TAGBO ODELUGA V. SIMEON ANIAKOR (2012)

TAGBO ODELUGA V. SIMEON ANIAKOR

(2012)LCN/5371(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 15th day of May, 2012

CA/E/57/2007

RATIO

PROCEDURE: ESSENCE OF A PRELIMINARY OBJECTION

This is against the backdrop of the settled position of law that the purpose of a preliminary objection to an appeal is to contend that the appeal is defective or incompetent. Accordingly, if the preliminary objection is sustained, the appeal would no longer be heard and if already heard (as in the instant situation) the appeal will not be considered on the merit. In other words, a successful preliminary objection to an appeal terminates or aborts the consideration of the appeal on the merit. See OKONKWO V. UBA PLC (2011) 16 NWLR (Pt. 1274) 614; and HON. CHUKWUKA (CHUCHU) ONYEMA V. MR. AFAM OGENE (2012) 1 WRN 94. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A

APPEAL: WHAT ARE APPEALS ARGUED ON

The settled position of law in the light of the Rules of this Court is that appeals are no longer argued on grounds of appeal but on issues and which must be distilled or must flow from the grounds of appeal. See OGUNSOLA V. NICON (1996) 1 NWLR (Pt. 423) 126; and AMADI V. NNPC (2000) 6 SC (Pt. 1) 66. This no doubt is why appellants have been consistently admonished by the appellate courts to always marry the issues formulated for the determination of the appeal with their grounds of appeal. See TAHIR V. KAPITAL INSURANCE CO. LTD (2007) All FWLR (Pt. 370) 1482 at 1495; and EZEJA & ANOR V. THE STATE (2006) All FWLR (Pt. 309) 1535 at 1559. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A

APPEAL: FUNCTION OF A GROUND OF APPEAL

APPEAL: EFFECT OF A GROUND OF APPEAL WHICH NO ISSUE IS RAISED FROM

The position of the law is that where no argument is offered in support of a ground of appeal through the issue distilled therefrom, the ground of appeal in question is deemed abandoned and the ground of appeal in question must be struck out. See UKIRI V. GEO-PRAKLA (NIG) LTD (2010) ALL FWLR (Pt. 534) 53. A fortiori the argument in the circumstances must obviously be discountenanced, the ground of appeal having been deemed abandoned. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A

EVIDENCE: NATURE OF ESTOPPELS

The law as rightly submitted by the Respondent is settled that “estoppel per rem judicata” is different from “issue estoppels”. In this regard is the case of LADIMEJI V. SALAMI (1998) 5 NWLR (Pt. 548) 1, where it was stated to the effect that “estoppel simpliciter” is an admission of facts. Estoppel by its very nature is so important, so conclusive that the party whom it affects is not allowed to plead against it, or lead evidence to contradict it. “Res judicata” on the other hand, operates not only against the party whom it affects but also against the jurisdiction of the court itself. The party affected is estopped per rem judicatam from bringing a fresh claim before the court and at the same time the jurisdiction of the court to hear the action is ousted. “Issue estoppel” on the other hand arises where an issue had earlier on been adjudicated upon by a court of competent jurisdiction and the same issue comes incidentally in question in a subsequent proceeding between the same parties or their privies. See OYEROGBA V. OLAOPA (1998) 13 NWLR (Pt. 583) 509; and EBBA V. OGODO (2000) 6 SC (Pt. 1) 133. “Estoppel per rem judicatam” arises where an issue or fact has been judicially determined in a final manner between the parties by a court or tribunal having jurisdiction, concurrent or exclusive in the matter and the same issue comes directly in question in subsequent proceedings between the parties or their privies. Thus the affected parties are estopped from bringing a fresh action before any court on the same case and on the same issue already pronounced upon by the court in a previous action. See OSHODI V. EYIFUNMI 7 SC (Pt. II) 145. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A

JUSTICES

ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

SAMUEL C. OSEJI Justice of The Court of Appeal of Nigeria

Between

TAGBO ODELUGA Appellant(s)

AND

SIMEON ANIAKOR Respondent(s)

