SET SUCCESS ENTERPRISES & CO LTD v. IBEJU-LEKKI LOCAL GOVERNMENT COUNCIL & ANOR
(2021)LCN/5150(SC)
In The Supreme Court
On Friday, December 10, 2021
SC.333/2008
Before Our Lordships:
Mary Ukaego Peter-Odili Justice of the Supreme Court of Nigeria
Kudirat Motonmori Olatokunbo Kekere-Ekun Justice of the Supreme Court of Nigeria
Mohammed Lawal Garba Justice of the Supreme Court of Nigeria
Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria
Emmanuel Akomaye Agim Justice of the Supreme Court of Nigeria
Between
SET SUCCESS ENTERPRISES AND COMPANY LIMITED APPELANT(S)
And
1. IBEJU-LEKKI LOCAL GOVERNMENT COUNCIL 2. THE CHAIRMAN, IBEJU-LEKKI LOCAL GOVERNMENT COUNCIL RESPONDENT(S)
RATIO:
PRELIMINARY OBJECTION
A preliminary objection as a veritable threshold, is pre-emptive in nature. It fundamentally aims at aborting (terminating) the appeal in limine (prematurely). An appellate Court is required to, first and foremost, determine the preliminary objection in the appeal. It does not matter whether such an objection is frivolous, it should not be disregarded. Thus, where the preliminary objection meritoriously succeeds, the Court has no option other than to grant same, and at that point strike out the appeal for being incompetent. See NWANWATA VS ESUMEI (1998) 8 NWLR (pt. 563) 650, TAMBCO LEATHER WORKS LTD VS. ABBEY (1998) 12 NWLR (pt. 579) 548, FIRST BANK OF NIGERIA PLC VS. TSA INDUSTRIES LTD (2010) 15 NWLR (pt. 1216) 247 SC. Indeed, the rationale of a preliminary objection is that where it succeeds, as in the instant appeal, there would be no need at all to proceed to determine the appeal on the merits; as doing so is tantamount to a futile, wasteful exercise. See NDIGWE VS. NWUDE (1999) 11 NWLR (pt. 626) 314, NEPA VS. ANGO (2001) 15 NWLR (pt. 737) 627. IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.
INCOMPETENT GROUND OF APPEAL
It is now trite that where an incompetent ground of appeal is argued together with those formulated from competent grounds, the issue will be deemed incompetent because the Court cannot sift that which is competent from the incompetent ones. See Ngige v Obi (2006) 14 N.W.L.R (PT.999) lat 165 Para E-H this Court endorsed this exposition of the principle by Per Salami J.C.A in the unreported case of Korede v Adedokun thus:
“This is the mixed grill served and I am of the firm view that it is not the business of the Court to sift chaff from grain by performing a surgical operation on the appellant’s brie to extract argument in respect of valid grounds from the invalid ones, as such exercise may involve the Court in descending into the arena and the dust arising therefrom may of necessity becloud its judgment. The duty of the Court is that of an umpire whose functions in the interest of justice is to tend the rope and not to step into the brawl by exercising argument on good grounds of appeal from those of bad ones.
See also Honika Sawmill (Nig) Ltd v. Harry Okojie Hoff (1994) 2 NWLR (pt. 326) 252 at 262, Nwadike v Ibekwe (1987) 4 NWLR (pt. 67) 718.” Mary Ukaego Peter-Odili J.S.C.
PARTICULARS OF ERRORS
It is now well settled in law that the ground and their particulars must be restricted to the errors complained of in the judgment. In order words, that the grounds and particulars of errors should not be framed at large.
The case of Osasona v Ajayi (2004) 14 NWLR PT. 894 527 is apt in this regard. This Court held that particulars of error alleged in a ground of appeal are intended to highlight the complaint against the judgment on appeal. They are specification of the error or misdirection in order to make clear how the complaint is going to be canvassed in an attempt to demonstrate the flaw in the relevant aspect of the judgment. The particulars of ground one are not only fundamentally defective and they also increased the confusion as to the perceived error in the judgment. Mary Ukaego Peter-Odili J.S.C.
PARTICULARS OF A GROUND
The particulars of a ground are only meant to be an addendum. See Mba v Agu (1999) 1 NWLR (PT.629) SC1.
This Court in Globe Fishing Industries Ltd v Coker (1990) NWLR (PT.162) 265 S.C 3000 F-G reiterated the principle thus:-
“The particulars and nature of the error or misdirection alleged in Order 8 Rule 2 (2) are the specific reasoning, finding or observations in the judgment relating to or projecting the error or misdirection complained of They are in the sense the itemisation of the error or misdirection in the judgment or ruling. Particulars required are not the arguments or narratives that should be proffered at the hearing of appeal to establish that the Court erred or misdirected itself. They should not also be independent complaint from the ground of appeal but ancillary to it.” Mary Ukaego Peter-Odili J.S.C.
IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C. (Delivering the Leading Judgment): The present appeal is a natural reaction by the Appellant against the judgment of the Court of Appeal, Lagos Judicial Division, delivered on June 12, 2008 in appeal no. CA/L/489/2005. By the judgment in question, the Court below, coram Ogunbiyi, JCA (as then was), Mshelia and Nwodo, JJCA, dismissed the Appellant’s appeal against the Judgment of the trial High Court delivered on May 19, 2005 (LD/1037/2002), which dismissed in part the Appellant’s claim against the Respondent for outstanding balance of contract sum and damages for breach of contract.
BACKGROUND FACTS
The Appellant is a limited liability company having the registered office thereof at 20/22 Adedoyin Street, Ketu, Lagos Slate. On the other hand, the Respondent is a Local Government Council having its Administrative Secretariat al Akodo, Lagos State.
The genesis of the case leading the to instant appeal is traceable to May 27, 2002. Indeed, that was the day the Appellant instituted the case in the trial High Court, thereby seeking against the Respondent the total sum of N26.5 Million being special and general damages for a stabilization contract awarded to the Appellant In the Respondent.
By the statement of claim, filed along with the writ of summons thereof on the date in question, the Appellant claimed against the Respondent:
1. Particulars of special damages.
a. The sum of N20,007076.60 being the balance of the contract sum of N35,007076.60k due to the plaintiff in respect of the stabilization of a 16.5 kilometers laterite road from Ajegbenwa to Dongo in Ibeju-Lekki Local Government Area of Lagos State; and
b. The sum of N1,500,000.00 being retention fee.
2. General Damages:
The sum of N5,000,000.00 being general loss suffered by plaintiff as a result of the unquantified damages suffered by the failure of the Defendant to pay the whole contract sum as and when due.
2. Interest on the special damages at the rate of 36% per annum till the date of judgment and thereafter at the rate of 6% per annum until the judgment debt and necessary costs is fully paid by the Defendant.
