LAMINU v. SANI
(2022)LCN/17016(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Thursday, June 02, 2022
CA/K/321/2007
Before Our Lordships:
Ita George Mbaba Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Usman Alhaji Musale Justice of the Court of Appeal
Between
MALLAM SHUAIBU LAMINU APPELANT(S)
And
BARR. ABUBAKAR D. SANI RESPONDENT(S)
RATIO
WHETHER OR NOT EVERY GROUND OF APPEAL AND ISSUE MUST FLOW FROM THE JUDGMENT APPEALED AGAINST
Every ground of appeal and issue must relate to and flow from the judgment appealed against, touching on the ratio decidendi therein to be valid. See Nze Vs Aribe (2016) LPELR – 40617 CA:
“This point seems to have enjoyed some notoriety in the law governing appellate proceedings, that the grounds of appeal and/or issues for determination of appeal, must relate to and flow or derive from the judgment appealed against, touching on the ratio decidendi. See Anozia vs Nnani & Anor (2015) LPELR -24277 (CA); (2015) 8 NWLR (pt. 1461) 241, were it was held: The law is trite, that an appeal (the grounds and issues therefrom) must be founded on and derived from a valid complaint touching on the ratio decidendi (life issue) of the decision appealed against. See the case of Obosi vs. NIPOST (2013) 21397 CA, UNILORIN vs. Olawepo (2012) 52 WRN 42, Alataha vs. Asin (1999) 5 NWLR (pt. 601) 32, Punch Nig. Ltd vs. Jumsun Nig. Ltd (2011) 12 NWLR (Pt. 1260) 162. Also in Key Stone Bank Ltd vs Oyewale (2014) LPELR -23612 (CA), this Court held: The law is well settled that a ground of appeal or issue distilled therefrom must derive and flow from the judgment appealed against, to be valid. The cases on this are all over the place … and the reason for this position is not farfetched, the issue being that, it will be unfair or unjust to accuse the trial Court, that it erred (as is the usual language of Appellant in faulting the judgment of the trial judge) when the issue the judge is accused of was not even raised or canvased by the parties for the lower Court to consider in its judgment. Every appeal is a fault-finding with the judgment appealed against, and so where a matter was not raised and considered by the Court, it cannot form part of the judgment on appeal. See also Ossai vs. FRN (2013) WRN 87; Shettima vs. Goni (2012) 18 NWLR (pt. 1297) 413.” PER MBABA, JC.A.
As stated earlier in this judgment, such combining of strange grounds of two separate judgments/rulings cannot be allowed to generate a valid issue for determination of appeal, in my opinion. See the case of Footwear Industry Ltd Vs Dabi (2021) LPELR – 56142 CA, where we said:
“Appeal can only be argued on Issue or Issues, donated for the determination of the appeal, and the Issues must be properly related to the grounds of the appeal, which must, in turn, flow from or relate to the ratio decidendi of the judgment, appeal against. That constitutes the trite principles of law, governing argument of appeals in this Court and in the Apex Court. See the cases of Sheidu Vs The State (2014) LPELR-23018 (SC), (2014) 15 NWLR (Pt. 1429) 1, Ukwuoma Vs Okafor (2016) LPELR-41505 (CA), Fajebe & Anor Vs Opanuga (2019) LPELR-46348 (SC), North West Petroleum & Gas Co. Ltd & Anor Vs Prince Chigozie Iloh & Ors (2021) LPELR-55509 (CA).” Of course, the law is trite, that though two or more grounds of appeal can be combined to generate an issue for determination of appeal, one ground of appeal cannot be split to donate different issues for determination of appeal.”