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A (Delivering the Leading Judgment): The appeal is against the judgment delivered on 29th July 2005 by the High Court of Justice Anambra State, holden at Ogidi (hereafter simply referred as “the lower court”) presided over by Hon. Justice C.E.K. Anigbogu (hereafter simply referred to as “the learned trial Judge”) Judgment was entered in favour of the plaintiff by the lower court.
The Plaintiff before the lower court is the Respondent in the instant appeal; while the Defendant is the Appellant.
The case set up by the Respondent in the Statement of Claim dated 17/9/2001 and filed before the lower court on 20/9/2001 briefly stated is that sometime in August 1999, he was given the possession of a Hiace Bus with Reg. No. AA 856 AWK (hereafter simply called “the vehicle”) by his junior brother – Dr. C.C. Aniakor. That he (Respondent) had the authority to put the vehicle to commercial use whenever he found a good and honest driver. That on or about 2/1/2000 when the Appellant and his wife visited him, the Appellant suggested a commercial use to which the vehicle could be put but that nothing conclusive was agreed upon by him and the Appellant. That on or about 3/1/2000, the Appellant came to his (Respondent’s) house at Abatete and in his absence and also without his prior knowledge and/or consent took possession of the vehicle. That in doing this, the Appellant took the particulars of the vehicle from where they were kept in his palour; tricked his (Respondent’s) children into releasing the keys of the vehicle to him; and collected the vehicle’s battery from the roadside electrician that was recharging the said battery. That the Appellant having removed the vehicle from his (Respondent’s) possession later put it to commercial use by registering it with the Transport Corporation of Anambra State Ltd. (hereafter simply referred to as “TRACAS”). The Respondent alleged that the Appellant refused and/or neglected to deliver up possession of the vehicle despite repeated demands in this regard; and that on or about 14/4/2000 he later caused a formal letter of demand to issue to the Appellant, demanding for the return of the vehicle. The Respondent claimed to have suffered loss and/or injuries consequent to the wrongful and/or unlawful possession of the vehicle by the Appellant from January, 2000 – May, 2000 during which period, the Appellant collected about N61, 000.000 monthly from TRACAS as proceeds from the vehicle without paying the same over to him. In the premises, the Respondent in paragraph 20 of the statement of claim, claimed against the Appellant as follows: –

“(a) Declaration that the defendant’s seizure/carrying away of the Hiace Bus with Registration No: AA/856 AWK) from the plaintiffs lawful possession on 3/1/2000 and without his knowledge and/or consent amounted to Trespass and/or unlawful conversion.

(b) N10,000,000.00 damages for Trespass and/or unlawful conversion.

(c) N305,000.00 being the returns or money the Bus realised from January 2000 to May 2000 which the defendant failed, refused and/or neglected to pay over to the plaintiff.”

The case of the Appellant as set up in his Statement of Defence dated 18/3/2002 and filed on the same date before the lower court, put briefly is that the Respondent did not hand over any vehicle to him. That the vehicle is owned by Dr. C.C. Aniakor (Respondent’s younger brother), and he handed it over to Den-Cado Nig. Ltd, (a company in which the Appellant is the Managing Director) and not to the Appellant personally. That the Respondent is not the owner of the vehicle and never handed over the same to Den-Cado Nig, Ltd. but was only in attendance/present at some of the discussions between the Appellant’s company and Dr. Aniakor in respect of the vehicle. The Appellant claimed that Den-Cado Nig. Ltd. (hereafter simply referred to as “the company”) upon collecting the vehicle spent a huge sum of money to repair and refurbish same to the knowledge of the owner – Dr. Aniakor and that the Respondent did not contribute amount for the purpose. That the vehicle was thereafter leased to TRACAS upon the agreement between Dr. Aniakor and the company that the company would first recoup or recover all the money it expended in repairing and refurbishing the vehicle before any money is remitted to the owner. That the Respondent who was not a party to the agreement between the company and Dr. Aniakor kept on demanding for the proceeds from the vehicle from the Appellant simply because the vehicle was parked in his premises by his brother – Dr. Aniakor. The Appellant also claimed that on 19/5/2000 and during the pendency of the instant case, Dr. Aniakor entered into an agreement to refund by six installments the sum of N94, 000.00 which was the balance due to the company in respect of the amount it spent on repairing and refurbishing the vehicle before it was withdrawn from TRACAS. That the vehicle was withdrawn from TRACAS, in April 2000; due to disturbance from the Respondent.
The Respondent called four witnesses in the proof of his case (with him testifying as PW1); while the Appellant called two witnesses in the proof of his case (with him testifying as DW1). The learned trial Judge after evaluating the evidence adduced by the parties in support of their respective cases and having also had the benefit of the addresses of the parties, in a reserved judgment delivered on 29/7/05, entered judgment for the Respondent. In the judgment the learned trial Judge formulated a total of 12 issues for determination in the case and resolved all the issues in favour of the Respondent.
The Appellant being dissatisfied with the judgment of the trial court appealed against the same by a Notice of Appeal dated 1/8/2005 and filed on the same date containing two grounds of appeal. The Appellant subsequently filed an amended Notice of Appeal on 11/5/2007, containing five grounds of appeal.
In accordance with the Rules of this Court, parties duly filed and exchanged Briefs of Arguments, Appellant’s Brief of Argument dated 12/11/2009 and filed on 22/10/2010 but deemed as properly filed and served on 26/10/2010 was settled by B.O. Okpemandu; while the Respondent’s Brief of Argument dated 8/3/2011 and filed on the same date but deemed as properly filed and served on 9/3/2011 was settled by T.U. Oguji. The appeal was entertained on 21/2/2012. At the hearing of the appeal, N.R. Owoh, learned counsel for the Respondent having first disclosed that the Respondent incorporated a Notice of Preliminary Objection in his Brief of Argument, argued the same. In this regard, learned counsel adopted and relied upon the argument contained on pages 7 – 13 of the Respondent’s Brief of Argument as hereinbefore identified. Thereafter both L.T. Kwuazu and N.R. Owoh, respective learned counsel for the parties adopted and relied upon the Briefs of Argument they filed on behalf of their clients in support of their positions in the appeal.
In his Brief of Argument, the Appellant stated that the appeal centred on the following: –
“(a) The Respondent who was the Plaintiff at the trial court had no locus standi to bring suit No. Hid/157/2001 (sic) against the Appellant (Tagbo Odeluga) who was the Defendant in the Trial court when at all times material to the suit, the proper Defendant ought to be Den-Cado Nig. Ltd.

