HOMUS STEEL LIMITED & ANOR v. DIAMOND BANK PLC
(2019)LCN/13114(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 16th day of April, 2019
CA/E/150/2015
JUSTICES
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria
ABUBAKAR SADIQ UMAR Justice of The Court of Appeal of Nigeria
Between
1. HOMUS STEEL LIMITED
2. CHIEF IKENNA ODIMEGWU Appellant(s)
AND
DIAMOND BANK PLC Respondent(s)
RATIO
THE PRIMARY PURPOSE OF A PRELIMINARY OBJECTION
The primary purpose of a Preliminary Objection is to determine or terminate the proceedings in limine at the time it was raised. It therefore behooves the Court to hear and determine it first before embarking on the hearing or consideration of the issues to which or in respect of which the objection was raised in order to avoid what might turn out to be an unnecessary exercise. My position to first determine the Respondent’s preliminary objection represents the position of law on the practice and procedure of the Courts in such a situation. See ONYEKWULUJE V. ANIMASHAUN (1996) 3 NWLR (PT. 439) 637, OKOI V. IBIANG (2002) 10 NWLR (PT. 776)455, GOJI V. EWETE (2001) 15 NWLR (PT. 736) 273, NNB PLC V. IMONIKHE (2002) 5 NWLR (PT. 760) 294; NIGERIAN NAVY V. GARRICK (2006) 4 NWLR (PT. 969)69 AT P.89. PER UMAR, J.C.A.
FORMULATION OF GROUNDS OF APPEAL INTO LAW, MIXED LAW AND FACTS, AND FACTS ONLY
Perhaps, the most crucial aspect of appellate practice is the formulation and classification of grounds of appeal into law, mixed law and fact and facts only. This process has huge significance on the validity and competence of grounds of appeal in terms of its content and procedural requirement under Sections 233(1) (a) and 241(a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
It is trite law that the mere christening of a ground of appeal as ground of law does not automatically make it so. There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the grounds of appeal in the case concerned. See OGBECHIE & ORS V ONOCHIE & ORS (1986) LPELR-2278(SC). PER UMAR, J.C.A.
WHETHER OR NOT A VALID COMPETENT ISSUE CAN ARISE FROM A MIXTURE OF COMPETENT AND INCOMPETENT GROUND OF APPEAL
The question is, can a valid competent issue arise from a mixture of competent and incompetent grounds of appeal. The apex Court did not mince words in giving an answer to such a question in the case of JEV & ANOR V IYORTYOM (2014) LPELR-23000 (SC) wherein Okoro J.S.C held thus:
?The position of the law is that issues distilled from other incompetent grounds and competent grounds of appeal are in themselves not competent and liable to be struck out.?
The law is trite that an incompetent ground of appeal cannot give birth to a competent issue for determination. SeeAMADI V ORISAKWE (1997) 7 NWLR (PT. 115) 161 AT 170. PER UMAR, J.C.A.
ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the Federal High Court, Awka Judicial Division, delivered by M.L Abubakar J. on the 4th day of March, 2015. In the said ruling, the learned trial judge refused the Preliminary Objection of the Defendants now Appellant challenging the competence of the Originating summons seeking to validate the Receivership/Management over the Assets and undertakings of the 1st Defendant, dated the 8th day of January, 2014 on account of alleged indebtedness.
BRIEF FACTS OF THE CASE
The facts that lead to the institution of this interlocutory appeal as gleaned from the record was that by an Originating Summons filed on the 8th January, 2014, the Plaintiff, now Respondent in the instant appeal claimed sundry declaratory and injunctive reliefs against the Defendants, now Appellants. The reliefs sought by the Plaintiff relate to and concern the indebtedness of the Appellants to the Respondent.
?The case of the Respondent was that the declarations sought relate essentially to the question as to whether the Respondent is entitled to appoint a
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Receiver/Manager over the assets of the 1st Defendant having regard to the clauses of the Deed of Debenture made between the Respondent and the 1st Appellant, and if so, whether the appointment of one Charles Adichie Nwagbogu is valid and proper. The injunctive reliefs according to the Respondent are essential to avoid any interference with the obstruction to the Receiver/Manager in the execution of his duties and at the same time, restrain the Appellants and their agents from dealing with the affairs of the 1st Appellant company without due regard to the vested rights of the Respondent. See PAGE 1-3 of the records.
