OGBUESHI SAMUEL N. OBIDOA & ORS V. DR. DEBEL MARCHIE
(2010)LCN/3887(CA)
In The Court of Appeal of Nigeria
On Thursday, the 17th day of June, 2010
CA/E/43/2006
RATIO
FORMULATION OF ISSUES: WHETHER THE ISSUES FOR DETERMINATION IN AN APPEAL CAN BE MORE THAN THE NUMBER OF GROUNDS OF APPEAL FILED BY AN APPELLANT
This court and indeed the apex court on many occasions counseled learned counsel on impropriety of formulating issues more than the number of grounds of appeal filed by an appellant. This is a cardinal principle of formulation of issues. Some learned counsel are always in the habit of doing so as in the instant appeal. This rule on issue formulation has, to-date, not been heeded to by numerous learned counsel as they repeatedly breach this rule. This, in my view, could be because no sanction has ever been imposed by this court or even the apex court. I shall once again repeat this same counsel here and stress that issues raised for determination of an appeal should always be less and NOT more than the number of grounds of appeal filed. An issue must arise from one or a combination of grounds of appeal. See Bossa & Ors vs Julius Berger Plc (2005) 15 NWLR (Pt 948) 409; Ezechukwu vs Onwuka (2006) 2 NWLR (Pt 963) 151; Omoyinmi vs Ogunsiji (2008) 2 NWLR (Pt 1075) 471. PER AMIRU SANUSI, J.C.A.
FORMULATION OF ISSUES: ESSENCE OF FORMULATION OF ISSUES FOR DETERMINATION
The essence of formulation of issues for determination is to narrow, the relevant points in issue. This is best achieved by contracting related grounds of appeal to form an issue. The rule is that a number of grounds of appeal may be raise on one issue and not the reverse. PER AMIRU SANUSI, J.C.A.
PROLIFERATION OF ISSUES FOR DETERMINATION: ATTITUDE OF THE COURT TOWARDS PROLIFERATION OF ISSUES FOR DETERMINATION
In the case of Alhaji Sule Agbetoba & 2 ors vs The Lagos State Executive Council & ors (1991) 4 NWLR (Pt 88) 664 at 681 to 682 the Supreme Court per Karibi-Whyte JSC had this to say: “This court has consistently and or several decisions advised counsel formulating issues for determination arising from the grounds of appeal to avoid prolixity and keep closely within the confines of the grounds of appeal relied upon. The idea is to formulate an issue as encompassing more than a ground of appeal. It is not only undesirable, but also confusing to split a ground of appeal into more than one issue. The practice of splitting grounds of appeal is likely to confuse consideration of principal issues with subsidiary issues. Whereas the principal issues are essential for the determination of the case, the subsidiary issues are formulation towards the elucidation of the principal issues. They can not be justifiably regarded as issues for determination”. PER AMIRU SANUSI, J.C.A.
WHETHER THE GROUND OF APPEAL MUST CHALLENGE THE RATIO DECIDENDI OF THE DECISION APPEALED AGAINST
It is trite law that ground of appeal must challenge the ratio decidendi of the decision appealed against. See Borishade vs NBL Ltd (2007) 1 NWLR (Pt 1015) 217. It is also settled law that ground of appeal must be derived from the decision of the trial court. See ASCF Ltd. vs ISC PMA Ltd (2007) 4 NWLR (Pt 1024) 270; Dalek (Nig) Ltd vs OMPADEC (2007) 7 NWLR (Pt 1033) 4025. PER AMIRU SANUSI, J.C.A.
NOTICE OF APPEAL: IMPORTANCE OF A NOTICE OF APPEAL
I must emphasise here, that the importance of a Notice of appeal. A notice of appeal is the foundation of proceeding of appellate court. It is the initiation process of any appeal. Where a Notice of appeal contains an error, or is defective or deficient it becomes incompetent and any appeal founded on an incompetent notice is invalid and it renders any proceeding founded on it also invalid, null and void and an appellate court has inherent power to strike it out for being incompetent as it touches on issue of jurisdiction. In the instance case, since the grounds are not based on the decision or ruling of the lower court appealed against they are all incompetent. PER AMIRU SANUSI, J.C.A.
