YUSUF SHUAIBU OBOSI V. NIGERIAN POSTAL SERVICE & ORS
(2013)LCN/6410(CA)
In The Court of Appeal of Nigeria
On Friday, the 13th day of September, 2013
CA/K/232/2003
RATIO
ISSUE FOR DETERMINATION: WHETHER AN ISSUE FOR DETERMINATION MUST FLOW FROM THE GROUND(S) OF APPEAL
An issue for determination of appeal must flow from or predicate on the ground(s) of appeal, which in turn must derive from or challenge the ratio decidendi or live issue in the judgment appealed against. See the case of Unilorin vs. Olawepo (2010) 52 WRN 42, held 1-
“Every appeal is heard and determined on the issue (s) distilled from valid ground(s), which must be founded on the judgment appealed against, and the same must be located in the record of appeal before the appellate court. See the case of Ojemen v. Momodu (1994) 1 NWLR (pt.323) 685.”
In Oseni vs. Bajulu (2010) ALL FWLR (pt. 511) 813, the Supreme Court held-
“Any issue not distilled from any ground of appeal is incompetent and must be discountenanced by the court, together with the argument(s) thereunder in consideration of the appeal”. PER ITA GEORGE MBABA, J.C.A.
JUSTICES
DALHATU ADAMU Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
HEBEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
Between
YUSUF SHUAIBU OBOSI Appellant(s)
AND
NIGERIAN POSTAL SERVICE (NIPOST) AND OTHERS Respondent(s)
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the final judgment of the Federal High Court in suit No. FHC/K/CS/135/2000, delivered by Adamu Hobon J., on 15th January, 2003, wherein Appellant’s claim against the 1st Respondent for dismissal and for re-instatement was dismissed, for lack of merit.
Appellant was the plaintiff at the court below and his claims were follows-
“(1) A declaration that the purported dismissal of the plaintiff, from employment of the 1st Defendant, is illegal, unlawful and unconstitutional.
(2) An order reinstating the plaintiff to his former position as Assistant Manager Ems, Abuja Territory.
(3) An order directing the 1st Defendant to pay all arrears of salaries/emoluments accruing to the plaintiff from December 1998 till date
(4) An order directing the 1st Defendant to update plaintiff’s promotion and any other benefit/entitlement accruable to the plaintiff since December 1998
(5) The sum of N300,000.00 as general damages.
(6) The cost of filing this action”‘
(See page 8 of the Records of Appeal’)
Appellant’s Notice of Appeal, filed on 10/4/2003, as per pages 83 to 85 of the Records of Appeal, disclosed 3 grounds of appeal, as follows-
‘GROUNDS OF APPEAL-
Ground 1
The learned trial judge misdirected himself in law and in fact when he regarded the mere invitation of both Appellant and the Investigation Officer of the 1st Respondent (Mr. Akinola) by the Panel, as satisfying the constitutional requirement of fair hearing to be accorded a person accused of committing a crime.
Particulars
The panel of inquiry not being a Criminal Court or Tribunal lacks the competence to determine the guilt or innocence of the Appellant suspected with the commission of fraud against Respondent.
The guilt of the Appellant ought to have been established in a court of Law before his dismissal from the Respondent’s employment.
The findings of the panel and its recommendations were never made known to the Appellant but cited in Applicant’s dismissal letter as forming the basis of his dismissal.
The mere allegations of crime without evidence to support it cannot stand.
2. The learned trial judge erred in law and in fact when he preferred the oral address of 1st Respondent Counsel to the Testimony of Appellant, thus coming to the conclusion that “there is no sufficient evidence presented by the plaintiff to justify the interference of the court supporting an order of court declaring the plaintiff’s dismissal as being illegal and an order for reinstatement.”
Particulars
Apart from the oral testimony of the Appellant, the Respondent did not lead evidence (oral or documentary) in proof of their pleadings but simply addressed the court through their respective counsel.
The 1st Respondents led no evidence before the trial court to establish or substantiate how at the Panel’s sitting, they established Appellant’s culpability on the purported use of 40 PSR (Postal Service Receipt signed by him to defraud the first respondent.
Address of counsel no matter how brilliantly presented cannot take the place of evidence.
3. The learned trial judge misdirected himself by not properly evaluating the evidence of the Appellant who had clearly made out a prima facie case against the Respondent, but rather came to the conclusion that Appellant’s case totally lacks merit and is bound to fail
Particulars
– Civil matters are proved on the balance of probabilities thus making the burden by proof to shift from Plaintiff to defendant after the plaintiff has made out a case against the Defendant.