The Respondent reacted by filing a statement of defence to the claim, to which the Appellant filed a reply. Pleadings having been filed and exchanged between the respective parties, the suit proceeded to trial. In the course of which, the Appellant called two witnesses and tendered thirteen (13) documentary evidence, which were admitted as exhibits by the trial Court.
Contrariwise, the Respondent called one witness who testified in chief but failed to show up for cross-examination by the Appellant’s counsel.
At the close of evidence, the trial Court deemed it expedient to order for written addresses. Consequent whereupon, the Appellant filed its written address. However, the Respondent, for reason best known thereto, failed to file any written address as ordered by the trial Court.
The trial Court, not unexpectedly, proceeded to deliver the judgment on the said 19/05/2005, to the conclusive effect:
I am satisfied on the evidence before me that the claimant has been able to prove on the balance of probabilities, his entitlement to N6 Million being the balance of the 60% first instalment as per Exhibit P 10. The law is trite that the Court can award less but not more than what is claimed if that is what is proved by the evidence
OWENA BANK PLC V. OLATUNJI (2002) 13 NWLR (PT. 781) 259 AT 349 citing EKPE V. FAGBEMI (1978)1 LRN 137 at 140. I cannot also on the basis of the evidence before me hold that the claimant is entitled to General damages as claimed as there appears to be outstanding issues between the parties in respect of the work done on the project. The 1st defendant does not even consider the project has been completed.
The claimant in this case has sued both the 1st Defendant and its chairman as the 2nd Defendant. The contract agreement here was between the claimant and the 1st Defendant only. I do not see why the 2nd Defendant had to be joined in this suit. He is not a proper party to this suit and I so hold.
For this reasons given in the body of this Judgment therefore, judgment is hereby awarded in favour of the claimant against the 1st Defendant only in the sum with interest at the rate of 10%per annum from today 19th May, 2005 until the Judgment debt is fully paid. The claims for general damages are hereby dismissed. This is the judgment off his Court.
N20,000 costs to the claimant.
Not unnaturally, the Appellant, being dissatisfied with the judgment of the trial Court aforementioned, appealed to the Court below.
As alluded to above, the Court below dutifully heard the appeal and delivered the vexed judgment on the said June 12, 2008, to the conclusive effect:
On the totality of the appeal before us, the issues are hereby resolved against the appellant and in favour of the respondent. The appeal in the circumstance is devoid of merit and accordingly dismissed. The judgment of the learned trial Judge of the High Court of Lagos State delivered on 19th day of May, 2005 is hereby affirmed. With costs following events, I would award the sum of N30,000 in favour of the respondents.
Appeal dismissed with N30,000.
On 21/09/21, when the appeal at long last came up before us for hearing, the learned counsel had the opportunity of addressing the Court and adopting their respective briefs of argument prior to reserving Judgment to today.
DETERMINATION OF THE RESPONDENT’S
PRELIMINARY OBJECTION
It’s trite, that the Respondent has had the liberty of raising in the brief thereof (pages 2-12 of the Respondent’s Amended Brief of Argument) a preliminary objection, thereby vehemently challenging the competence of the Appellant’s notice of appeal, to the effect that:
The three grounds of appeal contained in the notice of Appeal dated 11th of September, 2008 and the issues/arguments formulated thereon be struck out for being incompetent having not complied with Order 8 Rule 2 (3) (4) of the Supreme Court Rules and/or bad for falsity.
Each of the three grounds of the notice of appeal has been copiously reproduced along with their particulars at pages 4-7 of the Respondent’s brief, viz:
Ground 1 Error in Law
The learned Justices of Court of Appeal erred in law in their interpretation of clauses 4, 5.2, 5.3 and 12 of the Contract Agreement between the parties (Exhibit P5), and thereby arrived at the erroneous conclusion the there was no certification of completion of contract works and that the Appellant was not entitled to full payment of contract sum, notwithstanding the documentary evidence on the contrary.
Particulars of Error
(i) The contract agreement executed by the parties tendered as Exhibit P5 was very clear, plain and unambiguous in its provisions as to the mode and stages of payment, inspection and certification, and the issuance of payment/completion certificate, which provisions are binding on the parties, and effect ought to have been given accordingly to them by the Court below.
(ii) The Court below was wrong in relying on its own observation from examination of the documents to decide matters which did not the actual evidence on record.
(iii) It vas in evidence that the Appellant had performed and complied with all the duties crated on its part by the contract agreement, and there was no complaint whatsoever by the Respondents of any defect or dissatisfaction within the six-month window for release of final payment, being the third stage of payment, namely payment of the retention fee.
(iv) Pursuant to Clause 5.2 of the Contract Agreement, the Respondent’ designated agent and representative, the Local Government Engineer, had duly inspected the works, and issued a payment certificate, certifying satisfactory execution of the works, and thereby entitling the Appellant to payment of the second stage payment of 30% of the contract sum as provided for in Clause 4 of the Contract Agreement.
(v) Pursuant to Clause 12 of the Contract Agreement, the Local Government Engineer (as the duly designated agent and on behalf of the Respondents) had upon inspection and due satisfaction, issued a completion certificate to the Appellant, tendered as Exhibit P8 entitling the Appellant to payment of the final payment envisaged in clause of the contract agreement, being the third stage payment provided for by Clause 4 of the said contract agreement.
(vi) The certificate by the Local Government Engineer, being a document of the Respondents, (Exhibit P8) was very clear in its certificate of “value of works to date being the entire contract works.
(vii) The certificate (Exhibit P8) was unequivocal in stating that the amount due for payment to the Appellant was the sum of N18,006,369.00 which is the balance, less the retention fee.
(viii) The lower Court was therefore in error in failing to hold that Exhibit P8 was the payment certificate issued by the Respondents or their representative, but rather placed reliance on a letter dated 8th March 2002 (Exhibit P10) written outside the six months retention and warranty period provided by Clause 4 of the contract agreement.
(ix) There was no evidence of any complaint made by the Respondents in respect of the work executed by the Appellant within the six months window for observation of defects and for retention fee.
(x) Extrinsic evidence such as Exhibit P10 ought not be used to vary the contents of a written contract validly entered into by the parties.
(xi) The interpretation placed Exhibit P5 and P8 by the learned Justice of the Court of Appeal occasioned a miscarriage of justice.
Ground 2: Error in Law
The learned Justices of Court of Appeal erred in law when they held that the Appellant failed to prove its case on balance of probabilities that it had fully executed the contract awarded with the terms of contract with the terms of the contract and thus entitled to full payment under the said contract, having due regard to the unchallenged evidence on record
Particulars of Errors:
(i) The Appellant had testified and tendered 13 documentary Exhibit in support of its case, particularly the contract document (Exhibit P 5) and the Certificate of Completion from the Respondents (Exhibit P8)
(ii) The lower Court was in error in holding that the completion certificate pleaded by the Appellant in paragraph 7 of its Statement of Claim was not tendered as a careful perusal of the pleadings reveals that same was Exhibit P8.
