PROPHET MATHEW DARAMOLA v. THE NIGERIA POLICE (CID), IDIMU POLICE DIVISION & ORS
(2019)LCN/13791(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 22nd day of January, 2019
CA/L/614/2013
JUSTICES
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
PROPHET MATHEW DARAMOLA Appellant(s)
AND
1.THE NIGERIA POLICE (CID), IDIMU POLICE DIVISION
2. O/C LEGAL DEPT. STATE CID, PANTI, YABA, LAGOS
3. COMMISSIONER OF POLICE, LAGOS STATE
4. MINISTRY OF JUSTICE, ALAUSA, IKEJA, LAGOS. Respondent(s)
RATIO
WHETHER OR NOT PARTIES ARE AT LIBERTY TO ARGUE GROUNDS WHICH ARE NOT RELATED TO THE JUDGEMENT APPEALED AGAINST
In Dakolo & Ors vs. Rewane-Dakolo & Ors (2011) 6-7 SC (Pt. III) 104, the Supreme Court held: On the other hand, a ground of appeal should contain precise, clear, unequivocal and direct statement of the decision being attacked. A ground of appeal must give the exact particulars of the mistake, error or misdirection alleged as parties are bound by their grounds of appeal. Parties are therefore not at liberty to argue grounds which are not related to the judgment appealed against: Kalu vs. Uzor (2006) 8 NWLR Pt. 981, Page 66 Saraki vs. Kotoye (1992)9 NWLR Pt. 264, pg. 156 Bhojsons Plc. vs. Daniel Kalio (2006) 5 NWLR Pt. 973, Pg. 330; Shanu vs. Afribank (Nig.) Plc, (2002) 17 NWLR Pt. 795, Pg. 185.
Grounds of appeal are to be differentiated from their particulars ? while the grounds of appeal must clearly state what the appellant is complaining about, whereas the essence of the particulars of a ground of appeal is to set out briefly the aspect of the substantive law or procedural law that is affected by the error or misdirection identified or complained or in the ground of appeal. The fact that a ground of appeal is argumentative or repetitive is not sufficient to deny the appellant his right of appeal when on the face of the ground of appeal notable issue arises for consideration by the Court.
Similarly, in B. P. (West Africa) Ltd vs. Allen (1962) LPELR 25037 (SC), the apex Court held:
In civil appeals the grounds of appeal, and the arguments which may be advanced at the hearing, are governed by Rule 2 in Order VII of the Federal Supreme Court Rules, 1961. An appellant is allowed to put in the general ground that the judgment is against the weight of evidence; apart from that, he is required to set forth all his objections to the judgment in his grounds of appeal, not vaguely or in general terms, but concisely and under distinct heads. The aim is to give the respondent notice of the case to be met and to narrow the issues on the appeal, and the appellant must confine his arguments at the hearing to what the respondent could be fairly expected to prepare for under the grounds of appeal. PER EBIOWEI, J.C.A.
WHETHER OR NOT IT IS EVERY FAILURE TO ATTEND TO GROUNDS OF APPEAL THAT WOULD RENDER SUCH A GROUND INCOMPETENT
In Awusa vs. Nigeria Army (2018) LPELR-44377 (SC), Augie, JSC at pages 36-37 held: The law is that once the error complained of is identified and properly oriented in the Ground of Appeal, the fact that particulars to the said ground are argumentative, repetitive or narratives is not enough for an appellate Court to sidestep from doing justice – See Best (Nig.) Ltd. V. B.H. (Nig.) Ltd. (2011) 5 NWLR (Pt. 1239) 95 SC, and Omisore vs. Aregbesola (2015)15 NWLR (Pt. 1482) 205 at 257, where this Court per Nweze, JSC, made the point clear as follows: It is not every failure to attend to grounds of appeal with the fastidious details prescribed by the Rules of this Court that would render such a ground incompetent. This is particularly so where sufficient particulars can be gleaned from the grounds of Appeal — and the adversary and the Court are left in no doubt as to the particulars on which the grounds are founded — Even then, Courts are encouraged to make the best they can out of a bad or inelegant ground of appeal in the interest of justice — Put differently since the essence of the particulars is to project the reason for the ground complained of, the inelegance of the said particulars would not invalidate the grounds from which they follow — This position: a position shaped by the contemporary shift from technicalities to substantial justices is, clearly evidenced in such cases like Aderounmu vs. Olowu (2000)4 NWLR (Pt. 652) 253— Indeed, this Court, recently stamped its infallible authority on this current posture. Abe vs. Unilorin (2013)LPELR-20643; (2013)16 NWLR (Pt. 1379) 183. PER EBIOWEI, J.C.A.
