sustain appellant’s case, since the piece of evidence in question was not pleaded by either the plaintiff/appellant or the defendants/respondents and this has occasioned a miscarriage of justice”.It is in respect of this ground of appeal that the appellant has distilled three issues for determination. This, in my view, amounts to proliferation of issues for determination. This court on several occasions has frowned at proliferation of issues for determination which is in excess of the numbers of grounds of appeal filed. In the case of Yadis Nigeria Ltd v. Great Nigeria insurance company Ltd (2007) All FWLR (pt.370) 1348, (2007) SCNJ 86, where a similar situation (sic) in this case occurred, this court held follows: page 109, 2nd to the last paragraph when Onnoghen JSC, stated thus:
“I have to observe that there is only one ground of cross-appeal as is contained in the notice of cross-appeal filed on 5 October 2006. It is settled law that a party is not allowed to formulate more than one issue for determination out of a ground of appeal even though he can combine two or more grounds of appeal in formulating an issue for determination. This is the principle against proliferation of issues for determination. In the instant case, reamed counsel has submitted two issues out of the single ground of appeal for determination thereby rendering the issues incompetent”.
In the case of Orji v. State (2008) 4 SCNJ 85, this court, per Mukhtar JSC held as follows at page 94:
“Issues for determination are supposed to be distilled from the grounds of appeal filed by an appellant and not raised capriciously. They must not outnumber the grounds of appeal, for where they so outnumber them, there is the danger that some issues do not derive their source from the grounds of appeal, and therefore not related to one another. It is trite that an issue, that does not so relate will not be tolerated…
In the case at hand, the appellant has formulated three issues out of one ground of appeal, and applying these fine principles of law adumbrated in the above cited cases, it is my view that the issues are bad in law. Nonetheless, I will only decide this appeal based on the only issue that is related to the sole ground of appeal filed.
I have indicated hereinbefore, that there will be need to examine closely or thoroughly the grounds of appeal and their respective particulars. Upon a painstaking perusal of the two grounds of appeal, I am of the considered view, that it is clear as crystal, that particular (iii) and (v) of the particulars of ground 1 of the grounds of appeal are not only totally unrelated to the complaint in the said ground 1, but they are the basis of issues 3 and 4 as formulated by the Appellant as well as issue 3 formulated by the Respondents.
The Appellant in my considered view without specifically raising the complaint of lack of fair trial vide or by a ground of appeal simply decided to formulate issues 3 and 4 from particulars (iii) and (v) of ground 1 of the grounds of appeal. This is unacceptable in law because this is as good as elevating the said particulars (iii) and (v) to a ground of appeal’ The Appellant would appear to have lost sight of the position of the law that just as a ground of appeal can never exist in vacuo, an issue formulated for the determination of an appeal, likewise cannot exist in vacuo. The Respondents by formulating the issue of fair hearing as their issue 3 have simply fallen into the same error committed by the Appellant inasmuch as the Respondents have no cross-appeal talk less of a ground of appeal that can sustain the said issue of fair hearing. Against the backdrop of all that has been said, I will discountenance issues 3 and 4 formulated by the Appellant for the determination of the appeal, as well as issue 3 formulated by the Respondents. It is my considered view that when parties in an appeal engage in proliferation of issues for determination, they leave the Court with one of two options.
The options are (i) to formulate the issue or issues the Court conceives to be relevant for the resolution of the appeal having regard to the grounds of appeal; or (ii) to choose or pick the issue or issues formulated by the parties, which the Court considers to be related to the grounds of appeal before it. Against the backdrop of these two options, and as I find issue 1 formulated by the Respondents to be very apt for the resolution of the appeal (particularly as the said issue in my considered view sufficiently encompasses issues 1 and 2 formulated by the Appellant), I will therefore now proceed to determine the appeal upon Respondents issue 1.
RESPONDENTS ISSUE 1:
The issue as it can be seen calls for the determination by this Court as to whether or not the lower court was right in dismissing the Appellant’s su1 in view of the application before it.