(iii) The Respondents had abandoned their defence at the trial, and had equally failed to file a Respondent’s brief of argument at the Court below despite all opportunities afforded them so to do, as rightly found by the Court below.
(iv) The Appellant’s evidence in the absence of any challenge by the Respondents was substantial and overwhelming, and it was open to the Court to act on such unchallenged and uncontroverted evidence, which was neither inherently incredible nor offended any rational conclusion.
(v) The issuance of Exhibit P8 pursuant to Exhibit P5 by the Respondents is conclusive proof that the Appellant had completely and satisfactorily executed the contract works.
(vi) The duty imposed by Exhibit P5 on the Appellant is to complete the contract satisfactorily to be certified by the Respondents’ designated professional and expert, and having done so, the duty arose on the part of the Respondents to issue the final certificate and release the retention balance to the Appellant.
(vii) The Respondents having issued the completion certificate through their Council Engineer as provided for by the contract agreement are not free to resile therefrom or to disclaim the certificate.
(viii) The issue before the Court was a narrow one, namely whether on the evidence before the Court, the Appellate is entitled to payment in the terms of the contract agreement, having executed the contract, which the Appellant established.
(ix) The Appellant is entitled to succeed on the strength of its own case as established by it, which was on the preponderance of evidence.
Ground 3: Error in Law
The learned justices of Court of Appeal erred in law when they held that the Appellant was not entitled to an award of damages upon the interpretation outcome of the case.
Particulars of error
(i) The Appellant established that there was a breach of contract, even as the learned trial Judge had found that part of the first stage payment was still being owed the Appellant, that is, the sum of N6 million
(ii) The Appellant had also established that there was no mobilisation fee paid, and that it engaged bank facility to execute the project, with the attendant interests, occasioned by the default in payment by the Respondents.
(iii) The funds of the Appellant had been tied down since 2001 as a result of the default of the Respondent.
(iv) The Appellant is clearly entitled to damages and interests.
(v) Notwithstanding that costs follow event, the costs awarded in favour of the Respondents who refused to appear in Court at all and/or failed to file any process in Court, were unreasonable and amounted to rewarding intransigence.
Instructively, an appeal is a challenge against the decision of the trial Court or the Court below, as the case may be. Essentially, an appeal challenges the correctness of the decision being appealed against on three fundamental grounds: (i) on the grounds of law; (ii) mixed law and facts; (iii) or on facts simpliciter.
Thus, to justify the intervention of the appellate Court on any of the grounds of the notice of appeal before it, the appellant has an up-hill task of establishing that the decision of the Court below he seeks to be reversed or set aside was wrongly arrived at, or the opinion expressed therein is not supported by the pleadings and evidence on the record. See GUARDIAN NEWSPAPERS LTD VS. REV. PASTOR C.I. AJEH (2011) LPELR-1343 (SC) @ 27 paragraphs A-C and UOR VS. LOKO (1988) 2 NWLR (pt. 77) 430.
Where a decision of a Court is challenged on the ground that the trial Court failed to properly consider the appellant’s case, the appellate Court in the exercise of its primary judicial responsibility, ought to take into account certain fundamental factors:
(i) The nature of the evidence before the trial Court or the Court below.
(ii) Whether the Court below accepted or rejected any evidence upon the correct perception.
(iii) Whether the Court below used the imaginary scale of justice to weigh the evidence on either side of the divide, and
(iv) Whether the Court below appreciated upon the preponderance of evidence which side the scale weighed having regard to the burden of proof.
This trite fundamental doctrine has been reiterated in a plethora of formidable authorities. See EGONU VS. EGONU (1978) 11-12 SC 111, AGBONIFO VS. AIWEREOBA (1988) 14 NWLR (pt.70) 325, KIM VS. EMEFO (2001) 4 NWLR (pt. 102) 147, SALAWU VS. MAKINDE (2002) LPELR-12318. Jurisprudentially, a ground of (for) appeal denotes a trial Court’s (or of Court below) errors of procedural law that form a basis for asking (praying) an appellate Court to review a case. Equally termed, ground for review. See BLACK’S LAW DICTIONARY, edition, 2019 @ 848.
Invariably, the objective of issues for determination by the Court is primarily to enable the parties streamline the issues in the grounds of appeal, contained in the notice of appeal, thereby ensuring accuracy, brevity and clarity.
A critical albeit dispassionate consideration of ground I, copiously alluded to above, would confirm that it is vague, in the sense that it is actually not clear what the complaint is all about. As aptly argued by the Respondent, at first what the error complained about apparently relates to the interpretation of Clauses 4.5.2,5.3 and 12 of the Contract Agreement. However, it is rather obvious, the ground equally relates to evaluation of documentary evidence on record. Thus, the actual nature of the complaint in ground I is far from being unambiguous. The particulars are rather unhelpful in clearing the ambiguity inherent in ground 1.
Most especially, particulars (i) & (ii) are apparently argumentative, as they seem to complain about interpretation. Particulars (iii) to (x) are virtually argumentative, and narrative in nature, thereby complaining about evaluation of evidence on record.
What’s more, particular (x) is clearly irrelevant and extraneous to the decision of the Court below.
Ground 2 is equally vague, prolix and outrageously unwieldy. One is left in doubt as to whether ground 2 complains of burden of proof, when the evidence on record is unchallenged, or the evaluation of evidence by the Court below. Particulars (i), (ii), (v), (vi), (ix) are narrative and apparently dwell on evaluation of evidence. Particulars (vii) and (viii) are outrageously inconsistent with the ground in question. Particular (iii) is obviously unrelated 10 the ground. Likewise, particular (xiii) is bad for falsity, in the sense that the Court below has clearly decided on the question whether the Appellant was actually entitled to payment based on the contract. Particulars (ii) and (iii) apparently deal with the burden of proof, when evidence is actually unchallenged.
Lastly, but not the least, ground 3, which for all intent and purposes is apparently bad for falsity, as the Court below affirmed the award of damages by the trial Court. Damages were awarded on the N6 million proved in the course of the trial. The ground 3 in question does not appear to have evidently flowed from the vexed judgment of the Court below. The said ground 3 is to say the least, at large!
Most regrettably, issue 1 allegedly distilled from grounds 1 and 2 of the notice of appeal apparently dwells on interpretation. The said issue is extraneous to the grounds, as particulars of errors of interpretation have not been provided in the grounds. See ADAH VS. ADAH (2001) 5 NWLR (pt. 705) 1, ABAYOMI VS. AG ONDO STATE (2006) 8 NWLR (pt. 982) 211, MOMODU VS. MOMOH (1991) 2 SC1, MAGIT VS UNIVERSITY OF AGRICULTURE, MAKURDI (2005) 19 NWLR (pt. 959) 211.