– The Appellant at the trial Court inter alia, established the statutory nature of his employment with the Respondent which should entitle him to a reinstatement, but the court failed to make finding on it.
– The court reduced Appellant’s case to the issue of fair hearing-‘
Appellant’s Brief of arguments was filed on 18/5/2004, with the leave of the court, with the following issues for determination-
– “Whether the Panel of Enquiry was competent to determine the guilt of the Appellant (Ground 1)
– Whether in determining the case of the Appellant the Respondent duly observe (sic) the principles of fair hearing and natural justice.” (Grounds 1, 2 and 3).
The 1st Respondent’s Brief of arguments was filed on 29/3/11 and deemed duly filed on 22/9/11. The 1st Respondent raised a preliminary objection against the grounds of appeal and the issues there-from and argued the same in the Brief (pages 2 to 14). The 1st Respondent did file a separate notice of preliminary objection on 30/6/2004
On the main appeal, 1st Respondent raised a lone issue relating to ground 2 of the appeal, as follows-
“Whether on the state of pleadings and the only evidence in this case led by the appellant, the learned trial judge was right in refusing to grant the orders for declaration and re-instatement and dismissing the appellant’s claim”
Neither the 2nd nor the 3rd Respondents filed any Brief. At the hearing of the appeal on 26/6/13, B. G. Abba Esq (S.S.C.) who appeared for the 3rd Respondent told us they had no brief. The 2nd Respondent was not in Court but had been served with the hearing notice of the appeal on 13/6/2013. The Appellant too was absent at the hearing, but had been duly served on 12/6/2013 with the notice of hearing. Appellant’s brief was therefore deemed as duly argued pursuant to Order 18 Rule 9 (4) of the Court of Appeal Rules, 2011.
I think the 1st Respondent’s preliminary objection, being against the competence of the grounds of appeal and issues distilled therefrom, should be considered by this court, first, being a threshold issue. This is because the objection is directed at the competence of the grounds of the appeal. In the case of Nwaolisah vs. Nwabufoh (2011) 14 NWLR (Pt.1268) 600 at 641, the Supreme Court, relying on the case of Menakaya vs. Menakaya (1994) 5 NWLR (pt. 345) 512, held:
“These days, preliminary objections are argued in the respondent’s brief thereby obviating the need to file a separate notice of preliminary objection and to save time. Absence of the required notice makes the preliminary objective incompetence… A preliminary objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal. This is because, if it succeeds that is the end of the appeal. NEPA v. Ango (2001) 15 NWLR (Pt.737) 627.” (Underlining mine).
That, I believe, means the Respondent can raise a preliminary objection in the brief of argument against any defect in the couching or framing of the grounds of appeal by Appellant and the issue distilled -therefrom, without any need to file any notice of objection, formally, as required when the objection is against the Notice of Appeal, pursuant to Order 10 Rule 1 of the Court of Appeal Rules, 2011.
1st Respondent pegged its objection on 2 grounds or issues-
“(1) Whether there are valid and competent grounds of appeal before this Honourable Court on which it can properly exercise jurisdiction to entertain the appellant’s appeal
(2) Whether the issues purported to have been formulated, based on the appellant’s grounds of appeal, are competent.”
On the first issue, Counsel for the 1st Respondent submitted that in determining the competence of a ground of appeal, the ground and its particulars must be considered or read together; that the particulars and the nature of misdirection or error alleged in relation to the ground of appeal should be specific reasoning, findings or observations in the ruling or judgment in question relating to the error complained of. He relied on the case of Amuda vs. Adelodun (1994) 8 NWLR (pt.360) 23 at 31; Globe Fishing Ind. vs. Coker (1990) 7 NWLR (Pt.162) 265; Egbe vs. Alhaji (1990) 1 NWLR (pt.128) 546; A.G. Oyo State vs. Fair-Lakes Hotels Ltd (1988) 5 NWLR (pt.92) 1. He added that the particulars must be relevant to the main ground to be valid. Honika-Sawmill Nig Ltd vs. Mara Okorie Hoff (1994) 2 NWLR (pt.326) 252.