Where grounds of appeal or issues are wrongly combined to argue appeal, the defective ground or issue thereby contaminates the entire argument, making same liable to be struck out. See Northwest Petroleum & Gas Co. Ltd & Anor Vs Iloh & Ors (2021) LPELR – 55509 CA, which held:
“…The law is trite that arguing a valid ground(s) of appeal (or issue distilled there from) together with a defective ground(s) (or issue(s)) is not permitted, as it makes the argument incompetent. This is because, the inclusion of the defective ground(s) or issue(s) in the argument, vitiates the entire submission, as the virus of defective ground(s) or issue(s) has infected the valid ground or Issue, and the entire argument. See the case of Augustine & Anor Vs Apugo & Ors (2019) LPELR – 48822 (CA), where it was held: “1st Respondent argued issues 2 and 3 together, and I think that corrupted the issue 2, having earlier held that the issues 3 and 5 for determination (of the Appeal) are incompetent for proliferation of issues. A party, in my view, cannot argue an invalid issue for determination of appeal with a valid one. See Ezuma & Anor Vs FRN (2017) LPELR – 43382 (CA). Even by joining the said ground two with ground one, to argue the 1st issue, that joining has corrupted the said issue and the argument thereon… Uzoho vs. Asugha (2017) LPELR -42073 (CA)… The law is trite, that combining an incompetent ground of appeal with a valid one, to raise and argue issue in appeal, is a serious legal blunder, and renders the issue incompetent, as the defective/incompetent ground has infected the valid ground with its virus of incompetence.” See Akpan vs. Bob & Ors (2010) LPELR – 376 SC; (2010) 17 NWLR (pt. 1223) 42. I therefore discountenance the said argument of issues 2 and 3, argued together by the 1st Respondent.” See also the case of Godwin Loke Vs IGP & Anor (1997) 11 NWLR (Pt. 527) 57, where it was held: “Also where an incompetent ground of appeal is based on Issue within competent ground of appeal, the incompetent ground of appeal contaminates the issue on the competent ground of appeal and renders the issues based on the competent ground of appeal impotent and incompetent…” PER MBABA, JC.A.
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellant filed this appeal against the decision of Kano State High Court in Suit No. K/298/2005, delivered on 20th December, 2006 and a ruling delivered on 13th March, 2007. In the ruling, the learned trial Judge (Hon. Justice B. A. Sabo Adamu) refused to set aside the decision made on 20/12/2006, in favour of the plaintiff. (Now Respondent).
At the trial Court, the Respondent (as Plaintiff) had taken out the Suit No. K/298/2005 on 17/05/2005, against the Appellant (as Defendant), seeking:
(1) “The sum of ₦1,808,662.00 being his professional fees for legal services rendered to the Defendant upon the Defendant’s request, to wit: Applying to the Governor of Kano State for statutory consent to create legal Mortgage in favour of Bank of Industry, for a consideration of ₦72,000,000 (Seventy Two Million Naira) over the Defendant’s property, lying, being and situate at New Hospital Road, Gyadi-Gyadi, Kano, covered by Certificate of Occupancy No. LKN/RES/RC/82/1155, obtaining the necessary statutory consent and preparation of Deed of Tripartite legal Mortgage between the Defendant as the Mortgator, Messrs Sublime Engineering Limited as the borrower and Bank of Industry Limited as the mortgage, (sic) which services the Defendant enjoyed but refused, neglected and failed to pay for same.
(2) 10% Court rate of interest on the said sum of ₦1,808,662.00 from the date of judgment until full liquidation of the debt.
(3) Cost of filing the suit, together with plaintiff’s solicitor fees in the sum of ₦180,866.02.”
The Defendant did not defend the suit to completion, and was foreclosed, and the trial Court proceeded to hold, as follows:
“The Plaintiff has proved his claim since April, 2006 and the defendant also opened his defence since the same months but could not go (sic) because he has discovered the difference between the company’s loan and his guarantee ship. In fact, he might have never told (sic) Counsel of the existence of the company, which will take the loan to the plaintiff so the Rule of Discovered Principal may not apply in the case.
In the circumstance, since the defendant is absent and unrepresented without any reason or explanation, the Court has decided to close the defence of the defendant and enter judgment for the plaintiff on the following terms: –
1. That the Defendant is to pay the sum of ₦1,808,622.00 to the plaintiff being the professional fees for legal services rendered.
2. That the defendant shall pay 10% Court rate of interest on the amount as from today until the whole judgment debt is satisfied.
3. That the defendant will also pay ₦19,500 as costs for the fee’s expenses and appearance of the plaintiff. (See page 138 of the Records of Appeal).