Upon being served with the originating process together with its accompanying documents, the Appellants filed a Preliminary Objection dated 1st April, 2014 to the hearing of the Originating Summons. The Preliminary Objection challenged the competence of the suit, as well as the jurisdiction of the trial Court to entertain the matter. See PAGES 156-191 of the records.
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The Respondent upon be served with the Appellants? application joined issues by filing a counter-affidavit accompanied by a written address in opposition to the
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said application. See PAGES 192-214 of the records.
The Appellants in turn filed their Reply on points of Law and this can be gleaned from, PAGES 215-232 of the records. The learned trial judge on the 4th March, 2015 delivered its ruling wherein he dismissed the Appellants? Preliminary Objection challenging the competence of the suit and its jurisdiction to entertain the matter. See PAGES 244-263 of the records.
The Appellant naturally aggrieved by the ruling of the Court below, on the 18th day of March, 2015 filed a Notice of Appeal dated on 17th March, 2015. The Grounds of Appeal without their particulars are:
?GROUND ONE?
ERROR IN LAW
The fundamental/settled principle of judicial/arbitral justice or justice properly so called, being to decide the case on the facts presented by the parties; so that, the Learned Trial Judge erred in law failing to even summarize the points of law filed in challenge of the Counter-Affidavit and the written address thereon, much less evaluating same, thereby occasioning a miscarriage of justice and/or a breach of fair hearing.
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GROUND TWO
ERROR IN LAW
In the abdication of the Learned Trial Judge?s obligation to evaluate the Reply on Points of Law, thereby rendering the counter-affidavit and the written address thereon unchallenged- and/or thereby obscuring the weighty issues of competence of the suit, the breach of the Evidence Act, the fraud (or diversion of the Appellants? fund), etc, the Learned Trial Judge rendered a perverse decision and thereby erred in law.
GROUND THREE
ERROR IN LAW
The Learned Trial Judge erred in merely summarizing the preliminary objection without evaluating same vis–vis the counter-affidavit and/or howsoever contrasting the issues thereon, thereby rendering a decision ex cathedra and/or tendentious and/or curious and/or grotesque and/or a priori- this perverse.
GROUND FOUR
ERROR IN LAW
There being no finding of facts on the plethora of depositions and/or the issues raised by the Appellants in both the preliminary objection and Reply on Points of Law being ignored ? the purported issue raised by the Learned Trial Judge being absolutely/totally unrelated to the preliminary objection and a mere summarizing of the provisions of the
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Companies and Allied Matters Act ? the Learned Trial Judge presumed/presupposed the conclusion reached in the Ruling, and thereby erred in law.
GROUND FIVE
ERROR IN LAW
The Learned Trial Judge erred in Law in failing to determine the competence/triability of the originating process within the challenge to same contained in paragraph 2.02/3.2.00 of the Reply on Points of Law, thereby presuming the competence of the originating process a priori.
GROUND SIX
ERROR IN LAW
The cardinal duty of a judicial arbiter, the Learned Trial Judge, being to ascertain/demonstrate understanding of the issue at stake and confine themselves thereon, and not to prop up the case of either party ? the failure of which is a breach of fair hearing ? the Learned Trial Judge erred in law in failing to discern that the principal prayers in the Originating Process (prayer 1 and 2) are not sustainable upon the alleged indebtedness being proven and not by mere appointment of the Receiver Manager and filing of the appointment at/with the Corporate Affairs Commission.
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GROUND SEVEN
ERROR IN LAW
In affirming the validity/regularity of Exhibits A ? F without more, without explanation, and/or why the challenge of same by the Appellants was not sustained ? which affirmation was thus reached ex cathedra ? the Learned Trial Judge erred in Law, as not having acted judicially and judiciously.
GROUND EIGHT
ERROR IN LAW
The Learned Trial Judge erred in Law in failure/feigning to apprehend the substance of the dispute on the purported ?Final Demand Notice? dated 10, 2012 (?Exhibit D? in the originating process) and/or in failing to assign any basis for holding the Respondent?s argument thereon and/or in rendering a different reason for validating same otherwise the dispute thereon ? which was that the purported Demand Notice being directed at:-
?The Managing Director
Plot 52lN5 Harbour Industrial Layout,
Atani Road
Onitsha
Anambra State?
