UBN v. MBAKA & ORS
(2021)LCN/15741(CA)
In the Court of Appeal
(ENUGU JUDICIAL DIVISION)
On Friday, October 29, 2021
CA/E/296/2017
Before Our Lordships:
Ahmad Olarewaju Belgore Justice of the Court of Appeal
Ita George Mbaba Justice of the Court of Appeal
Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal
Between
UNION BANK OF NIGERIA PLC APPELANT(S)
And
1. ANTHONY EJIKE MBAKA 2. OGBUEFI SHEDRACH 3. RESURRECTION POWER INVESTMENT LTD (JOINED BY ORDER OF COURT DATED 26TH JUNE, 2012) RESPONDENT(S)
RATIO
WHETHER OR NOT ISSUES FOR DETERMINATION MUST ARISE FROM THE GROUNDS OF APPEAL FILED
Appeal can only be argued on Issue or Issues donated for the determination of the Appeal, and the Issues must be properly related to the grounds of the Appeal, which must in turn flow from or relate to the ratio decidendi of the Judgment appealed against. That constitutes the trite principles of law, governing argument of Appeals in this Court and in the Apex Court. See the cases of Sheidu Vs The State (2014) LPELR–23018 (SC); (2014) 15 NWLR (Pt.1429) 1; Ukwuoma Vs Okafor (2016) LPELR–41505 (CA); Fajebe & Anor Vs Opanuga (2019) LPELR–46348 (SC); North West Petroleum & Gas Co. Ltd & Anor Vs Prince Chigozie Iloh & Ors (2021) LPELR – 55509 (CA). See also CITEC International Estate Ltd & Ors Vs Josiah Oluwole Francis & Ors (2021) LPELR – 53083 SC, where it was held:
It is also settled law that an issue for determination can only be distilled from a competent ground or competent grounds of appeal. As observed earlier, in a situation where an issue for determination is derived from both competent and incompetent grounds, the issue is liable to be struck out for incompetence. See: Jev Vs Iyortyom (supra).
We have stated several times that an Issue for determination of appeal can only be derived from one or more grounds of appeal, combined, but a ground of appeal cannot be split to generate more than one issue for determination of appeal. And where a ground of appeal has been used or combined with another (or other) ground(s) of Appeal to distill an issue for determination, that used ground(s) ceases to be available to give birth to another issue for determination of the appeal. See the recent case of North West Petroleum & Gas Co. Ltd Vs Iloh & Ors (2021) LPELR – 55509 CA, where we held:
“…The law is trite that arguing a valid ground(s) of appeal (or issue distilled there from) together with a defective ground(s) (or issue(s)) is not permitted, as it makes the argument incompetent. This is because the inclusion of the defective ground(s) or issue(s) in the argument, vitiates the entire submission, as the virus of defective ground(s) or issue(s) has infected the valid ground or Issue, and the entire argument. See the case of Augustine & Anor Vs Apugo & Ors (2019) LPELR – 48822 (CA), where it was held: “1st Respondent argued issues 2 and 3 together, and I think that corrupted the issue 2, having earlier held that the issues 3 and 5 for determination (of the Appeal) are incompetent for proliferation of issues. A party, in my view, cannot argue an invalid issue for determination of appeal with a valid one. See Ezuma & Anor Vs FRN (2017) LPELR – 43382 (CA). Even by joining the said ground two with ground one to argue the 1st issue, that joining has corrupted the said issue and the argument thereon… Uzoho vs. Asugha (2017) LPELR -42073 (CA)… The law is trite, that combining an incompetent ground of appeal with a valid one to raise and argue issue in appeal is a serious legal blunder, and renders the issue incompetent, as the defective/incompetent ground has infected the valid ground with its virus of incompetence.” See Akpan vs. Bob &Ors (2010) LPELR – 376 SC; (2010) 17 NWLR (pt. 1223) 42. I therefore discountenance the said argument of issues 2 and 3, argued together by the 1st Respondent.” See also the case of Godwin Loke Vs IGP & Anor (1997) 11 NWLR (Pt. 527) 57, where it was held: “Also where an incompetent ground of appeal is based on Issue within competent ground of appeal, the incompetent ground of appeal contaminates the issue on the competent ground of appeal and renders the issues based on the competent ground of appeal impotent and incompetent…” PER MBABA, J.C.A.