Appellant had promptly taken out application to set aside the said decision and to be allowed to enter his defence, to hear the case on the merits. That is the application the trial Court refused, as per the ruling of 13/3/2007, saying:
“It is very clear that the defendant gave evidence on 27/4/06 and on 12/6/06 as DW1 but on both occasions, his counsel will apply for an adjournment. It is also clear that on 27/4/04 (sic) the Defendant was ordered to pay ₦1,000.00 as costs for the slum (sic) excuse. Also on 12/6/06, the defendant was asked to pay ₦2,000.00 as costs, because of their lack of seriousness. Since that 12/6/06, the Defendant never showed up in this Court again, until on 20/12/06 when the Court delivered this judgment. This is a case where the defendant had no defence to offer and was only trying to join a company or changing his lawyer… It is very clear that the judgment in this case is not judgment given in default of appearance or given in default of pleadings. The Court must hold that this judgment is a considered judgment, based on the maxim that “Litigation must be brought to an end”. When the Defendant was confused and running HELTE (sic) SKELTER to join SUBLIME Company or to change his Counsel (sic).
The Court must hold that it has no power/jurisdiction to alter, change or review the judgment dated 20/12/06, so there is no basis for setting aside the judgment in the first place.
That the Defendant, who could not complete his evidence in chief in 8 months within 4 adjournments, cannot be regarded as a serious party. The Court therefore refuse to grant the order to set aside the judgment of 20/12/06.” (See pages 148-149 of the Records of Appeal)
Appellant has elected to appeal against both the ruling of 13/3/2007, refusing to set aside the judgment of 20/12/06 and the said Judgment of 20/12/06, by this appeal
I do not think Appellant can maintain the two appeals, simultaneously, as he is entitled to appeal, either against the decision of 13/3/2007, refusing to set aside the judgment of 20/12/06, or the latter – the main judgment. See the case of Nwaigwe & Ors Vs Anyanwu (2016) LPELR – 40613 (CA), where this Court held:
“We have stated several times that Appellant who had sought the order of the trial Court, to set aside a default judgment, is not barred from appealing against the default judgment, if the application to the trial Court to set aside the said judgment fails. And at that point, the Appellant can elect to appeal against the decision refusing to set aside the default judgment, or against the original decision i.e. the default judgment. What, I think, the Appellant cannot do is to take the two appeals at the same time or separately, as the same objective would be expected. In the recent case of Ehighibe Vs Ehighibe (2016) LPELR – 40047 (CA), we made this point clear, where, the Respondent made the same argument that Appellant cannot appeal against a default judgment, after having sought an order to set aside the default judgment, unsuccessfully; that he must appeal against the decision of the Lower Court, refusing to set aside the default judgment. We said: “In my opinion, it is a strange submission, that has no place in law. There is no law that bars a party, who sought an order to set aside a default judgment and failed, from appealing against the default judgment, after the unsuccessful effort to get the trial Court to set aside the default judgment. Of course, after the refusal to set aside the default judgment, the affected party can elect to appeal against the order refusing to aside the default judgment, just as he can also appeal against the default judgment, and either way will lead to the same result, if he succeeds. He may not, however, appeal against the two decisions at the same time, or after failing in one. In the case of Idiata Vs Ejeko (2005) 11 NWLR (Pt.936)517 at 539, the Supreme Court said: “Learned Counsel for the Respondent rightly conceded that the appellant has two options: to apply set aside the ruling or to appeal against it. The two options are not exclusive.
The fact that he took one of the options but failed to achieve the desired result, does not, ipso facto, estop from taking advantage of the other choice. They aimed the first weapon but missed the target. They are entitled to deploy their second weapon as long as they comply with any condition precedent, such as obtaining leave, if out time as in this case.” (Underlying mine for the purpose of this appeal)
Appellant’s Counsel had filed a further Amended Notice of Appeal, on 9/7/2014 and a Further Amended Brief the same date – 9/7/2014. He distilled 8 issues for the determination of the appeal as follows:
ISSUE NO. 1
Whether by the pleadings of the parties and evidence before the lower trial Judge it is correct to say that the appellant acted in this matter on behalf of a disclosed principal in relation to the Tripartite Legal Mortgages agreement. Ground 1, 3 and 4 of the grounds of appeal.
ISSUE NO. 2
Whether on the basis of Audi Alteram Partem Rule the issue of liability as to the claim of legal fees of the Respondent from the Appellant can be properly settled without joining Sublime Engineering Services Limited into the matter. Ground 5 of the Notice of Appeal. Ground 5 of the Notice of Appeal.
