ROSE STAR ENTERPRISES LIMITED & ANOR v. INDO NIGERIAN BANK LIMITED (2014)

ROSE STAR ENTERPRISES LIMITED & ANOR v. INDO NIGERIAN BANK LIMITED

(2014)LCN/7272(CA)

(2014) LPELR-23646(CA)

In The Court of Appeal of Nigeria

On Thursday, the 12th day of June, 2014

CA/K/62/2009

RATIO

WHETHER AN ISSUE FOR DETERMINATION OF APPEAL MUST FLOW FROM THE GROUND(S) OF APPEAL

The law is also trite that an issue for determination of appeal must arise or flow from the ground(s) of appeal which, in turn, must be founded on the judgment appealed against. See AJIBULU vs. AJAYI (2013) LPELR -21860 (SC) at page II:
“…The law is well settled… that issues for determination are distilled from the grounds of appeal. Any issue which does not arise or has its origin from a ground of appeal is incompetent and must be struck out. It is also correct to say that appeals are argued on issues derived and predicated on grounds of appeal which are reduced into issues. Any ground therefore that does not translate into an issue is deemed abandoned and ought to be struck out.” (Per Ogunbiyi JSC) See also OSSAI vs. F.R.N. (2013) 13 WRN 87; UNILORIN VS. OLAWEPO (2012) 52 WRN 42; SHETTIMA vs. GONI (2011) 18 NWLR (Pt. 1279) 413.” per ITA GEORGE MBABA, J.C.A.

WORDS AND PHRASES: APPEAL

It is settled law that an appeal is an invitation to a higher court to review the decision of a lower Court in order to find out whether, on proper consideration of the facts placed before it and the applicable law, the lower court arrived at the right decision – Oba vs Egberongbe (1999) 8 NWLR (Pt 685) 485, Nigerian Navy Vs Labinjo (2012) 17 NWLR (Pt 1328) 56, Ombugadu vs Congress for Progressive Change (2013) 3 NWLR (Pt 1340) 31.per ABDU ABOKI, J.C.A.

WORDS AND PHRASES: NOTICE OF AN APPEAL

The notice of appeal is the ‘spinal cord’ of an appeal. It is the foundation upon which an appeal is based. It is the originating process which sets the ball rolling for the proper, valid and lawful commencement of an appeal. It contains what the subject matter of the appeal is – Aderibigbe vs Abidoye (2009) 10 NWLR (Pt 1150) 592, Akpan Vs Bob (2010) 17 NWLR (Pt. 1223) 421, Dingyadi Vs Independent National Electoral Commission (No 1) (2010) 18 NWLR (Pt 1224) 1. The notice of appeal, just like pleadings, is binding on the parties – Federal Airport Authority of Nigeria vs Greenstone Ltd (2009) 10 NWLR (Pt. 1150) 624. per ABDU ABOKI, J.C.A.

Justice

A. ABOKI Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

1. ROSE STAR ENTERPRISES LTD
2. MR. SYLVESTER AGBOAppellant(s)

AND

INDO NIGERIAN BANK LTDRespondent(s)

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of Kano State High Court in Suit No. K/651/2004, delivered by Hon. Justice Nuhu Yahaya Galadinci on 6th December, 2007, wherein the lower court entered judgment for the Plaintiff (now Respondent) in the suit, earlier placed on the undefended list. The claim of the Respondent at the trial was made:
“against the Defendants jointly and severally, the sum of N6,028,169.45, plus 22,5% (sic) interest at Bank rate, from the 30th day of September, 2004 till the date of judgment and thereafter 10% interest at court rate, from the date of judgment till final liquidation of the judgment debt. And the cost of action.

Respondent had granted the 1st Appellant financial accommodation, which was later up stamped to N5.5million, and at close of business on 30/9/2004, had risen to N6,028,169.95. The suit was placed on the undefended list for hearing and determination, but the Appellants filed notice of intention to defend the suit and affidavit therefor. The trial court held that the Appellants did not disclose any defence to the claim, and entered judgment for the Respondent.

Dissatisfied, Appellants filed this appeal, on 14/8/2008 and disclosed four grounds of appeal, as shown on pages 168 and 169 of the Records of Appeal, as follows:
“(1)The learned trial Judge erred in law when he held that the writ of summons was validly signed by a legal practitioner.