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This Appeal emanated from the Judgment of Enugu State High Court, in Suit No. E/56/2010, delivered on 9th February, 2017, by Hon. Justice A.R. Ozeoemana, wherein the learned trial Judge surprisingly, granted the Plaintiff (Appellant herein) remedy in the sum of Twenty Six Million, Five Hundred and Seventeen Thousand, Six Hundred and Sixty Six Naira, Forty Kobo (N26,517,666.40), after dismissing its claims! The learned trial Judge, however, granted the 3rd Respondent all the reliefs contained in its Counter-claim, and awarded the sum of (N5,500,000,000.00) Five Billion, Five Hundred Million Naira) only to the 3rd Respondent (3rd Defendant), for breach of contract (or “inducing Shanghai Trisun International Trading Company Ltd to breach or brake (sic) the contract it entered with the 3rd Defendant (Resurrection Power Investment Ltd)” – See Page 1940 of the Records of Appeal.
At the trial, Appellant had claimed:
(1) The sum of N188,915,979.00 (One Hundred and Eighty Eight Million, Nine Hundred and Fifteen Thousand, Nine Hundred and Seventy Nine Naira), as at 29th November, 2009, in respect of the credit facilities granted the 3rd Defendant, Resurrection Power Investment Ltd, by the Plaintiff and guaranteed by the 1st and 2nd Defendants, together with the agreed compound interest of 17% per annum until judgment is delivered.
(2) The sum of N429,885,468.00 (Four Hundred and Twenty Nine Million, Eight Hundred and Eighty Five Thousand, Four Hundred and Sixty Eight Naira) as at March, 2009 in respect of the bank guarantee performance bond facilities issued in favour of the 3rd Defendant…by the Plaintiff and guaranteed by the 1st and 2nd Defendants.
(3) Interest on the said credit facilities of N188,915,979.00 as at 29th November, 2009 granted to the 3rd Defendant at the rate of 17%…per annum, until the judgment is delivered.
(4) Interest on the said bank guarantee performance bond sum of N429,886,468.00 at the rate of 17%…per annum, until judgment is delivered.
(5) Post judgment interest at the rate of 10%…per annum on the total sum of N618,801,447.00, until the final amount of the outstanding indebtedness has been liquidated.
(6) The cost of instituting and prosecuting this action, as assessed by the Plaintiff in the sum of N40,000,000.00 against the Defendants. (Pages 1897 to 1898 of the Records)
The Respondents (as Defendants) had Counter-claimed against the Appellant, as follows:
(1) A declaration that Plaintiff is fraudulent in the purported payment of the said sum of $2,653,614.00 (Two Million, Six Hundred and Fifty Three Thousand, Six Hundred and Fourteen United States dollars) to Shanghai Trisun International Trading Company Ltd as per the performance bond it guaranteed on behalf of Resurrection Power Investment Ltd.
(2) An Order that the Defendants are not liable to the Plaintiff on the purported payment of the said sum $2,653,614.00… to Shanghai Trisun International Trading Company Ltd.
(3) An Order for the release/return of the title deeds of the properties of the 3rd Defendant used as collateral for the said facility granted by the Plaintiff.
(4) The 3rd Defendant’s claim of the sum of N19,480,000,000 (Nineteen Billion, Four Hundred and Eighty Million Naira only) against the Plaintiff being damages for inducing Shanghai Trisun International Trading Company Ltd to breach or break the contract it entered with the 3rd Defendant (Resurrection Power Investment Ltd).
At the trial, the Plaintiff (Appellant) called a sole witness, Mrs. Elizabeth Emeh, who adopted her written statements on oath and tendered several documents. Two witnesses testified for the Respondents (Defendants), namely Mr. Manuel Ahunanya (DW1), who claimed to be Banking and Financial Consultant, and Mr. Okeke Chinweze Fidelis (DW2), the Administrative Manager of the 3rd Defendant (Respondent).
At the end of the trial and after considering the evidence and addresses of Counsel, the trial Court held, as earlier indicated, against Appellant, except for N26,517,666.40, granted to Appellant, and the sum of N5.5 Billion to the 3rd Respondent for breach of contract. It also awarded N100,000, as cost against the Plaintiff (Appellant).
The trial Court said:
“…The testimony of PW1, under cross examination dealt final blow to the Plaintiff’s case. She said “my bank said the defendant did not breach any contract with Shanghai Triusm (sic). She also admitted that they delayed in supplying the item to the Defendants in this case. By paragraph 17 of the Counter-Affidavit, we said in that case that it was fraudulent to pay Shanghai Triusm. We defended the interest of the defendants against Shanghai Triusm.
