EBIMOBOWEI IKPANGI & ANOR v. CHIEF F.E. ISAIAH & ORS
(2019)LCN/13023(CA)
In The Court of Appeal of Nigeria
On Thursday, the 4th day of April, 2019
CA/PH/572/2014
JUSTICES
CORDELIA IFEOMA JOMBO-OFO 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
1. EBIMOBOWEI IKPANGI
2. NEWCOMER IKPANGI
(For themselves and on behalf of the Ikpangi family of Ondewari Community in the Southern Ijaw L.G.A. of Bayelsa State) Appellant(s)
AND
1. CHIEF F.E. ISAIAH
2. KUROBO SAMESI
(Sued in their capacity as accredited elders & Community representatives of the Ondewari Community, Southern Ijaw L.G.A. of Bayelsa State)
– 1st set of Respondents
AND
1. CHIEF EMMANUEL KOKORIFA
(Sued in his capacity as accredited elder & Community representative of the Okpotuwari Community, Southern Ijaw L.G.A. of Bayelsa State)
-2nd set of Respondents
AND
1. CHIEF J.B. BAZIGHA
2. MR. D. EGEUN
(Sued in their capacity as accredited elders & Community representatives of the Korokorosei Community, Southern Ijaw of Bayelsa State)
-3rd set of Respondents Respondent(s)
RATIO
WHETHER OR NOT GROUNDS OF APPEAL MUST BE DERIVED FROM THE DECISION OF THE COURT APPEALED AGAINST
The law is well settled that grounds of appeal must be derived from and/or attack the ration decidendi of the decision of the Court in the ruling or judgment appealed against and any ground of appeal which does not arise from or flow from the judgment appealed against is incompetent and liable to be struck out.?
See also Ajayi V. Ajayi (2014) LPELR 22471; Lafarge Cement WAPCO Nig Plc V. Owolabi (2014) LPELR 24385 and Ogundare V. Ogunlowo (1997) 6 NWLR (Pt 509) 360. PER LAMIDO, J.C.A.
DEFINITION OF A GROUND OF APPEAL
A ground of appeal can be described as a combination of errors of law or facts alleged by the Appellant which constitute the defect in the judgment appealed against and which is relied upon to have the judgment set aside. The ground of appeal is thus the reasons why the decision on appeal is considered by the aggrieved to be wrong. See Kubor & Anor V. Dickson & Ors (2012) LPELR 15364 and Yamo (Nig) Ltd & Anor V. Intercontinental Bank Plc(2014) LPELR 22434. PER LAMIDO, J.C.A.
ABUBAKAR MUAZU LAMIDO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Bayelsa State High Court Yenagoa Judicial Division delivered by Aganaba, J on 30/04/2014. By their writ of summons and statement of claim, the claimants claimed the following reliefs against the defendants:-
1. A DECLARATION that the claimant is the exclusive customary and bona fide owner from time immemorial of all that piece and or parcel of land lying known and situate at Amataina Bush Ondewari Community, Southern Ijaw Local Government Area of Bayelsa State and more particularly described in survey plan No ENL/LO-001/BS/OHC/2002 and dated 26/07/2002 in the area verged RED.
2. AN ORDER PERPETUAL INJUNCTION of the Honourable Court permanently restraining the defendants, their agents, representatives, or any other person or body claiming directly, through or under the defendants from trespassing, interfering and or disturbing the claimant?s right to exclusive customary and bonafide ownership of all that piece and or parcel of land lying known and situate at AMATAINA BUSH Ondewari Community, Southern Ijaw Local
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Government Area of Bayelsa State and more particularly described in survey plan number ENL/LO-001/BS/OHC/2002 and dated 26/07/2002 in the area verged RED.
3. The sum of N100,000.00 (One Hundred Million Naira only) representing general damages suffered by the claimants.
4. The cost of this action.
The originating processes were served on the defendants. The 1st and 2nd set of defendants entered a conditional appearance and also filed a notice of Preliminary Objection, challenging the jurisdiction of the trial Court on the ground that the suit is statute barred. Upon hearing the Preliminary Objection, the trial Court in a considered ruling upheld the Objection and struck out the suit for being caught up by the statute of limitation.
The claimants were aggrieved and filed this appeal vide a notice of appeal. The lone ground of appeal is couched thus:-
GROUND OF APPEAL
His Lordship, the Honourable learned trial Judge erred in law and fact in holding that the cause of action in the substantive suit arose in 2012 and therefore becomes statute barred.?
