PIUS NWABUEZE UMEH V. EDWARD OTTAH
(2011)LCN/4482(CA)
In The Court of Appeal of Nigeria
On Friday, the 15th day of April, 2011
CA/E/387/2007
RATIO
GROUNDS OF APPEAL: MEANING AND NATURE OF GROUNDS OF APPEAL; WHETHER GROUNDS OF APPEAL CAN BE DERIVED FROM MATTERS OUTSIDE THOSE RELATED TO THE DECISION APPEALED AGAINST
…it is important to note that a ground of appeal is ‘the error of the defect in the judgment appealed against and relied upon to set it aside.’ See Metal Construction (W.A) Ltd. V. Migliore (1990) 1 NWLR (Pt.126) 299 at 311 per Karibi-Whyte J.S.C. (as he then was). The grounds of appeal are thus the reasons why the decision on appeal is considered by the aggrieved to be wrong. See Saraki V. Kotoye (1992) 11/12 S.C.N.J. 26 at 42. A ground of appeal must be fixed and circumscribed within a particular issue in controversy in any suit. A ground of appeal should therefore be based on an issue in controversy and arise from the judgment on appeal, it should constitute a challenge to the ratio of the decision. See Coker vs. U.B.A. (1997) 2 NWLR (Pt.486) 226. If the grounds of appeal derive from matters outside those related to the decision, they are incompetent. See Yusufu v. Kupper International (1996) 5 NWLR (Pt.446) 17. The grounds of appeal, on appeal, has been likened to pleadings in the trial court and just as any issue on which parties do not join issue in the trial court does not call for determination, so also would a ground of appeal that did not arise from the judgment be incompetent before an appellate court. PER MOHAMMED L. TSAMIYA, JCA
APPEAL: MEANING OF APPEAL
…it is well settled that an appeal is merely an invitation to a higher court to review the decision of a lower Court whether on the proper consideration of the facts placed before it, and the applicable law, that court arrived at a correct decision – see Oredeyin V. Arowolo (1989) 4 NWLR (pt. 114) 172. PER AMINA A. AUGIE, JCA
GROUNDS OF APPEAL: WHETHER A GROUND OF APPEAL MUST ARISE FROM THE JUDGMENT APPEALED AGAINST
…grounds of appeal are not formulated in abstract.They must arise from the Judgment in the same way as the issues arising from the grounds of appeal. However meritorious a ground of appeal may be, it must be connected with the controversy between the parties, so also is the issue arising from the ground – see MBN Plc. V. Nwobodo (2005) 7 SC (Pt. III) 1. PER AMINA A. AUGIE, JCA
LOCUS STANDI/STATUTE BARRED: DISTINCTION BETWEEN THE ISSUE OF LOCUS STANDI AND ACTION BEING STATUTE BARRED
…the issue of whether a party has locus standi or not cannot be equated with the issue of whether an action is statute-barred. Both touch on the jurisdiction of a Court to entertain an action, but they are totally different things. Locus standi denotes the legal capacity to institute actions in a Court of law. It is the right of a party to appear and be heard on a question before any Court, and when raised as an issue, is an indirect questioning of the Court’s jurisdiction to adjudicate on the matter – see Pam V. Mohammed (2008) 16 NWLR (Pt. 112) 1 SC.On the other hand, when an action is statute-barred, the Plaintiff loses the right to enforce the cause of action by judicial process because the period of limitation had elapsed. In other words, when a statute of limitation prescribes a period within which an action must be initiated, legal proceedings cannot be properly and validly instituted after the expiration of the prescribed period. Any such action instituted must be struck out as not being properly instituted before the court – see Hassan V. Babangida (2010) LPELR-SC 170/2009. PER AMINA A. AUGIE, JCA
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
MOHAMMED L. TSAMIYA Justice of The Court of Appeal of Nigeria
AYOBODE O. LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
Between
PIUS NWABUEZE UMEH – Appellant(s)
AND
EDWARD OTTAH – Respondent(s)
MOHAMMED L. TSAMIYA, JCA (Delivering the leading Judgment): This is an appeal from the High Court of Enugu State (herein referred to as the trial court) against the ruling delivered on 9th June 2006 in a motion on notice by the 1st defendant/applicant (herein referred to as appellant) challenging the jurisdiction of the trial court to entertain suit No. E/815/2004 before it, on the ground that the action is incompetent having been initiated by a plaintiff (herein referred to as respondent) lacking locus-standi.
From the record of this appeal, the facts of this case can be summarized as follows:
The appellant purchased the landed property in dispute from the owner one Edward Ottah (now deceased). The counsel who acted for the purchaser was late Barrister G.M.O. Okonkwo and the counsel who acted for owner was Chief G.C. Obiora Onyia. This transaction was concluded in March 1991. The appellant has since then remained in undisturbed possession of the completed property and also collecting of rents from tenants handed over to him by the vendor.
