UKPONG WILLIAM JOHN v. CHIEF AKPAN TOMMY ENEH ORS.
(2012)LCN/5707(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 4th day of December, 2012
CA/C/191/2010
RATIO
APPEAL: ATTITUDE OF COURT TOWARDS PROLIFERATION OF ISSUES FOR DETERMINATION
The position of the principles of judicial practice is that although a party may distill an issue from more than one (1) ground of appeal, he cannot formulate more than one (1) issue from a single ground of appeal. See FABNO IND. LTD. v. UNITED DISTILLERS PLC (1999) 5 NWLR (602) 314 at 521; KALU v. OHUABUNWA (2004) 7 NWLR (811) 1; UKET v. OKPA (2006) ALL FWLR (311) 1895; IBRAHIM v. OJOMO (2004) 1 SC (Pt.11) 136; OMEGA BANK PLC v. O.B.C. LTD. (2005) 1 SC (Pt.1) 49. PER MOHAMMED LAWAL GARBA, J.C.A.
APPEAL: WHERE SHOULD ISSUES FOR DETERMINATION BE DISTILLED FROM AND EFFECT OF FAILURE TO DO SO
In the appellate courts, the law is elementary that any issue raised by the parties and submitted for determination by the court must be related to and have arisen from the grounds of the appeal or cross appeal as the case may be. Where as in the present appeal, none of the issues formulated by an Appellant for decision in an appeal are derivable or related to the grounds of the appeal, they would be incompetent and liable to be struck out by the court. See REG. TRUSTEES OF THE APOSTOLIC FAITH MISSION v. JAMES (1987) 7 SCNJ, 167; OJE v. BABALOLA (1991) 4 NWLR (185) 267; AJA v. OKORO (1991) 7 NWLR (203) 260; J. C. LTD. v. EZENWA (1996) 4 NWLR (443) 391 at 399; AMADI v. NNPC (2000) 6 SC (1) 66 at 72; U.P.S. LTD. v. UFOT (2006) 2 NWLR (963) 1. PER MOHAMMED LAWAL GARBA, J.C.A.
APPEAL: DUTY OF A RESPONDENT WHO DID NOT CROSS-APPEAL OR FILE A RESPONDENT NOTICE
The law is known that a Respondent to an appeal who did not cross-appeal or filed a Respondent notice in the appeal, is confined in his formulation of issues for determination in the appeal, to the grounds of appeal contained in the Appellants’ notice of appeal. Such a Respondent is not permitted in law to formulate issues for determination in the appeal outside of/not arising from or related to the grounds of the Appellants’ appeal. See BANKOLE v. PELU (1991) 8 NWLR (211) 523; AKINBOBOLA v. STATE (1991) 8 NWLR (208) 191; OSSAI v. WAKIVAH (2006) 4 NWLR (969) 208; AKINLAGUN v. OSHOBOJA (2006) ALL FWLR (325) 53; APGA v. UMEH (2011) 2 – 3 MJSC (Pt.1) 96. PER MOHAMMED LAWAL GARBA, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
Between
UKPONG WILLIAM JOHN Appellant(s)
AND
1. CHIEF AKPAN TOMMY ENEH
2. UKO ISONG ENIN
3. EDET THOMAS
4. UDO JOB
5. EFFIONG JOB
6. AMADI BEN Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): The Appellant had written a petition to the police alleging embezzlement of community funds, impersonation and stealing against the Respondents first, at Odot-Nsit Atai Local Government Area and then, at the State Command Headquarters, Uyo. The Respondents were invited by the police at the two places where they made statements on the allegations against them and after the visit at Uyo, they approached the High Court of Akwa Ibom State, Uyo for the enforcement of their fundamental rights, after obtaining leave to do so. In statement in support of their application, the Respondents sought for the following reliefs from the High Court:
“1. A declaration that the arrest and detention of the Applicants by the Respondents on the 7th May, 2009, at Ikot Akpan Abia and the threat to further arrest the Applicants and be taken to Zone 6, Nigeria Police, Calabar, is unlawful and unconstitutional, unreasonable and violate Applicants’ fundamental rights to dignity of their person, personal liberty and freedom of movement as guaranteed by the constitution of the Federal Republic of Nigeria, 1999.