ISSUE NO. 3
Whether the issue of guaranteeship of the loan by the Appellant absolved the company SUBLIME ENGINEERING SERVICES LIMITED from liability to pay for the services claimed to have been rendered by the Respondent in the preparation of the Tripartite legal Mortgage agreement. GROUND 2 of the Notice of Appeal.
ISSUE NO. 4
Whether the learned trial Judge properly evaluated the evidence before him in coming to conclusion in the matter. GROUND 6 of the Notice of Appeal.
ISSUE NO. 5
Whether from the evidence before the lower trial Judge and the pleadings of the parties, it is correct to say that SUBLIME ENGINEERING SERVICES LIMITED is not responsible at all for the services rendered by the Respondent in connection with the Tripartite Legal Mortgage of the said property to the Bank of Industry Limited and whether the learned trial Judge has prejudged the matter and his findings were based on speculation. GROUND 7, 8 and 10 of the appeal.
ISSUE NO. 6
Whether the learned trial Judge did assess the evidence before him in awarding the sum of N1,8081662.00k to the Respondent as special damages inform of fees for the work so far carried out. GROUND 9 of the Appeal.
ISSUES NO. 7
Is it correct position of the law to say that a party being fully represented by a Counsel in a civil matter must always be in Court whenever his matter comes up before the Court. GROUND 11 of the Appeal.
ISSUE NO. 8
Is it correct to say that the judgment delivered by the lower trial Judge in this matter on the 20 December, 2006 was a judgment on the merit therefore cannot be set aside by the same Judge. GROUND 12 of the Appeal.
The Respondent’s Counsel filed Notice of Amended Preliminary Objection on 17/5/2018 and a Further Amended Respondent’s Brief on the same date, 17/5/2018. He argued the preliminary objection on pages 6-21 of the Respondent’s brief.
On issues for the determination of the main appeal, Counsel for the Respondent donated 2 issues, namely:
1) Whether the learned trial judge was right in finding that the Appellant, having engaged the service of the Respondent for preparation of documents in order to act as a Surety/Guarantor of the loan, cannot push responsibility of fees payment to the company (Ground 7).
2) Whether the learned trial judge was justified in finding that the Respondent proved his claim, since April, 2006, and the Appellant opened his defence the same month, but could not proceed with same in view of his discovery of difference between the company’s loan and his guaranteeship, which led to award of the sum of ₦1,808,662.00 to the respondent as his professional fees for service rendered. (Grounds 8 and 9)
PRELIMINARY OBJECTION
The Respondent’s preliminary objection pitched quarrel with grounds 1, 2, 3, 4, 5, 6, 10, 11 and 12 of the grounds of the Further Amended Grounds of Appeal, and prayed that the same be struck out, for being founded on issues not relevant to the judgment appealed against.
Arguing the preliminary objection, the Respondent identified the multiplicity of Notices of Appeal by Appellant, namely, that:
(1) The 1st Notice of Appeal dated 19th March, 2007 contained at pages 150-156 of the Record, is attacking two separate decisions of the lower Court; that Grounds 1, 2 and 3 of the Notice of Appeal (the 1st Appeal), are complaining against the final judgment of the lower Court, delivered on 20th December, 2006. While Grounds 4, 5 and 6 of the Notice of Appeal (the 2nd Appeal) are complaining against the interlocutory decision of the lower Court delivered on 13th March, 2007.
(2) The final judgment of the lower Court, under attack by grounds 1, 2, and 3… is contained at page 138 (1st Appeal). And the interlocutory decision (2nd Appeal) is attacked by grounds 4, 5 and 6, contained on pages 144-149 of the records.
Counsel also noted that the grounds 1, 2, 3, 4, 5 and 6 of the appeal are complaining against a purported decision of the lower Court, delivered on 17/7/2006, which is a stranger to the judgment/ruling appealed against in these appeals. He added that while grounds 7, 8 and 9 are attacking the lower Court’s decision of 20/12/2006 (1st Appeal), the grounds 10, 11 and 12 are attacking the lower Courts decision of 13/3/07 (the 2nd Appeal).
Counsel urged us to strike out the said grounds 1, 2, 3, 4, 5, 6, 10, 11 and 12 of the appeal, and the issues distilled therefore for determination.