On 8th November, 2004, the respondent filed the said suit against the appellant and one other, claiming title to the property in dispute, revocation of the sale, injunction and Damages.
While the said suit was pending, the appellant filed a motion on notice praying the trial court to dismiss the said suit on the ground that the respondent lacks locus-standi to bring the action (italics mine).
In support of the application is an affidavit of 12 paragraphs with 8 annextures, thereto and marked as exhibits A, B, B1, B2, B3, C, C1 and C2. Also filed by the appellant is a further affidavit of eleven paragraphs with 1 annexture marked exhibit D.
The respondent filed a counter-affidavit of 13 paragraphs opposing the application to dismiss the suit.
After hearing the submissions of both counsel to the parties, the trial court in its Ruling held that:
1. the notice of discontinuance against the 2nd Defendant was valid and proper and the name of the 2nd Defendant be and hereby struck out.
2. on the issue of locus-standi, the respondent has fulfilled the conditions of showing that he has the legal standing to sue for the property in issue, and therefore has locus-standi to sue.
3. on the allegation of forgery raised by the appellant, at this stage is premature.
4. in the circumstances, the court must go into hearing of the court.
5. finally the application fails woefully and is dismissed.
Being dissatisfied with the decision of the trial court, the appellant appealed to this court on two grounds of appeal contained in his Notice and Grounds of Appeal dated on 22/5/2007.
In accordance with the Rules of this court, the parties filed their respective Briefs of Argument. The appellant filed his Brief of Argument on 17/12/2007 and the Brief contained three issues for determination. They are:
1. Whether the court below was right to have failed to resolve the issue as to whether or not the suit was statute-barred.
2. Whether the suit is statute barred.
3. What is the effect where the suit was statute barred?
The respondent on the other hand, filed a Respondent’s Brief of Argument which was deemed properly filed and served with effect from 3/7/2008 after granting his motion to that effect. In his brief he raised what seems to be a preliminary objection against the competence of the grounds of appeal on grounds that neither is based on the ruling of the trial court.
The respondent in his brief of argument did not raise any issue for determination.
In his objection, the respondent contended that the appeal is incompetent as the grounds of appeal are not distilled from the Ruling delivered by the trial court. That the issue of statute barred was neither raised in the trial court nor ruled on by the trial court. That the appellant is not entitled to raise issues other than those which arose from the ruling of the trial court. That the issues sought to be raised by the appellant before this court were not considered or form part of the Ruling of the trial court and therefore cannot constitute issues for determination in this Court.
No response i.e. reply brief from the appellant on the objection raised by the respondent.
The question here is whether the grounds of appeal can be considered in this appeal. But first, it is important to note that a ground of appeal is ‘the error of the defect in the judgment appealed against and relied upon to set it aside.’ See Metal Construction (W.A) Ltd. V. Migliore (1990) 1 NWLR (Pt.126) 299 at 311 per Karibi-Whyte J.S.C. (as he then was). The grounds of appeal are thus the reasons why the decision on appeal is considered by the aggrieved to be wrong. See Saraki V. Kotoye (1992) 11/12 S.C.N.J. 26 at 42. A ground of appeal must be fixed and circumscribed within a particular issue in controversy in any suit. A ground of appeal should therefore be based on an issue in controversy and arise from the judgment on appeal, it should constitute a challenge to the ratio of the decision. See Coker vs. U.B.A. (1997) 2 NWLR (Pt.486) 226. If the grounds of appeal derive from matters outside those related to the decision, they are incompetent. See Yusufu v. Kupper International (1996) 5 NWLR (Pt.446) 17.
The grounds of appeal, on appeal, has been likened to pleadings in the trial court and just as any issue on which parties do not join issue in the trial court does not call for determination, so also would a ground of appeal that did not arise from the judgment be incompetent before an appellate court. Pausing here after stating the law, I propose to state the motion filed before the trial court.
It is on record that, on 3/5/2005 the appellant filed motion dated 3/5/2005 praying the trial court for:
“(a) an order dismissing the said suit No. EN/815/2004 on the ground of lack of Locus-standi on the part of the respondent which renders the suit incompetent hence the Court lacks jurisdiction to entertain it.
(b) such further order(s) as the court may deem fit to make in the circumstances.”
From the body of the above motion, the appellant raised only one ground for objection, and that is of locus-standi (the legal right to sue) on the part of the respondent, and the ground of statute-barred was not therein raised at all. And as a matter of fact the learned trial judge made no decision on the issue of statute-barred as it has not been made a ground in the body of motion papers. It is lack of such finding that has been complained against by the appellant in his grounds of appeal. In this wise, is the appellant right to have raised a ground of appeal on it? I think not, for authorities abound on the meaning and essence of grounds of appeal. See Metal Construction (W.A.) Ltd v. Migliore (supra). For a proper understanding of this discussion I, will reproduce the said two grounds of appeal as follows:
1. The learned trial judge erred in law when he failed to resolve the issues of whether or not the suit is statute-barred and that the right of the Respondent to bring the action has extinguished and Ipso-facto the court lacks the jurisdiction to hear the suit.