Counsel submitted that while Appellant complained in ground one of the appeal that the Learned trial judge misdirected himself in law and in fact, when he regarded the mere invitation of the appellant by the panel as satisfying the constitutional requirement of fair hearing to be accorded a person accused of committing a crime, the particulars ((a)-(d)) in support of the ground one of the appeal are unrelated and irrelevant to the said ground of appeal; that particulars (a) and (b) are challenging the competence of the panel of inquiry to determine the guilt of the Appellant, the panel not being a court of law; that the particular (c) complained that the findings and recommendation of the panel were not made known to the appellant, and (d) alleges that mere allegation of crime, without evidence to support it, cannot stand. He submitted that the said particulars are not specific reasoning, findings or observations in the judgment in question, nor are they related and relevant to the misdirection either of law or of fact complained of in the ground of appeal.
Further, he argued that appellant did not quote the alleged of the judgment, where the misdirection occurred, and the particulars thereof, as is required by law. He relied on the case of Anyaode vs. Adi (1986) 3 NWLR (pt.31) 731 at 741; Anadi vs. Okoli (1977) 7 SC 59; Olawuyi vs. Adeyemi (1990) 4 NWLR (pt.147) 746; Abolavin vs. Chairman Rent Tribunal (No.3) (1998) 1 NWLR (pt. 53?) 273; Shahimi vs. Akinola (1993) 5 NWLR (pt 294) 434; Okorie vs Udom (1990) SCNLR 326; Atuyeye vs. Ashonu (1987) 1 NWLR (pt.49) 267 and Order 3 Rule 2 (2) of the Court of Appeal Rules, 2002. He urged us to strike out the ground one, for incompetence.
On ground 2, 1st Respondent said that Appellant neither quoted the specific part of the judgment where the Learned trial Judge is alleged to have preferred the oral address of 1st Respondent’s counsel to Appellant’s testimony, nor the pronouncement made by the Learned trial Judge, stating that he preferred the oral address of the 1st Respondent’s counsel to the testimony of the appellant. Furthermore, Counsel submitted that, neither particulars (a)-(c) in support of the ground of appeal, nor the nature of the error alleged in relation to the ground, relates to any specific reasoning, finding or observations in the judgment in question; that there is nowhere in the judgment that the trial judge indicated that he preferred the oral address of the 1st Respondent to the testimony of the Appellant.
Thus, he said, the ground 2 of the appeal is also incompetent for non-compliance with Order 3 Rule (2) (2) of the Court of Appeal Rules, 2002, in that appellant failed to quote the passage where the error of law and fact occurred. Also, that the particulars in support of the alleged error are argumentative, unnecessary amplification and clarification and are unrelated to the complaint alleged in the ground.
He relied on Order 3 Rule 2 (2) of the Rules of this Court 2002, and on the case of Auda v. Adelodun (supra); Egbe v. Alhaji (Supra); A. G. Oyo State vs. Fairlake Hotels Ltd (Supra); Honika Sawmill (Nig) Ltd vs. Hoff (Supra); Anyaoke vs. Adi (Supra); Shahimi vs. Akinoh (Supra); Okorie vs. Udom (Supra); Atuyeye vs. Ashanu (Supra) and Anadi vs. Okoli (Supra).
On ground 3, counsel also submitted that the particulars in support of the ground are unrelated and irrelevant to the main ground. Thus, the ground is invalid. He relied on the same authorities cited in respect of the grounds 1 and 2.
1st Respondent then argued, still on issue 1, that where the evaluation of evidence at the trial is exclusively questioned, that that makes it a ground of fact for which leave of court must be first sought and obtained. He relied on Section 242 (1) of the 1999 Constitution and some cases, including Nwadike vs. Ibekwe (1987) NWLR (pt 67) 718; Ogbechie vs Onochie (1986) 2 NWLR (pt 23) 484; Ifediorah vs Ume (1988) 1 SCNLR 188. Counsel submitted that leave of court is also required in cases involving exercise of right of appeal on grounds of mixed law and fact. He also relied on Section 242 (1) of 1999 Constitution and on the cases earlier cited in the above paragraph. He concluded that the grounds 1, 2 and 3 are therefore incompetent.