The Appellant in arguing together his issues 1 and 2 (which issues as earlier stated are subsumed in Respondents’ issue 1) stated to the effect that the order of the lower court complained about was made by the said court pursuant to Order 8 Rule 20 and order 9 Rule 1(2) and 42(1) of the Anambra State High Court Rules 1988 (hereafter simply referred to as “the applicable High Court Rules”). The Appellant conceded to the effect that he did not comply with order B Rule 20 and Order g Rule 1(2) of the applicable High Court Rules and that in such circumstance the lower court is empowered to dismiss or strike out the suit pursuant to order 9 Rule 42(1) on the application of the Respondent or suo motu, The Appellant though conceding that the lower court has an absolute discretion in applying the provisions of order 9 Rule 42(11 (supra) stated to the effect that the said lower court did not exercise its discretion judiciously having regard to the circumstances of the case. That the lower court exercised its discretion arbitrarily. In a this regard the Appellant said that the writ of summons on its face disclosed some reasonable cause of action. That though he was in default of filing his Statement of Claim for about twelve months after the entry of appearance, he was not able to file his Statement of Claim at all material times to the entertainment of the Respondents, motion for the dismissal of his suit because the motion brought by the Respondent was served on the Chambers of his counsel and that the clerk that received the process did not bring same to the notice of his counsel. The Appellant submitted to the effect that since no evidence had been led in the suit and as the writ of summons disclosed a reasonable cause of action, the proper order the lower court should have made was one of striking out of the suit and not one dismissing the suit.
The Appellant further submitted to the effect that the lower court by dismissing the suit had for ever extinguished his constitutional right to bring the suit again before the court for determination and the case of Odu v. John Holt & co. Ltd 19 NLR 127 was cited in aid. Stating that no harm would have been done to the Respondents if the lower court had made an order striking out the case, the Appellant further contended to the effect that the lower court by the order of dismissal it made, had failed to appreciate the primary objective of the court, namely, the attainment of substantial justice.
Dwelling on his issue 1, and having made references to the provisions of Order 9 Rule 1(2) (supra), the Respondents submitted in the main that the lower court was very right in dismissing the Appellant’s suit pursuant to Order 9 Rule 42(1) (supra) against the backdrop of the failure of the Appellant to have filed his Statement of Claim as at the time the Respondents’ motion for the dismissal of the Appellant’s was entertained. The case of Onyali v. okpala (2000) FWLR (Pt. 3) was cited in aid. The Court was urged to resolve the issue under consideration against the Appellant as the learned trial Judge acted in accordance with the rules of court and law in dismissing the Appellant’s case as prayed by the Respondents.
In his Reply to the Brief of Argument of the Respondents, the Appellant not only re-argued his issues 1 and 2, but further went on to introduce into the appeal, the matter of his motion for interlocutory injunction that was pending and indeed part heard as at the time the Respondents’ motion was entertained by the lower court, I need only observe that a reply brief is not for the purpose of expatiating or enlarging the arguments already made in a party’s brief of argument. Likewise, a reply brief is definitely not the place to introduce a new issue that should have been predicated on a ground of appeal, into an appeal. It is my considered view that if the Appellant had been aggrieved that the lower court entertained the Respondents’ motion while his motion while his motor for interlocutory injunction was part heard, he should have ventilated or expressed his dissatisfaction in that regard by a ground of appeal and proceeded to distill an appropriate issue from that ground of appeal for the consideration of the court. It is of no moment that the Respondents broached on the matter of the interlocutory injunction in their Brief of Argument’ whatever, the Respondent have stated concerning the matter of interlocutory injunction’ simply goes to no issue, as they are not in furtherance of any issue properly arising from either of the two grounds of appeal before the court or both of them.