Was ineffectual as there was no recipient as no company existed called the addresses as
?Plot 52lN5 Harbour Industrial Layout?.?
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GROUND NINE
ERROR IN LAW
?The Learned Trial Judge erred in law in failing to decide on the disclosed fraud by the Respondent on the Appellant ? whereof it was shown by the Respondent that the purported indebtedness consist of money which the Respondent received from the Central Bank of Nigeria/Bank of Industries Intervention Facility for the Homus Steel Limited but was diverted by the Respondent to satisfy the Respondent of debt owed to the Respondent by third parties which the Respondent termed ?Sister companies? of the Homus Steel Limited.
GROUND TEN
ERROR IN LAW
The Learned Trial Judge erred in law in founding competence of the Receivership without first determining the vexed question of the purported indebtedness ? thereby presuming the purported indebtedness on which the purported Receivership is claimed.
The Appellants? Brief of Argument dated the 29th day of June, 2015 and filed on the same date pursuant to an Order of this Honourable Court made on the 3rd day of July, 2017 deeming the said brief as being properly filed and served. The Appellants? Reply Brief dated 12th day of October, 2015 and filed on the 13th day of October, 2015 pursuant to an Order of
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this Honourable Court made on the 3rd day of July, 2017 deeming the said Reply brief as being properly filed and served. Both briefs were settled by PETER OBI, ESQ. The Respondent?s brief dated the 27th day of July, 2015 and filed on the 30th day of July, 20154. The said brief was settled by PROFESSOR G.M. NWAGBOGU.
Learned counsel for the Appellants distilled a sole issue for determination of this appeal to wit:
?Whether the Learned Trial Judge did not abdicate His bounden duty/obligation to render a judicial and judicious decision. (Grounds 1,2,3,4,5,6,7,8,9 And 10 of the Grounds of Appeal).?
RESOLUTION
The Respondent has by way of a Preliminary Objection incorporated in its Respondent’s brief, challenged the validity of some of the grounds of appeal contained in the Appellants? Notice of Appeal which is the machinery upon which this interlocutory appeal thrives. Before I proceed to consider the issues raised in this appeal, it is imperative to first address the Preliminary Objection raised by the Respondent in this appeal. The primary purpose of a Preliminary Objection is to determine or terminate the
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proceedings in limine at the time it was raised. It therefore behooves the Court to hear and determine it first before embarking on the hearing or consideration of the issues to which or in respect of which the objection was raised in order to avoid what might turn out to be an unnecessary exercise. My position to first determine the Respondent’s preliminary objection represents the position of law on the practice and procedure of the Courts in such a situation. See ONYEKWULUJE V. ANIMASHAUN (1996) 3 NWLR (PT. 439) 637, OKOI V. IBIANG (2002) 10 NWLR (PT. 776)455, GOJI V. EWETE (2001) 15 NWLR (PT. 736) 273, NNB PLC V. IMONIKHE (2002) 5 NWLR (PT. 760) 294; NIGERIAN NAVY V. GARRICK (2006) 4 NWLR (PT. 969)69 AT P.89.
The ground upon which the Respondent?s Preliminary Objection is predicated is that:
The Respondent objector shall contend at the hearing of this appeal that Grounds 2, 3, 4, 6, 9 and 10 of the Appellants? Grounds of Appeal are patently incompetent as they clearly and manifestly involve a consideration by this Honourable Court of the entire gamut of affidavit evidence in this case as well as findings of facts of the Court below, when leave
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of the said Court not this Honourable Court has been sought and obtained.
ARGUMENTS ON THE PRELIMINARY OBJECTION
It is the contention of counsel for the Respondent that Grounds 2, 3, 4, 6, 9 and 10 of the Appellants’ Grounds of Appeal are patently incompetent as they clearly involve a consideration by the Honourable Court of the entire gamut of affidavit evidence in this issue as well as findings of facts of the Court below, when the leave of the lower Court not that of this Court was sought and obtained.
