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YAHAYA & ANOR v. FARI & ANOR (2021)

YAHAYA & ANOR v. FARI & ANOR

(2021)LCN/15881(CA)

In the Court of Appeal

(KANO JUDICIAL DIVISION)

On Tuesday, October 05, 2021

CA/KN/147/2016

Before Our Lordships:

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Usman Alhaji Musale Justice of the Court of Appeal

Between

1. HAMZA YAHAYA 2. TARAUNI LOCAL GOVERNMENT, KANO APPELANT(S)

And

1. IBRAHIM MUHAMMAD FARI 2. AISHA BELLO RESPONDENT(S)

 

RATIO

THE POSITION OF LAW ON THE PROLIFERATION OF ISSUES FOR DETERMINATION

The law is well settled on the proliferation of issues for determination, thus; a party to an appeal is allowed by the Rules to formulate issues for determination, for arguments on appeal are based on issues for determination and not on the grounds of appeal. However, care must be taken that in the formulation of issues, a party shall not formulate more issues than the number of grounds of appeal. He can formulate less issues than the grounds or equal issues but cannot formulate more issues than the grounds of appeal filed. In OKO & ORS. VS. A.G. EBONYI STATE (2021) LPELR 54988 AT 14; Saulawa, JSC held that:-
“So far, there is no indication from the records that the Appellants rely on grounds other than those two upon which the original notice of appeal is predicated. Thus, it would tantamount to breaching the fundamental rules of procedure and practice for the Appellants to now raise a total of three issues from the two grounds in question. Undoubtedly, the Appellants have disposed themselves to the unpardonable practice of proliferation of issues. Proliferation of issues is highly deplorable. In drafting grounds of appeal and issues for determination, Counsel must at all times avoid proliferation of issues and this is done by distilling a sole issue from one or more grounds of appeal, thereby avoiding multiplicity of issues from the same ground”.
See INEGBEDION VS. SELO-OJEMEN (2013) 1–2 SC (PT. 11) 59; NWAIGWE VS. OKERE (2008) 5–6 SC (PT. 11) 93 and UGO VS. OBIEKWE (1989) 2 SC (PT. 11) 41.
PER LAMIDO, J.C.A.

THE POSITION OF LAW ON FORMING ISSUES FOR DETERMINATION

One of the most firmly established principles of appellate Court practice is that issues formulated for determination may be less or equal in number to the grounds of appeal, but they cannot be more that the grounds of appeal. Where they are more than the grounds of appeal, the party is guilty of proliferation of issues and the Courts frown at and have constantly deprecated such practice — Chiadi Vs Aggo (2018) 2 NWLR (Pt 1603) 175, Oko Vs Attorney General, Ebonyi State (2021) 14 NWLR (Pt 1795) 63. Such proliferated issues are treated as improper and incompetent and should be ignored and can be struck out -ROE Limited Vs University of Nigeria (2018) 6 NWLR (Pt 1616) 420, ENL Consortium Limited Vs Dunasulu Brothers Nigeria Limited (2020) 8 NWLR (Pt 1725) 179, State vs Muhammad (2021) 3 NWLR (Pt 1763) 241. The two issues formulated by Counsel to the Appellants are thus hereby struck out. PER LAMIDO, J.C.A.

ABUBAKAR MUAZU LAMIDO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Kano State High Court delivered on 22nd September 2015, Coram: S.B. Namalam, J. at the trial Court the Appellants were the Defendants whereas the Respondents were the plaintiffs.

The Plaintiffs/Respondents’ claim against the Defendants as can be seen from the statement of claim is for the following reliefs:
1. AN ORDER of this Honourable Court declaring title of the plot No. 39 in question to the 1st plaintiff as the rightful owner of the plots described above lying and situate at Darmanawa quarters of Tarauni District of Kano State.
2. AN ORDER of this Honourable Court declaring title of the plots No. 40B & 41B in question to the 2nd plaintiff as the rightful owner of the plots described above lying and situate at Darmanawa quarters of Tarauni District of Kano State.
3. AN ORDER of this Hon. Court cancelling the titles issued to the 1st defendant if any by the 2nd defendant in respect of the plots No. 39, 40B & 41B in question being unlawfully issued and obtained.
4. AN ORDER of perpetual injunction restraining all the Defendants either by themselves, or through their agents, privies, assigns, servants, beneficiaries or howsoever and whatsoever from further trespassing into the said parcel of land or doing any other acts or things that could impact negatively on the plaintiff’s legal and fundamental rights.
5. Cost of instituting this action to the plaintiff calculated to be N300,000.00k.
6. AN ORDER of this Honourable Court awarding the sum of N5,000,000.00k in favour of the plaintiff against the Defendants jointly and severally as general damages.
7. Such further Order(s) as the justice of this case demand or as the Honourable Court may deem fit to make in the circumstances of this case.