(b) The Trial court ought not to determine the suit the Respondent brought against the Appellant when there was an order transferring the suit which was brought to the attention of the trial court.

(c) The trial court ought not to hear suit No. HID/117/2001 and determine same in favour of the Respondent when the subject matter of the suit was the same with the subject matter of suit No. A/116/2000 and Suit No. A/116/2000 was settled out of court vide agreement dated 19th May, 2000.”

Having stated the above, the Appellant formulated two issues for the determination of the appeal with the first of the two issues being split into (a), (b) and (c). The issues as set out in the Appellant’s Brief of Argument read thus:-

“1. Whether the trial court had jurisdiction to give judgment in Suit No. HID/157/2001 when:

(a) The Plaintiff/Respondent had no cause of action against the Defendant/Appellant.

(b) The Plaintiff/Respondent had no locus standi to bring the suit against the Defendant/Applicant and

(c) There was an application to transfer Suit No. HID/157/2001 to another court which the trial court failed and/or neglected to consider on (sic) give effect to the said application.

2. Whether the trial court ought to have given judgment to the Plaintiff/Respondent when the subject matter of the suit of the Plaintiff/Respondent which was for the returns (sic) or the money Hiace Bus with Registration No. AA/856 Awka realized from January, 2000 to May, 2000 was arbitrated and settled between the owner of the vehicle Dr. C.C. Aniakor and Den-Cado Nigeria Limited, a company the Defendant/Appellant is the Managing Director. (See Grounds 4 and 5 of the notice of appeal)”

The Respondent formulated three issues for the determination of the appeal in the event the preliminary objection he raised therein was found to be lacking in merit. The issues are: –
“(1) whether the plaintiff had a cause of action against the defendant, if yes, whether the trial court had jurisdiction to hear and determine it. (formulated (sic) from grounds 1 and 3 of the notice of appeal).
(2) Whether the suit was caught by res judicata. (formulated (sic) from ground 4)
(3) Whether the learned trial court was wrong in not giving effect to the purported award allegedly made against the respondent by some arbitrators.”
I will first consider the merit or otherwise of the preliminary objection raised by the Respondent in the appeal. This is against the backdrop of the settled position of law that the purpose of a preliminary objection to an appeal is to contend that the appeal is defective or incompetent. Accordingly, if the preliminary objection is sustained, the appeal would no longer be heard and if already heard (as in the instant situation) the appeal will not be considered on the merit. In other words, a successful preliminary objection to an appeal terminates or aborts the consideration of the appeal on the merit. See OKONKWO V. UBA PLC (2011) 16 NWLR (Pt. 1274) 614; and HON. CHUKWUKA (CHUCHU) ONYEMA V. MR. AFAM OGENE (2012) 1 WRN 94.
The Notice of Preliminary Objection of the Respondent as set out in paragraph 5.01 of his Brief of Argument reads: –
“TAKE NOTICE that the respondent shall at the hearing of the appeal contend by way of preliminary objection, that the arguments canvassed in the appellant’s brief of argument did not flow from any of the grounds of appeal filed in this appeal. Consequently, that all the said grounds of appeal are therefore, deemed abandoned and ought to be struck out. The respondent shall further contend that the said arguments are equally incompetent and ought to be struck out since there is no platform on which they can stand.”