JUSTICES
AMIRU SANUSI Justice of The Court of Appeal of Nigeria
OLUKAYODE ARIWOOLA Justice of The Court of Appeal of Nigeria
AYOBODE O. LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
Between
1. OGBUESHI SAMUEL N. OBIDOA
2. PROF. ONYECHI OBIDOA
3. MR. TIMOTHY OKOYE
4. M/S NNENNA NWANKWO Appellant(s)
AND
DR. DEBEL MARCHIE
(For himself/and as representative of
Late Igwe Marchie Agbunyo Respondent(s)
AMIRU SANUSI, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal against the ruling of the High Court of Justice, Anambra State, Idemili Division, sitting at Ogidi (hereinafter referred to as “the lower court”) delivered on 12/5/05. At the lower court the plaintiff now respondent filed suit No. HID/90/2001 against the defendants now appellants claiming this under listed reliefs –
(a) Declaratory Order of Right of Occupancy.
(b) N 1,000,000.00 (One million Naira only) as damages; and
(c) Perpetual injunction
Pleadings were ordered, filed and exchanged by parties, with the Plaintiff filing his Statement of Claim dated 27/5/2002 while the Statement of Defence for the Defendant dated 9/12/2003 was filed on the same day. After pleadings were exchanged hearing commenced in earnest on 5th of April 2004. The Respondent as Plaintiff at the lower court started his testimony on 5/4/2004 and concluded his testimony on 31/5/2004 after he was duly cross examined and re-examined.
Then on 14th of July 2004 the Plaintiff filed a Motion on Notice seeking these order; namely –
“(a) AN ORDER granting leave to the Plaintiff/Applicant to amend his Statement of Claim and Plan in this Suit in the manner underlined or shown in the document headed “Amended Statement of Claims and Plan annexed thereto already filed and served
(b) AN ORDER deeming the Amended Statement of Claim and Plan separately filed as properly filed and served, the necessary fees having been paid
(c) AN ORDER granting leave to the applicant to recall PW1 in this matter for the purposes, inter alia, of testifying in line with the new facts and documents now pleaded in the Amended Statement of Claim which said facts and documents were not available to PW1 at the time he testified in this matter”.
It is pertinent at this stage to give brief history of the facts which gave rise to this appeal as could be gleaned from their Record of Appeal.
The respondent herein, who was the plaintiff at the lower court took a Writ against the present appellants as defendants thereat, claiming the aforementioned reliefs. The plaintiff claimed that the land in dispute belonged to his family while the 1st and 2nd defendants/appellants claimed that the land in dispute was partly the land acquired from one Simon Iwebo and partly the ancestral land or home of the said 1st defendant/appellant.
After pleadings were ordered, filed and exchanged by parties hearing in the case commenced by the plaintiff, who testified as PW 1.
After he testified and was cross-examined by the defendant’s counsel, the plaintiffs counsel brought an application by way of motion on notice seeking the leave of the lower court to amend the plaintiffs Statement of Claim and Plan of the land in dispute and to also recall the plaintiff (PW1). The defendants’ counsel opposed the application and filed counter affidavit and their learned counsel Rob Iweka SAN indicated his intention to oppose the said application vigorously. The application was then adjourned to a later date for hearing.