Upon the settlement of pleadings, the matter was adjourned for pre-trial conference. The matter suffered series of adjournments at the instance of the Defendants who were not appearing Court. Finally, the trial Court under the provisions of Order 25 of the High Court (Civil Procedure) Rules 2014 entered judgment against the Defendants as per the Plaintiffs’ claims.

​Dissatisfied with the decision of the Court, the Defendants appealed to this Court and in their further amended notice of appeal deemed on 10/02/2020, a single ground of appeal was created in the following way:
GROUND ONE
The learned trial Judge erred in law when he awarded judgment to the Respondents in default of the Appellants’ appearance.
Particulars of error
a. The learned trial Judge assumed jurisdiction and determined the matter in the absence of the Appellant’s knowing fully well that the Appellants had never been put on notice. It is trite that such judgment goes to nullity since the basic principles of fair hearing has been violated.
b. The principal reliefs sought by the Respondents (as plaintiffs) at the trial Court were for declaration of title to land.
c. No evidence was given in proof of the reliefs sought before the default judgment was entered.

In line with the practice and procedure of this Court, the Appellants filed their brief of argument and later amended same on 22/02/2021 and the Respondents’ brief of argument was filed on 16/05/2016. The Appellants formulated two issues for determination. The issues are:
1. Whether by the negligence of their former Solicitors who were not diligent in Court the judgment of the lower Court ought not to be set aside for a retrial so as not punish the Defendants unjustly.
2. Considering the reliefs sought in the matter by the Respondents (as Plaintiffs at the trial Court) default judgment was rightly or correctly entered in their favour without requesting for evidence to prove their claim.

The Respondents formulated a single issue for determination in the following way:
Whether by the failure of the Defendant and their Counsel to appear on the date fix for pretrial, the trial Court ought not to give judgment against the Defendants in line with the Rule of Court.

Learned Counsel for the Appellants argued the two issues he formulated jointly. He submitted that Courts in general do not punish a litigant for the mistake, blunder, negligence or inadvertence of Counsel. He refer to FIDELITY BANK PLC VS. MONYE & ORS (2012) LPELR 7819. He conceded that the actions of the Appellants’ previous Solicitors in not handling the matter with due diligence in their failure to appear in Court in numerous occasions should not be visited on the Appellants.

He referred to DANIANG VS. TEACHERS SERVICE COMMISSION (1996) 5 NWLR (PT. 446) 97.

He also argued that default judgments are never awarded in land matters. The reliefs being declaratory, a plaintiff must lead evidence in proof of his declarations even where no defence is filed. He referred to USIKARO VS. ITSEKERI LAND TRUSTEES (1991) 2 NWLR (PT. 71) 1. That trial Court ought to have adverted its mind before entering a default judgment in favour of the Respondents in an action founded on declaration of title to land. He also stated that Order 25 Rule 6 (1) (b) invoked by the trial Court has no place in the circumstances in view of the declarations sought in the claim. He referred to KWAJAFFA VS. BANK OF THE NORTH (2004) 5 SC (PT. 1) 103 and DANTATA VS. MOHAMMED (2000) 5 SC 1.

Finally, he submitted that this Court has power to set aside the default judgment as one of the laid down principle upon which it can be set aside is established in the conduct of Appellants’ former Solicitors who were careless in the conduct of the case at the trial Court. He referred to TIJANI VS. FBN PLC (2014) 1 NWLR (PT. 1387) 57. He urged the Court to allow the appeal.

In arguing the lone issue formulated for determination, learned Counsel for the Respondent submitted that the trial Court was right to invoke Order 25 Rule 6 (1) (b) of the High Court (Civil Procedure) Rules and entered a default judgment against the Appellants. That Rules of Court are not made for fun but meant to be obeyed. Any disobedience to the rules have its attendant consequences. He referred to AFRIBANK PLC VS. AKWARA (2006) ALL FWLR (PT. 304) 401 and AYOOLA VS. AJIBARE (2013) ALL FWLR (PT. 698) 1011.

He also submitted that a complaint of lack of fair hearing by the Appellants cannot be valid in view of the fact that Appellant’s Counsel was in Court when the matter was adjourned for pretrial and yet failed to appear. He needed no service of fresh hearing notice. He referred to ACHUZIA VS. OGBOMAH (2004) ALL FWLR (PT. 229) 508 and AUTO IMPORT EXPORT VS. ADEBAYO (2003) ALL FWLR (PT. 140) 1686.