2. The judge of the Court below is against the weight of evidence.
Reading through the Ruling of the trial court, I fail to see how the appellant can be justified in raising the above grounds of appeal when nowhere in the Ruling, was the issue invoked or discussed. In this regard, ground of appeal Nos. 1 and 2 which are not based on the judgment of trial court must be struck out and I so strike them out having not emanated from the decision of the trial court. For, an appellate court will not be lured or enticed into considering and determining issue which ought to be raised and was not raised due to lack of, learning or wisdom or careful reading or vigilance of counsel for appellant, however enticing to debate or determine the issue might be. After the above observation no Sound of appeal left in this appeal.
In the final analysis the objection raised by the respondent succeeds and sustained. The appeal is hereby struck out for being incompetent. I order no costs.
AMINA A. AUGIE, JCA: I have read in draft the lead Judgment just delivered by my learned brother, Tsamiya, JCA and I agree with him that the appeal lacks merit.
As he pointed out, the issue canvassed by the Appellant in this appeal was not considered by the lower court, and it is well settled that an appeal is merely an invitation to a higher court to review the decision of a lower Court whether on the proper consideration of the facts placed before it, and the applicable law, that court arrived at a correct decision – see Oredeyin V. Arowolo (1989) 4 NWLR (pt. 114) 172.
What is more, grounds of appeal are not formulated in abstract.
They must arise from the Judgment in the same way as the issues arising from the grounds of appeal. However meritorious a ground of appeal may be, it must be connected with the controversy between the parties, so also is the issue arising from the ground – see MBN Plc. V. Nwobodo (2005) 7 SC (Pt. III) 1. In this case, the Appellant’s grouse in Ground 1 of the Grounds of Appeal is that the lower Court erred when it failed to resolve the issue of whether or not the suit is statute-barred, while the Application before the lower Court was for an order dismissing the suit on the ground that the Respondent lacks the locus standi to sue. Obviously, the issue of whether a party has locus standi or not cannot be equated with the issue of whether an action is statute-barred. Both touch on the jurisdiction of a Court to entertain an action, but they are totally different things. Locus standi denotes the legal capacity to institute actions in a Court of law. It is the right of a party to appear and be heard on a question before any Court, and when raised as an issue, is an indirect questioning of the Court’s jurisdiction to adjudicate on the matter – see Pam V. Mohammed (2008) 16 NWLR (Pt. 112) 1 SC.On the other hand, when an action is statute-barred, the Plaintiff loses the right to enforce the cause of action by judicial process because the period of limitation had elapsed. In other words, when a statute of limitation prescribes a period within which an action must be initiated, legal proceedings cannot be properly and validly instituted after the expiration of the prescribed period. Any such action instituted must be struck out as not being properly instituted before the court – see Hassan V. Babangida (2010) LPELR-SC 170/2009. In this case, the Appellant’s Ground 1 that complains of an issue that was not the subject of the dispute at the lower Court is clearly incompetent, and must be struck out. Ground 2 complains that the Judgment is against the weight of evidence. But what evidence? Where an Appellant complains that a Judgment is against the weight of evidence, all he means is that when evidence adduced by him is balanced against that adduced by the Respondent, the Judgment in favour of the Respondent is against the weight, which should have been given to the totality of the evidence before the Court – see Khawam V. Akinkugbe (2001) 13 NWLR (Pt. 729) 70, Abisi V. Ekwealor (1993) 6 NWLR (pt. 302) 643. In this case, the Appellant merely filed an application that was dismissed by the lower Court; the matter did not proceed to trial to warrant any complaint about evidence. Ground 2 must also be struck out, and with no grounds of appeal to sustain it, the appeal itself is incompetent, and must also be struck out. The end result is that I uphold the objection raised by the Respondent, and also strike out the appeal. I also make no order as to costs.
AYOBODE O. LOKULO-SODIPE, J.C.A: I have had the privilege of reading in advance the judgment just delivered by my learned brother, Mohammed L. Tsamiya, JCA; and I am in total agreement with his lordship’s reasoning and conclusions.
I adopt the judgment as mine. Accordingly, I find the appeal to be incompetent as there is absolutely no valid ground of appeal to sustain it. The appeal is accordingly struck out.
I make no order as to costs.
Appearances
Izu Nwankwo, Esq.For Appellant
AND
Dr. E.E.J. OkerekeFor Respondent