PARTICULARS OF ERROR
(i) The cause of action arose in 2002
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when Nigeria Agip Oil Company Limited (NAOC) discovered oil on the land in dispute and the defendants started fabricating stories claiming communal ownership.
(ii) The cause of action did not arise when the defendant reneged from the agreement reached sometime in 2003 between them and the claimants.
At the hearing of this appeal, the 3rd set of Respondents filed and argued a Preliminary Objection urging this Court to strike out the lone ground of appeal and the notice of appeal for being incompetent. The grounds upon which the said Objection is premised are:-
1. The ground of appeal complains of both error in law and fact at the same time.
2. The ground of appeal is vague or general in terms and discloses no reasonable ground of appeal.
The 3rd set of Respondents argued the said Objection in their brief of argument filed on 22/09/2015 but deemed on 06/03/17. Learned Counsel for the 3rd set of Respondents formulated an issue for determination. The issue formulated is:-
Whether the Appellant?s sole ground of appeal is competent.
?The Appellant Responded to the Preliminary Objections in their Appellant?s
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reply brief filed on 25/04/17 and raised lone issue for determination. The issue for determination is as follows:-
Whether or not the notice of appeal dated the 30th day of May 2014 substantially complied with Order 6 Rules 2 and 3 of the Court of Appeal Rules 2011 and therefore subject to amendment.
In the resolution of this Preliminary Objection the lone issue formulated by the 3rd set of Respondents will in my view determine effectively the fate of this Objection and will be adopted by the Court. The issue is ?
Whether the Appellant?s sole ground of appeal is competent.
In arguing the lone issue, learned counsel for the 3rd set of Respondents submitted that the issue of jurisdiction is fundamental that it can be taken at any stage of the proceedings and even for the first time at the Supreme Court and in determining the competence of an appeal, the Court is expected to look at the notice of appeal which is the initiating process and foundation of an appeal.
?Learned counsel submitted further that a look at the ground of appeal will reveal that it complains about both error in law and fact in contravention of
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Order 6 Rules 2 (2) and (3) of the Court of Appeal Rules 2011 and the law is trite that a ground of appeal which alleges both error in law and misdirection and or on facts is not permitted by the rules of this Court and a ground in contravention is incompetent and liable to be struck out. He referred to Chidiak V. Laguda (1964) NWLR 123; Anadi V. Okoli (1977) 7SC 57; Nwadike V. Ibekwe (1987) 4 NWLR (Pt 67) 718; Olowokere V. African Newspapers Ltd (1993) 5 NWLR (Pt 295) 583; Oduah V. FRN (2012) All FWLR (Pt 650) 1348; Boogom V. Awam (1995) 7 NWLR (Pt 410) 692; FBN Ltd V. Njoku (1995) 3 NWLR (Pt 384) 457 and Aniekwe V. Okereke (1996) 6 NWLR (Pt 452) 60.
He also argued that where the sole ground of appeal is incompetent, then the notice of appeal is also incompetent and liable to be struck out there being no valid ground to sustain it. He referred to Order 6 Rule 2 (1) and CCB V. Ekperi (2007) 3 NWLR (Pt 1022) 493; FBN Ltd V. Njoku (supra) and Nsirim V. Nsirim (1990) 1 NWLR (Pt 138) 285. Learned counsel urged the Court to uphold the Objection and strike out the appeal.
?Learned counsel for the Appellant submitted in response to the Preliminary
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Objection that the errors in the drafting of the grounds of appeal are not so fundamental to prevent the hearing of this appeal on its merits since the notice of appeal conformed with Order 6 Rule 2 (1) of the Court of Appeal Rules 2011 and the ground of appeal is in substantial compliance with Order 6 Rules 2 (2), (3) and 3 of the Court of Appeals Rules. Learned counsel further explained that the complain in the ground is that the trial Court misapplied the limitation law to the fact before it which makes it an error in law simpliciter. He referred to Anoghalu V. Oraelosi (1999) 13 NWLR (Pt 634) 297; Usman V. Kaduna State House of Assembly (2008) All FWLR (Pt 397) 78; Sosanya V. Onadeko (2005) All FWLR (Pt 255) 1000 and Ogbechie V. Onochie (1986) 2 NWLR (Pt 23) 484.