In his Reply Brief, Appellant said the grounds of appeal were in order, and competent, to host the appeal. He saw the preliminary objection as effort put forward by the Respondent in this respect as attempt to constrain and thwart the constitutional right of fair hearing of the Appellant, which he said is inviolable and cannot be denied on the basis of grounds of technicalities.
RESOLUTION OF THE PRELIMINARY OBJECTION
There are many obvious flaws about this appeal in the formulation and or mixed up of the grounds of appeal, and issues for determination, many of which have nothing to do with the judgment/ruling appealed against. The Grounds 1, 2, 3, 4, 5 and 6 of the Further Amended Notice of Appeal, filed on 17/7/2014, all related to purported decision of the trial Court, entered on the 26/12/2006 (not 20/12/06), and which grounds of appeal did not relate to any live-issue in the final judgment of the lower Court, made on 20/12/2006!
The judgment of the trial Court of 20/12/2006 was short, as reproduced on page 138 of the Records of Appeal, as follows:
“The plaintiff is a legal practitioner who is claiming for his professional fees. But the defendant who engaged him is asking the plaintiff to put up his claims against another company who secured Bank loan, while the services rendered by the plaintiff ate (sic) in regard to preparing the defendant’s documents in order to act as a surety or guarantor to the loan.
The plaintiff has proved his claim since April, 2006 the defendant also opened his defense since the same months but could not go (sic) because he has discovered the difference between the company’s loan and his guarantee ship. In fact, he might have never told Counsel of the existence of the company which will take the loan to the plaintiff so the Rule of Discovered Principal may not apply in the case.
In the circumstance, since the defendant is absent and unrepresented without any reason or explanation, the Court has decided to close the defense of the defendant and enter judgment for the plaintiff on the following terms: –
(1) That the Defendant is to pay the sum of N1,808,662.00 to the plaintiff being the professional fees for legal service rendered.
(2) That the defendant shall pay 10% Court rate of interest on the amount as from today until the whole judgment debt is liquidated.
(3) That the defendant will also pay N19, 500.00 as costs for the fees expenses and appearances of the plaintiff.
Signed.
Hon. Judge
20/12/06.”
A close study of the above short judgment would show that none of the grounds 1 to 6 of the Appeal was founded on it. The said grounds of appeal were (without stating their particulars):
1) The learned trial Judge erred in law when he held in his ruling dated 26th July, 2006, that the Defendant/Appellant was not acting as an agent of Sublime Engineering Services Limited or for a disclosed principal.
2) The learned trial Judge misdirected himself and arrived at wrong conclusion when he held in his ruling dated 26th July, 2006 that the defendant only acted as a guarantor who could be sued separately by the Bank in case of default.
3) The learned trial Judge erred in law when he held in his ruling dated 26th July, 2006 that “what the defendant. Applicant asserted was that he prepared the documents in issue to (sic) that he could act as a guarantor to the loan being pursued by the proposed defendant.
4) The learned trial Judge erred in law when he held in his ruling dated 26th July, 2006 that “It is very clear that the Defendant/Appellant who has acted as a Guarantor to the proposed Defendant cannot claim to be part of any agreement between Sublime Engineering Services Limited and the creditor Bank and he cannot also claim that the proposed Defendant is part of the contract between him and either the Bank creditor or the lawyer who prepared the document for the loan.
5) The learned trial Judge erred in law in his ruling dated 26th July, 2006, when he held that “It is very clear that this third-party application can be made by the Defendant in this case or similar situation where the case had already started and especially that the third party.” (Underlying mine in each).
6) The decision is against the weight of evidence.
Appellant was talking about a completely different judgment (of 26/12/2006) not the final judgment of 20/12/2006!