DIFFERENCE BETWEEN RAISING A PRELIMINARY OBJECTION AGAINST AN APPEAL AND RAISING AN OBJECTION AGAINST A GROUNDS OF APPEAL FOR BEING DEFECTIVE
This Court said this much in Alaribe v. Okwuonu (2015) LPELR-24297 (CA) at pg.8-10 per Mbaba, JCA in these words:
?I think, it is necessary to state again, that there is a difference between raising a preliminary objection against an appeal, under Order 10 Rule 1 of the Court of Appeal Rules, 2011, and raising an objection against a ground(s) of appeal, for being defective. Whereas in the former, the Notice of Preliminary objection ought to be filed, separately, at least, 3 clear days to the hearing of the appeal, to give the opponent due notice before arguing it, either in the Respondent’s brief or separately, in the latter situation, the Respondent only needs to file a motion to highlight the defects in the ground(s), and the same can be properly raised in the Respondent’s brief and argued therein See the case of Innocent Okereke & Anor vs. Innocent Adiele CA/PH/421/2008, a recent decision of this Court, delivered on 20/11/14, where we said; The position of this Court, as per the authorities of the Apex Court, has always been that, where an objection is against one or more grounds of appeal, then the objector need not file a “preliminary objection”, but a motion, notifying the Appellant of the Respondent’s intention to contest the competence of those grounds of appeal or issue(s). Of course, such objection can be raised and argued in the Respondent’s brief, without the need to file a separate process to that effect. See the case of General Electric Co. vs. Harry Akande (2011)4 NSC OR 611. See also; Adejumo vs. Olawaiye (2014) 12 NWLR (Pt. 1421) 252 at 265) where the Supreme Court said; “A preliminary objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal. Where a preliminary objection would not be the appropriate process to object or show to the Court defects in the processes filed before it, a motion on notice filed complaining about the grounds or defect would suffice…”PER EBIOWEI, J.C.A.
TOBI EBIOWEI, J.C.A. (Delivering the Leading Judgment): The Ikeja Division of the Lagos High Court delivered a judgment in pages 115-122 of the record complied by the Appellant himself who also represented himself in this appeal. The judgment was delivered by Hon. Justice Y. O. Idowu (Mrs.) on 15/3/13. The judgment went against the Appellant who was Claimant in the lower Court. The parties in the lower Court against whom the Appellant made claims are the 1st ? 4th Respondents. The claim against the 1st Respondent in page 5 of the record is for N131,400,000 for ?act of terrorism; intruding and sabotage; lawlessness and delay tactics engaged by Idimu Police Station and the Inspection General of Police?. His claim against the 4th Respondent as 2nd Defendant is contained in page 6 of the record is for N90,000,000 (Ninety Million Naira) ?for aiding and abetting crime; preventing justice and delay tactics engaged by Lawyers of the Ministry of Justice, Lagos State?. The Appellant?s claim against the 1st Respondent was for the alleged violation of his fundamental right following his detention for 4 days.
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The Appellant filed a motion for summary judgment against the 1st Respondent following his non-appearance. He filed another application for summary judgment against the 4th Respondent for delay tactics, lying on oath and late appearance. The 1st Respondent did not file any appearance while the 4th Respondent filed a notice of preliminary objection. In the notice, 4th Respondent said the suit against him as 2nd Defendant is incompetent as it is not a juristic person and no cause of action is disclosed against it.