Dwelling on the preliminary objection, the Respondent referred to paragraph 2.06 of the Appellant’s Brief of Argument, wherein it was indicated that the said Brief was predicated on the Notice and grounds of appeal contained at page 137 of the records. Being aware that the Appellant filed an amended Notice of Appeal in the appeal, the Respondent not only re-produced the grounds and particulars of the two grounds of appeal in the Notice of Appeal upon which the Appellant claimed or professed to have predicated his Brief of Argument, but also the other grounds of appeal and their respective particulars, as set out in the amended Notice of Appeal (supra).
The Respondent contended to the effect that Appellant’s issue 1(a) could only have been distilled or formulated from ground 3 of the grounds of appeal. This is because it is only in that ground of appeal that “the issue of the alleged lack of cause of action against the defendant was raised.” Against the backdrop of these, the Respondent submitted to the effect that it is surprising that the arguments of the Appellant from paragraph 4.01 – 4.24a of his Brief of Argument are predicated on inter alia, “the alleged failure of the Respondent to plead and prove that he made a valid formal demand for the return of the Hiace bus to him, and that it was refused, the allegation that the claim did not arise since there was settlement of the subject matter of the suit with Dr. C.C. Aniakor through exhibit F, etc.” The Respondent submitted that the arguments canvassed by the Appellant in the aforementioned paragraphs do not flow ground 3 of the grounds of appeal or its particulars or indeed any of the other grounds of appeal and their respective particulars. In the circumstances, the Respondent submitted that the Appellant is deemed to have abandoned ground 3 of the grounds of appeal inasmuch as the arguments ostensibly canvassed on the basis of the ground, are at variance with the said ground and its particulars. The Court was urged to strike out ground 3 of the grounds of appeal and to discountenance the arguments in paragraph 4.01 – 4.24a.The cases of Ojoh v. Kamalu (2005) 18 NWLR (Pt. 95S) 523 at 537; and Eholor v. Osayande (1992) 6 NWLR (Pt. 249) 524 were cited in aid.
Still on Appellant’s issue 1(a), the Respondent submitted to the effect that the issues upon which the arguments in paragraphs 4.01 – 4.24a (supra) are based, are fresh issues as they were never raised by the Appellant before the lower court in any manner and at any stage of the proceedings. That the Appellant cannot properly raise fresh issues in the appeal except by the leave of this Court and which leave he never sought nor procured before arguing the said fresh issues. The Court was urged to also discountenance the arguments in the aforementioned paragraphs on this ground and the case of Dabo v. Abdullahi (2005) 7 NWLR (Pt. 923) 181 at 200 was cited in aid.
Dwelling on Appellant’s issue 1(b), and having contended that the said issue could only have been distilled from ground 1 of the grounds of appeal, the Respondent submitted to the effect that the arguments canvassed on the issue in paragraphs 4.25 – 4.49 of the Appellant’s Brief of Argument being clearly at variance with the said ground 1 and the particulars thereof, are to that extent incompetent. The Respondent also submitted to the effect that arguments in paragraphs 4.50 – 4.52 of the Appellant’s Brief of Argument by which he attacked the finding of the lower court as contained on page 87 of the record should be discountenanced as the Appellant never appealed against the finding of the lower court in question. The Respondent cited the case of NBCI v. Integrated Gas (Nig) Ltd (2005) 4 NWLR (Pt. 916) at 639 in aid of the submission that the position of law is that any finding of a court that is not appealed against cannot be questioned on appeal. The Court was urged to also discountenance the arguments in the aforementioned paragraphs of the Appellant’s Brief of Argument, for this reason.