GROUNDS 2, 3 AND 4
Is the submission of learned counsel for the Respondents that the Appellants’ preliminary objection was founded on incompetence of action and lack of jurisdiction of the trial Court and that for such threshold to be determined, averments in the supporting and opposing affidavit evidence of both parties would be considered. Counsel further submitted that these averments relate to facts, proved or disproved and the Appellants’ main contention in these grounds is that the Court below failed to evaluate the affidavit evidence in considering the issues of preliminary objection, thereby rendering its ruling perverse.<br< p=””
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Premised on the foregoing submissions, counsel submitted that assuming, but not conceding that the Appellants’ complaint is well founded in law, the position of the law is that the Appellate Court cannot embark on such review exercise without the leave of either Courts because the three grounds involve mixed questions of law and facts, not minding the way they might have been couched. Counsel submitted further that the instant appeal is not against a final decision of the lower Court but against an interlocutory decision of that Court with the main and substantive issues of indebtedness and the enforcement of clauses in the Deed of Debenture still pending in the lower Court.
Counsel referred this Court to Section 241 (1) a & b of the Constitution of the Federal Republic of Nigeria 1999; NWADIKE V IBEKWE (1987) 4 N.W.L.R (Part 67) 178 and submitted that since no leave has been obtained, grounds 2, 3 and 4 of the Appellants Grounds of Appeal are incompetent, invalid and fundamentally defective and thus are liable to be struck out.
GROUNDS 6 AND 10
Learned counsel for the Respondent submitted that grounds 6 and 10 of the Appellants’ Grounds
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of Appeal suffer from the same affliction of incompetence and invalidity and as such incurable defective because they raise albeit erroneously the question of the indebtedness of the Respondent. Counsel submitted further that a consideration of these questions followed by a resolution one way or the other by this Honourable Court, would definitely involve an evaluation of the affidavit evidence of the parties.
It is the contention of counsel that both grounds of appeal involve a question of mixed law and facts and considering the position of our law, both grounds cannot be argued or pursued by way of an issue being formulated out of both grounds for determination without the leave of Court.
In addition to the submissions made above, counsel for the Respondent submits that these grounds are argumentative and as such violates the provisions of Order 6 Rule 2 (3) of the Court of Appeal Rules and therefore, deserve to be struck out.
GROUND 9
It is the submission of counsel for the Respondent that the unfolding compliant of this ground is that the Court below ought to have considered and made a determination on the alleged issue of fraud by the
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Respondent on the Appellants. Counsel submitted further that the issue of fraud can only be unraveled by an examination and evaluation of affidavit evidence which makes the ground that of mixed law and facts. On the whole, counsel submitted that this ground cannot be validly brought before this Court in the absence of the leave of the lower Court or that of this Court had and obtained. He urged the Court to strike out this ground for being incompetent.
APPELLANTS’ REPLY TO THE PRELIMINARY OBJECTION
Learned counsel for the Appellants’ referred to the principles guiding the Court in a circumstance to determine whether a ground of appeal is one of law, of fact or of mixed law and fact. Thereafter, Counsel made the following submissions regarding the attacked grounds 2, 3, 4, 6, 9 and 10 in the Respondent’s preliminary objection.
Counsel submitted that grounds 2 of the Grounds of Appeal complained that the trial Court was judicially compelled to evaluate the points of law filed in challenge of the Respondent’s Counter Affidavit and Written Address and that the trial Court merely acknowledged the pendency of same, this ground according to counsel
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therefore challenges the duty of the trial judge as judex and thus an obvious ground of law.
On the competence of ground 3, counsel submitted that the ground complained that the trial Court merely summarized the Preliminary Objection and the Counter Affidavit without evaluating them, thus failing to contrast the issues. This ground according to counsel also challenges the duty of the trial Court as judex and thus an obvious ground of law.
With respect to the competence of ground 4, counsel submitted that the ground complained that merely summarizing the facts without contrasting same, the trial Court could not thereby make a legal finding. This ground according to counsel also challenges the duty of the trial judge as judex and thus an obvious ground of law.
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On the competence of ground 6, counsel for the Appellants submitted that the ground complained that the cardinal duty of the learned trial judge being to ascertain the cause and demonstrate same on record, the failure there fore deprived the Ruling of juridical worth. This ground according to counsel also challenges the duty of the trial judge as judex and thus an obvious ground of law.