Every ground of appeal and issue must relate to and flow from the judgment appealed against, touching on the ratio decidendi therein to be valid. See Nze Vs Aribe (2016) LPELR – 40617 CA:
“This point seems to have enjoyed some notoriety in the law governing appellate proceedings, that the grounds of appeal and/or issues for determination of appeal, must relate to and flow or derive from the judgment appealed against, touching on the ratio decidendi. See Anozia vs Nnani & Anor (2015) LPELR -24277 (CA); (2015) 8 NWLR (pt. 1461) 241, were it was held: The law is trite, that an appeal (the grounds and issues therefrom) must be founded on and derived from a valid complaint touching on the ratio decidendi (life issue) of the decision appealed against. See the case of Obosi vs. NIPOST (2013) 21397 CA, UNILORIN vs. Olawepo (2012) 52 WRN 42, Alataha vs. Asin (1999) 5 NWLR (pt. 601) 32, Punch Nig. Ltd vs. Jumsun Nig. Ltd (2011) 12 NWLR (Pt. 1260) 162. Also in Key Stone Bank Ltd vs Oyewale (2014) LPELR -23612 (CA), this Court held: The law is well settled that a ground of appeal or issue distilled therefrom must derive and flow from the judgment appealed against, to be valid. The cases on this are all over the place … and the reason for this position is not farfetched, the issue being that, it will be unfair or unjust to accuse the trial Court, that it erred (as is the usual language of Appellant in faulting the judgment of the trial judge) when the issue the judge is accused of was not even raised or canvased by the parties for the lower Court to consider in its judgment. Every appeal is a fault-finding with the judgment appealed against, and so where a matter was not raised and considered by the Court, it cannot form part of the judgment on appeal. See also Ossai vs. FRN (2013) WRN 87; Shettima vs. Goni (2012) 18 NWLR (pt. 1297) 413.”
The said appeal and issues distilled therefrom are struck out.
The grounds 10, 11 and 12 of the appeal related to the decision (ruling) of 13/3/2007. But by arguing the appeal, jointly with a non-existing judgment, and/or mixing up the issues relating the final judgment of 20/12/2006, and the Ruling of 13/3/2007, refusing to set aside that final decision, I think, Appellant committed a serious flaw that amounted to abuse of the Court process, relating to multiplicity of actions.
As earlier stated in this judgment, Appellant was entitled to appeal against, either the final judgment of 20/12/06 or the ruling of 13/3/2007, refusing to set aside the final judgment, as each would result in the same conclusion of setting aside the final judgment, if successful. See the case of Ehighibe Vs Ehighibe (2016) LPELR – 40047 CA and the case of Nwaigwe Vs Anyanwu (supra) where we held:
“What, I think, the Appellant cannot do is to take the two appeals at the same time or separately as the same objective would be expected. In the recent case of Ehighibe Vs Ehighibe (2016) LPELR -40047 (CA), we made this point clear, where, the Respondent made the same argument that Appellant cannot appeal against a default judgment, after having sought an order to set aside the default judgment, unsuccessfully; that he must appeal against the decision of the lower Court, refusing to set aside the default judgment. We said: “In my opinion, it is a strange submission, that has no place in law. There is no law that bars a party, who sought an order to set aside a default judgment and failed, from appealing against the default judgment, after the unsuccessful effort to get the trial Court to set aside the default judgment. Of course, after the refusal to set aside the default judgment, the affected party can elect to appeal against the order refusing to aside the default judgment, just as he can also appeal against the default judgment, and either way will lead to the same result, if he succeeds. He may not, however, appeal against the two decisions at the same time or after failing in one. In the case of Idiata Vs Ejeko (2005) 11 NWLR (Pt.936)517 at 539, the Supreme Court said: “Learned Counsel for the Respondent rightly conceded that the appellant has two options: to apply set aside the ruling or to appeal against it. The two options are not exclusive. The fact that he took one of the options but failed to achieve the desired result, does not, ipso facto, estop from taking advantage of the other choice. They aimed the first weapon but missed the target. They are entitled to deploy their second weapon as long as they comply with any condition precedent, such as obtaining leave, if out time as in this case.”
I therefore strike out grounds 10, 11 and 12 of the appeal, and the issues therefrom also for incompetence.
I also think my reasoning on the grounds 10, 11 and 12 of the appeal, applies to grounds 7, 8 and 9 also, and issues therefrom which grounds/issues relate to the final judgment of 20/12/2006. The same are liable also to be struck out, too, for incompetence, owing to the wrongful arguments of the two separate and conflicting appeals together in one Appeal. In particular, the issue 5 (five) from which the grounds 7, 8 and 10, were distilled, appear to be a stranger to the ruling of 13/3/2007 and did not flow from the said grounds of appeal. While grounds 7 and 8 complained of the main judgment of 20/12/06, the ground 10 complained of the Ruling of 13/3/2007!