He also argued that the ground of appeal is not vague in the sense that all parties filed their various briefs of argument in the appeal. He referred to Oduah V. FRN (2012) LPELR 9220 and CBN V. Okojie (2002) 8 NWLR (Pt 786) 61.
?Finally learned counsel submitted that the ground of appeal is not fundamentally defective and is subject to Order 6 Rule 15 of the Court of Appeal Rules
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which allows amendment of the notice of appeal. He referred Pharmatek Ind. Project V. Ojo (1996) 1 NWLR (Pt 424) 332; Ibrahim V. Oshoma (1991) 6 NWLR (Pt 197) 286; Falana V. Oloro (2013) All FWLR (Pt 66) 576 and Nalsa Team Associates V. NNPC (1991) 8 NWLR (Pt 212) 652. Counsel urged the Court to overrule the Preliminary Objection.
The fulcrum of the 3rd Respondent?s attack on the competence of this appeal lies on the manner in which the sole ground of appeal was framed by the Appellant in that the ground of appeal complains on both the error in law and fact at the same time. Secondly, that the said sole ground is vague or general in terms and discloses no reasonable ground of appeal allowed by the rules of this Court.
A ground of appeal can be described as a combination of errors of law or facts alleged by the Appellant which constitute the defect in the judgment appealed against and which is relied upon to have the judgment set aside. The ground of appeal is thus the reasons why the decision on appeal is considered by the aggrieved to be wrong. See Kubor & Anor V. Dickson & Ors (2012) LPELR 15364 and Yamo (Nig) Ltd & Anor V. Intercontinental Bank Plc(2014) LPELR 22434.
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?Now, the starting point is a consideration of the provision of Order 6 Rule 2 (2) of the Court of Appeal Rules 2011. It is provided therein that:
Order 6 Rule 2 (2):-
Where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection shall be clearly stated.
The above provision has been given a wide interpretation in very many decisions of this Court and the apex Court. Quite a number of decisions are to the effect that a ground of appeal cannot be an error in law and a misdirection at the same time. By their very nature, a single ground of appeal cannot be a combination of the two i.e error and misdirection in law at the same time. See Elendu V. Ekwoaba (1995) 3 NWLR (Pt 386) 704 @ 719 and Nwadike V. Ibekwe (1987) 4 NWLR (Pt 67) 718. Another view is that, the fact that a ground of appeal is framed as an error of law and misdirection does not make it incompetent. See Aderounmu & Anor V. Olowu (2000) LPELR 141 and Omidiran V Etteh & Ors (2010) LPELR 9160.
It is also the decision of the Courts that a ground of appeal cannot
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complain of error in law and fact where it is so framed, it is incompetent and liable to be struck out. See NNPC Pensions Ltd V. Vita Constructions Ltd (2016) LPELR 41259; Dahiru & anor V. Kamale (2004) LPELR 11135; Mudi V. FBN Plc (2014) LPELR 23446 and Aniekwe V. Okereke (1996) 6 NWLR (Pt 452) 60. Whereas, some decisions are to the effect that a ground of appeal alleging both error in law and of fact is not necessarily incompetent once it is possible to make sense out of the ground, the defect in form notwithstanding. In other words, once the ground is not vague or general in terms and discloses a reasonable ground, the defect in framing it is not fatal. See Usman V. Kaduna State House of Assembly (2008) All FWLR (Pt 397); Kalu V. Chukwumerije & Ors (2011) LPELR 9188; Kubor & Anor V. Dickson & Ors (supra) and CBN V Okeb (Nig) Ltd & Ors (2014) LPELR 23162.
An examination of the sole ground of appeal under attack will reveal that it questions the holding of the trial Court that the cause of action accrued in the substantive suit in 2012. The particulars thereof are to the effect that the cause of action arose in 2002. Now, even
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learned counsel for the Appellant admitted that the ground of appeal is erroneous. The facts in the ground of appeal and its particulars do not represent the decision appealed against. Perhaps that is what informed the admission of learned Appellant?s counsel that there is an obvious error caused by the appellant?s counsel in the course of drafting the notice of appeal and counsel did nothing to rectify or amend the notice and ground of appeal.
Now, this brings me to consider the provision of Order 6 Rule 3 of the Court of Appeal Rules 2011 which provision relates to ground of appeal which is vague, general in terms and discloses no reasonable ground. The Rule provides that any ground that is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of evidence, and a ground of appeal or any part thereof which is not permitted under this rule may be struck out by the Court of its own motion or on application by the Respondent. See Order 6 Rule 3 of the Court of Appeal Rules 2011.