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Learned counsel for the Appellants submitted further that ground 9 challenged the failure of the trial judge to decide on the fraud found on record. Counsel referred this Honourable court to FASEL SERVICES LTD & ANOR V NPA & ANOR (2009) 4-5 SC (PT.III) 101, 118 (10-20). He submitted further that the Respondent startlingly admitted the failure of the trial judge to evaluate the Affidavit for whatsoever outcome, which is the duty of the trial Court. This ground according to counsel also challenges the duty of the trial judge as judex and thus an obvious ground of law.
On the whole, counsel submitted that the Respondent has not been incisive in the classification of the Grounds of Appeal which is a subject of rather tasking demand. Counsel further urged this Court to dismiss the preliminary objection as a misapprehension of the genre of classification of grounds of appeal.
RESOLUTION OF PRELIMINARY OBJECTION
Perhaps, the most crucial aspect of appellate practice is the formulation and classification of grounds of appeal into law, mixed law and fact and facts only. This process has huge significance on the validity and competence of
15
grounds of appeal in terms of its content and procedural requirement under Sections 233(1) (a) and 241(a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
It is trite law that the mere christening of a ground of appeal as ground of law does not automatically make it so. There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the grounds of appeal in the case concerned. See OGBECHIE & ORS V ONOCHIE & ORS (1986) LPELR-2278(SC).
The Respondent has by way of preliminary objection challenged the Grounds 2, 3, 4, 6, 9 and 10 of the Appellants? Grounds of Appeal. I have painstakingly considered the attacked grounds together with their particulars. I agree with learned counsel to the Respondents that the contention of the Appellants in grounds 2, 3 and 4 is that the Court below failed to evaluate the affidavit evidence in considering issues of preliminary objection, thereby rendering the Ruling perverse. It is equally important to state that Grounds 6, 9 and 10 suffer from the same affliction.
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It is important to state that Counsel to the Appellants worded the Grounds of Appeal in such a confused manner coupled with unnecessary use of grammar that, taken with the particulars, the fact that they are at least grounds of mixed law and fact becomes inescapable. Permit me to reproduce for instance Ground 9 of the Appellants? Grounds of Appeal. Grounds 9 states thus:
GROUND NINE
ERROR IN LAW
The Learned Trial Judge erred in law in failing to decide on the disclosed fraud by the Respondent on the Appellant ? whereof it was shown by the Respondent that the purported indebtedness consist of money which the Respondent received from the Central Bank of Nigeria/Bank of Industries Intervention Facility for the Homus Steel Limited but was diverted by the Respondent to satisfy the Respondent of debt owed to the Respondent by third parties which the Respondent termed ?Sister companies? of the Homus Steel Limited.
?I am of the opinion that there is no way the learned trial judge would sufficiently decide the fraud allegedly perpetuated on the Appellants by the Respondents without considering the facts contained in the Affidavit and Counter-Affidavit of
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both parties. It is the law that a person alleging fraud is not only required to make the allegations in his pleadings but must set out the particulars of facts establishing the alleged fraud, so that the defendant goes to Court prepared to meet them. See OLUFUNMISE V FALANA (1990) 3 NWLR, PT. 136, PG..
There can be no doubt that some of the particulars of ground 9 as they stand raise the issues of fact, or mixed law and fact. For quite apart from the rather confused manner in which the general proposition in the ground is worded, the clear particulars revealed in particular (1), (5) and (6) of grounds 9, is mixed up with particulars of fact or mixed law and fact.
The law is trite that the Appellant must be sure of the nature of his grounds of appeal in order to determine whether the procedural requirement under Sections 241 of the Constitution of the Federal Republic of Nigeria, 1999 is complied with. Where there is a misconception about this, its effect is devastating.
?One of the obvious results of this state of the law is that where an Appellant?s grounds of appeal are only of facts or mixed law and facts, the grounds, and hence the
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appeal must be struck out unless leave had been obtained. On the other hand, where no leave had been obtained and some of the other grounds are of law and others are either of facts or mixed law and facts, only those which are grounds of law are competent. All grounds of facts or mixed law and facts must be struck out.
Looking at grounds 2, 3, 4, 6, 9 and 10 as filed, I agree with counsel to the Respondent that they do not raise questions of law alone and could not have been filed or argued without leave.
