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SANUSI UBA ABBA v. ADAMU IBRAHIM SHARADA (2019)

SANUSI UBA ABBA v. ADAMU IBRAHIM SHARADA

(2019)LCN/13411(CA)

In The Court of Appeal of Nigeria

On Friday, the 31st day of May, 2019

CA/K/270/2014

JUSTICES:

OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria

JAMES GAMBO ABUNDAGA Justice of The Court of Appeal of Nigeria

Between

SANUSI UBA ABBA – Appellant(s)

AND

ADAMU IBRAHIM SHARADA – Respondent(s)

RATIO

WHETHER OR NOT A GROUND OF APPEAL MUST ARISE FROM THE RATIO DECIDENDI OF THE JUDGEMENT APPEALED AGAINST

As held by my learned brother in the lead judgment, for a ground of appeal to be competent, it must emanate from the ratio decidendi of the judgment appealed against. See Sogunro v Yeku (2017) 9 NWLR Part 1570 Page 290 at 339 Para E-H per Kekere-Ekun JSC; Ogwebego V. PDP (2017) 4 NWLR Part 1503 Part 1503 P446 at 472 Para E-F per Okoro JSC.
The Appellant’s grounds of appeal, unfortunately, have no bearing on the decision of the lower Court. The Notice of Appeal is accordingly incompetent.
A Notice of Appeal is the foundation of a proper and valid appeal. Where it is defective, the appeal is rendered incompetent. See Shell Petroleum Devt. Co. of Nig. Ltd V Agbara (2016) 2 NWLR Part 1496 P. 353 at 395 Para C-F per I. T Mohammed JSC; Okpe V. Fan Milk Plc (2017) 2 NWLR Part 1549 Page 282 at 318-319 Para H-B per Ariwoola JSC. PER ADEFOPE-OKOJIE, J.C.A.

JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Kano State in exercise of its Appellant jurisdiction, presided by Hon. Justices Lawan Wada Mahmoud and Ibrahim Umar delivered on 23rd May, 2013 (pages 86-89 of the record of appeal).

The Notice of appeal was filed on 28th May, 2013. It contains three grounds of appeal. The three grounds of appeal, without their particulars, even though provided are as follows:
GROUND ONE
The learned Judges erred in law when they affirmed the judgment of the lower trial Court based on issue not raised before them, or called upon to make pronouncement.
GROUND TWO
The learned Judges erred in law when they affirmed the decision of the lower trial Court when there was no evidence to support the Respondent’s claim before the trial lower Court.
GROUND THREE
The learned Judges erred in law when they entered judgment against the appellant based on the settlement made without prejudice.

The record of appeal was compiled and transmitted on 23rd May, 2014 and deemed properly compiled and

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transmitted on 13th May, 2015.

The Appellant’s brief of argument settled by Farouk I. Umar, Esq, was filed on 20th March, 2017 and deemed properly filed and served on 20th November, 2018. On service of Appellant’s brief of argument on the Respondent, the Respondent filed a notice of preliminary objection on 14th November, 2017. On the same date (14th November, 2017) the Respondent’s brief of argument, settled by Naziru Adamu, Esq, was also field. The Respondent’s brief of argument was deemed properly filed and served on 26th November, 2018. Arguments on the Respondent’s notice of preliminary objection are incorporated into the Respondent’s brief of argument. The appellant did not file a reply brief.

The Respondent’s Notice of Preliminary objection seeks to terminate in limine the appellant’s notice of appeal. Therefore, it is instructive to accord it the priority it deserves both in law and practice.

The failure to file a reply brief to answer to the Preliminary Objection leaves it uncontested and ordinarily should without much ado be granted. However the primary duty of the Court is to do

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justice, and therefore notwithstanding the fact that the Preliminary Objection is uncontested, it must sail through or otherwise on its merit.

I will proceed to deal with the preliminary objection. In the Notice of Preliminary Objection, the Respondent prays for:
An order of this Honourable Court striking out this appeal for being incompetent as same is predicated upon a defective Notice of appeal.

The grounds upon which the Preliminary is based are:
(1) A Notice of Appeal without a valid and competent grounds of appeal is defective and the defect has rendered the appeal liable to be struck out.
(2) That all the Appellant’s grounds of appeal as contained in his Notice of appeal dated 28th May, 2013 are incompetent as none of the grounds of appeal arose or flow from the decision appealed against.
(3) The appellant’s grounds of appeal also did not challenge the decision or any order of the lower Court made in the judgment appealed against.
(4) That the grounds of appeal are vague and disclose no reasonable ground of appeal.
Arguments on the Notice of Preliminary Objection are contained at

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pages 4-7 (Paragraphs 4.0.0-4.8.0) of the Respondent’s brief of argument.