The 2nd Issue on which the objection was founded is that an issue for determination must be predicted on a ground or grounds of appeal which in turn must relate to the decision appealed against. Imonike vs. A.G. Bendel State (1992) 6 NWLR (pt.248) 396 at 407; Intl. P. S. Ltd vs. Gloover (2002) 7 NWLR (pt.765) 124; Okokon vs. Okolo (1988) 2 NWLR (pt.79) 632; Olowosago vs. Adebanyo (1988) 4 NWLR (pt.88) 275; Idika vs. Esrisi (1988) 2 NWLR (pt.78) 563; Akilu vs. Fawehinmi (No.2) (1989) 2 NWLR (pt.102) 122. He added that where a party formulates an issue not arising from a ground of appeal, such issue is competent. Secretary of Imo Local Govt. vs. Adidun (1992) 6 – NWLR (pt.250) 723; Aladetoyinbo vs Adewunmi (1990) 6 NWLR (pt.154) 98.
1st Respondent observed that the Appellant, on page 4 of the Appellant’s Brief, had stated that his issue 1 was distilled from ground 1 of the appeal only, while issue II was framed from grounds 1, 2 and 3 of the Notice of appeal. He (Counsel for 1st Respondent) submitted that issue 1 in the Appellant’s brief did not arise from (or was not covered by) ground 1 of the appeal; that while ground one complains that the trial court regarded the mere invitation of the Appellant by the panel of enquiry as satisfying the constitutional requirement of fair hearing, issue 1 said to have been framed from the ground rather questions the competence of the panel of enquiry to determine the guilt of the Appellant. He urged us to ignore or discountenance the issue.
On Appellant’s Issue 2, Counsel for the 1st Respondent submitted that the issue did not arise and did not predicate on grounds 1, 2 and 3 of the appeal; that while ground 1 complains that the court was wrong to hold that the mere invitation by panel of enquiry satisfied the constitutional requirement of fair hearing, ground 2 complains that the trial court preferred the oral address of 1st Respondent’s counsel to the testimony of the Appellant in reaching its decision, and the 3rd ground complains that the court did not properly evaluate the Appellant’s evidence before coming to conclusion, the Issue II seeks to determine whether the respondent observed the principle of fair hearing and natural justice in determining the Appellant’s case; that the issue did not arise from any of the three grounds of appeal; that whereas, the issue could be seen to flow from one of the particulars (c) of the 3rd ground of appeal, the law is that issues for determination are to be formulated from the grounds of appeal, not from the particulars. He relied on the case of Comex Ltd vs. Nigeria Arab Bank Ltd (1997) 3 NWLR (pt. 496) 643; Carlen Nig. Ltd vs. UniJos (1994) 3 NWLR (323) 631.
Counsel urged us to resolve the preliminary objection in favour of the 1st Respondent and strike out the grounds of appeal and the two issues, formulated for determination, for incompetence. He relied on the case of Ogunjumo vs. Ademolu (1995) 4 NWLR (pt.389) 254 at 265; Bankole vs. Pelu (1991) 8 NWLR (pt. 211) 523; B. O. N. vs. Na’ Bature (1994) 1 NWLR (pt.319) 235; Ukwu vs. Offorah (1992) 3 NWLR (Pt.246) 233; Batuwa vs. Osoba (1997) 3 NWLR (pt. 492) 164 at 179; Imonike vs. A. G. Bendel State (Supra); Int’l P. S. Ltd. v. Gloover (supra); Okokon vs. Okolo (Supra); Olawosago vs. Adebanjo (Supra); Idika vs. Erisi (Supra); Secretary Iwo Local Govt. vs. Adidun (Supra) and Aladetoyinbo vs. Adewunmi (Supra).
It is instructive that the Appellant did not file any Reply Brief in this case, to contest the objection against the grounds of appeal, and the marriage of the grounds to the issues for determination.
By Order 6 Rule 2 (2) of the Court of Appeal Rules 2011 (which is substantially the same as Order 3 (2) (2) of the 2002 Rules), “where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection, or error shall be clearly stated”
Of course, there is a avalanche of authorities to the effect that the particulars of a ground of appeal must be in tandem with the ground of appeal, for the ground to be competent. See Ajaokuta Steel Co. Ltd vs. Role (2012) 53 WRN 37 at 56; (2012) LPELR – 7884 – (CA); ARIBO vs. CBN (2011) 12 NWLR (pt.1260) 12.