The lower Court in the judgment considered the notice of preliminary objection and upheld same. This is the judgment of the Court as in page 121 of the record:
?Thus, I agree with the 2nd Defendant?s contention that the Lagos State Ministry of Justice is not a proper person to be sued in this suit. In view of the forgoing as regards the issue of proper party to this suit and the issue of cause of action; I hold that the Claimant has failed to show that there is a valid cause of action against the Defendants. Thus, his application for summary (SC) hereby fails and is accordingly refused.?
The Appellant filed 2 separate notice of appeal for each of
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the Defendants in the lower Court who are 1st & 4th Respondents here. The notice of appeal against the 1st Respondent is in pages 123 -135 of the records while the notice of appeal against the 4th Respondent is in pages 136 -148 of the records. The notice of appeal against the 4th Respondents has 8 grounds. I will reproduce them here:
GROUND 1 ?Against 1st Defendant
Justice Y. Idowu, the trial judge showed some signs of timidity not only in not making clear judgment on the non-appearance of the 1st Defendants in this suit but failed to make them pay their fine as stated in Order 9, Rule 5 of the High Court of Lagos State (Civil Procedures) Rules. ?Late appearance? with penalty fee of N200.00 (two hundred naira) for each days of default.?
GROUND 2 ? Against 1st Defendant
The trial judge erred and failed in her judgment, perhaps depended on the grammatical error references of the 2nd defendants who made a memorandum of appearance for one.
GROUND 3 ? Against the 1st Defendant
Proper parties ? The trial judge failed and refused to identify proper party in the case of 2nd defendant.
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Scripturally, it is wrong to arrest or charge the father because of the sin or offence committed by his son or daughter. Legally, having caught and known an offender or an accused in this case, then the writ of summon should be directly addressed to Idimu Police Station (the accused), which I did on God?s command dated 7th October, 2011 and 16th January 2012 was fixed for hearing but no sitting until 7th February 2012. The trial judge failed and refused to hear my perspective that, in as much that, every division has their own inhouse administrative procedure that link them up with their superior, state or federal command in terms of finance or sharing of information. Then Idimu Police Station division should be summoned and apprehended, why they used their own inhouse administrator to follow up.
And perhaps the trial judge to write and invite their federal headquarter or their legal representative. These are my argument and submission before her noble Justice Y. Idowu. Rather than reason with me, she believes in the ethic of men of the bar or lawyers not of the claimants perspective (as an expert in law from God) While a lawyer practices to make (1) name (2) promotion to wit: SAN and
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and (3) popularity or fame, amongst others. A claimant in person sues only with the intention to have or get justice, and get his or her claim or relief. Eventually I was insulted out by the police on ground by the order of the trial judge. “Go and rewrite the writ and I will hear you shouted the trial judge.? which I did.
GROUND 4: Against the 1st Defendant
Justice Y. Idowu, the trial judge failed again and refused to reason with me (a living dead) who managed to enter into Court in person, but rather preferred to see my corpse lying before her, before she can believe that, there is are physical injuries. The cause of action and valid cause of action against the 1st defendants were conspicuously presented inform of documents and evidence, facts and combination of facts which give rise to sue the 1st defendants. Their wickedness, lawlessness and the wrongful act of the 1st defendants gave me cause for concern, complaint and consequently the embarrassment, destruction and damage done gave me cause of action with chance of success within the ambit of the law. It is a common thing to hear government officials, police and
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lawyers begging for information ? ?Please give us information.?
GROUND 5: Against the 1st defendant
The trial judge failed and refuse to explain, which is the greatest, the law (either natural law or constitution) or procedure and rules, whereas the system where we are is called the ?Court of law?. If law is the greatest, then let the law take its cause. “If there be controversy between men, and they come unto judgment, that the judges may judge them, then they shall justify the righteous, and condemn the wicked? Deuteronomy 25:1-2 and Deuteronomy 17:8-13.
GROUND 6: Against the 1st defendant
The trial judges erred in law, in pronouncing ?Thus his application for summary judgment hereby fails and is accordingly refused.? My intention for the application for summary judgment was to wake up the trial judge, of which eventually I am vindicated. The 1st defendants wasted 1 year 3 months (13 sitting) without any appearance, without defense and a judge thought it is right. 2nd defendants appeared 4 times but 2 times before the judge, and judge thought it is right.