Interestingly, the hallmark of the principles enunciated in the foregoing authorities is to the effect, that an issue for determination must be predicated upon or distilled from a competent ground of appeal. This is indeed so, whether or not the issue is raised by the Appellant or the Respondent. Thus, an issue for determination not distilled or derived from a competent ground of appeal, ought to be struck out along with the incompetent ground in question. The proposition of law is indeed trite, one cannot put something on nothing and expect it to stand. No, it would most assuredly crumble and fall just like the way the cookies crumble. See MACFOY VS. UAC (1961) AC per Lord Denning, MR.
The issue 2, distilled from ground 3 does not at all relate to the decision of the Court below, because the Court only affirmed the position of the trial Court that the Appellant was only entitled to N6 million at the interest rate of 10% per annum. There ought not to have been a complaint about damages that was not awarded.
Hence, against the backdrop of the foregoing postulations, the most inevitable conclusion that could be arrived at in the instant appeal, is to the effect that the Respondent’s preliminary objection is meritorious, thus ought to be granted by me.
CONSEQUENTIAL ORDERS
A preliminary objection as a veritable threshold, is pre-emptive in nature. It fundamentally aims at aborting (terminating) the appeal in limine (prematurely). An appellate Court is required to, first and foremost, determine the preliminary objection in the appeal. It does not matter whether such an objection is frivolous, it should not be disregarded. Thus, where the preliminary objection meritoriously succeeds, the Court has no option other than to grant same, and at that point strike out the appeal for being incompetent. See NWANWATA VS ESUMEI (1998) 8 NWLR (pt. 563) 650, TAMBCO LEATHER WORKS LTD VS. ABBEY (1998) 12 NWLR (pt. 579) 548, FIRST BANK OF NIGERIA PLC VS. TSA INDUSTRIES LTD (2010) 15 NWLR (pt. 1216) 247 SC. Indeed, the rationale of a preliminary objection is that where it succeeds, as in the instant appeal, there would be no need at all to proceed to determine the appeal on the merits; as doing so is tantamount to a futile, wasteful exercise. See NDIGWE VS. NWUDE (1999) 11 NWLR (pt. 626) 314, NEPA VS. ANGO (2001) 15 NWLR (pt. 737) 627.
Hence, having determined that the instant appeal is grossly incompetent, thereby upholding the Respondent’s preliminary objection, the appeal is accordingly hereby struck out by me.
There ought not to be any order in regards to costs.
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MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, Ibrahim Mohammed Saulawa JSC and to underscore the support, I have in the reasonings from which the decision came about, I shall make some remarks.
This is an appeal against the judgment of the Court of Appeal, Lagos Division or Court below or lower Court, Coram C.B. Ogunbiyi JCA (as he then was), A.G. Mshelia and R.O. Nwodo JJCA, delivered on the 12th June, 2008, dismissing the appellant’s appeal against the judgment of the High Court of Lagos State dated 19th May 2005 per J.E. Oyefeso J.
FACTS BRIEFLY STATED
The appellant (as plaintiff) had by a suit instituted on 27th May, 2002 before the trial High Court claimed against the defendants (now respondents) the sum of N26.5 million being special and general damages for a road stabilisation contract awarded to the Plaintiff by the Defendant which contract the Plaintiff completely executed. The plaintiff claimed as follows:-
“(1) Particulars of Special Damages:
(a). The sum of N20,007,076.06 being the balance of the contract sum of N35,007,076.60 due to the Plaintiff in respect of the stabilisation of a 16.5 kilometers laterite road from Ajegbenwa to Dongo in Ibeju-Lekki Local Government Area of Lagos State, and
(b). The sum of N1,500.000.00 being retention fee.
(2). General Damages:
The sum of N5,000,000.00 being general loss suffered by the Plaintiff as a result of the unquantified damages suffered by the failure of the Defendants to pay the whole contract sum as and when due.
(3). Interest on the special damages at the rate of 36% per annum till the date of judgment and thereafter at the rate of 6% per annum until the judgment debt and necessary costs are fully paid by the Defendant.
The Defendants filed a Statement of Defence. In answer thereto, the Appellant filed a reply to the Statement of Defence. The Appellant called two witnesses to prove its claim and tendered thirteen (13) documentary exhibits in support thereof. The Defendants called one witness who testified in chief and refused to show up for cross-examination, and the Defendants abandoned their defence. At the close of evidence, written addresses were ordered and the Appellant filed its written address.
The Defendants did not filed any written address.
The kernel of the Appellant’s case is that it had completely executed the contract for the stabilisation of a 16.5 laterite road awarded to it by the Defendants in accordance with the contract agreement signed by the parties and admitted in evidence as Exhibit P3, and having been issued a certificate of completion of the parties’ agreement in the said contract document, and which was duly signed by the Defendants’ Council Engineer on their behalf .and with their authority, the Defendants were bound to perform their obligation under the contract, namely to pay the Appellant the sum outstanding on the contract.
The Appellant’s PW 1, Chief Michael O. Odumenya, testified and tendered the letter of offer of the contract dated 15th November, 2000 as Exhibit P1, the Appellant’s letter of acceptance dated 16th November, 2000 as Exhibit P2, the Contract Agreement dated 16th December 2000 as Exhibit P3; the letter of review of the contract sum dated 31st January, 2001 as Exhibit P4, the revised contract agreement dated 31st January, 2001 as Exhibit P5. The Appellant also tendered the Appellant’s letter reporting completion of the contract dated 28th May, 2001 as Exhibit P6 and the Appellant’s letter of demand for payment of balance dated 5th June, 2001 as Exhibit P7 and the certificate of completion issued by the Defendants to the Appellant dated 12th June, 2001 as Exhibit P8. The Appellant further tendered its Counsel’s letter of demand dated 18th April, 2002 as Exhibit P 9, while the Defendants’ letter to the Appellant offering part-payment of N6 million dated 8th March, 2002 was tendered as Exhibit P10. The Appellant also tendered its bank’s statement of account for the material period as Exhibit P11 while a Guardian Newspaper publication of 3rd April, 2002 was tendered as Exhibit. An earlier letter by the Appellant for a review of the contract sum was tendered as Exhibit P13 while a certified true copy of the above-said Guardian publication was tendered as Exhibit P14.
The Defendants on the other hand, had no evidence to controvert the overwhelming evidence proffered by the Appellant on the due execution of the contract and the liability of the Defendants to pay the outstanding balance in terms of the contract agreement.