In Olufeagbu vs. Abdul-Raheem (2009) 18 NWLR (pt.1173) 384, the Supreme Court said:
“A ground of Appeal can only be competent if the particulars and the nature of the alleged misdirection or error are clearly stated. The ground must not be argumentative, vague or general in terms. It must disclose reasonable complaint against the ratio decidendi in the decision, as opposed to obiter dictum. The particulars to the ground must be in tandem with it. If the particulars are at cross purpose to the ground of appeal, it becomes defective and liable to be struck out.” (Underlining mine)
See also Egbe vs. Alhaji (1990) 1 NWLR (pt.128) 546; A. G. Oyo State vs. Fairlake Hotel (1988) 5 NWLR (pt.92) 1;
Order 6 Rule 3 of the Court of Appeal Rules, 2011 (which is evevalent to Order 3 of the 2002 Rules), says:
“Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against, the weight of evidence, and ground of appeal or any part thereof, which is not permitted under this Rule may be struck out by the court of its own motion or on application by the Respondent.”
I have already reproduced the grounds of appeal in this judgment. A studious look at the ground 1 and its particulars clearly confirms the fears and complaint of the 1st Respondent that the particulars are not in tandem with the ground. Whereas, the ground complained that the judge misdirected himself in law and in fact when he regarded the mere invitation of the Appellant and the Investigation Officer of the 1st Respondent (Mr. Akinola) by the Panel (that sat on the alleged wrong doing of the Appellant) as satisfying the constitutional requirement of fair hearing to be accorded a person accused of something a crime, the particulars to the ground rather talk of something else, namely:
The panel of inquiry, not being a criminal court, and the guilt of the Appellant required to have been established in court before his dismissal, and the findings of the panel and its recommendation not having been made known to the Appellant!
Those particulars appear to have jumped the gun, as that Appellant appears to be quarreling with the status and competence of the panel, instead of the alleged inference by the trial court, that the mere invitation of Appellant to the panel satisfied the constitutional requirement of fair hearing of the Appellant before his dismissal. The ground of appeal was not questioning the status of the Panel of Inquiry, per se, vis a vis the grounds used to sustain Appellant’s dismissal. It did not state the imagined offence on which Appellant’s guilt was predicated nor the reason why the panel invited him (to show any co-relation with the alleged trial judge’s misdirection of self, by the Panel’s invitation to Appellant to appear before it).
The Ground 2 of the appeal alleged that the lower court preferred the oral address of 1st Respondent’s counsel to the testimony of the Appellant and so came to the conclusion, that “there is no sufficient evidence presented by the Plaintiff to justify…an order of court declaring the plaintiff’s dismissal as being illegal and an order for reinstatement.”
Appellant did not state, the of the oral address of the Respondent’s counsel which he said the court preferred to his said testimony, neither did he state his said testimony. The particulars of the ground of appeal should have disclosed such facts/details, instead of speculating:
Apart from the oral testimony of the Appellant, the respondents did not lead evidence in proof of their pleadings, but simply addressed the court through their respective counsel, and that address of counsel, no matter how brilliant cannot take the place of evidence.
Appellant therefore failed to state clearly the particulars of misdirection or error he complained about, as stipulated by Order 3 Rule 2 (2) of the 2002 Rules (now Order 6 Rule 2 (2) of the Rules of this Court, 2011).
Ground 3 of the Appeal complained of the court’s misdirection of self, by not properly evaluating the evidence of the Appellant, who had clearly made out a prima facie case against the Respondents, but rather came to the conclusion that Appellant’s case totally lacked merit and was bound to fail.
While it is difficult to understand how the alleged failure of the trial court to evaluate evidence properly can amount to its misdirection of self Appellant, who should have explained that in the particulars of error or misdirection, rather said:
“(a) civil matters are proved on the balance of probabilities thus making the burden of proof to shift from plaintiff to defendant after the plaintiff has made out a case against the Defendant.
(b) The Appellant at the trial court inter-alia established statutory nature of his employment with the Respondent which should entitle him to a reinstatement, but the court failed to make a finding on it.
(c) The court reduced Appellant’s case to the issue of fair hearing.”
It is therefore obvious that the grounds 1, 2 and 3, of the appeal are defective as their particulars are either at cross purpose with the grounds and the judgment appealed against (lacking in tandem with the grounds), or are vague, argumentative and general in nature and disclosing no reasonable ground of appeal.
In the case of Kotoye vs. Saraki (1992) 11/12 SCNJ (pt.1) 26, ratio 5, the Supreme Court said-
“Where a ground of appeal cannot be fixed and circumscribed within a particular issue in controversy in the judgment challenged, such ground of appeal cannot justifiably be regarded as related to the decision. Afortiori, no issue for determination can be formulated therefrom.” See also SANYA vs. Sauman (2012) ALL FWLR (pt. 619) 917; Adda vs. Liman (2011) ALL FWLR (pt. 587) 765.
