SAMSON IGBINOWANHIA v. MR. EDEBIRI OMORUYI
(2018)LCN/11871(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 6th day of June, 2018
CA/B/490/2013
RATIO
APPEAL: GROUNDS OF APPEAL
“It is now settled law that a party is not allowed to formulate more than one issue for determination out of a common ground(s) of appeal. It is permissible to formulate one issue from one or more grounds of appeal but not vice versa. This is the principle against proliferation of issues for determination. Where the two issues for determination are distilled from common ground(s), both issues proliferated are rendered incompetent.” PER HUSSEIN MUKHTAR, J.C.A.
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
SAMSON IGBINOWANHIA Appellant(s)
AND
MR. EDEBIRI OMORUYI Respondent(s)
HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment):
This is an Appeal against the judgment of the High Court of Edo State delivered on 27th January 2012 by Honourable Justice A. N. Ehigiamusoe wherein the Court granted all the reliefs sought for by the Respondent.
The Respondent took out a Writ of Summons dated 18/2/2008 against the Appellant claiming the following relief: –
The Plaintiff claim against the Defendant is for the sum of Three Million, Six Hundred thousand Naira being agency fees payable to the Plaintiff by the Defendant as a result of the successful sale by the Plaintiff of the Defendant’s premises known as No. 92, Sapele Road, Benin City to First Bank of Nig. Plc for the sum of Thirty-six Million Naira sometime in January 2008.
The Defendant/Appellant has allegedly refused to pay the said agency fees despite several demands.
The Respondent later amended his Statement of Claim and increased the claim to N4,000,000 (Four Million Naira) with leave granted through an application dated 12/6/2008.
The Appellant filed his Statement of Defence dated 11th June 2008 that was subsequently amended the Statement of Defence dated 11th June 2008 after his application for amendment was partly granted less amendments to paragraphs 9a, 11(a), (b), (c) (d) and (e), which were refused.
The extant Statement of Defence of the (Defendant) Appellant is the Amended Statement of Defence dated 16th September 2008, excluding the amendments in paragraphs 9a, 11(a), (b), (c) (d) and (e) which were refused by the Learned Trial Judge.
The Respondent led evidence and tendered Exhibit A, the power of Attorney purportedly donated to him by the Appellant. The Appellant also testified and tendered Exhibit B- being Power of Attorney donated by him to Barrister Umeh Obaro to also sell his property and called a witness named Asemota. The said Asemota tendered exhibit C – the Power of Attorney donated to him by the Appellant for him to sell the Property and also tendered Exhibit ‘D’. Exhibit ‘D’ is the letter from First Bank to Asemota on their requirements of the piece or parcel of land needed.
The Learned Trial Judge delivered Judgment on the 27th January 2012 wherein the judgment was entered in favour of the Respondent.
Dissatisfied with the judgment, the Appellant filed a Notice of Appeal dated 9th March 2012 on the two grounds. The Notice of Appeal was subsequently amended with the leave thereby basing the appeal on an aggregate of three grounds as follows:
GROUND ONE
The Learned Trial Judge erred in Law in relying on the Exhibit A – the power of Attorney when same was not authenticated, thereby occasioned miscarriage of Justice.
PARTICULARS
i) That Appellant stated that it was the Respondent that brought Exhibit A to him to sign even though the Appellant said that he had given power of Attorney to another person.
ii) It was not the Appellant that wrote the power of Attorney, but the Respondent did, it was necessary to authenticate same in order to bring to the notice of the Appellant the content of the Exhibit ‘A’.
The Learned Trial Judge ought to have read the whole paragraphs to ascertain the intention of the donor.
GROUND TWO
The Learned Trial Judge erred in Law in relying on Exhibit A in giving Judgment to the Respondent.
PARTICULARS
i) The Court cannot pick and choose which of the clauses to rely on in giving its Judgment having regard to Exhibit A.
ii) By virtue of paragraph 4 of Exhibit A, the contract becomes unenforceable as there is no consideration for earning 10% howsoever.