On the date the application was slated for hearing it was alleged that he defendant/respondent’s counsel telephoned and informed Rob Iweka SAN of learned senior counsel for the plaintiffs/appellants that he was sick and was going to the hospital, but will come to court at 11am, and also informed the learned silk not to be in court at 9am but until around 11am promising that he was going to write and inform the court accordingly. The appellants’ senior counsel’s version of the story is that the respondent’s counsel reneged his promise to write a letter and inform the court about their arrangement as he promised, but instead, he sent his junior counsel to represent him in court. On the other hand, the respondent’s counsel alleged that he wrote a handwritten letter to the court seeking stand down of the case until 11a.m, when he might have finished with the hospital and which he sent his junior counsel to take to the court, but when the said junior counsel handed the letter to the court clerk she rejected it and refused to bring it to the attention of the court because it was hand-written. According to his (respondent’s) junior counsel when the court clerk remained adamant in accepting the letter he decided to go and get it typed but before he left for the typing of the letter the court entered and commenced sitting hence he quickly rushed into the court and when this instant case was called he announced his appearance and the motion was argued by him and the court there and then delivered its ruling and allowed his application and granted all the reliefs sought by him. It is to be noted that the lower court was never informed of any undertaking given to the learned silk for the Appellants/defendants by the plaintiff/respondent or about any letter written by the plaintiffs counsel earlier.
On 6/4/2005 the lower court heard the motion for the setting aside the order and delivered its ruling on 12th of May 2005 wherein it refused to set aside its earlier ruling delivered on 21/9/2004 wherein it granted leave to the plaintiff to amend his statement of Claim and recall PW1. Dissatisfied with the Ruling of the lower Court delivered on 12th May 2005, the defendants appealed to this court. To that effect they filed a Notice and Ground of Appeal dated 24/4/2006 containing ten grounds of appeal.
Briefs were settled by learned counsel for the parties and filed in this court in line with the rules and procedure applicable in this court. The learned senior counsel for the appellants, Rob Iweka SAN settled the brief on their behalf dated 1st December 2006 and filed on 4th December 2006. To my utter dismay, the learned silk proposed or distilled twelve issues for determination out of the ten grounds of appeal contained in his Notice and Grounds of appeal. I will come to this and even make more observations on the Notice of Appeal later but suffice it to say here that the twelve issues raised by him are set out underneath for ease of reference. The said twelve issues for determination read thus –
ISSUES FOR DETERMINATION
1) Whether there was a suppression/misrepresentation of facts by the Counsel to the Respondent in the Court below, which misled the Court into hearing the motion in the absence of ROB IWEKA SAN Counsel to the Appellants.
2) Whether there was fraud on the Court and which fraud misled the Court below into holding a hearing in the motion for amendment and granting the Order for amendment without the Counsel for the Defendants/Appellants ROB IWEKA SAN being present and taking part.
3) Whether the Court below was right in holding that the act of T.U. Oguji Esq constituted no deceit on the Court or misrepresentation of facts to the Court below.
4) Whether there was evidence of misrepresentation by the Respondent’s Counsel to the Appellants’ Counsel in the Court below, and if the answer is in the positive, what is the duty of the Court of Appeal where the Court below failed to make a finding on such evidence.
5) Whether there was fraud by the Respondents on the Appellants, which vitiated the hearing of the motion for amendments/recall of witness.
6) Whether the Court below was right in finding that there was no fraud on the Appellants by the Respondents.
7) Whether the Appellants were given a fair hearing in the Court below.
8) In the face of the uncontradicted evidence before the Court below that the Appellants had a good defence to the application for amendment, and given the facts that the Order was obtained by fraud on the Court and on the Appellants, whether the Court erred in refusing to set aside the Order and thereby robbed the Appellants of the opportunity of putting across their said defence.
9) Whether the issue before the Court below was on the merit of the application for amendment or on whether the hearing of the motion was obtained by fraud/suppression of facts.
10) Whether the Court below was “functus officio” and therefore incompetent to adjudicate on the application for setting aside its Order.
11) Whether the Court below was right in holding that the decision in SKENCONSULT NIGERIA LTD & ANOR V GODWIN UKEY does not apply to this case.
12) Whether the Court below was right in holding that the decision in OLUFUMISE V FALANA was not relevant to the application before the Court below for setting aside the Order for suppression of facts/fraud.