As earlier stated hereinbefore, the application made to the lower court by the Respondents was brought pursuant to the provisions of order 9 Rule 20 and order 9 Rules 1(2) and 42(1) of the applicable High court Rules (supra). The specific order which the Respondents sought in the motion is “an Order of Court dismissing the Suit for plaintiff’s failure to file the statement of claim.” In the supporting affidavit of the motion, the Respondents disclosed to the effect that the Appellant’s claim was served on them on 22/3/89; that they entered appearance in the Appellant’s suit on 5/4/89; that parties appeared in court on 25/5/89; that instead of filing his statement of claim, the Appellant filed a motion seeking for interim orders against the Respondents; that their motion was not only filed over 7 months since the expiration of the date stipulated in the writ of summons for the entry of appearance, but that the Appellant had not filed his statement a of Claim within 30 days of the date stipulated in the writ of summons for the entry of appearance. (See pages 30 – 32 of the record).
The provisions of the orders and Rules of the applicable High Court Rules (supra) pursuant to which the Respondents’ motion was brought read thus: –
“Order 8 Rule 20
A suit for which entry of appearance to the originating process is prescribed by these rules, and to which appearance has been entered within the period stipulated in the writ of summons or within an extended time shall proceed to pleadings as prescribed by these rules.
Order 9 Rule 9 (1)(2)
The plaintiff shall file his statement of claim in the registry of the court where the suit is pending at or any time after the commencement of the suit but not later thirty days from the expiry of the date stipulated in the writ of summons for the entry of appearance by the defendant,
Order 9 Rule 42(1)
If the plaintiff fails to file a statement of claim as prescribed by these rules or by an order of the court, the court may dismiss or strike out the suit on the application of the defendant or suo moto.”
As earlier indicated in this judgment, the Appellant argued his issues 1 and 2 together. The Appellant’s issue 2 would appear to have been distilled from ground 2 of the grounds of Appeal. The complaint in the said ground 2 is that the learned trial Judge misconstrued the provision of order 9 Rule 42(1) of the relevant High court Rules (supra). It is under this ground that the Appellant set out particulars to the effect that (i) his suit was competent given the reliefs being claimed; (ii) his suit disclosed a reasonable cause of action; (iii) no scintilla of evidence was led in the case; and (iv) the dismissal has finally disposed of the case’ submissions of the Appellant relating to these points, as already highlighted would therefore appear to go to show the basis of the Appellant’s stance that the learned trial Judge misconstrued the provision of order 9 Rule 42(1) (supra).
I am of the considered view that no matter the manner in which one chooses to interpret the provision of Order 9 Rule 42(1) and or indeed the entire provisions of Order 9, the provision or provisions, simply do not admit of the consideration by the learned trial Judge of whether or not the Appellant’s suit which the Respondent prayed the lower court to dismiss (i) discloses a reasonable cause of action: and/or (ii) evidence had been led therein. (Underlining provided by me for emphasis).The provision of the said Order 9 Rule 42(1)(supra), is simple and straightforward and it empowers the learned trial Judge to dismiss or strike out the Appellant’s suit, once he had defaulted in filing his Statement of Claim within the period prescribed for that purpose by the High Court Rules or by an order of court extending the period for this purpose.
Undoubtedly, the Appellant does not dispute the fact that he never filed a Statement of Claim at all material times to the entertainment of the Respondents’ motion by the lower court. Likewise, I do not understand the Appellant’s stance to be that the learned trial Judge was wrong in terminating his suit as it were, in the face of his failure to file his Statement of Claim within the time prescribed for that purpose by the High Court Rules, All that the Appellant has clearly shown having regard to his two grounds of appeal and the arguments in respect of his issues 1 and 2, is that he would be more comfortable with an order striking out the suit, instead of one dismissing it. The reason for this stance in the main, and as glaringly disclosed by the Appellant in his Brief of Argument, is because the Appellant conceives the order dismissing his suit, as one that has finally disposed of the matter.