Again she said, under cross examination, that there is no document for payment in the Plaintiff’s file to establish the payment. This was on 8th December, 2014. She continued– that the payment was by electric (sic) transfer. She could not tender any document to that effect…
Going by the implications of the relevant documents tendered in this case, particularly exhibit ‘O’, the Plaintiff letter of 22nd August, 2008 and 2nd August, 2008, wherein Shanghai admitted that they breached part of the contract. With all that, I am of the considered view that 3rd Defendant is entitled to damages and compensation from the Plaintiffs to the tune of N5,500,000,000 (Five Billion, Five Hundred Million Naira) only.
On the whole, I will like to state that the issue raised in this proceeding have not been very easy for the Court to resolve. The industry put by the two learned Counsel is quite impressive. The only thing is that this very case is a civil case which judgment is based on balance of probability or preponderance of evidence, in keeping with the Section 134 of the Evidence Act, 2011. Having looked at and considered the length and breadth of the case, I prefer the case of the defendants to that of the Plaintiff.
Consequently, the case of the Plaintiff is hereby dismissed but the Plaintiff is to collect the sum of N26,517,666.44 from the 3rd Defendant. Cost awarded to Defendants to the tune of N100,000.00 (One Hundred Thousand Naira) only by the Plaintiff in favour of the Defendants.” (See Pages 1937 to 1940 of the Records of Appeal)
Dissatisfied with the above decision, Appellant filed this Appeal, as per the Amended Notice of Appeal, filed on 19/10/2017 and deemed duly filed on 9/4/2019, disclosing 7 grounds of Appeal. Appellant filed its Brief of Arguments on 19/10/2017, which was also deemed duly filed on 9/4/2019. Appellant distilled four (4) Issues for the determination of the Appeal, as follows:
(1) Whether the evidence adduced by the Appellant at the Lower Court was properly evaluated by the Learned Trial Judge (Grounds 2 and 8 of the Amended Notice of Appeal)
(2) Whether the Appellant is a party to the Sales Agreement; Exhibit T (Grounds 1, 4 and 6 of the Amended Notice of Appeal)
(3) Whether the 3rd Respondent is not bound to honour its obligation under the Irrevocable Bank Guarantee (Performance Bond) to pay Shanghai Trisun International Trading Company, upon default of the 3rd Respondent. (Grounds 3 and 5 of the Amended Notice of Appeal)
(4) Whether the Appellant is not entitled to tender the documents which are copies from the list of documents of the Appellant having issued the requisite notice to produce the originals of the said documents on the Respondents. (Ground 6 of the Amended Notice of Appeal).
The Respondents, on their part, distilled only two Issues for the determination of the appeal, namely:
(1) Whether the obligation of the Appellant under the Bank Guarantee/Performance Bond to pay the company (Shanghai Trisun International Trading Company Limited) is absolute, without more. (Grounds 1, 2, 4 and 5 of the Amended Notice of the Appeal)
(2) Whether from the totality of pleadings and evidence at the trial, the trial Court was right in dismissing the Appellant’s reliefs and granting the 3rd Respondent’s Counter-claim. (Grounds 3, 6 and 7)
Appellant filed a Reply Brief on 2/12/2020, on being served with the Respondents’ Brief. And when this case came up for hearing on 5/10/2021, the learned Senior Counsel on both sides adopted their briefs and urged the Court, accordingly.
PROLIFERATION OF ISSUES
I must first of all observe that Appellant goofed greatly in the relation of the issues for determination of the Appeal to the grounds of the Appeal as seen below.
Appellant, distilled its Issue 1 from grounds 2 and 8 (of Amended Notice of Appeal), whereas, the said Amended Notice of Appeal has only 7 grounds, the ground seven being the omnibus ground. The said Issue 1 would have been taken by me as deriving from only the ground 2 of the Appeal, but in arguing the Issue 1, Appellant’s Counsel committed another blunder when he stated in the Brief that the Issue 1 was distilled from grounds 3 and 7 of the Amended Notice of Appeal.
Of course, that blunder occasioned a serious vitiating effect on the said Issue 1 and on the Issue 3, whereof Appellant also claimed that the ground 3 (together with Ground 5 of the Amended Notice of Appeal) birthed or donated the said Issue 3.
Appellant’s Counsel goofed again when he distilled the Issue 2 from grounds 1, 4 and 6 of the Amended Notice of Appeal, only to also distill the Issue 4 from the same ground 6! And while arguing the said Issue 2, Appellant’s Counsel in the Brief claimed to have distilled same Issue 2 from grounds 1 and 2 of the Amended Notice of Appeal!
As it appears, the Issue 3, which would have been thought, saved or spared to host this Appeal, cannot also be available to argue the Appeal, as Appellant again erred when its Counsel stated that Issue 3 was derived from grounds 4 & 5 of the Appeal! See page 16, paragraph 6 of Appellant’s Brief.