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Ground 7: Against the 1st defendant
The trial judge failed and refused to read and acknowledge the facts and combinations of facts in documents and evidence presented to the Court, but only found fault in my ?application for summary judgment.? At the beginning of this law suit, I met with the O. C. Legal, CID Panti, who introduced to me a presumed lawyer that will represent me and the man, said to me, “Prophet, can you stop this case and we will stop the people entering the house My answer was, ?who is going to pay for the damages
GROUND 8: Against the 1st defendant
Bias judgment: The trial judge failed and refused to take my oral argument and submission concerning the attitude of the D.P.O. Idimu Police Station especially in this case. There was a day in Court on the 10th of May 2012, where the Court did not sit because of the increase in the 1st defendant?s lawlessness. I went and met with the P. A. to commissioner of police Lagos, O.C. Legal, CID Panti and eventually Area M. commander, who first directed me to see the present D.P.O. “You can go to anywhere? was his D.P.O. last angry word to me.
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But thank God for the maturity exhibited and intervention of the Area M. commander.
The Appellant filed an amended brief of argument on 5/3/18 which was deemed on 24/1/18. The Appellant adopted the brief on 16/11/18. The Appellant conducted the appeal by himself as he did not brief a lawyer to prosecute the appeal for him. He complied the records by himself and prepared the brief of argument. This is a bold step. There are consequences for all human conducts. In spite of the fact that the Appellant is not a lawyer, he decided to do the work of a lawyer. This Court will treat him as a lawyer in this instance and so he will not be treated any different in the presentation of his case. There are rules of how briefs are filed and the component of a good brief. If the rules are not followed, this Court will not overlook it simply because he is not a lawyer. He chose to represent himself; he will therefore swim or sink with the consequences. Brief writing requires so much skill that even lawyers need to learn and acquire. For a non- lawyer it requires much more learning. A brief must be elegant, comprehensive, legible, readable in appearance and attractive in presentation.
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It must not be unnecessarily lengthy and repetitive. It is not a muddling of facts and law. See: Jawando & Anor vs. Bakare (2006)4 FWLR (Pt. 345) 7445; Akinkunmi & Anor vs. Sadiq (2001)2 NWLR (Pt.696)105. In Nwadiugwu vs. IGP & Ors (2015) LPELR-26027 (CA), this Court held per Iyizoba, JCA at pages 13 -14 as follows:
?This Court and the Apex Court have repeatedly advised Counsel to be succinct and to the point in their briefs. Brief writing technique is such an important tool for any counsel who desires to practice law in the appellate Courts, that effort must be made by counsel to acquire the necessary technique. See the observation of Tobi JCA (as he then was) in Amadi vs. Essien (1994) 7 NWLR (Pt.354) 91 @ 112.?
In Afrotec Technical Services (Nig.) Ltd vs. MIA & Sons Ltd & Anor (2000) 12 SC (Pt. II) 1, the Supreme Court held:
?The purpose of filing a brief is to state with accuracy, brevity and precision whatever is essential to clear and adequate understanding of the questions which are required to be considered by the Court.?
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I am going into all this because the brief filed by the Appellant has not respected the known rules of brief writing. I really do not know how to comment on the brief because it is really confusing. I cannot identify the issues for determination and appreciate the arguments raised therein. The grounds of appeal in the notice of appeal are also very confusing. Formulating grounds of appeal and writing brief of argument is a very serious business in the appellate Court and therefore should not be taken lightly. The Appellant in my considered opinion should have briefed a lawyer but that is that about that.
I must however say that within the con of the limited knowledge of the Appellant he tried his best and did the job to the best of his ability. For a non-lawyer, he must be commended for attempting to delve into the skillful area of brief writing. I cannot take that away from him. I commend him for that bold step but the law is the law and rules are rules. This is the reality on ground and bending the rules for whatever reason will amount to injustice. We will look at the merit of the relevant part of the brief of the Appellant. The relevant part is in page 3 and paragraph 3 of the Appellant?s brief.
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In the said paragraph, Appellant submitted that the 4th Respondent is a proper person to be sued and the preliminary objection amounts to a mere academic exercise.