PARTICULARS OF ERROR:
a. The Writ of Summons on the undefended list procedure was signed by P. A. Oyoyo & Co. who is not a legal practitioner with licence to practice as such.
b. It is trite law that only a legal practitioner as defined by Section 2(1) and 24 of the Legal Practitioners Act, Cap 20 LFN 1990 can validly file and sign court processes of any type.
c. The Supreme Court case of OKAFOR vs. OKEKE (2007) ALL FWLR (Pt. 368) 1016 has clearly settled the issue of who can sign a court process.
1) The learned trial Judge erred in law when he held that case of OKAFOR vs. OKEKE (supra) is distinguishable from the one before him on the premise that the case of OKAFOR vs. OKEKE is limited to motions generally and thus refused to follow the decision of the Apex Court.

PARTICULARS OF ERROR:
a. The learned Supreme Court Justices decision is all encompassing and did not spare any court processes i.e. Writ of Summons, Statement of Claim, Motions, Notice of Appeal etc.
b. The learned Apex Court in OKAFOR vs. OKEKE (supra) has finally laid to rest the issue of who can endorse/sign a court process on behalf of litigants.
c. The decision of the erudite Justices of the Supreme Court is binding on the Honourable trial court and the learned trial judge ought to have followed the Supreme Court decision.
3. The learned trial Judge erred in law when he held that the endorsement on the Writ of Summons by: “this writ was taken out by P. A. Oyoyo Esq.” has cured the defect of the signing the writ.

PARTICULARS OF ERROR:
a. Endorsement on a writ is different from signing a writ of summons.
b. From the Writ of Summons it is apparent that the writ was signed by P. A. Oyoyo & Co. and there is nothing to show that P. A. Oyoyo Esq. signed the writ of summons.
c. It is not the duty of the trial judge to embark on an investigative voyage or exercise, as it is not the trial court’s duty to fill in any shortcoming in the Plaintiff’s case.
d. The name, P.A. Oyoyo & Co. is a partnership business name which P.A. Oyoyo cannot ascribe to himself alone.
4. The judgment of the Honourable trial court is/was against the weight of evidence duly placed before it.”

Appellants filed their brief of argument, dated 8th April 2010 and it was deemed filed on 22/3/11. They distilled two (2) issues for determination of the appeal, as follows:
“(1) Whether or not the learned lower court was right to held (sic) that the notice of intention to defend, with affidavits together with the 2 annexures, did not disclose defence in the merit. (Ground 1).
(2) Whether or not the Respondent’s case before the lower court was properly instituted under the undefended list action.”

The Respondent filed a Notice of Preliminary Objection on 4/5/10 against the appeal, on the ground that the issues 1 and 2, formulated by appellants, do not relate to grounds 1 and 2 of the Notice of Appeal or to any of the grounds of appeal, thereby making grounds 1 and 2 incompetent, and that grounds 3 and 4 of the grounds of appeal are also incompetent, issues having not been formulated on them.

The Respondent also filed their brief of arguments on 14/5/10, wherein they argued the preliminary objection, on pages 4 to 8. They also raised two (2) issues for the determination of the appeal, alternatively, as follows:
“(1) Whether or not the suit as filed before the trial court was competent having regards to the circumstances of the writ of summons (Grounds 1, 2 and 3)
(2) Whether or not the trial court was justified to grant the Respondent’s prayers under the Undefended list, having regards to the affidavit evidence and other materials placed before the lower trial court (Ground 4).”

The appeal was argued on 25/3/2014, but the Appellant was absent though there was evidence of service of the hearing notice on him. The Respondent adopted its brief starting with the preliminary objection, on pages 4 to 8 of the Respondent’s brief, which was not replied to by the Appellants. Appellants’ brief was deemed duly argued by this court.

Arguing the preliminary objection, P. A. Oyoyo Esq. (who settled the Brief) reproduced ground 1 of the appeal and called our attention to it, vis-a-vis the issue one by the Appellants and submitted that the issue had no relationship with that ground of appeal. He also referred us to issue 2 and said that there was no relationship between the issue 2 and ground 2; that the two issues had no bearing with the other grounds of the appeal and urged us to strike both the grounds of appeal and the issues out, for incompetence. He relied on the case of IDRIS vs. AUDU (2008) All FWLR (Pt. 422) 1122 at 1127; MUBO vs. ALABI (2008) All FWLR (Pt. 404) 1473.