The learned trial Judge, inspite of the preponderance of evidence in support of the fact that the Appellant had executed the contract as agreed upon by the parties, failed to give judgment to the Appellant in respect of the outstanding balance by adopting an erroneous interpretation of the clauses of the contract agreement, but however gave judgment for the sum of N6 million that was not in dispute. The Appellant dissatisfied with the said judgment, appealed to the Court below, armed with 5 (five) grounds of appeal.
The Respondents despite being served with the Notice of Appeal, the Appellant’s Brief of Argument and several hearing notices, failed to challenge the appeal in any manner whatsoever including filing of their Respondents’ Brief of Argument. The Court below even on the face of the unchallenged appeal, on the 12th day of June 2008 in a considered judgment upheld the decision of the Court of first instance and dismissed the Appellant’s appeal.
It is against this judgment dismissing the Appellant’s appeal by the Court below that the Appellant has now appealed to this Court by a Notice of Appeal dated the 11th day of September, 2008 and filed on the 11th day of September, 2008.
At the hearing on 21/9/2021, learned Senior Advocate Gordy Uche adopted the appellant’s brief of argument filed on 9/11/2009 and deemed filed 13/12/2010 and appellant’s amended reply brief filed on 23/12/2020. He raised two issues for determination, viz:
1. Was the Court below right in its interpretation of clauses 4, 5.2, 5.3, and 12 of the contract agreement (Exhibit P5) when they came to the full payment of the contract sum. (Arising from Grounds 1 & 2)
2. Was the Court below right when it held that the Appellant was not entitled to an award of damages inclusive of interests on the sum owed the Appellant by the Respondents. (Arising from Ground 3).
Said Sanusi, learned Counsel for the respondents adopted their brief filed on 18/2/2020 and deemed filed on, 18/3/2020. In the brief was argued a Preliminary Objection which learned counsel said if it failed, the Court should consider a single issue as follows:-
Whether the Court of Appeal was justified in affirming the judgment of the High Court that the appellants did not prove his entitlement to the full claims sought.
It is without saying that the Preliminary Objection of the respondents would be first considered before anything else as upon it depends the validity of the appeal.
PRELIMINARY OBJECTION
Learned Counsel for the respondents/objection submitted that the three grounds of appeal are incompetent and should be struck out since they did not comply with Order 8 Rule 2(3) & 4 of the Supreme Court Rules.
That the instant grounds of appeal are not only argumentive, narrative in nature, the particulars in some cases are so dissimilar to the grounds and are vague.
That ground one is vague in the sense that one cannot really decipier what the complaint is really about. He cited CBN v Okojie (2002) 8 NWLR (pt. 768) 48 at 61.
Learned counsel for the objectors contended that ground 2 is prolix in nature, and unwieldy, and also vague. Also that ground 3 is vague. He cited Globe Fishing Industries Ltd v Coker (1990) NWLR (pt. 162) 265 at 300, Osasona v Ajayi (2004) 14 NWLR (pt. 894) 527.
The appellant responded stating that the entire grounds of appeal filed by the appellant are all proper and valid as the grounds of appeal flow directly from the judgment appealed against and are set out concisely, precisely and succinctly and clearly show the nature and ambit of the appellant’s complaints before the Court. See Oloruntoba Oju & Ors v Abdul-Raheem & Ors (2009) 13 NWLR (pt. 1157) 83 at 120 – 121.
That the Supreme Court has a duty to do substantial justice, on the live issues begging for determination. See Medical and Dental Practitioners Disciplinary Tribunal v Dr. John Emewulu Nicholas Okonkwo (2001) 7 NWLR (pt. 711) 206 at 232.
I shall refer to the relevant rules of Court.
Order 8 R.2(3) of the Supreme Court Rules provides as follows:
“The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of appeal without argument or narrative and shall be numbered consecutively.”
Order 8 R.2(4) of the Supreme Court Rules provides as follows:
“No ground which is vague or general in terms which discloses no reasonable ground of appeal shall be permitted, save the general ground that the judgment is against the weight of evidence, and any ground of appeal or any part thereof which is not permitted under this rule may be struck out by the Court its own motion or on application by the respondent.”
It is to be noted that grounds of appeal as a strict rule must not be verbose, argumentative and vague as these features rob it of its substance. To achieve its object, it must be concise, straight to the point. It must convey a message. Where this is not the case, it is tantamount to a pipe without a sound, a distinct sound-the error contained in the said judgment, prolix, argumentative and vague. Such grounds are not permitted under the rules of this Court. That is why this Court is won’t say that drafting of grounds of appeal require special expertise because the consequence of non-compliance is that the grounds of appeal may be struck out thereby making the issues formulated thereon incompetent. The rationale of this rule of Court has been adequately explained in a long line of judicial authorities.
In AIGBOBAHI V AIFUWA (2006) 6 NWLR (PT.976) 270 Per Mohammed J.S.C at page 314 Para G-H said thus:
“The whole purpose of a ground of appeal is to appraise or put the other side on notice of the nature of complaint being raised therein and the overriding consideration is whether the ground is clearly stated vague.”
See also Anie v Ugagbe (1995) 6 NWLR (pt. 402) 425 at 432 as follows:-
“A ground of appeal must be so succinctly couched and specifically described that the other side will know the exact complaint against the judgment, It should also avoid repetition, narration or arguments, The whole purpose of grounds of appeal is to give notice to the side as to what case he is going to meet on appeal. There should be no ambiguities or roundabout arguments in a ground of appeal.”
See also ADEROUNMU V OLOWU (2000)4 NWLR (PT.652) 253 S.C, NATIONAL INVESTMENT & PROPERTIES CO. LTD V THOMPSON ORGANISATION (1969) 6 N.S.C.C. 161 at 164.
In context to the instant grounds of appeal, they are not only argumentative, narrative in nature, the particulars in some cases are so dissimilar to the grounds and they are so vague. Issues have been purportedly formulated on such incongruous grounds of appeal. The grounds are reproduced hereunder:-
“Ground 1 Error in Law
The learned Justices of Court of Appeal erred in law in their interpretation of clauses 4, 5.2, 5.3 and 12 of the contract agreement between the parties (Exhibit P5), and thereby arrived at the erroneous conclusion that there was no certification of completion of contract works and that the Appellant was not entitled to full payment of contract sum, notwithstanding the documentary evidence on record to the contrary.
Particulars of Error
(i) The contract agreement executed by the parties tendered as Exhibit P5 was clear, plain and unambiguous in its provisions as to the mode and stages of payment, inspection and certification, and the issuance of completion/payment certificate, which provisions are binding on parties, effect ought to have been given accordingly to them by the Court below.
(ii) The Court below was wrong in relying on its own observations from examination of the documents to decide matters which did not emerge from the actual evidence on record.