2. An order that the Respondents shall jointly and severally pay the Applicant the sum of N6,000,000.00 (Six Million Naira only) being compensation for infraction of their fundamental rights.
3. An order that the grant of leave shall operate as stay of action by the Respondents and their agents in respect of this matter.
4. An order of perpetual injunction restraining the Respondents by themselves, their privies from arresting, detaining, inviting and/or harassing the Applicants; and
5. Any further order(s) as the court may deem fit to make in circumstances of this application.”
Affidavits were filed by the Respondents setting out the facts which led to the application, stating that they were arrested and detained at both the Local Government Area and State Command Headquarters of the Nigeria Police, Uyo as well as threatened with further arrest and detention at the Zone 6 Headquarters of the Police at Calabar. The Appellant had filed a counter affidavit denying the claim of the Respondents and after taking written addresses from the learned counsel for the parties, the High Court in its judgment delivered on the 9/8/10, found thus:
“When the 2nd Respondent made his complaint through petition to the DPO, Odot, he was exercising his right of a citizen to lay complaint to the police. Thereafter it was for the police to decide what action to take on the complaint. See the case of Onah v. Okenwa (2010) 7 NWLR (Pt. 1194) p. 512 Held 6. In this case, the DPO did what he thought was proper in the circumstance. There was therefore no basis, other than show of power, for the 2nd Respondent to make the same complaint to the Commissioner of Police. This later complaint to make mala fide for the purpose of annoying and bringing the applicants on their knees to create an office for him in the village council. A citizen has a right to make a complaint to the police. What is preposterous is for the citizen to shop from one police formation to another hoping to get the one that will dance to his music.
The applicants have not shown for how long they were detained at Police Headquarters, Ikot Akpan Abia. They merely said they were arrested and detained. Once a report or complaint is made to the police, the right shifts to the police who have power under Section 4 of the Police Act to arrest, investigate, interrogate, search and detain a suspect. But whatever action the police takes must be based on facts which are reasonable and justifiable. In this case, the Applicants have not shown otherwise against the 1st Respondent. I find the 1st Respondent not liable.
As regards the 2nd Respondent who set the law in motion against the applicant, I hold that he did not make his complaint to the Commissioner of Police in good faith.”
It then declared and ordered as follows:
“It is ordered that judgment be and is hereby entered in favour of the Applicants as follows:
1. I declare that in making a complaint in bad faith to the 1st Respondent against, the Applicants in the circumstances of this case, the 2nd Respondent, Ukpong William John unlawfully caused the violation of the applicant’s rights to personal liberty and freedom of movement guaranteed by the Constitution of the Federal Republic of Nigeria, 1999.
2. It is ordered that the said 2nd Respondent shall pay to the applicants a sum of N300,000.00 (Three Hundred Thousand Naira) as compensation for the violation of their fundamental rights.”
The Appellant being aggrieved by the above decision of the High Court, appeal against it, vide a notice of appeal dated and filed on the 8/9/10. The grounds contained on the notice of appeal are the declaration and order made by the High Court above by which it was said to have erred in law. Let me quickly point out here that in the case of ALADE v. OGUNDOKUN (1992) 5 NWLR (239) 42 at 52, it was held that merely quoting or repeating a passage of the judgment appealed against does not comply with the provisions of Order 3, Rule 2(2) (now Order 6 Rule 2(2) and (3) of the CAR, 2011) which require that where an error of law is alleged in a ground of appeal, it shall be clearly and concisely stated without any narrative.