?The law is trite that a ground of appeal which is
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vague, general in terms or which does not disclose any reasonable ground of appeal cannot be of help in resolving an alleged complaint against a particular judgment. Rather, it makes the alleged error sought to be dealt with on appeal difficult to identify, appreciate and correct. This is because being vague, it is too general, not clear, precise or definite in what it aims to be aggrieved about. In CBN V. Okojie (supra) @ 48, Uwaifo, JSC held that:
?Vagueness of a ground of appeal may arise where it is couched in a manner which does not provide any explicit standard for its being understood or when what is stated is so uncertain that it is not susceptible of being understood. It may also be considered vague when the complaint is not defined in relation to the subject or it is not particularized or the particulars are clearly irrelevant.?
Furthermore, it is the law that a ground of appeal must of necessity arise from the decision of the Court below; it must attack the ratio decidendi of a particular judgment or ruling of a Court. InAguguo V. PDP & Ors (2013) LPELR 22052 @ 27, Abba-Aji, JCA (as he then was) held that:
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?The law is well settled that grounds of appeal must be derived from and/or attack the ration decidendi of the decision of the Court in the ruling or judgment appealed against and any ground of appeal which does not arise from or flow from the judgment appealed against is incompetent and liable to be struck out.?
See also Ajayi V. Ajayi (2014) LPELR 22471; Lafarge Cement WAPCO Nig Plc V. Owolabi (2014) LPELR 24385 and Ogundare V. Ogunlowo (1997) 6 NWLR (Pt 509) 360.
The ground of appeal as earlier stated is admitted to contain errors in its drafting by learned counsel for the Appellant. This is so because an examination of the said sole ground of appeal and a perusal of the judgment appealed against will reveal that they are poles apart. The learned trial Judge did not in the decision appealed against hold that the limitation period started in 2012 which is the fulcrum of the sole ground. Were it the holding of the learned trial Judge, the Court would not have proceeded to hold that the Appellant?s claim is statute barred. The aberration in the sole ground of appeal to my mind is an indication or pointer to the fact that it did
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not question the ratio or decision of the trial Court. Importantly, the ground of appeal as it stands cannot reasonably be reconciled with the particulars of errors supporting the said ground.
The sum total of all the issues arising from the Preliminary Objection is that the sole ground of appeal here complains of errors in law and of fact in the same breath and liberally, the guiding principle in the determination of whether or not the sole ground is competent is to find out whether it has conveyed the complaint of the Appellant to the adverse party. In the present appeal, apart from the infractions on Order 6 Rule 2 of the Court of Appeal Rules, the sole ground of appeal together with its particulars is, to my mind vague and discloses no reasonable ground of appeal. This is so, because the ground in itself is not a complaint on the ratio decidendi of the decision appealed against. It is impossible to make any sense out of the sole ground of appeal.
?Learned counsel for the Appellant admittedly concede that the ground was framed erroneously and supposedly the mistake of counsel should not be visited on the Appellant. The mistake of counsel in
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the framing of the ground is fatal to the said ground as it renders it incompetent and not in compliance with Order 6 Rule 2 and 3 of the Court of Appeal Rules. The ground is liable to be struck out for incompetence and it is accordingly struck out.
Now, having struck out the sole ground of appeal, there seems to be no ground of appeal to sustain the notice of appeal. Consequently, the notice of appeal is incompetent, and liable to be struck out as well. In the end, this Preliminary Objection is meritorious and it is upheld. The sole ground of appeal together with the notice of appeal are both incompetent and are hereby struck out. This appeal CA/PH/572/2014 is consequentially struck out as well.
I make no order as to costs
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I agree the reasoning and conclusion of my learned brother A. M. LAMIDO, JCA that the appeal be struck out.
I make no order as to costs.
MOHAMMED MUSTAPHA, J.C.A.: I agree.
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Appearances:
R.B. Ekpi, Esq.For Appellant(s)
A.F. Gbaranma for the 1st and 2nd set of Respondents.
I. Agbaragu, Esq. for 3rd set of Respondents
For Respondent(s)
Appearances
R.B. Ekpi, Esq.For Appellant
AND
A.F. Gbaranma for the 1st and 2nd set of Respondents.
I. Agbaragu, Esq. for 3rd set of RespondentsFor Respondent