I have already reproduced the s of the 4 grounds of appeal in this judgment, as per pages 168 and 169 of the Records of Appeal, as well as the two issues for determination, distilled by Appellants from the 1st and 2nd grounds of their appeal, respectively. Appellants did not distill any issue from grounds 3 and 4 of the appeal, and so they are deemed to have been abandoned by the Appellants.
When that happens in appeal, the proper order to make is to strike out the abandoned process. Accordingly, Grounds 3 and 4 of Appellants’ grounds of appeal are hereby struck out. See UGWU vs. STATE (2013) LPELR – 22572, (CA); ONUAGULUCHI vs. PDP & ORS (2013) LPELR 21250 (CA); SAPO vs. SUAMONU (2010) Vol. 5 – 7 (Pt. 1) MJSC 35; OLAIYA vs. STATE (2010) All FWLR (Pt. 514) 1; SUNDAY vs. INEC (2008) All FWLR (Pt. 431) 985; AYANYOKE vs. KEYSTONE BANK LTD (2013) LPELR – 21806 (CA) (PP 24 – 25).

Appellants’ grounds of appeal, in the main, were predicated on the complaint that the learned trial Judge erred when he held that the Writ of Summons was properly signed by a legal practitioner, whereas it was purportedly signed by P.A. Oyoyo & Co. (a law firm of P.A Oyoyo Esq. and another lawyer).
Appellants had relied on the Supreme Court case of OKAFOR vs. OKEKE (2007) ALL FWLR (Pt.368) 1016, on the issue, and specifically, made a ground of it, because the learned trial Judge had distinguished that case from this case and had refused to follow it. Grounds 1, 2 and 3 had specifically raised those complaints, and in fact were repetition of the same complaint. Any issue for determination, arising from the said grounds 1 and 2 should be seen to flow therefrom, and must relate to the complaints touching on the non-signing of the process of court by a legal practitioner, and the failure or refusal of the trial court to follow the case of OKAFOR vs. OKEKE (supra), to rule against the Respondent (plaintiff at the court below).

Even a casual perusal of the issues by Appellants in this appeal can show that Appellants’ issues 1 and 2 are, completely, outside the purview or contemplation of the complaints in the grounds 1 and 2 of the appeal, said to have given rise to the issues.

I hereby reproduce the two issues again formulated by the Appellants for determination of the appeal:
(1) Whether or not the learned lower was right to hold (sic) that the notice of intention to defend with the 2 affidavits together with the 2 annexures did not disclose defence on the merit.
(2) Whether or not the Respondent’s case before the lower court was properly instituted under the undefended list action.

Those issues were, completely, on a different complaint, i.e. that Appellants’ notice of intention to defend the suit and their affidavit in support, disclosed a defence on the merit, contrary to the decision of the lower court. Of course, though the case, at the lower court, was heard on the undefended list procedure, and the trial court had held that Appellants’ notice of intention to defend the action and their affidavit, therefore, did not disclose tangible defence, Appellants never raised any ground of appeal on that point of the decision of the court. And by law, where no appeal is raised against any particular findings/holding of a court, the same is taken as conclusive and binding on the parties, SHUKKA vs. ABUBAKAR (2012) 4 NWLR (PT. 129) 497; GWANTU vs. YAKI & ORS (2013) LPELR – 21416 (CA) OKOTIE – EBOH vs. MANAGER (2004) 18 NWLR (Pt. 905) 242; DAN’ASABE vs. BABALE (2013) LPELR – 22360 (CA).

I therefore agree with the Respondent that the issues for determination of this appeal do not flow from the grounds of appeal and are therefore incompetent and liable to be struck out. The 2 issues for determination and the grounds 1 and 2, together with the arguments on the issues are, accordingly, struck out, as I uphold the preliminary objection.
The appeal is accordingly struck out.
The parties shall bear their respective costs.

ABDU ABOKI, J.C.A.: I agree with the reasoning and conclusions of my learned brother ITA G. MBABA, J.C.A., that this appeal should be struck out. Same is struck out by me. I abide by the consequential order as to costs in the lead judgment.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Ita George Mbaba, JCA. His Lordship has considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide with the conclusions in the lead judgment.