GROUND THREE
The Judgment of the Court is against the weight of evidence.
The Learned Counsel for the Respondent raised a preliminary objection as follows:
NOTICE OF PRELIMINARY OBJECTION
Take Notice that the Respondent herein at the hearing of this appeal shall rely upon the following preliminary objection.
And Take Notice that the grounds of the said objection are:
(1) Non-payment of default fees for late filing of Appellants Brief of Argument thereby rendering the brief incompetent.
(2) Failure of Appellant to obtain leave of Court before raising the issue of illegality and non-payment of filing fees in issue 2 of his issues for determination.
(3) Proliferation of issues from grounds 1 & 2 of the grounds of appeal.
The Respondent’s counsel vehemently argued the foregoing two grounds. Let me quickly observe without much ado that penalty for late filing of briefs is an activity done in the Registry of the Court. It is difficult for counsel who is not a registry staff to speculate what happens in the registry of the Court and base an objection thereon.
The Respondent’s objection must be based on issues of law or established or undeniable facts. It behoves the Respondent to draw the Appellant’s or the Court’s attention to anything he does not understand especially regarding fees for late filing of briefs. It would have sufficed if the brief was filed out of time without regularising it. Gone are the days when the rights of parties could be defeated on the skelder of mere technicality. The objection is overruled.
On the main appeal, the following issues were raised by the Appellant for determination in this appeal:
1. Whether the learned trial judge was right in relying on exhibit ‘A’ in granting the respondent’s reliefs.
2. Whether the learned trial judge properly appraised and evaluated the evidence in this case.
The Learned Counsel for the Respondent raised the point that issues one and two above were raised from common ground(s) of appeal and thereby proliferated the twin issues.
It was argued for the Respondent that the Appellant has formulated both issues from grounds 1 and 2. He urged the Court to strike out both issues as well as the appeal for incompetence.
It is now settled law that a party is not allowed to formulate more than one issue for determination out of a common ground(s) of appeal. It is permissible to formulate one issue from one or more grounds of appeal but not vice versa. This is the principle against proliferation of issues for determination. Where the two issues for determination are distilled from common ground(s), both issues proliferated are rendered incompetent.
The Appellant’s issue one having been distilled from grounds 1 and 2 and issue 2 from grounds 1, 2 and 3 makes both the two issues proliferated. They are caught by the virus of common grounds 1 and 2. The effect of proliferating issue(s) is to render such issue(s) incompetent and liable to be struck out. The two issues raised by the appellant are accordingly struck out. This virus metamorphoses to render the Appellant?s brief incompetent as well. A brief without competent issue for determination is incompetent as it cannot be used for the determination of the appeal, which is the very essence of appealing. In effect, this appeal cannot but be struck out for absence of a competent issue for determination and it is hereby struck out for incompetence.
There shall be costs of Fifty Thousand Naira (N50, 000. 00) against the Appellant to the Respondent.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I read in draft the lead judgment just delivered by my learned brother, Hussein Mukhtar, JCA. I agree with the reasons given in the lead judgment leading to the conclusion that the appeal is incompetent and liable to be struck out.
Two or more issues cannot be formulated from one ground of appeal, but one issue can be formulated from more than one ground of appeal. Appellant’s issue one was distilled from grounds 1 and 2 and issue two from grounds 1 and 2. Thus, the two issues raised by the appellant are incompetent and same cannot be used for the determination of the instant appeal.
I also strike out the appeal for being incompetent.
FREDERICK OZIAKPONO OHO, J.C.A.: I read the draft of the Judgment just delivered by my Learned Brother, HUSSEIN MUKHTAR, JCA and I am in agreement with his reasoning and conclusions in striking out the Appeal for want of competence. I abide by other consequential order made in the lead Judgment.
Appearances:
I. J. Eguakun, Esq.For Appellant(s)
C. Aghoja, Esq.For Respondent(s)