It is quite sad and unfortunate that the learned senior Counsel, Chief Ajibola Aribisala, SAN, who settled the Appellant’s Brief, made such damaging blunders in relating the Issues to the grounds of Appeal. And the Senior Counsel, Toyin Basorun, SAN, who argued (adopted the Brief) on 5/10/2021, also failed to notice or spot out those obvious errors at the time of arguing the Appeal! She rather spotted the repetition of ground 4 by Respondents in the two Issues they distilled for determination of the Appeal, which Respondents corrected by urging us to strike out the number 4 in the second Issue.
Appeal can only be argued on Issue or Issues donated for the determination of the Appeal, and the Issues must be properly related to the grounds of the Appeal, which must in turn flow from or relate to the ratio decidendi of the Judgment appealed against. That constitutes the trite principles of law, governing argument of Appeals in this Court and in the Apex Court. See the cases of Sheidu Vs The State (2014) LPELR–23018 (SC); (2014) 15 NWLR (Pt.1429) 1; Ukwuoma Vs Okafor (2016) LPELR–41505 (CA); Fajebe & Anor Vs Opanuga (2019) LPELR–46348 (SC); North West Petroleum & Gas Co. Ltd & Anor Vs Prince Chigozie Iloh & Ors (2021) LPELR – 55509 (CA). See also CITEC International Estate Ltd & Ors Vs Josiah Oluwole Francis & Ors (2021) LPELR – 53083 SC, where it was held:
It is also settled law that an issue for determination can only be distilled from a competent ground or competent grounds of appeal. As observed earlier, in a situation where an issue for determination is derived from both competent and incompetent grounds, the issue is liable to be struck out for incompetence. See: Jev Vs Iyortyom (supra).
We have stated several times that an Issue for determination of appeal can only be derived from one or more grounds of appeal, combined, but a ground of appeal cannot be split to generate more than one issue for determination of appeal. And where a ground of appeal has been used or combined with another (or other) ground(s) of Appeal to distill an issue for determination, that used ground(s) ceases to be available to give birth to another issue for determination of the appeal. See the recent case of North West Petroleum & Gas Co. Ltd Vs Iloh & Ors (2021) LPELR – 55509 CA, where we held:
“…The law is trite that arguing a valid ground(s) of appeal (or issue distilled there from) together with a defective ground(s) (or issue(s)) is not permitted, as it makes the argument incompetent. This is because the inclusion of the defective ground(s) or issue(s) in the argument, vitiates the entire submission, as the virus of defective ground(s) or issue(s) has infected the valid ground or Issue, and the entire argument. See the case of Augustine & Anor Vs Apugo & Ors (2019) LPELR – 48822 (CA), where it was held: “1st Respondent argued issues 2 and 3 together, and I think that corrupted the issue 2, having earlier held that the issues 3 and 5 for determination (of the Appeal) are incompetent for proliferation of issues. A party, in my view, cannot argue an invalid issue for determination of appeal with a valid one. See Ezuma & Anor Vs FRN (2017) LPELR – 43382 (CA). Even by joining the said ground two with ground one to argue the 1st issue, that joining has corrupted the said issue and the argument thereon… Uzoho vs. Asugha (2017) LPELR -42073 (CA)… The law is trite, that combining an incompetent ground of appeal with a valid one to raise and argue issue in appeal is a serious legal blunder, and renders the issue incompetent, as the defective/incompetent ground has infected the valid ground with its virus of incompetence.” See Akpan vs. Bob &Ors (2010) LPELR – 376 SC; (2010) 17 NWLR (pt. 1223) 42. I therefore discountenance the said argument of issues 2 and 3, argued together by the 1st Respondent.” See also the case of Godwin Loke Vs IGP & Anor (1997) 11 NWLR (Pt. 527) 57, where it was held: “Also where an incompetent ground of appeal is based on Issue within competent ground of appeal, the incompetent ground of appeal contaminates the issue on the competent ground of appeal and renders the issues based on the competent ground of appeal impotent and incompetent…”
See also Iroaganachi Vs Madubuko & Anor (2016) LPELR – 40048 (CA), which relied on the Supreme Court decision in Jev & Anor Vs Iyortyom & Ors (2014) NWLR (Pt.1428) 575, to the effect that:
I wish to say that this Court has in a plethora of decisions, held that though one can validly lump several related grounds of appeal into one issue and argue same together, if any of the grounds so lumped together is found to be incompetent, then it contaminates the whole issue and renders it incompetent, as the Court cannot delve into the said issue on behalf of the litigant and excise the argument in respect of the competent grounds from those of the incompetent grounds in the issue. The issues formulated for the determination of an appeal must be distilled from, or must arise or flow from a competent ground or grounds of appeal. Again, issues distilled from either incompetent grounds of appeal or a combination of competent and incompetent ground of appeal are in themselves not competent and are liable to be struck out. An incompetent ground of appeal cannot give birth to a competent issue for determination. See Akpan Vs Bob (2010)17 NWLR (Pt 1223) 421; Amadi vs Orisakwe (1997) 7 NWLR (Pt. 511)161; Fagunwa & Anor vs. Adibi & Ors (2004) 7 SCNJ 322.”Of course, it should be appreciated that when a ground of appeal, which is competent in itself, and earlier used to distill an issue for determination of an appeal, is again combined with another ground of appeal (which is competent on its face) to distill another issue for determination of the appeal, that subsequent use of the same ground contaminates that second issue and that other ground of appeal.”