(iii) It was in evidence that the Appellant had performed and complied with all duties created on its part by the contract agreement, and there was no complaint whatsoever by the Respondents of any defect or dissatisfaction within the six month window for release of final payment, being the third stage of payment, namely payment of the retention fee.
(iv) Pursuant to Clause 5.2 of the Contract Agreement, the Respondents designated agent and representative, the Local Government Engineer, had duly inspected the works, and issued payment certificate, certifying satisfactory execution of the works, and thereby entitling the Appellant to the second stage payment of 30% of the contract sum as provided for in Clause 4 of the Contract Agreement.
(v) Pursuant to Clause 12 of the Contract Agreement, the Local Government Engineer (as duly designated agent and on behalf of the Respondents) had upon inspection and the satisfaction, issued a completion certificate to the Appellant, tendered as Exhibit P8 entitling the Appellant to payment of the final payment as envisaged in Clause 5.3 of the Contract Agreement, being the third stage payment provided for Clause 4 of the said Contract Agreement.
(vi) The certificate by the Local Government Engineer, being a document of the Respondents, (Exhibit P8) was very clear in its certificate of “value of works completed to date – N35, 007,076.60″, being the entire contract works.
(vii) The certificate (Exhibit P8) was unequivocal in stating that the amount due for payment to the Appellant was the sum of N18,006,369.00 which is balance, less the retention fee.
(viii) The lower Court was therefore in error in holding that Exhibit P8 was the payment certificate issued by the Respondents of their representative, but rather placed, on reliance on a letter dated 8th March, 2002 (Exhibit P10) written outside the six months retention and warranty period by the Clause 4 of the Contract Agreement.
(ix) There was no evidence of any complaint made by the Respondents in respect of the work executed by the Appellant within six months window for observation of defects and for retention fee.
(x) Extrinsic evidence such as Exhibit P10 ought not to have been used to vary the contents of a written contract validly entered into by the parties.
(xi) The interpretation placed on Exhibit P5 and P8 by the learned Justices of the Court of Appeal occasioned miscarriage of justice.
GROUND 2: ERROR IN LAW
The learned Justices of Court of Appeal erred in law when they held that the Appellant failed to prove its case on balance of probabilities that it had fully executed the contract awarded with the terms of contract with the terms of the contract and thus entitled to full payment under the said contract, having due regard to the unchallenged evidence on record.
PARTICULARS OF ERROR:
(i) The Appellant had testified and tendered 13 documentary Exhibits in support of its case, particularly the contract document (Exhibit P5) and the Certificate of Completion from the Respondents (Exhibit P8)
(ii) The lower Court was in error in holding that the completion certificate pleaded by the Appellant in paragraph 7 of its Statement of Claim was not tendered as careful perusal of the pleadings reveals that same was Exhibit.
(iii) The Respondents had abandoned their defence at the trial, and had equally failed to file a Respondent’s brief of argument at the Court below despite all opportunities afforded them so to do, as rightly found by the Court below.
(iv) The Appellant’s evidence in the absence of any challenge by the Respondents was substantial and overwhelming and it was open to Court to act on such unchallenged and uncontroverted evidence, which was either inherently incredible nor offended any rational conclusion.
(v) The issuance of Exhibit P8 pursuant to Exhibit P5 by the Respondents is conclusive proof that the Appellant had completely and satisfactorily executed the contract works.
(vi) The duty imposed by Exhibit P5 on the Appellant is to complete the contract satisfactorily to be certified by the Respondents designed professional and expert, and having done so, the duty arose on the part of the Respondents to issue the final certificate and release the retention balance to the Appellant.
(vii) The Respondents having issued the completion. certificate through their Council Engineer as provided for by the Contract Agreement are not free to resile therefrom or to disclaim certificate.
(viii) The issue before the Court was a narrow one, namely whether on the evidence before the Court, the Appellant is entitled to payment in the terms of the contract agreement, having executed the contract, which the Appellant established.
(ix) The Appellant is entitled to succeed on the strength of its own case as established by it, which was on preponderance of evidence.
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GROUND 3: ERROR IN LAW
The learned Justices of Court of Appeal erred in law when they held that the Appellant was not entitled to an award of damages upon the interpretation outcome of the case.
Particulars of Error
(i) The Appellant established that there was a breach of contract, even as the learned trial judge had found that part of the first stage payment was still being owned the Appellant, that is the sum of N6million.
(ii) The Appellant had established that there was no mobilisation fee paid, and that it engaged bank facility to execute the project, with the attendant interests, occasioned by the default in payment by the Respondents
(iii) The funds of the Appellant had been tied down since 2011 as a result of the default of Respondents.
(iv) The Appellant is clearly entitled to damages and interests.
(v) Notwithstanding that costs follow event, the costs awarded in favour of the Respondents who refused to appear in Court at all and/or failed to file any process in Court, were unreasonable and amounted to intransigence.”
Ground one is vague in that one cannot really decipher what the complaint is really about. A vague ground of appeal was defined by this Court in C.B.N. v OKOJIE (2002) 8 NWLR (Pt.768) 48 at PG 61 PARA E-F. The Court said thus:-
“Vagueness of a ground of appeal may arise where it is couched ‘in a manner which does not provide any explicit standard for its being understood. It may also be considered vague when complaint is not defined in relation to the subject or it is not particularised, or the particulars are irrelevant.”
A ground of appeal is said to be vague if it is illusive, ambiguous, broad, debatable, disputable, evasive and inexact. On the other hand, a ground of appeal which is precise, concise, exact and unequivocal cannot be said to be vague since it would by this nature of clarity speak loudly of the complaint. See Lagga v Sarhuna (2008) 16 NWLR (pt. 1114) 427 a 471-472.
For a clear picture, a vague or ambiguous ground would lead one to think the error complained of is the interpretation of Clauses 4, 5.2, 5.3 and 12 of the Contract Agreement.
When read further, it seems the error complained changed to the evaluation of documentary evidence on record. The effect is that one is left in doubt as to the nature of complaint in ground one. The particulars did not help out in resolving the confusion. The particulars are argumentative and narrative in nature. Particulars (i) & (ii) are argumentative in nature. They seem to complain about interpretation. Particulars (iii) to (x) are not only argumentative, narrative in nature, they also seem to complain about evaluation of evidence on record. Particulars (x) are clearly irrelevant as it was not a decision of the Court below. The Court below did not vary the contents of any written contract between the parties.
It is now well settled in law that the ground and their particulars must be restricted to the errors complained of in the judgment. In order words, that the grounds and particulars of errors should not be framed at large.