Counsel’s submission is that the appeal is incompetent because the Appellant’s Notice of Appeal is incurably defective as same does not have a valid ground of appeal. His contention is that for a ground or grounds of appeal to be valid and competent same must arise, flow or relate to the judgment appealed against. In other words, the ground or grounds of appeal must attack the ratio decedendi of the judgment appealed against. In further elucidation counsel pointed out that none of the grounds of appeal has met the criteria of a valid and competent ground of appeal as stipulated in the case of Teriba v. Adeyemo (2010) 7 SCM 165 @ 170-171.

The Appellant, counsel submitted formulated three grounds of appeal but that the grounds are not in any way related, flow or arose from the decision of the Court. That the grounds are based on extraneous matters (aborted settlement and testimony of witnesses) which do not form part of the judgment of the lower Court.
Counsel cited so many cases to support his submissions, some of which will be considered anon.
In

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the case of Teriba v. Adeyemo (supra) cited by counsel it was held:
A ground of appeal must either flow, arise or relate to a judgment of the Court appealed from. It must be raised or distilled from a complaint. In other words for an issue to be sustained it must be formulated within the parameter of a ground of appeal and the ground must be against the judgment of the Court against which the appeal is lodged.
Similarly held in the case of Asaka v. Ramin Kura (2015) ALL FWLR is that:
.the rules governing appeals are quite trite that both the ground of appeal and issues canvassed on appeal must be founded upon and rooted in the decision of the trial Court and that where trial Court never considered an issue, no appeal can be raised thereon on appeal.
In ground one of the appeal, the complaint is that the lower Court affirmed the judgment of the trial Court based on issue not raised before them, or called upon to make a pronouncement. In ground two the grievance of the appellant is that the lower Court affirmed the decision of the trial Court when there was no evidence to support the

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Respondent’s claim before the said trial Court. And in ground three the complaint is that the learned Judges erred in law when they entered Judgment against the appellant on the settlement made without prejudice.
The judgment on appeal can be located at pages 86-89 of the record of appeal. In the entirety of the judgment, there is nowhere the Judges of the lower Court affirmed the decision of the trial Court. Not at all. This is what the learned Judges said at page 89 of the record of appeal:
In the instant appeal it is clear as per page 33 of the printed record of the lower Court the issue relating to the modalities of payment of the agreed amount of N4,911,000.00 has not been resolved by the trial Court and is still pending. Therefore it is our view that this appeal amount to an abuse of Court process as per the Supreme Court cases cited above. That this appeal lacks merit and we hereby dismiss it accordingly and also order that the lower Court Upper Sharia Court Shahuci to continue with its proceeding to its logical conclusion.
This is undisputably the ratio decidendi of the judgment of the lower Court. None of the

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grounds of appeal has attacked the dismissal of the appeal based on the ground that it constituted an abuse of Court process. The grounds of appeal are quite clearly extraneous to the judgment appealed against. The notice of appeal is therefore incurably defective, null and void. It is therefore correct to state that there is no valid Notice of appeal. See Aderibigbe & Anor. V. Tiamiyu Abidoye (2009) 5 SCM 1 @ Page 4.  
It is therefore safe to conclude that the notice of Preliminary Objection is meritorious, and is hereby granted. This appeal is hereby struck out.
There shall be no order as to costs.

OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the judgment of my learned brother JAMES GAMBO ABUNDAGA, JCA. I agree.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read in draft the judgment of my learned brother, James Gambo Abundaga, JCAAs held by my learned brother in the lead judgment, for a ground of appeal to be competent, it must emanate from the ratio decidendi of the judgment appealed against. See Sogunro v Yeku (2017) 9 NWLR Part 1570 Page

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290 at 339 Para E-H per Kekere-Ekun JSC; Ogwebego V. PDP (2017) 4 NWLR Part 1503 Part 1503 P446 at 472 Para E-F per Okoro JSC.
The Appellant’s grounds of appeal, unfortunately, have no bearing on the decision of the lower Court. The Notice of Appeal is accordingly incompetent.

A Notice of Appeal is the foundation of a proper and valid appeal. Where it is defective, the appeal is rendered incompetent. See Shell Petroleum Devt. Co. of Nig. Ltd V Agbara (2016) 2 NWLR Part 1496 P. 353 at 395 Para C-F per I. T Mohammed JSC; Okpe V. Fan Milk Plc (2017) 2 NWLR Part 1549 Page 282 at 318-319 Para H-B per Ariwoola JSC
The defect in the Notice of Appeal renders this appeal incompetent, I hold.
I also strike out this appeal, with no order as to costs.

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Appearances:

Farouk I. Umar, Esq. For Appellant(s)

Naziru Adamui, Esq. For Respondent(s)

 

Appearances

Farouk I. Umar, Esq. For Appellant

 

AND

Naziru Adamui, Esq. For Respondent