Dwelling on Appellant’s issue (c), and having contended that the said issue could only have been distilled from “ground 1 (a) & (b) (sic) of the Notice of appeal”, the Respondent submitted to the effect that the arguments on the issue in paragraphs 4.03 – 4.58 of the Appellant’s Brief of Argument are totally at variance with the complaint in the said ground 1 (a) & (b) (sic). This is because the complaint in ground 1 (a) & (b) (supra) is that the Chief Judge on 27/7/05 made an order transferring the suit from the learned trial Judge but that the arguments in the aforementioned paragraphs centred on “an alleged application for transfer purportedly written on 14/7/2005”. The Court was urged to strike out ground 1 (a) & (b) (supra) as having been abandoned and also to discountenance the arguments in aid of the said ground.
Dwelling on Appellant’s issue 2 which the Appellant disclosed to have been distilled from grounds 4 and 5 of the grounds of appeal, the Respondent submitted to the effect that while the said issue 2 raised the issue of res judicata and was supported with particulars, the Appellant rather than predicating his arguments on the complaints raised in the grounds in question, predicated same on issue estoppel. It is the submission of the Respondent that “res judicata” and “estoppel” are not synonymous and cannot be used or applied interchangeably. In the circumstances, the Respondent said that the arguments canvassed under issue 2, were totally at variance with the complaints raised in the grounds from which it was distilled. Therefore, that grounds 4 and 5, are deemed to have been abandoned and the arguments thereunder also with no foundation. The Respondent also submitted that issue estoppel was never raised before the lower court and never formed part of any of the grounds of appeal. In conclusion the Respondent urged the Court to dismiss the appeal, in that the arguments canvassed in the Appellant’s Brief of Argument are at variance with the grounds of appeal filed in the appeal.
The Appellant did not file any reply brief in the appeal. It is therefore glaring that he cannot be said to have responded to the preliminary objection of the Respondent by availing himself of that procedure or process. At the hearing of the appeal, the Appellant equally never alluded to the preliminary objection of the Respondent after it was argued. The Appellant simply adopted and relied on his Brief of Argument in urging the Court to allow his appeal after the Respondent finished dwelling on his preliminary objection. It would however appear that the failure of the Appellant to have responded to the preliminary objection of the Respondent by filing a reply brief of argument in the appeal or to have alluded to it in any manner at the hearing of the appeal, does not automatically portend the success of the Respondent’s preliminary objection. This is because the position of law would appear to be that the default of a party to react to a preliminary objection does not preclude the court from considering the merit and demerit of the same for the purpose of either overruling the objection or sustaining it. See BOB V. AKPAN (2010) All FWLR (Pt.501) 896 at 941 in which the ratio in the case of Odunze v. Nwosu (2007) All FWLR (Pt.379) 1295 at 1314, was applied.
The settled position of law in the light of the Rules of this Court is that appeals are no longer argued on grounds of appeal but on issues and which must be distilled or must flow from the grounds of appeal. See OGUNSOLA V. NICON (1996) 1 NWLR (Pt. 423) 126; and AMADI V. NNPC (2000) 6 SC (Pt. 1) 66. This no doubt is why appellants have been consistently admonished by the appellate courts to always marry the issues formulated for the determination of the appeal with their grounds of appeal. See TAHIR V. KAPITAL INSURANCE CO. LTD (2007) All FWLR (Pt. 370) 1482 at 1495; and EZEJA & ANOR V. THE STATE (2006) All FWLR (Pt. 309) 1535 at 1559.
In the instant appeal, the Appellant who filed an amended Notice of Appeal containing five grounds of appeal, had the presence of mind to marry his issue 2 to grounds 4 and 5 of the grounds of appeal, but failed woefully to marry his issue 1 or any of its three constituents, to any of the remaining grounds of appeal. This is condemned in the strongest terms possible. The Appellant would appear not to appreciate the position of the law, to the effect that failure or neglect to marry or denote the ground or grounds of appeal from which each issue is distilled, suggests that the ground or grounds of appeal which is/are not related to an issue or from which no issue is distilled or derived, is deemed abandoned and would be struck out. See NICO OLIVER V. DANGOTE INDUSTRIES LTD [2010] All FWLR (Pt. 506) 1858 at 1873.