​He finally stated that the Appellants ought to have followed to the latter the provisions of Order 25 Rule 6 (2) by applying to the trial Court for setting aside the default judgment before embarking on an appeal. He urged the Court dismiss the appeal.

Now, as a preliminary point, I would like to point that the Appellants amended notice of appeal contains a single ground of appeal whereas in the Appellants’ brief of argument two issues for determination were formulated. There is in essence, a proliferation of issues for determination. The law is well settled on the proliferation of issues for determination, thus; a party to an appeal is allowed by the Rules to formulate issues for determination, for arguments on appeal are based on issues for determination and not on the grounds of appeal. However, care must be taken that in the formulation of issues, a party shall not formulate more issues than the number of grounds of appeal. He can formulate less issues than the grounds or equal issues but cannot formulate more issues than the grounds of appeal filed. In OKO & ORS. VS. A.G. EBONYI STATE (2021) LPELR 54988 AT 14; Saulawa, JSC held that:-
“So far, there is no indication from the records that the Appellants rely on grounds other than those two upon which the original notice of appeal is predicated. Thus, it would tantamount to breaching the fundamental rules of procedure and practice for the Appellants to now raise a total of three issues from the two grounds in question. Undoubtedly, the Appellants have disposed themselves to the unpardonable practice of proliferation of issues. Proliferation of issues is highly deplorable. In drafting grounds of appeal and issues for determination, Counsel must at all times avoid proliferation of issues and this is done by distilling a sole issue from one or more grounds of appeal, thereby avoiding multiplicity of issues from the same ground”.
See INEGBEDION VS. SELO-OJEMEN (2013) 1–2 SC (PT. 11) 59; NWAIGWE VS. OKERE (2008) 5–6 SC (PT. 11) 93 and UGO VS. OBIEKWE (1989) 2 SC (PT. 11) 41. The Appellants in the present appeal formulated two issues for determination which were distilled from the lone ground of appeal as can be seen from the amended notice of appeal. This practice is deplorable and unacceptable. The Appellants can only legally formulate a single issue for the single ground. Formulating more issues than the ground of appeal is a proliferation which cannot be accepted by the Court. In YADIS NIG. LTD. VS. G.N.I.C. LTD (2007) 4 NWLR (PT. 1055) 584 AT 612; Onnoghen, JSC held that:-
“I have to observe that the there is only one ground of appeal as is contained in the notice of cross appeal filed on 05/10/2006. It is a settled law that a party is not allowed to formulate more than one issue for determination out of a ground of appeal even though he can combine two or more grounds of appeal in formulating an issue for determination. In the instant case, learned Counsel has submitted two issues out of the single ground of appeal for determination thereby rendering the issues incompetent”.
Also in YISI (NIG) LTD. VS. TRADE BANK PLC (2013) LPELR 20087 AT 22; Rhodes-Vivour, JSC held that:
“Where more than one issue is formulated from the same ground of appeal both the issues so formulated and the ground from which they were formulated shall be struck out”.
See J.C. UDEOZOR & SON GLOBAL IND. LTD. VS. CHAZMAX PHARMACEUTICAL IND. LTD. (2021) LPELR 2538.
​The Appellant herein formulated two issues for determination against their solitary ground of appeal as can be seen from both the original notice of appeal and amended notice of appeal. The law is long settled that a party is allowed an equal number of issues to the number of ground of appeal or less number of issues than the number of grounds, but not more number of issues to the ground(s) of appeal. There appears to be a proliferation of issues which is not permitted under our rules and the consequences of such an action is that the two issues formulated by the Appellants are liable to be struck out. Furthermore, as appeals are heard based on issues for determination, the striking out of the Appellants two issues for determination leaves the sole ground of appeal bare without any issue to sustain it. In consequence, the lone ground of appeal is equally struck out.
With the striking out of the issues for determination and the ground of appeal, it follows that there are no arguments to sustain the appeal. The appeal itself is incompetent and ought to be struck out for incompetence. The appeal ought to be and is accordingly struck out.
Cost of N50,000.00 to the Respondents.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now, the lead judgment delivered by my learned brother, Abubakar Mu’azu Lamido, JCA. I agree with the reasoning and abide the conclusions reached therein.