The case of Osasona v Ajayi (2004) 14 NWLR PT. 894 527 is apt in this regard. This Court held that particulars of error alleged in a ground of appeal are intended to highlight the complaint against the judgment on appeal. They are specification of the error or misdirection in order to make clear how the complaint is going to be canvassed in an attempt to demonstrate the flaw in the relevant aspect of the judgment. The particulars of ground one are not only fundamentally defective and they also increased the confusion as to the perceived error in the judgment.
Ground 2 is prolix in nature and unwieldy. It is also vague as ground 1. One is not sure what the complaint really is whether it is the burden of proof when evidence is unchallenged or the evaluation of the evidence led by the Court. The particulars did not help resolve the confusion. Particulars (i), (ii) (v) (vi) (ix) apart from being narrative seem to dwell on evaluation of evidence while particulars (vii) & (viii) are inconsistent with the grounds. They do not relate at all to the ground. Particulars (iii) are not a complaint against the judgment. Particulars (viii) are bad for falsity as the Court clearly decided on the question whether the Appellant is entitled to payment based on the contract. The grounds like the particulars are not framed at large. Particulars (ii) & (iii) seem to dwell on the burden of proof when evidence is unchallenged.
Again, ground 2 is repetitive of ground 1 in many respects. Particulars (ii) – (viii) are repetitive of particulars of ground 1.
It is trite that appeal is not fought on repetitive grounds but on the quality of the grounds.
Ground 3 is also vague. Several questions crop up. What is the interpretative outcome of the case? How does interpretation outcome of the case relate to damages? Particulars (v) are inconsistent with the ground. Is the complaint about damages and/or interests? One cannot decipher. Particulars (i) was not a decision of the Court of Appeal. The Court did not find as a fact that the Respondent breached the contract. Thus, the complaint is at large. The particulars are also argumentative which is not permitted by the rules of this Court. It is settled law that particulars of a ground cannot be different from the grounds because they form part and parcel of the complaint. The particulars of a ground are only meant to be an addendum. See Mba v Agu (1999) 1 NWLR (PT.629) SC1.
This Court in Globe Fishing Industries Ltd v Coker (1990) NWLR (PT.162) 265 S.C 3000 F-G reiterated the principle thus:-
“The particulars and nature of the error or misdirection alleged in Order 8 Rule 2 (2) are the specific reasoning, finding or observations in the judgment relating to or projecting the error or misdirection complained of They are in the sense the itemisation of the error or misdirection in the judgment or ruling. Particulars required are not the arguments or narratives that should be proffered at the hearing of appeal to establish that the Court erred or misdirected itself. They should not also be independent complaint from the ground of appeal but ancillary to it.”
Ground 3 is also bad for falsity as the Court of Appeal affirmed the award of damages by the trial Court. Damages were awarded on the Six Million Naira proved. The ground does not flow from the judgment of the Court below. The ground is framed at large. See Co-operative & Commerce Bank Plc v. Ekperi (2007) 3 NWLR (PT. 1021) 282.
Confusing grounds of appeal will only bring about confusing issues. The issues purportedly formulated by the Appellants are as follows:
“Was the Court below right in its interpretation of Clauses 4,5.2,5.3 and 12 of the Contract Agreement (Exhibit P5) when they came to the conclusion that the Appellant was not entitled to full payment of the contract sum (Arising Grounds 1 & 2)?
Was the Court below right when it held that the Appellant was not entitled to an award of damages inclusive of interests on the sum owed the Appellant by the Respondents? (Arising from Ground 3)”
Issue one formulated from grounds 1 and 2 seem to talk about interpretation. The issue is formulated outside the said ground as particulars of error of interpretation were not given in the said grounds. That is not allowable. See the case of Adah v. Adah (2001) 5 NWLR (PT.705) page 1. The issue can only be discountenanced in the circumstances. The complaint of the Appellant against the judgment of the Court below as distilled from issue one is that there was a perceived error in the interpretation of the contract which led to wrong findings of fact. But the Appellant proceeded to fault the evaluation of evidence by the Court below in the body of the brief. It is clear that the perceived error in evaluation of evidence as argued by the Appellant did not flow from the error in interpretation. Thus, since the issue distilled from grounds 1 and 2 is the perceived error in interpretation by the lower Court, this Court cannot enquire as to whether evidence were properly assessed by the lower Court because the rationale behind the formulation of issues is to narrow the field of dispute. It is to narrow the issues in the grounds of appeal filed in the interest of accuracy, clarity and brevity.
Once issues for determination are formulated, it supersedes the grounds of appeal. See Abayomi v. A.G. Ondo State (2006) 8 N.W.L.R (PT. 982) 211.
It is more so since issue one is distilled from both ground 1 and 2 of the notice of appeal. It is now trite that where an incompetent ground of appeal is argued together with those formulated from competent grounds, the issue will be deemed incompetent because the Court cannot sift that which is competent from the incompetent ones. See Ngige v Obi (2006) 14 N.W.L.R (PT.999) lat 165 Para E-H this Court endorsed this exposition of the principle by Per Salami J.C.A in the unreported case of Korede v Adedokun thus:
“This is the mixed grill served and I am of the firm view that it is not the business of the Court to sift chaff from grain by performing a surgical operation on the appellant’s brie to extract argument in respect of valid grounds from the invalid ones, as such exercise may involve the Court in descending into the arena and the dust arising therefrom may of necessity becloud its judgment. The duty of the Court is that of an umpire whose functions in the interest of justice is to tend the rope and not to step into the brawl by exercising argument on good grounds of appeal from those of bad ones.
See also Honika Sawmill (Nig) Ltd v. Harry Okojie Hoff (1994) 2 NWLR (pt. 326) 252 at 262, Nwadike v Ibekwe (1987) 4 NWLR (pt. 67) 718.”
Issue two formulated out of ground 3 is strange to the decision of the Court of Appeal because the Court only affirmed the position of the trial Court that the Appellant was only entitled to N6 Million Naira at the interest rate of 10% per annum. What then is the sum owed and what then is the interest? The Appellant did not prove he was entitled to the sum claimed. That is the decision of the Court below. If he at the Court below establish same, there cannot be no complaint about damages that was not awarded.
It has to be pointed that the Court can raise the issue suo motu, of the incompetence of an appeal. In Abubakar v Joseph (2008) 13 NWLR (PT.1104) 307, this Court held that where no objection is raised to the competence of the grounds of appeal filed by the Appellant, the Court on its own can raise the issue.