The Respondent filed a notice of preliminary objection challenging the competence of this appeal on the ground that the two issues for determination formulated by the counsel to the Appellants in the brief of arguments did not relate to any of the four grounds of appeal contained in the notice of appeal filed. It is settled law that an appeal is an invitation to a higher court to review the decision of a lower Court in order to find out whether, on proper consideration of the facts placed before it and the applicable law, the lower court arrived at the right decision – Oba vs Egberongbe (1999) 8 NWLR (Pt 685) 485, Nigerian Navy Vs Labinjo (2012) 17 NWLR (Pt 1328) 56, Ombugadu vs Congress for Progressive Change (2013) 3 NWLR (Pt 1340) 31.

It is also settled that the only known and legitimate way or method of laying a complaint before a higher court or tribunal, to show grievances of an aggrieved party against a decision taken by an inferior court or tribunal, is by filing a notice of appeal which contains the grounds of appeal against that decision.
The notice of appeal is the ‘spinal cord’ of an appeal. It is the foundation upon which an appeal is based. It is the originating process which sets the ball rolling for the proper, valid and lawful commencement of an appeal. It contains what the subject matter of the appeal is – Aderibigbe vs Abidoye (2009) 10 NWLR (Pt 1150) 592, Akpan Vs Bob (2010) 17 NWLR (Pt. 1223) 421, Dingyadi Vs Independent National Electoral Commission (No 1) (2010) 18 NWLR (Pt 1224) 1. The notice of appeal, just like pleadings, is binding on the parties – Federal Airport Authority of Nigeria vs Greenstone Ltd (2009) 10 NWLR (Pt. 1150) 624.
Therefore, the Courts have stated that issues for determination in an appeal must be distilled from, related to and founded on the grounds of appeal contained in the notice of appeal and must deal with matters which are a direct challenge to the decision of the lower Court. Any issue for determination formulated outside the grounds of appeal and which does not deal with matters directly challenging the decision of the lower Court is of no use in an appeal and it will be irrelevant and be struck out – Shipcare Nigeria Limited, Owners of the “M/T African Hyacinth” Vs The Owners of the “M/V Fortunato” (2011) 7 NWLR (Pt 1246) 205, Ebute Vs Union Bank of Nigeria Plc (2012) 2 NWLR (Pt 1284) 254 and Odusote Vs Odusote (2012) 3 NWLR (Pt 1288) 478.

Reading the two issues for determination formulated by the Appellants in the instant case along with the four grounds of appeal contained in the notice of appeal, it is apparent that there is no correlation between them and the issues did not arise from the grounds of appeal. This is not a case of inelegant drafting of issues for determination which this Court can, for the purposes of doing Justice on the merits of the appeal, accept as valid and reframe – Ogboru Vs Uduaghan (2012) 11 NWLR (Pt 1311) 357. The issues are alien to the complaint on this appeal as contained in the notice of appeal against the decision of the lower Court. The issues for determination must thus be struck out and the arguments thereon discountenanced.

The net effect of these is that the Appellants have no viable issue for determination and/or useful arguments before this Court in this appeal. It is trite that issues for determination are an essential, important and integral part of every brief of arguments filed in the appellate Court and this is because appeals in the Supreme Court and in this Court are argued on the issues formulated by counsel as arising from the grounds of appeal – Daniel Tayar Transport Enterprises Nigeria Company Ltd Vs Busari (2011) 8 NWLR (Pt. 1249) 387. Thus, it has been held that where an appellant has presented no issues for determination before an appellate court in a brief of arguments, it is sufficient by itself to render the brief incompetent, and the appeal liable to be struck out – Orji vs Zaria Industries Ltd (1992) 1 NWLR (Pt 216) 124, Adehi vs Atega (1995) 5 NWLR (Pt. 398) 656, Nigerian Air Force Vs Shekete (2002) 18 NWLR (Pt 798) 129, Abayomi vs Attorney General, Ondo State (2006) 8 NWLR (Pt 982) 211. And it is not an issue of technicality but an established principle and settled law- Oyegun Vs Nzeribe (2010) 16 NWLR (Pt. 1220) 568. This appeal is thus incurably bad and is liable to be struck out.

I too thus uphold the preliminary objection of the Respondent and I hereby enter an order striking out this appeal. I abide by the consequential order on costs in the lead judgment.

Appearances

BELLO DAHIRU ESQ. (who settled the brief)For Appellant

AND

P. A. OYOYO ESQ. (who settled the brief)For Respondent