The respondent, upon being served with the appellants’ brief also settled his brief which is dated 20th May 2008 but filed in this court on 21st May 2008. He however did not propose any issue for determination, albeit, he submitted that the issues for determination formulated by the appellants were proliferated. According to him, the nature of this appeal and in order to ensure that nothing is left unresponded to, he had no option than to reluctantly adopt the twelve issues for determination raised by the appellants in their Joint brief. He then proceeded to proffer arguments on them. This now brings me to the issues for determination raised in the Appellants’ brief.
It is pertinent at this juncture, to pause and reflect on the issues for determination as set out above. To begin with, it can be observed that the appellants filed ten grounds of appeal in their notice of appeal. But the learned senior counsel for the appellants, Rob Iweke SAN who prepared and signed the brief, formulated twelve issues for determination of the appeal as set out above. This court and indeed the apex court on many occasions counseled learned counsel on impropriety of formulating issues more than the number of grounds of appeal filed by an appellant. This is a cardinal principle of formulation of issues. Some learned counsel are always in the habit of doing so as in the instant appeal. This rule on issue formulation has, to-date, not been heeded to by numerous learned counsel as they repeatedly breach this rule. This, in my view, could be because no sanction has ever been imposed by this court or even the apex court. I shall once again repeat this same counsel here and stress that issues raised for determination of an appeal should always be less and NOT more than the number of grounds of appeal filed. An issue must arise from one or a combination of grounds of appeal. See Bossa & Ors vs Julius Berger Plc (2005) 15 NWLR (Pt 948) 409; Ezechukwu vs Onwuka (2006) 2 NWLR (Pt 963) 151; Omoyinmi vs Ogunsiji (2008) 2 NWLR (Pt 1075) 471.
This now brings me to the proliferation of issues. The essence of formulation of issues for determination is to narrow, the relevant points in issue. This is best achieved by contracting related grounds of appeal to form an issue. The rule is that a number of grounds of appeal may be raise on one issue and not the reverse. In the case of Alhaji Sule Agbetoba & 2 ors vs The Lagos State Executive Council & ors (1991) 4 NWLR (Pt 88) 664 at 681 to 682 the Supreme Court per Karibi-Whyte JSC had this to say:
“This court has consistently and or several decisions advised counsel formulating issues for determination arising from the grounds of appeal to avoid prolixity and keep closely within the confines of the grounds of appeal relied upon. The idea is to formulate an issue as encompassing more than a ground of appeal. It is not only undesirable, but also confusing to split a ground of appeal into more than one issue. The practice of splitting grounds of appeal is likely to confuse consideration of principal issues with subsidiary issues. Whereas the principal issues are essential for the determination of the case, the subsidiary issues are formulation towards the elucidation of the principal issues. They can not be justifiably regarded as issues for determination”.
To my mind, the twelve issues formulated by the learned silk for the appellant and the prolixity of some of those issues are no doubt, on the authority quoted above, an outrageous departure from the practice of brief writing. I have closely studied or examined the issues raised by the appellant. What I can discern is that Issues Nos. 1, 2, 3, 4, 5, and 8 moreorless relate to issue of fraud/misrepresentation, while Issues No. 5, 7, 10, 11 and 12 relate moreorless to the issue of fair hearing. Why then could twelve issues be raised on such issues, points or complaints.