The issues formulated being vague are clearly irrelevant to this appeal. It makes it difficult for the Court to determine the real issue in controversy. It makes the hearing of the appeal difficult as it is trite law that a respondent to an appeal cannot formulate issues for determination outside the grounds of appeal filed by the Appellant. Justice can not be done as between the parties when the Respondent is at a loss as to the complaint of the Appellant. The door of justice is open to genuine complaints as otherwise a waste the precious time of the Court will ensue. Even the cry that substantial justice demands that the appeal should still be heard would not save the appeal. This much was stated by Per Achike J.S.C in Calabar East Co-op. v Ikot (1999) 14 NWLR (pt. 638) 225 at 247 Para C:
“Pronouncements or decisions made on incompetent issues or defective grounds of appeal cannot advance the appellants’ case, not even the interest of Justice nor, our jurisprudence, one jot, because, at best, such pronouncements are mere obiter dicta. Stricto sensu, an appellate Court lacks jurisdiction, in the sense of competence to entertain an appeal which is not fought on valid grounds of appeal. See Godwin v C.A.C (1998) 14 NWLR (pt.584) 16 SC and Kala v Potiskum (1998) 8 NWLR (pt. 540) 1 SC.”
From the foregoing, it is evident that there is no point belabouring the issues which have on their own been determined as stemming from incompetent grounds of appeal.
This Preliminary Objection has merit and I uphold it.
The Notice and Grounds of Appeal are struck out on account of incompetence.
I abide by the consequential orders made.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: This appeal illustrates the importance of proper drafting of grounds of appeal and the sometimes devastating effect of failure to comply with the applicable rules in that regard.
Order 8 Rule 2 (3) and (4) of the Supreme Court Rules, as amended, provides:
“(3) The 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 argument or narrative and shall be numbered consecutively.
(4) No ground which is vague or general in terms, which discloses no reasonable ground of appeal shall be permitted, save the general ground that the judgment is against the weight of evidence, and any ground of appeal or any part thereof which is not permitted under this rule may be struck out by the Court of its own motion or on application by the respondent.”
The rules of Court providing for the form and content of a notice of appeal are meant primarily to assist the Court and the respondent to discern, in a concise manner, the nature of the complaint from the decision appealed against. While it is trite that rules of Court are meant to be obeyed, this Court has usually taken a liberal approach to a complaint that grounds of appeal are not in conformity with the rules, where it is nonetheless possible to identify the nature of the complaint or, to put it in another way, where despite the fact that the grounds of appeal are inelegantly drafted, neither the Court nor the respondent is misled as to the real nature of the complaint. This is in conformity with the Court’s desire to do substantial justice in the appeal before it and not to jettison an appeal on technical grounds. See Sosanya vs Onadeko & Ors (2005) LPELR – 3105(SC) @ 25 B – C; (2005) 2 SC (Pt. 11) 13, Aderounmu vs Olowu(2000) 4 NWLR (Pt. 652) 253, Oleksandr & Ors Vs Lone Star Drilling Co. Ltd. & Anor (2015) LPELR – 24614 (SC) @ 26A, Ogboru vs Uduaghan (2012) 11 NWLR (Pt. 1311) 357 @ 380 B- D.
The leaning of the Court in favour of doing substantial justice must, however, never be taken for granted. In the instant appeal, the grounds of appeal along with their particulars reveal an apparent confusion in the mind of learned counsel who drafted them as to the aspect of the judgment he intends to challenge. I agree with the analysis of the grounds of appeal as done by my learned brother, Ibrahim Mohammed Musa Saulawa, JSC in the lead judgment and agree that no amount of ingenuity can assist the Court or the respondent to decipher the actual complaint in grounds 1 and 2 against the judgment of the lower Court. Learned counsel should be wary of prolixity in the drafting of grounds of appeal and their particulars, as they run into the danger of obfuscating the real nature of the appellant’s complaint, as in this case.
As regards ground 3, it is wholly unrelated to the decision of the lower Court. The complaint is that the Court erred when it held that the appellant was not entitled to an award of damages upon “the interpretation of the outcome of the case.” Apart from being vague, the lower Court, in fact, affirmed the finding of the trial Court that the appellant was entitled to the sum of N6 million being the balance of 60% first installment as approved by the Executive Committee of the 1st respondent, which he proved successfully. For a ground of appeal to be competent, it must be derived from the ratio decidendi of the decision appealed against. See Oleksandr Vs Lone Star Drilling Co. Ltd. & Anor (Supra), Dalek Nig. Ltd. vs Ompadec 2007 ALL FWLR Pt. 364 204.
Unfortunately, this appeal has no saving grace, as although the three grounds of appeal are couched as ‘error in law”, a careful examination thereof reveals that all the grounds are of mixed law and fact, for which prior leave ought to have been sought and obtained in compliance with Section 233 (3) of the 1999 Constitution as amended. The failure to obtain leave where leave is required, renders the notice of appeal null and void. See Nwagbara vs Jadcom Ltd. (2021) LPELR – 55329 (SC) @ 10 C – E, Chrome Air Services Ltd. & Ors Vs. Fidelity Bank (2017) 12 SC (Pt. 111) 57; (2017) LPELR – 43470 (SC) @ 8 D – E; Fasuyi vs P.D.P. (2017) LPELR – 43462 @ 10 – 12 C – A.
On the whole, I agree with my learned brother, Saulawa, JSC that the appeal is incompetent and it is accordingly struck out. I abide by the order on costs contained in the lead judgment.
MOHAMMED LAWAL GARBA, J.S.C.: I am in full agreement with the views expressed by my learned brother, Hon. Justice Ibrahim Mohammed Musa Saulawa, JSC, in the lead judgment, which I read before today, that all the three (3) grounds contained on the Appellant’s Notice of Appeal are generally vague, unwieldy and prolix such that the real grievance or complaint against the decision by the Court below in each of them is uncertain, obfuscated and unspecific to be readily discernable. The grounds offend and are in contravention of Order 8, Rules 2 (3) and (4) of the Supreme Court Rules (as amended) 2014 which provide that:-
“2.(3) The notice of appeal shall set fourth concisely and under distinct head, 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.
(4) No ground which is vague or general in terms which discloses no reasonable ground that of appeal shall be permitted, save the general ground that the judgment is against the weight of evidence, and any ground of appeal or any part thereof which is not permitted under this rule may be struck out by the Court of its motion or on application by the respondent.”
The grounds of appeal do not disclose reasonable grounds of appeal for being in general terms and vague and so liable to be struck out. See Honika Sawmill Nig. Ltd. v. Hoff (1994) 2 NWLR (pt. 326) 252, Nsirim v. Nsirim (1990) 3 NWLR (pt. 138) 285, Doma v. INEC & Ors. (2012) 7822 (SC).
I join the lead judgment in striking out the grounds as well as the appeal for being incompetent.
EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the judgment of my learned brother, Lord Justice, IBRAHIM MOHAMMED MUSA SAULAWA, JSC.
I completely agree with the reasoning, conclusions, decisions, including the orders therein.
Appearances:
CHIEF CHRIS UCHE SAN For Appellant(s)
SAID SANIJSI ESQ him MOGBEJULE SAGAY For Respondent(s)