The problem in the instant appeal does appear to have arisen from any doubt about these clear basic principles. It rather appears to have arisen from the failure of learned counsel for the Appellants? to comprehend clearly what in fact is a ground of law and the distinction between grounds of law, on the one hand, and those of facts or mixed law and facts on the other hand.
?He filed ten grounds of appeal and went ahead to give lengthy particulars. It is remarkable that the ten grounds of law span over nine pages of typed-script. On the apparent prolixity of these grounds of appeal it is necessary to remind counsel in passing that grounds
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of appeal are intended to be stated shortly and simply.
Because of the problem that has arisen in this appeal, and the frequency of its occurrence in many other appeals of recent. I consider it necessary to refer counsel to the Appellants to the case of OGBECHIE V ONOCHIE (1986) 2 NWLR PT.484 AT 490-493 wherein Eso J.S.C brilliantly elucidated on the legal principles on the classification of grounds of appeal into grounds of law, mixed law and facts, or facts only.
In the end, after taking arguments on the preliminary objection raised by the respondent, I strike out Grounds 2, 3, 4, 6, 9 and 10 of the Appellants? grounds of appeal for the reason that they raised questions of fact or of mixed law and fact and that leave of this Court or that of the lower Court was not obtained before the appellants filed their Notice of Appeal. This Court has got no jurisdiction to entertain an appeal on a ground of law or mixed law and fact unless, of course, leave has been obtained.
?After striking out Grounds 2, 3, 4, 6, 9 and 10, the Appellants are left with Grounds 1, 5, 7 and 8 for consideration. However, there appears to be another hurdle that the
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Appellants are faced considering the other issues which are deemed competent for consideration. The Appellants have formulated only one issue out of the lengthy Grounds of Appeal contained in their Notice of Appeal. I bear in mind that there is no principle of law or rule of Court prohibiting a party from formulating just one issue out of numerous grounds of appeal. The law only prohibits the proliferation of issues.
It is important to state that the Appellants formulated one issue out of the 10 grounds and argued all together. That is to say, the Appellants have argued together, competent grounds of appeal together with the incompetent grounds. Assuming Grounds 1, 5, 7 and 8 are competent, there are other issues that create problems to their sustenance as valid grounds, the sole issue formulated by the Appellants is distilled from all the grounds of appeal contained in the Notice of Appeal. Grounds 2, 3, 4, 6, 9 and 10 have been declared incompetent earlier. The question is, can a valid competent issue arise from a mixture of competent and incompetent grounds of appeal. The apex Court did not mince words in giving an answer to such a question in the case
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of JEV & ANOR V IYORTYOM (2014) LPELR-23000 (SC) wherein Okoro J.S.C held thus:
?The position of the law is that issues distilled from other incompetent grounds and competent grounds of appeal are in themselves not competent and liable to be struck out.?
The law is trite that an incompetent ground of appeal cannot give birth to a competent issue for determination. SeeAMADI V ORISAKWE (1997) 7 NWLR (PT. 115) 161 AT 170. In the instant appeal, the Appellants formulated a sole issue for determination which is predicated on all the grounds of appeal. In clear terms, the Appellants? sole issue for determination was predicated on grounds 1 ? 10. However, I have found in the preceding part of this judgment that grounds 2, 3, 4, 6, 9 and 10 of the Appellants? Notice of Appeal are incompetent and accordingly struck out. The Court would not be in a position to pick, choose and/or decipher which argument is from which ground of appeal. It is not the duty of the Court to sift the submissions of learned counsel to the Appellants in order to determine which arguments are predicated on the competent grounds in the
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Notice of Appeal and which argument relates to the incompetent grounds in the Notice of Appeal. I am of the view that it would amount to an exercise in futility to embark on the arduous/impossible task of attempting to salvage the arguments in the Appellants? Brief of Argument predicated on the competent grounds of appeal from the arguments predicated on the incompetent grounds of appeal. One wonders where a sentence in the Appellants? Brief of Argument is predicated on a competent and an incompetent grounds, in such a case, is the Court required to bifurcate the sentence, I think not. In this instant appeal the incompetent grounds has subsumed the competent ground and makes it impracticable/impossible to separate the argument canvassed on the competent grounds from the arguments canvassed on the incompetent grounds. The decision of the this Court in Ayalogu v. Agu (1998) 1 NWLR pt. 532 page 129 per Salami JCA is very instructive on situations like the instant appeal where the issue for determination formulated is derived from both competent and incompetent grounds of appeal, thus:- ‘This is the mixed grill served and I am of the firm
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view that it is not the business of the Court to sift chaff from grain by performing a surgical operation on the appellant’s brief to extract argument in respect of the valid grounds from the invalid ones, as such exercise may involve the Court in descending into the arena and the dust rising therefrom may of necessity becloud its judgment. The duty of the Court is that of an empire whose function is the interest of justice is to tend the rope and not to step into the brawl by existing argument on good grounds of appeal from those of bad ones.’