Sometimes, Appellate Court bends backwards to undertake the extra burden of helping appellant to relate his issues for determination of appeal properly, where appellant failed to do so and in the interest of justice. See the case of EDDY MOTORS (NIG) LTD & ANOR Vs AFRIBANK (Nig.) PLC & ANOR (2021) LPELR-55510 (CA), where we relied on the Supreme Court case of DIAMOND BANK Vs OPARA & 7 ORS (2018) LPELR-43907 to hold:
Appellants’ Counsel did not relate any of the issues to any of the 7 grounds of Appeal! That was a serious blunder which could be fatal to the appeal. See Dakwak Vs Jos South LG Council (2021) LPELR-55143 CA, where it was held: “The failure of the Appellant to relate his grounds of appeal to the issues distilled for determination of the appeal is dangerous as it can be fatal to the appeal, where the Appellate Court is not deposed (sic) (disposed) to forage through the bundles of documents – Judgment, notice of appeal, records and briefs filed to identify which issue for determination flows from which grounds of appeal, (thereby doing the works of the Appellant’s counsel for him). In the case of DIAMOND BANK VS OPARA & ORS (2018) LPELR-43907 (SC), it was held: “… It is the law that any issue for determination not encompassed in the grounds of appeal is incompetent and should either be struck out or discountenanced. ABE VS UNIVERSITY OF ILORIN (2013) 6 NWLR (Pt. 1319) 183 …See also AGODI VS ANYANWU (2014) LPELR-23746, FAJEBE & ANOR VS OPANUGA (2019) LPELR 46348 SC.” However, not tying the issues for determination of the appeal to the grounds of appeal is redeemable, where the appellate Court, as earlier stated, undertakes to find the necessary link(s) between the ground(s) of appeal, and the issue(s) for determination, (despite the Appellant’s default) to proceed with the hearing of the appeal. See MBALIAN & ORS VS UDENDE & ORS (2015) LPELR-24789(CA), UKWUOMA VS OKAFOR (2016) LPELR-41505 (CA), ABDULLAHI & ANOR VS LEAD AUTOMOBILE CO. LTD (2020) LPELR -51940 (CA).”
That, of course, cannot be done in this Appeal, as the blunders appear to be irredeemable.
This Appeal does not, therefore, deserve any consideration on the merits, in view of the said blunders in the relation of the grounds of Appeal to the Issues, as shown in the Appellant’s Brief of Arguments. The Appeal is therefore not competent, as is hereby struck out. Appellant shall pay cost of N100,000.00 to the Respondents.
AHMAD OLAREWAJU BELGORE, J.C.A.: I have read in draft, the Judgment just delivered by my Learned Brother, ITA GEORGE MBABA, J.C.A.
I agree with his reasoning and conclusion and I have nothing to add to it.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother ITA GEORGE MBABA, J.C.A and I totally endorse the reasoning and conclusion therein.
While Courts will ordinarily shun technicalities and embrace substantial justice, this will not extend to cases where counsel chooses to muddle their client’s case out of failure to apply minimal diligence. Reconstructing a party’s case in such circumstances could amount to descent into the arena of conflict.
For the more detailed reasoning in the lead judgment, I equally hold that the appeal is undeserving of consideration on the merits and it is accordingly struck out.
I adopt the consequential orders in the lead judgment as mine.
Appearances:
CHIEF AJIBOLA ARIBISALA, SAN (who settled the brief) and TOYIN BASORUN, SAN (who argued the appeal), with A.O. OLALEYE ESQ For Appellant(s)
TOCHUKWU MADUKA SAN with C.O. OKOLO (MRS.), U.F. OKO (MRS.) and JOSEPH OMEH ESQ For Respondent(s)