The Respondent in arguing his preliminary objection has clearly married each of the constituents of Appellant’s issue 1 to grounds 1 and 3 of the grounds of appeal. None of the constituents of the said ground has been related to ground 2 of the grounds of appeal by the Respondent.

Ground 2 of the grounds of appeal is the omnibus ground to wit: “The judgment is against the weight of evidence.” issue 1 formulated by the Appellant has been hereinbefore reproduced in this judgment. The issue on its face is plainly jurisdictional. The settled position of law is that the omnibus ground of appeal, it is not suited to challenge specific findings or to raise specific questions in an appeal. See BHOJSONS PLC V. DANIEL KALIO (2006) 5 NWLR (Pt. 973) 330. Aside from this, it would in my considered view be clearly antithetical to suppose that the Appellant distilled any of the constituents of his issue 1 which are plainly jurisdictional in purport from the omnibus ground of appeal. This is because an omnibus ground of appeal by its nature clearly admits of a competent trial, but only that the decision of the court amongst others is not supported by the evidence placed before it or that the inference or conclusion reached by the trial court based on accepted evidence is not justified. In other words, an issue of law cannot be made an adjunct to the omnibus ground of appeal. It therefore cannot be said that Appellant’s issue 1 was distilled from ground 2 of the grounds of appeal. In the light of all that has been said, and as there is no denying the fact that none of the issues formulated by the Appellant can be said to have been distilled from ground 2 of the grounds of appeal, the said grounds of appeal in the circumstances is deemed abandoned and is liable to be struck out. See WEST AFRICAN EXAMINATION COUNCIL V. ADEYANJU (2008) All FWLR (Pt. 428) 206 at 22; and ABDULLAHI V. NIGERIAN ARMY (2009) All FWLR (Pt. 500) 643. Accordingly, ground 2 of the grounds of appeal herein, is hereby struck out the same having been abandoned as the Appellant formulated no issue from or in relation to it.
The Respondent has stated that the only ground out of the grounds of appeal from which issue 1 (a) can be said to arise is ground 3. The said ground is hereby reproduced: –

“(1) Error in Law

The court below erred in law in proceeding to hear and determine the suit when the suit was incompetent as there was no cause of action against the defendant.

(a) The suit and judgment was for recovery of proceeds from vehicle No. AA 856 AWK leased to TRACAS Limited.
(b) The lease was made between TRACAS Limited and an incorporated company called Den-Cado Nigeria Limited.
(c) The defendant was not a party to the lease agreement.”

I have painstakingly perused the arguments of the Appellant as contained in paragraphs 4.01 – 4.24a on pages 5 – 13 of his Brief of Argument and I cannot but agree with the Respondent that the arguments therein contained are clearly at variance with the complaint raised in ground 3 and its particulars, reproduced above.

A ground of appeal is to accentuate the error of law or fact alleged by an appellant as the defect in the judgment appealed against and relied upon to set the same aside. Particulars of a ground of appeal serve the purpose of particularizing in specific and clear language the ground of appeal. Therefore, where the ground of appeal is not explicit, particulars will fill in the gap and space by stating specific details. See IWUOHA V. NIGERIAN POSTAL SERVICES LTD (2003) 4 SC Pt. II) 37 at 54; and MADUMERE V. NWOSU (2010) All FWLR (Pt 545) 263. The position of law is also that like pleadings, issues formulated in an appeal, are intended to accentuate the real issues for determination before the court; therefore they must fall within the purview of the grounds of appeal. See OLOWOSAGO v. ADEBANJO (1988) 9 SC 87 at 92. Issues for determination in an appeal therefore must not only flow or be distilled from the grounds of appeal but it would indeed also appear that they are to be circumscribed by the complaint in the grounds of appeal and their particulars. Like it obtains in a case tried on pleadings, that evidence at variance with pleaded facts goes to no issue, it is also my considered view that arguments under an issue formulated by an appellant and which are at variances with the complaint in the ground of appeal as particularized by the particulars thereof, go to no issue and leaves the said issue bereft of any argument.
The Appellant having regard to the arguments in the paragraphs of his Brief of Argument as hereinbefore referred to, clearly strayed from addressing the complaint raised by his issue 1(a) as circumscribed by ground 3 and its particulars (supra), but embarked on arguing matters that were glaringly not raised therein. This is aside from the fact that matters on which the Appellant decided predicate his arguments in the aforementioned paragraphs, were related to matters on which the lower court made specific findings and in respect of which there are no grounds of appeal. The position of the law as rightly submitted by the Respondent is that any finding of a trial Court against which there is no appeal cannot properly be challenged on appeal. The Appellant could only have ventilated whatever grievance he has against the matters he argued under the paragraphs being challenged by the Respondent, after he must have made the appropriate application to place the matters so argued before this Court. There is no denying the fact that arguments that go to no issue in respect of an issue formulated for the determination of an appeal, as is the case with Appellant’s issue 1(a), cannot be said to be in aid or support of the said issue, The position of the law is that where no argument is offered in support of a ground of appeal through the issue distilled therefrom, the ground of appeal in question is deemed abandoned and the ground of appeal in question must be struck out. See UKIRI V. GEO-PRAKLA (NIG) LTD (2010) ALL FWLR (Pt. 534) 53. A fortiori the argument in the circumstances must obviously be discountenanced, the ground of appeal having been deemed abandoned.
The arguments of the Respondent in relation to Appellant’s issue 1(b); and (c) respectively, are a rehash of those canvassed in relation to Appellant’s issue (a). I have painstakingly read the arguments being challenged in paragraphs of the Appellant’s Brief highlighted by the Respondent. In respect of issue 1(b) (which as rightly stated by the Respondent, can be said to be only distillable from ground 1 of the grounds of appeal), it is clear as crystal that the arguments of the Appellant at paragraphs 4.25 – 4.52 on the issue are at variance with the particular (c) which is the only one out of the three particulars in ground 1 of the grounds of appeal, that relates to the said issue 1(b). In the same vein the Respondent is clearly on firm grounds when he submitted concerning issue 1(c), that in paragraphs 4.53 – 4.58 of his Brief of Argument, the Appellant’s arguments are in respect of events that happened on 14/7/2005, instead of happenings that occurred on 27/7/2005, as particularized under particulars (a) and (b) of ground 1. Given all that has been said, there is no running away from the fact that all the arguments canvassed by the Appellant in the aforementioned paragraphs were not and cannot be said to be in support of the issues they are supposed to support. In the circumstances, the ground of appeal (i.e. ground 1) to which issues 1(b) and 1(c) respectively relate, must be deemed to have been abandoned and is liable to be struck out. A fortiori the arguments advanced under the said issue 1(b) and (c) go to nought and must therefore be discountenanced.
Flowing from all that has been said before now, is that the preliminary objection of the Respondent as it relates to Appellant’s issue 1 succeeds and is accordingly upheld. Grounds 1 and 3 of the grounds of appeal are hereby struck out as having been abandoned.
The arguments of the Respondent as they relate to Appellant’s issue 2 which the Appellant indicated to have been distilled from grounds 4 and 5 of the grounds of appeal have hereinbefore been highlighted. The grounds of appeal in question read: –