The extant notice of appeal and upon which this appeal is predicated is the Further Amended Notice of Appeal dated the 7th of December, 2018 and filed on the 5th of January, 2018 and which was deemed properly filed and served by this Court on the 10th of February, 2021. The notice of appeal contained one ground of appeal. The Appellants’ amended brief of arguments was dated and filed on the 22nd of February, 2021 and Counsel to the Appellants distilled two issues for determination in the brief from the one ground of appeal.

One of the most firmly established principles of appellate Court practice is that issues formulated for determination may be less or equal in number to the grounds of appeal, but they cannot be more that the grounds of appeal. Where they are more than the grounds of appeal, the party is guilty of proliferation of issues and the Courts frown at and have constantly deprecated such practice — Chiadi Vs Aggo (2018) 2 NWLR (Pt 1603) 175, Oko Vs Attorney General, Ebonyi State (2021) 14 NWLR (Pt 1795) 63. Such proliferated issues are treated as improper and incompetent and should be ignored and can be struck out -ROE Limited Vs University of Nigeria (2018) 6 NWLR (Pt 1616) 420, ENL Consortium Limited Vs Dunasulu Brothers Nigeria Limited (2020) 8 NWLR (Pt 1725) 179, State vs Muhammad (2021) 3 NWLR (Pt 1763) 241. The two issues formulated by Counsel to the Appellants are thus hereby struck out.

The net effect of this is that the Appellants have no viable issue for determination and/or useful arguments before this Court in this appeal. It is trite that issues for determination are an essential, important and integral part of every brief of arguments filed in the appellate Court and this is because appeals in the Supreme Court and in this Court are argued on the issues formulated by Counsel as arising from the grounds of appeal – Daniel Tayar Transport Enterprises Nigeria Company Ltd Vs Busari (2011) 8 NWLR (Pt 1249) 387. 

Thus, it has been held that where an appellant has presented no viable issues for determination before an appellate Court in a brief of arguments, it is sufficient by itself to render the brief incompetent, and the appeal liable to be struck out – Orji Vs Zaria Industries Ltd (1992) 1 NWLR (Pt 216) 124, Adehi Vs Atega (1995) 5 NWLR (Pt 398) 656, Nigerian Air Force Vs Shekete (2002) 18 NWLR (Pt 798) 129, Abayomi Vs Attorney General, Ondo State (2006) 8 NWLR (Pt 982) 211. And it is not an issue of technicality but an established principle and settled law – Oyegun Vs Nzeribe (2010) 16 NWLR (Pt 1220) 568. This appeal is thus incurably bad and is liable to be struck out.

This appeal brings to the fore once again, the need for Counsel to improve on their drafting skills. Drafting is an important tool in advocacy and the need for a mastery of the art of drafting by a lawyer cannot be over-emphasized. An otherwise good case can be lost by inadequate drafting skills as the very foundation of every case are the processes presented to the Court for adjudication. This Court, speaking on the necessary drafting skills a Counsel must possess, said in SCOA (Nig.) Plc Vs Danbatta (2002) 13 NWLR (Pt 785) 461 at 472 C-F thus:
“Drafting is an important tool in advocacy. A solicitor who could not present his client’s case clearly in the brief, if it is a case in the appellate Courts, or in the pleadings, if it is a case before the High Court or Federal High Court, could not adequately represent the interest of his clients. An otherwise good case is destroyed and lost by bad pleadings, … Counsel should pay more attention to drafting as no counsel could be good and make marks in advocacy if he is poor in drafting mechanism.”
​It is hoped that the way this appeal has turned out serve as a reminder to the Counsel to the Appellants to take proper steps to improve on his drafting skills and to be mindful when preparing a brief of arguments for an appellate Court. I agree that this appeal is eminently qualified to be struck out and I too hereby strike out the appeal. I abide the order on costs in the lead judgment.

USMAN ALHAJI MUSALE, J.C.A.: I have had the privilege of reading in draft, the judgment delivered by my learned brother, Abubakar Mu’azu Lamido, JCA.

It is trite that every issue in an appeal for determination must arise from one or more grounds of appeal, but it is wrong in law to formulate multiple issues for determination from a single ground of appeal, A.P. LTD VS. OWODUNNI 15 NSCQR 308. In ANIE & ORS VS. CHIEF UZORKA & ORS (1993) 8 NWLR (Pt. 309) 1 @ 16, the Supreme Court inter alia held

“… it is wrong for counsel to formulate issues for determination in excess of the grounds of appeal filed…” It is for this and fuller reasons given by my learned brother that I too struck out the appeal.

Appearances:

DR. YUSUF DANKOFA, with him, Chief Chinedu Moore For Appellant(s)

B.O. OSUJI, Esq. For Respondent(s)