The 4th Respondent filed its brief of argument and raised a preliminary objection to the appeal. The brief was filed by Olubukola O. Adeshina (Mrs.) from the office of the Attorney General of Lagos State. The brief was filed on 15/10/15 but deemed on 16/11/18 and adopted on same day. The argument on the preliminary objection covered pages 9-15 found in paragraphs 3.0 – 3.16 of the 4th Respondents brief of argument. The basis of the preliminary objection is that the grounds of appeal are narrative, argumentative and incompetent. Learned Counsel stated the general legal position on grounds of appeal and submitted that all the 8 grounds of appeal contained in the notice of appeal are not precise, clear, unequivocal and does not disclose any reasonable cause of action. They do not meet the requirement of competence. He referred to Order 6 Rules 2 & 3 of the Court of Appeal Rules and the cases of A.S.R. Co Ltd vs. O. O. Biosah & Co Ltd (1997)11 NWLR (Pt. 537)145; Metal Construction (WA ) Ltd vs. Migliore (1990) 1 NWLR (Pt. 152) 299; Incar (Nig.) Plc vs. Bolex Ent (Nig.) Ltd (1996)6 NWLR
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(Pt.454) 318; Peters vs. State (1992)9 NWLR (Pt. 265) 323; Udoete vs. Heil (2002)13 NWLR (Pt. 783)64; Adah vs.Adah (2001) 5 NWLR (Pt. 705) 1 SC 8; Owners, M.V. Gongola Hope vs. S.C. ( Nig) Ltd (2007) 15 NWLR (pt 1056) 189 SC; Olorunfemi vs. N.E.B. LTD (2003) 5 NWLR (Pt. 812) etc. It is the final submission of counsel that the notice of appeal and the brief of argument be discountenance for they are illogical and unmeritorious.
The Appellant filed a reply brief on 21/10/15 deemed on 16/11/18. The reply brief was more of re-arguing the appeal which is not allowed in a reply brief. See Aina & Anor vs. Ariyo & Anor (2017) LPELR 42888; Dairo vs. Union Bank & Anor (2007) SC (Pt. II) 97.
Since there is a preliminary objection, I am required by law to consider it first before going into the merit of the appeal if need be. See; Olawale vs. First Bank & Ors. (2015) LPELR-40386 (CA); FBN Plc vs. T.S.A. Industries Ltd.
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(2010) 4-7 (Pt.1) 242; Umanah vs. NDIC (2016) LPELR-42556 (SC).
I will therefore look at the validity or viability of the preliminary objection.
The objection is on the grounds of appeal. The position stated by the 4th Respondent as to the law on grounds of appeal is correct. The notice of appeal which contains the grounds must be competent. Once the grounds are not clear, precise and relate to aspects of the judgment challenged, the grounds of appeal are said to be incompetent and therefore all arguments based on an incompetent ground of appeal will also be incompetent. The implication is that the notice of appeal, the grounds and the argument based on it will be struck out. In Dakolo & Ors vs. Rewane-Dakolo & Ors (2011) 6-7 SC (Pt. III) 104, the Supreme Court held:
?On the other hand, a ground of appeal should contain precise, clear, unequivocal and direct statement of the decision being attacked. A ground of appeal must give the exact particulars of the mistake, error or misdirection alleged as parties are bound by their grounds of appeal. Parties are therefore not at liberty to argue grounds which are not related to the judgment appealed against: Kalu vs. Uzor (2006) 8 NWLR Pt. 981, Page 66 Saraki vs. Kotoye (1992)9 NWLR Pt. 264, pg. 156 Bhojsons Plc. vs.
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Daniel Kalio (2006) 5 NWLR Pt. 973, Pg. 330; Shanu vs. Afribank (Nig.) Plc, (2002) 17 NWLR Pt. 795, Pg. 185.
Grounds of appeal are to be differentiated from their particulars ? while the grounds of appeal must clearly state what the appellant is complaining about, whereas the essence of the particulars of a ground of appeal is to set out briefly the aspect of the substantive law or procedural law that is affected by the error or misdirection identified or complained or in the ground of appeal. The fact that a ground of appeal is argumentative or repetitive is not sufficient to deny the appellant his right of appeal when on the face of the ground of appeal notable issue arises for consideration by the Court?.