As stated earlier in this judgment, such combining of strange grounds of two separate judgments/rulings cannot be allowed to generate a valid issue for determination of appeal, in my opinion. See the case of Footwear Industry Ltd Vs Dabi (2021) LPELR – 56142 CA, where we said:
“Appeal can only be argued on Issue or Issues, donated for the determination of the appeal, and the Issues must be properly related to the grounds of the appeal, which must, in turn, flow from or relate to the ratio decidendi of the judgment, appeal against. That constitutes the trite principles of law, governing argument of appeals in this Court and in the Apex Court. See the cases of Sheidu Vs The State (2014) LPELR-23018 (SC), (2014) 15 NWLR (Pt. 1429) 1, Ukwuoma Vs Okafor (2016) LPELR-41505 (CA), Fajebe & Anor Vs Opanuga (2019) LPELR-46348 (SC), North West Petroleum & Gas Co. Ltd & Anor Vs Prince Chigozie Iloh & Ors (2021) LPELR-55509 (CA).” Of course, the law is trite, that though two or more grounds of appeal can be combined to generate an issue for determination of appeal, one ground of appeal cannot be split to donate different issues for determination of appeal.”
Where grounds of appeal or issues are wrongly combined to argue appeal, the defective ground or issue thereby contaminates the entire argument, making same liable to be struck out. See Northwest Petroleum & Gas Co. Ltd & Anor Vs Iloh & Ors (2021) LPELR – 55509 CA, which held:
“…The law is trite that arguing a valid ground(s) of appeal (or issue distilled there from) together with a defective ground(s) (or issue(s)) is not permitted, as it makes the argument incompetent. This is because, the inclusion of the defective ground(s) or issue(s) in the argument, vitiates the entire submission, as the virus of defective ground(s) or issue(s) has infected the valid ground or Issue, and the entire argument. See the case of Augustine & Anor Vs Apugo & Ors (2019) LPELR – 48822 (CA), where it was held: “1st Respondent argued issues 2 and 3 together, and I think that corrupted the issue 2, having earlier held that the issues 3 and 5 for determination (of the Appeal) are incompetent for proliferation of issues. A party, in my view, cannot argue an invalid issue for determination of appeal with a valid one. See Ezuma & Anor Vs FRN (2017) LPELR – 43382 (CA). Even by joining the said ground two with ground one, to argue the 1st issue, that joining has corrupted the said issue and the argument thereon… Uzoho vs. Asugha (2017) LPELR -42073 (CA)… The law is trite, that combining an incompetent ground of appeal with a valid one, to raise and argue issue in appeal, is a serious legal blunder, and renders the issue incompetent, as the defective/incompetent ground has infected the valid ground with its virus of incompetence.” See Akpan vs. Bob & Ors (2010) LPELR – 376 SC; (2010) 17 NWLR (pt. 1223) 42. I therefore discountenance the said argument of issues 2 and 3, argued together by the 1st Respondent.” See also the case of Godwin Loke Vs IGP & Anor (1997) 11 NWLR (Pt. 527) 57, where it was held: “Also where an incompetent ground of appeal is based on Issue within competent ground of appeal, the incompetent ground of appeal contaminates the issue on the competent ground of appeal and renders the issues based on the competent ground of appeal impotent and incompetent…”
I cannot therefore see any competence in the grounds of this appeal and the issues distilled therefrom. The same are hereby struck out, and the appeal too, for incompetence.
Parties shall bear their respective costs.
BOLOUKUROMO MOSES UGO, J.C.A.: I was privileged to read before now in draft the leading judgment of my learned brother, ITA MBABA, J. C. A.
I am in agreement with his reasoning and conclusion. I also strike out the appeal.
I abide the order as to costs as contained in the leading judgment.
USMAN ALHAJI MUSALE, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, ITA G. MBABA, JCA. I am in agreement with the issues considered and resolved by His Lordship. I have nothing more to add. I abide by the conclusions reached therein.
Appearances:
MUSTAPHA BULAMA, ESQ. (who settled the Brief) For Appellant(s)
O. A. DADA (who settled the Brief) and MUSTAPHA BABA TAFARKI, ESQ (who adopted the Brief) For Respondent(s)