Another vital observation that I shall make at this stage also has to do with the Notice of Appeal filed by the appellant which is dated 24th May 2005 and which appears on pages 91 to 102 of the Record. The last page of the Record indicates that it was filed on 25th May 2005. On the first page of the Notice shown at page 91 it is stated that the appellant is appealing against the Ruling of the lower court delivered on the 12th of May 2005. I am mindful of the fact that as an appellate court, this court has power and is also entitled to look at the record or any document in its file while writing ruling or judgment even if such document was tendered and admitted as an exhibit. See the case of Oyewole vs Akande & Anor (2009) 15 NWLR (Pt 116) 119 at 148 Para A to B. See also
The index of the Record filed in this case clearly shows that the Ruling appealed against is on pages 69-71 of the Record. But it can be seen that what appeared on those pages of the Record are arguments of learned counsel for the parties on the motion filed by the respondent/plaintiff seeking leave to amend his Statement of Claim and the Plan and for the recalling of PW1 and from pages 70 to 71 is the Ruling of the lower court on the said motion delivered on 21st September 2004. However, from page 87 to 88 appeared the Ruling delivered by the lower court on 12/5/2005 which is a one paragraph Ruling appearing only on page 88 of the Record which one can say the appellant is appealing against as he indicated on the first paragraph of his Notice and Ground of Appeal. This court is really at a loss as to where the appellant lifted his twelve grounds of appeal from.
It is instructive to note also and as rightly observed by the learned counsel for the respondent that this appeal is merely on the Ruling of the lower court delivered on the 12th day of May 2005. This can be clearly and can also easily be gleaned from the fore paragraph of the Notice and Ground of Appeal dated 24/4/2006 filed on this appeal. I have observed supra that the said ruling delivered on 12/5/2005 appears on pages 87/88 of the Record and is a one paragraph ruling. A close and dispassionate look at the grounds of appeal contained in the said Notice of Appeal leaves no one in doubt, that those grounds are not lifted from the ruling now being appealed against, that is to say, the ruling delivered by the lower court on 12/5/2005. Those grounds might be on any other unsubstantiated or unidentified ruling but certainly not the one delivered on 12/5/2005 as shown on the pages of the record mentioned. It is trite law that ground of appeal must challenge the ratio decidendi of the decision appealed against. See Borishade vs NBL Ltd (2007) 1 NWLR (Pt 1015) 217. It is also settled law that ground of appeal must be derived from the decision of the trial court. See ASCF Ltd. vs ISC PMA Ltd (2007) 4 NWLR (Pt 1024) 270; Dalek (Nig) Ltd vs OMPADEC (2007) 7 NWLR (Pt 1033) 4025.
I must emphasise here, that the importance of a Notice of appeal. A notice of appeal is the foundation of proceeding of appellate court. It is the initiation process of any appeal. Where a Notice of appeal contains an error, or is defective or deficient it becomes incompetent and any appeal founded on an incompetent notice is invalid and it renders any proceeding founded on it also invalid, null and void and an appellate court has inherent power to strike it out for being incompetent as it touches on issue of jurisdiction. In the instance case, since the grounds are not based on the decision or ruling of the lower court appealed against they are all incompetent. None of the ten grounds of appeal can sustain the notice as none of them relate to the decision of the court refusing the lifting of its earlier order setting aside the earlier orders granted in a different motion. This being the case, the notice of appeal dated 24/5/2005 and all the ten grounds of appeal are hereby struck out.
Having struck out the notice and grounds of appeal, I think there is no how the issues purportedly raised on them can stand since they were raised or formulated on an incompetent notice and grounds of appeal. They can not therefore stand on any base. Being incompetent, they should and are also hereby struck out for having no root to support them.
The resultant effect of all that I have discussed above is that the appeal is incompetent and ought to be and is hereby struck out. The appellants herein shall pay N30,000 costs to the respondent.
OLUKAYODE ARIWOOLA, J.C.A.: I had the preview of the lead judgment of my learned brother AMIRU SANUSI, JCA just delivered. I am in total agreement with His Lordship’s reasoning in the said judgment and the conclusion arrived thereat.
I also hold that the appeal is incompetent and is liable to be struck out. Accordingly, it is struck out by me.
I abide by the consequential orders including order on costs in the lead judgment.
AYOBODE O. LOKULO-SODIPE, J.C.A.: I agree.
Appearances
Rob Iweka SAN with M.O. Chidebe EsqFor Appellant
AND
T.U. OgojiFor Respondent