“(4) Error in Law

The court below erred in law in entertaining the suit when it is res judicata.

Particulars
(a) A suit on the same subject matter was instituted by Den-Cado Nigeria Limited against Dr. C.C. Aniakor and the plaintiff in year 2000 i.e. Suit A/116/2000.
(b) The said Dr. C.C. Aniakor, settled the case with Den-Cado Nigeria Limited by admission of liability, signing of terms of settlement to that effect and making instalmental payments to Den-Cado Nigeria Limited.
(c) The dispute between the plaintiff and or Dr. C.C. Aniakor on the one hand and the Defendant and or Den-Cado Nigeria Limited on the other hand over the subject matter of the suit had been subject of arbitration in which the arbitrators ruled against the plaintiff.
(5) Error in Law
The court below erred in law in failing to give effect to the result of the arbitration between the parties.
Particulars
(a) The parties had gone to arbitration over the same subject-matter of the suit and the arbitrators ruled against the plaintiff.
(b) The court failed to give effect to the result of the arbitration.”

Having regard to the grounds of appeal re-produced above, it is my considered view that there is no denying the fact that the complaint of the Appellant therein centres on res judicata as submitted by the Respondent. The res judicata specifically relied upon by the Appellant having regard to the said grounds arise from Suit No. A/116/2000; and arbitration between the parties. I cannot but observe that I do not see anywhere in the Appellant’s Statement of Defence, that parties at any time submitted themselves to arbitration of any particular person or body of persons. “Estoppel per rem judicatam” or res judicata as it is often referred to and which as the Respondent rightly submitted is what Appellant’s issue 2 is specifically about, is a specie or type of “estoppel”. The law as rightly submitted by the Respondent is settled that “estoppel per rem judicata” is different from “issue estoppels”. In this regard is the case of LADIMEJI V. SALAMI (1998) 5 NWLR (Pt. 548) 1, where it was stated to the effect that “estoppel simpliciter” is an admission of facts. Estoppel by its very nature is so important, so conclusive that the party whom it affects is not allowed to plead against it, or lead evidence to contradict it. “Res judicata” on the other hand, operates not only against the party whom it affects but also against the jurisdiction of the court itself. The party affected is estopped per rem judicatam from bringing a fresh claim before the court and at the same time the jurisdiction of the court to hear the action is ousted. “Issue estoppel” on the other hand arises where an issue had earlier on been adjudicated upon by a court of competent jurisdiction and the same issue comes incidentally in question in a subsequent proceeding between the same parties or their privies. See OYEROGBA V. OLAOPA (1998) 13 NWLR (Pt. 583) 509; and EBBA V. OGODO (2000) 6 SC (Pt. 1) 133. “Estoppel per rem judicatam” arises where an issue or fact has been judicially determined in a final manner between the parties by a court or tribunal having jurisdiction, concurrent or exclusive in the matter and the same issue comes directly in question in subsequent proceedings between the parties or their privies. Thus the affected parties are estopped from bringing a fresh action before any court on the same case and on the same issue already pronounced upon by the court in a previous action. See OSHODI V. EYIFUNMI 7 SC (Pt. II) 145.
It is in my considered view clear as crystal from what has been put on ground by the authorities concerning “res judicata” which is the specific complaint of the Appellant in his grounds 4 and 5), that a case to be relied upon in that regard at least must have been instituted and the issues in dispute therein decided to completion earlier in time before, the institution of the case in which it is to be used as res judicata. As it can be seen from the arguments in the Appellant’s Brief of Argument on his issue 2, mention was made of a Suit No. A/116/2000 and certain agreement made between Dr. Aniakor and Den-Cado Nigeria Ltd admitted as Exhibit E. The said case, agreement, as well as the result of arbitration were mentioned in the particulars of ground 4 and also ground 5. Suit No. A/116/2000 however, having regard to the case set up by the Appellant in his Statement of Defence was not disclosed to have been decided to completion before the institution of the case now on appeal, talk less of disclosing the issues between the parties therein that was decided in a final manner and which constitute res judicata in the instant case.