The stance of the Appellant in this appeal and the reason therefor, in my considered view amounts to no more than an invitation to this Court to pronounce on the effect of the order made by the learned trial Judge dismissing his suit. I do not think parties have reached that stage yet. This is because the Appellant has never done anything in relation to his suit that was dismissed after the order in that regard was made save to lodge the instant appeal. The issue upon which this appeal is to be resolved, is as to whether or not the learned trial Judge was right in dismissing the Appellant’s suit in view of the application before the lower court and which application I must state again was amongst others, brought pursuant to Order 9 Rule 42(1) of the applicable High Court Rules. This issue, in my considered view definitely does not admit of interpreting the effect of the dismissal of the Appellant’s suit in the circumstances of this case particularly when it is appreciated that parties have not joined issue(s) on the pleadings, talk less of evidence in support of issues joined.
The order of the learned trial Judge dismissing the Appellant’s suit as prayed by the Respondents made on 14/2/1990 was glaringly based on the failure of the Appellant to file a Statement of Claim in the case he instituted within the period stipulated by the applicable High court Rules for that purpose, The Appellant’s Brief of Argument although dated 25/3/2008 was not filed until 29/7/2012 and even at that it was not until 8/11/2010 it was deemed to have been properly filed and served. It is in my view most amazing that at all material times between the date the Appellant’s Brief of Argument was prepared, filed; deemed to be filed; and the appeal argued; the Appellant had continued to wallow in his inverted notion of what the order of dismissal of his case (in which parties had never joined issues, talkless of reading evidence) amounted to or connoted, in the face of the plethora of cases on the issue. Surely, if the Appellant had been guided by authorities in that regard, it would not have been the conversion of the dismissal order made by the reamed trial Judge, to one of striking out, that he would be contending with after more than ten years that the learned trial Judge made his order. Be that as it may!
The learned trial Judge in my considered view had a choice of the word or expression to use in terminating the Appellant’s suit in the situation where the Appellant had defaulted in filing his Statement of claim within the period prescribed for that purpose by the relevant High Court Rules. The learned trial Judge apparently chose to use the expression “dismiss” and not “strike out”. In doing this, the reamed trial Judge in my considered view acted within the confines of the provision of the applicable High Court Rules. The order made by the learned trial Judge dismissing the Appellant’s suit for the failure on his part to have filed a Statement of Clairn within the time prescribed for that purpose having clearly not breached the provision of the applicable High Court Rules cannot be held to be wrong in any respect and cannot be tampered with by this Court. It was left for the Appellant who apparently has not challenged the correctness of the termination of his case for his failure to have filed a Statement of Claim, to have been guided by the authorities and to have taken the most appropriate step to have his case back in court at the earlier time possible, Whatever, the appropriate step is, it is however clear that it is not and cannot be, by a conversion of the order of dismissal made by the learned trial Judge to one of striking out having regard to the provision of the applicable High Court Rules pursuant to which the learned trial Judge acted.
Flowing from all that has been said is that Appellant’s issues 1 and 2 are resolved against him while Respondents’ issue 1 is resolved in their favour. Accordingly, the appeal is found to be totally lacking in merit and it fails. The order of the learned trial Judge made on 14/2/1990 dismissing the Appellant’s in the circumstances of the case, namely failure of the Appellant to have filed a Statement of Claim, is upheld.
Costs in the sum of N30,000.00 is awarded in favour of the two Respondents and against the Appellant.

ABUBAKAR JEGA ABDUL-KADIR, J.C.A.: I have read before now the lead Judgment of by my learned brother, Lokulo-Sodipe, JCA, I am in complete agreement with my learned brother that the appeal lacks merit and ought to be dismissed. Accordingly the appeal is dismissed and the order of the learned trial Judge made on 14/2/1990 dismissing the Appellant’s Suit in the circumstances of the case namely failure of the Appellant to have filed a Statement of Claim is upheld.
I abide by the order as to costs.

ISAIAH OLUFEMI AKEJU, J.C.A.: I read before now the lead judgment of my learned brother, AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. just delivered. I agree entirely with the reasons therein and the conclusion that the appeal is lacking in merit. I therefore dismiss the appeal and abide by the consequential order therein as well as the award of costs.

Appearances

Ikenna C. EjinkonyeFor Appellant

AND

G. E. Ezeuko with A. C. Ezeodili (Mrs.)For Respondent