Similarly, in B. P. (West Africa) Ltd vs. Allen (1962) LPELR 25037 (SC), the apex Court held:
?In civil appeals the grounds of appeal, and the arguments which may be advanced at the hearing, are governed by Rule 2 in Order VII of the Federal Supreme Court Rules, 1961. An appellant is allowed to put in the general ground that the judgment is against the weight of evidence; apart from that, he is required to set forth all his objections to the
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judgment in his grounds of appeal, not vaguely or in general terms, but concisely and under distinct heads. The aim is to give the respondent notice of the case to be met and to narrow the issues on the appeal, and the appellant must confine his arguments at the hearing to what the respondent could be fairly expected to prepare for under the grounds of appeal.?
The point however must be made that justice should not be sacrificed on the altar of technicality. Even in the mix of the narrative and the argumentative particulars of grounds of appeal, if what the Appellant is challenging in the judgment or complaining against is clear, the Court in the interest of justice will still consider the merit of the appeal. In Awusa vs. Nigeria Army (2018) LPELR-44377 (SC), Augie, JSC at pages 36-37 held:
?The law is that once the error complained of is identified and properly oriented in the Ground of Appeal, the fact that particulars to the said ground are argumentative, repetitive or narratives is not enough for an appellate Court to sidestep from doing justice – See Best (Nig.) Ltd. V. B.H. (Nig.) Ltd. (2011) 5 NWLR (Pt. 1239) 95 SC, and Omisore vs. Aregbesola
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(2015)15 NWLR (Pt. 1482) 205 at 257, where this Court per Nweze, JSC, made the point clear as follows:
It is not every failure to attend to grounds of appeal with the fastidious details prescribed by the Rules of this Court that would render such a ground incompetent. This is particularly so where sufficient particulars can be gleaned from the grounds of Appeal — and the adversary and the Court are left in no doubt as to the particulars on which the grounds are founded — Even then, Courts are encouraged to make the best they can out of a bad or inelegant ground of appeal in the interest of justice — Put differently since the essence of the particulars is to project the reason for the ground complained of, the inelegance of the said particulars would not invalidate the grounds from which they follow — This position: a position shaped by the contemporary shift from technicalities to substantial justices is, clearly evidenced in such cases like Aderounmu vs. Olowu (2000)4 NWLR (Pt. 652) 253— Indeed, this Court, recently stamped its infallible authority on this current posture. Abe vs. Unilorin (2013)LPELR-20643;
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(2013)16 NWLR (Pt. 1379) 183.?
The grounds of appeal should not be argumentative, if it is, it can be declared invalid. This point was brought out clearly by Uwaifo, JSC in Adah vs. Adah (2001) 2 SC 1 where his lordship held:
?I do not intend to concern myself with the validity of this ground of appeal because of the argumentative nature of the particulars in contravention of Order 8, R. 2(3) of the Supreme Court Rules, 1985 (as amended). That rule clearly states that a notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively. It is plain that neither a ground of appeal nor the particulars in support should contain any argument or narrative otherwise its validity could be called into question.?
The apex Court in PDP vs. Sherrif &Ors (2017) LPELR 42736 (SC) at pages 23-24 per Rhodes- Vivour JSC held:
“When a party is not satisfied with a decision, he files a Notice of Appeal. The Notice of Appeal contains grounds of appeal. The grounds of appeal represent the appellants complaint against the decision which
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he wants the Court to correct or remedy. A ground of appeal is against the decision and it must challenge the ratio decidendi and not the obiter dicta. On no account must there be a disconnect between the grounds of appeal and the controversy between the parties. This also applies to the issues which must arise from the ground since appeals are decided on issues for determination which are formulated from the grounds of appeal. See: Abubakar vs. B.O. & A.P. Ltd. (2007)18 NWLR (Pt.1066) Pg.319, Adesanya vs. President of Nigeria (1981)12 NSCC P.247.?
Having taking a roll call of my own cases on the subject, I agree with the 4th Respondent?s argument that the grounds of appeal are incompetent and therefore are to be struck out.