It is trite that where where the issue for determination formulated by an Appellant is derived from both competent and incompetent grounds of appeal, it is not a matter of mere technicality; the appellate Courts frown at it and must strike out the argument. See AKUCHIE V. NWAMADI (1992) 8 NWLR (PT. 258) 214 AT 224. I therefore, consider it as a futile exercise to take the grounds which is incompetent and sift that which is competent therefrom because all the grounds were argued under one issue. It is on the premise of the above that I strike out the sole issue submitted by the Appellants for the determination of this appeal.
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Regrettably, the appeal is fraught with so many inescapable irregularities that have made it impossible to survive. It is sad that learned counsel to the Appellants did not do the needful at the appropriate time. The irregularities have left the Appellants empty handed in this Court and there is nothing useful to resolve when there is no competent issue for the determination of this appeal. The Appellants could not be heard on their main contentions in the appeal because of their failure to obtain the requisite leave of the Court below or that of this Court. This is sad but inevitable, as this Court can only do justice according to law and within its jurisdiction.
The Preliminary Objection succeeds. The only duty this Court has in the circumstances is to strike out the incompetent Notice of Appeal. The Notice of Appeal is hereby struck out for being incompetent. I must also comment on the way and manner in which both counsel prepared their respective briefs. I am not impressed by the unnecessary verbosity and use of synonyms employed by both counsel. Both counsel made it look like they were in a tug of grammatical superiority in
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the way and manner in which they prepared their respective briefs. It is evident that both Counsel have not grasped the rudiments of brief writing. The Supreme Court and of course this Court have consistently emphasize the importance of good brief writing. There is need to make a brief readable in simple and plain language, attractive in form and presentation and most importantly understandable to anyone reading same.
Both counsel most especially counsel to the Appellants prepared the Appellants? brief like it were a compendium of vocabularies. Communication is a key tool in brief writing and on this note, I must state frankly that I am not impressed.
For the foregoing reasons, I resolve that the Respondent?s Preliminary Objection succeeds and the Appellants? Notice of Appeal is struck out for being grossly incompetent. The case is remitted to the lower Court for determination by a different trial judge other than Honourable Justice M.L Abubakar.
IGNATIUS IGWE AGUBE, J.C.A.: I had the opportunity of reading the Lead Judgment just delivered by my Lord and Learned brother A. S.
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UMAR JCA? and I am in total agreement with his reasoning and conclusion that this Appeal is incompetent notwithstanding the extreme verbosity and grandiloquence exhibited by the respective Learned Counsel for the parties particularly the Learned Counsel for the Appellants in their respective Briefs of argument.
Briefs, I must agree with my Learned Brother are expected to be rendered by Learned Counsel in lucid and simple language so as to convey the kernel of their Client’s cases and not a forum to demonstrate how bombastic and garrulous a Lawyer is. I need say no more since Lord has hit the nail on the Head. I also hope a word is enough for the wise.
I also in the light of the above and the more elaborate reasons advanced by my learned brother, dismiss the Appellants? Appeal and abide by all the consequential Orders as made in the Lead Judgment.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have had the advantage of reading in draft the lead judgment written by my learned brother, ABUBAKAR SADIQ UMAR, JCA. He has exhaustively dealt with the issues in this appeal and I entirely agree with him. I adopt his reasoning and conclusions as mine.
?I abide by the consequential orders made therein.
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Appearances:
M.O. BissongFor Appellant(s)
Prof. G. M Nwogbagu with him, C.A NwogbaguFor Respondent(s)
Appearances
M.O. BissongFor Appellant
AND
Prof. G. M Nwogbagu with him, C.A NwogbaguFor Respondent