In the same vein, and as earlier stated there was no averment/nothing in the Statement of Defence disclosing that parties submitted themselves to the arbitration of any person or group of persons, talk less of the result of such arbitration. I am of the considered opinion, that it was in realization that there was nothing upon which arguments on the issue of res judicata raised by grounds 4 and 5 of the grounds of appeal could be predicated, that the Appellant resorted to arguing “issue estoppel” and in the process totally abandoned dwelling on the result of arbitration (which was never pleaded in any event) that constituted res judicata (which issue 2 is about) or “issue estoppel” to which he decided to convert the basis or foundation of issue 2, in his Brief of Argument. Indeed I consider it pertinent to say that Particulars (b) and (c) of the ground 3 are in any event not in tangent with the issue of res judicata raised by the said ground of appeal.
The bottom line is that the Respondent is on very firm grounds when he submitted that the Appellant having raised the issue of res judicata by grounds 4 and 5 of his grounds of appeal, from which his issue 2 was distilled, was wrong to have canvassed arguments in relation to issue estoppel in relation to the said issue 2. As it has hereinbefore been demonstrated, the Appellant by doing this, has clearly succeeded in canvassing arguments which are at variance with the complaint in grounds 4 and 5 from which the said issue 2 is distilled. The consequence of this is that grounds 4 and 5 are deemed abandoned and liable to be struck out. A fortiori the arguments advanced under issue 2 go to nought and must therefore be discountenanced.
Again, flowing from all that has been said before now is that the preliminary objection of the Respondent as it also relates to Appellant’s issue 2 succeeds and is accordingly upheld. Grounds 4 and 5 of the grounds of appeal are hereby struck out as having been abandoned.
Given the success of the preliminary objection of the Respondent and as a result of which all the grounds of appeal in the appeal have been struck out, and all arguments in relation to the grounds, to be discountenanced, it follows that the Appellant’s appeal must fail inasmuch as his complaints against the judgment of the lower court stand unsubstantiated.
In the final analysis, the appeal must be dismissed and is hereby dismissed, given success of the preliminary objection of the Respondent and as the Appellant thereby has nothing to urge to substantiate the appeal. Accordingly, the judgment of the lower court delivered on 29/7/2009 is affirmed.
Costs in the sum of N25, 000.00 is awarded in favour of the Respondent.

ABUBAKAR JEGA ABDUL-KADIR, J.C.A: I have read the Judgment just delivered by my learned brother, Lokulo-Sodipe, JCA, I am in complete agreement with him that given the success of the Preliminary Objection of the Respondent and as a result of which all the grounds of appeal in the appeal have been struck out and all arguments in relation to the grounds discountenanced as they are not predicated on any ground of appeal, it follows that the Appellant’s appeal must fail in as much as his complaints against the Judgment of the lower court stand unsubstantiated, I too dismiss the appeal and abide by all consequential orders in the lead Judgment.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A: I was privileged to have a preview of the judgment just delivered by my learned brother, LOKULO SODIPE JCA. I agree with his reasoning and the conclusion that this appeal be dismissed. I also make my order in that direction that the appeal be dismissed for lacking in merit. I equally abide by the consequential orders including that of cost.

Appearances

L.T. Kwuazu (holding the Brief of B.O. Okpemandu)For Appellant

AND

N.R. OwohFor Respondent