The 4th Respondent raised the preliminary objection in the brief of argument and did not file a notice of preliminary objection. In the circumstance of the objection raised, the 4th Respondent is not under any obligation to comply with Order 10 Rule 3 of the Court of Appeal Rules, 2011 since the objection is on the grounds of appeal. This Court said this much in Alaribe v. Okwuonu
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(2015) LPELR-24297 (CA) at pg.8-10 per Mbaba, JCA in these words:
?I think, it is necessary to state again, that there is a difference between raising a preliminary objection against an appeal, under Order 10 Rule 1 of the Court of Appeal Rules, 2011, and raising an objection against a ground(s) of appeal, for being defective. Whereas in the former, the Notice of Preliminary objection ought to be filed, separately, at least, 3 clear days to the hearing of the appeal, to give the opponent due notice before arguing it, either in the Respondent’s brief or separately, in the latter situation, the Respondent only needs to file a motion to highlight the defects in the ground(s), and the same can be properly raised in the Respondent’s brief and argued therein See the case of Innocent Okereke & Anor vs. Innocent Adiele CA/PH/421/2008, a recent decision of this Court, delivered on 20/11/14, where we said;
?The position of this Court, as per the authorities of the Apex Court, has always been that, where an objection is against one or more grounds of appeal, then the objector need not file a “preliminary objection”, but a motion, notifying the Appellant of
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the Respondent’s intention to contest the competence of those grounds of appeal or issue(s). Of course, such objection can be raised and argued in the Respondent’s brief, without the need to file a separate process to that effect. See the case of General Electric Co. vs. Harry Akande (2011)4 NSC OR 611. See also; Adejumo vs. Olawaiye (2014) 12 NWLR (Pt. 1421) 252 at 265) where the Supreme Court said; “A preliminary objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal. Where a preliminary objection would not be the appropriate process to object or show to the Court defects in the processes filed before it, a motion on notice filed complaining about the grounds or defect would suffice…”
The claimant has gone through great length and effort to pursue this appeal. I commend him very well for the effort. He complied the records of appeal by himself, filed the notice of appeal, the briefs therein. He certainly has done well and need to be proud of himself. Not been a lawyer been able to do all that, I commend him again and again.
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I have however said above that the appeal is incompetent and haven so held, it will amount to an academic exercise
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to delve into the merit of the appeal and moreso Courts are not to deal with academic issues. Academic should be left for those in academics while real and life issues are for Courts. See: Ogugu vs. State (2011) 15 NWLR (Pt. 1429) 36, the apex Court per Rhodes ?Vivour, JSC held:
?When a judge restrains himself from deciding issues in a case or the whole case because his effort would amount to an academic exercise all that his lordship is saying is that if he decides the suit it would end with a hollow victory. A victory with no value whatsoever. A victory that cannot be enforced. That explains why in a plethora of cases it has been said that Courts should not engage in academic exercise, rather Courts should restrict judicial time to determine live issues see: Oyeneye vs. Odugbesan (1972) 4 (sc) pages 244: Adelaja & Ors vs. Alade & Anor (1999) 6 NWLR (Pt. 608) pages 544; Bhojwani vs. Bhojwani, (1996) 6 NWLR (Pt. 457) page 663; Bamgboye vs. Unilorin (1999) 10 NWLR (Pt. 622) pages 290?
The grounds of appeal did not comply with the legal requirement to make them worthy of any consideration.
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The objection of the 4th Respondent succeeds and this appeal is therefore struck out on grounds of the incompetence of the grounds of appeal. I make no order as to cost.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I was privileged to have read in advance the leading judgment of my learned brother, Ebiowei Tobi, JCA, which has just been delivered. I entirely agree with, and do not desire to add to the reasoning and conclusion therein arrived at. For the same reasons, I equally strike out this appeal for being incompetent. I abide by the order as to costs.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have read in draft the judgment of my learned brother, EBIOWEI TOBI, JCA just delivered and I agree with him that the 4th Respondent’s preliminary objection is well conceived; it succeeds and the appeal is hereby struck out. I have nothing more useful to add.