Undoubtedly, the Appellants’ two (2) grounds of appeal are simply quotation of passages of the High Court judgment in a narrative form which do not concisely and clearly state the error of law alleged thereby. I am inclined to condone the grounds as they are since the Respondents have not given any indication that they do not know or have any doubt about what the complaints are against the decision by the High Court as envisaged by the grounds of the appeal.
Briefs of argument were filed by the learned counsel for the parties to the appeal in line with the practice in the court as follows:
The Appellants’ brief filed on the 6/1/2011 and Respondent’s brief filed on 21/2/2011 but deemed on 12/5/2011. At the oral hearing of the appeal on the 16/10/12, the learned counsel for the Appellant though duly served with the hearing notice was absent from court without any excuse communicated to the court. On application by the learned counsel for the Respondent; Mike Benson Esq., the court, pursuant to the provisions of Order 18 Rule 9(4) of the Court of Appeal Rules, 2011 treated the appeal as having been duly argued by the learned counsel for the Appellant on the aforementioned Appellants’ brief.
The Respondent’s brief was thereafter adopted by the learned counsel for the Respondent who urged us to uphold the submissions therein and dismiss the appeal with N20,000.00 costs.
Three (3) issues were formulated in the Appellants’ brief for determination in the appeal as follows:
“1. Whether a request to the Commissioner of Police to take over the investigation of a complaint from a DPO is a violation of the fundamental rights of the suspects.
2. Whether in the circumstances of this case the fundamental rights of the Applicants/Respondents were breached by the 2nd Respondent/Appellant or the 1st Respondent.
3. Whether the award of damages in this case was justified.”
As can be seen, the learned counsel for the Appellant did not indicate from which of the two (2) grounds of appeal he had distilled the above issues as required by diligent practice of brief writing. In addition, it is “clear as crystal” that the issues are more in number than the grounds of the appeal, which in established judicial practice is not only permitted, but deprecated. The position of the principles of judicial practice is that although a party may distill an issue from more than one (1) ground of appeal, he cannot formulate more than one (1) issue from a single ground of appeal. See FABNO IND. LTD. v. UNITED DISTILLERS PLC (1999) 5 NWLR (602) 314 at 521; KALU v. OHUABUNWA (2004) 7 NWLR (811) 1; UKET v. OKPA (2006) ALL FWLR (311) 1895; IBRAHIM v. OJOMO (2004) 1 SC (Pt.11) 136; OMEGA BANK PLC v. O.B.C. LTD. (2005) 1 SC (Pt.1) 49.
Apart from the above, looking calmly at the issues, it would be discerned that none of them is derivable from the two grounds of appeal as contained on the notice of appeal. The issues have no bearing or reasonable relationship with the grounds of the appeal such as can be said to have arisen or enured from them.
In the appellate courts, the law is elementary that any issue raised by the parties and submitted for determination by the court must be related to and have arisen from the grounds of the appeal or cross appeal as the case may be. Where as in the present appeal, none of the issues formulated by an Appellant for decision in an appeal are derivable or related to the grounds of the appeal, they would be incompetent and liable to be struck out by the court. See REG. TRUSTEES OF THE APOSTOLIC FAITH MISSION v. JAMES (1987) 7 SCNJ, 167; OJE v. BABALOLA (1991) 4 NWLR (185) 267; AJA v. OKORO (1991) 7 NWLR (203) 260; J. C. LTD. v. EZENWA (1996) 4 NWLR (443) 391 at 399; AMADI v. NNPC (2000) 6 SC (1) 66 at 72; U.P.S. LTD. v. UFOT (2006) 2 NWLR (963) 1. In these premises, I find the Appellants’ issues not derivable, arising from or related to the grounds of the notice of appeal and so incompetent. That is however not the end of the appeal because the learned counsel for the Respondent had also formulated issues for determination in the appeal as permitted by practice. They are as follows:-
i) Whether the lower court was right in holding that the Appellant unlawfully caused the violation of the Respondents’ rights to personal liberty and freedom of movement guaranteed by the constitution of the Federal Republic of Nigeria, 1999 taking into consideration the facts and circumstances of this case.
ii) Whether the damages awarded by the lower court is justified.
Like the learned counsel for the Appellant, it can easily be observed that the above issues were not indicated to have come specifically from any of the two grounds on the Appellants’ notice of appeal. The law is known that a Respondent to an appeal who did not cross-appeal or filed a Respondent notice in the appeal, is confined in his formulation of issues for determination in the appeal, to the grounds of appeal contained in the Appellants’ notice of appeal. Such a Respondent is not permitted in law to formulate issues for determination in the appeal outside of/not arising from or related to the grounds of the Appellants’ appeal. See BANKOLE v. PELU (1991) 8 NWLR (211) 523; AKINBOBOLA v. STATE (1991) 8 NWLR (208) 191; OSSAI v. WAKIVAH (2006) 4 NWLR (969) 208; AKINLAGUN v. OSHOBOJA (2006) ALL FWLR (325) 53; APGA v. UMEH (2011) 2 – 3 MJSC (Pt.1) 96. Since the learned counsel for the Respondent did not indicate the grounds from which his issues were distilled, it is again, left to speculation which the courts do not indulge in by established judicial practice. The issues may on their face appear to have come from the two (2) grounds of the Appellants’ notice of appeal, but the grounds are mere quotations of passages from the judgment appealed against in which errors of law were alleged. However, the errors were not concisely identified and stated in the grounds as required by the provisions of Order 6 Rule 3 (2) and (3) as stated earlier, thereby rendering them defective and incompetent. As a result, no competent issue can arise and be formulated from such incompetent grounds of appeal, as far as the law is concerned. See EGBE v. ALHAJI (1990) 1 NWLR (128) 546; ONOMIARU v. R.C.C. (1995) 7 NWLR (406) 214; JOHN HOLT VENTURE LTD. v. OPUTA (1996) 9 NWLR (470) 101; UBA v. AKPARABONG COM. BANK (2006) ALL FWLR (320) 1099 at 1121. The Respondent’s issues are consequently contiguously infected and fatally affected by the incompetence of the Appellants’ grounds of appeal from which they can be said to have been distilled. After all, nothing can possibly arise from nothing. So looked at from every legal angle, the Appellants’ appeal is bad in law and because it has been argued, is liable to fail and be dismissed. That is my finding and decision.
In the final result the appeal is dismissed with an order that parties shall bear their respective costs of prosecuting it.
UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privileged of reading in draft form, the judgment just delivered by my learned brother Muhammed Lawal Garba, JCA. I agree with his reasoning and final conclusions. There is nothing to say again on incompetent grounds of appeal.
This appeal is lacking in merit and therefore dismissed. I abide by the order as to cost contained in the lead judgment.
JOSEPH TINE TUR, J.C.A.: I have read the judgment of my Lord, Mohammed Lawal Garba, J.C.A. and I concur with his reasoning and conclusions. I shall add a few comments by reference to the case of Joseph Anie & Ors. v. Chief Ijoma Uzorka & Ors. (1993) 8 NWLR (Pt.309) 1 at 16 where Onu, JSC held as follows:
“… All told, not only do the seven issues formulated outstrip the five grounds of appeal in numerical strength falling as they do, outside the scopes of those grounds, but are, in my respectful view superfluous and unnecessarily prolix. See Agu v. Ikewibe (1991) 3 NWLR (Pt.180) 385 at P.401. The seven questions submitted on behalf of the appellants are therefore accordingly discountenanced for neither being limited by circumscribed nor falling within the scope of the grounds of appeal.” Where the issues formulated for determination outstrip the grounds of appeal the best remedy is to discountenance them in which case it will be assumed that there is no issue for determination by the appeal Court. I also dismiss this appeal.
I affirmed the judgment of the learned trial Judge.
Appearances
For Appellant
AND
Mike Benson, Esq.For Respondent