If the couching of the grounds of appeal and the particulars thereof by Appellant revealed glaring incompetence, I think the way he related the grounds of appeal to the issues for determination was even worse, as Appellant, after relating the issue one to ground one of the appeal, also, distilled issue 2 from the same ground one of appeal, as well as from grounds 2 and 3!
An issue for determination of appeal must flow from or predicate on the ground(s) of appeal, which in turn must derive from or challenge the ratio decidendi or live issue in the judgment appealed against. See the case of Unilorin vs. Olawepo (2010) 52 WRN 42, held 1-
“Every appeal is heard and determined on the issue (s) distilled from valid ground(s), which must be founded on the judgment appealed against, and the same must be located in the record of appeal before the appellate court. See the case of Ojemen v. Momodu (1994) 1 NWLR (pt.323) 685.”
In Oseni vs. Bajulu (2010) ALL FWLR (pt. 511) 813, the Supreme Court held-
“Any issue not distilled from any ground of appeal is incompetent and must be discountenanced by the court, together with the argument(s) thereunder in consideration of the appeal”
Appellant’s issue one queried:
“Whether the panel of Enquiry was competent to determine the guilt of the Appellant”. He alleged the same to flow from ground one of the appeal, which says,
“The learned trial judge misdirected himself in law and in fact when he regarded the mere invitation of both Appellant and the Investigation Officer of the 1st Respondent (Mr. Akinola) by the panel, as satisfying the constitutional requirement of fair hearing to be accorded a person accused of committing a crime.”
Obviously, that issue cannot distill from the ground one (which complained of the judge misdirecting himself by regarding the invitation of the Appellant by the Investigation Panel, as satisfying the Constitutional requirement of fair hearing), since the issue rather complained of the status or competence of the panel! They are two different complaints which (though could be related) had no link, and the missing link kept them far apart for the purpose of arguing the appeal.
The error was made worse, when the Appellant distilled issue 2:-
“Whether in determining the case of the Appellant, the Respondent duly observe (sic) the principles of fair hearing and natural justice”, from the same ground l and from grounds 2 and 3!
By law, “no more than one issue must distill from a single ground of appeal, although an issue can generate from a combination of grounds of appeal. Any issue not distilled from any ground of appeal is incompetent and must be discountenanced by the court, together with the arguments thereunder in consideration of the appeal. “See the case of Marcathy vs. Tope (2012) ALL FWLR (pt. 648) 833 held 1; Nwaigwe vs. Okere (2008) ALL FWLR (pt. 413) 843; Oseni vs. Bajulu (Supra); Afribank Nig Plc vs. Yelwa (2011) ALL FWLR (pt.585) 296; Blessing vs. FRN (2013) 12 WRN 36 at 61; Shettima vs. Goni (2012) 19 WRN 1.
See also the case of Ajaokuta Steel Company Board of Trustees of Staff Pension Scheme & Ors vs. Role & 148 Ors (2012) 45 WRN 33, where Ogbuniya JCA said,
“The state of the law on this issue is not a moot point. Whereas one issue for determination can germinate from a mono or a singular ground of appeal, one ground of appeal cannot give birth to two or more issues for determination. The latter situation smacks or reeks of proliferation or multiplication of issues which the law seriously frowns upon. See Duwin Pharmaceutical & Cosmetic Ltd vs. Beneks Pharmaceutical & Cosmetic Ltd (Supra); Magit vs. University of Agriculture (Supra); Eke vs. Ogbonda (2006) 18 NWLR (pt. 1012) 506; Okwuagbala vs. Ikwueme (2010) 19 NWLR (pt. 1226) 54; Okonobor DE & ST Co Ltd (2010) 17 NWLR (Pt.1221) 181.”
The situation was further made clearer by my lord, Ogbuinya JCA in the said case of Ajaokuta Steel Company Board of Trustees of Staff Pension Scheme & Ors vs. Role & 148 Ors (2012) LPELR – 7884 (CA); (2012) 45 WRN 33, when he held quoting the case of Akpan vs Bob (2010) 17 NWLR (pt. 1223) 421 at 517, where Onnoghen JSC said-
“There is no law against arguing two or more issues together in a brief of argument. The practice is encouraged for its convenience to both the parties and the court as it is designed to save time and avoid repetition of argument. In the process of arguing many issues together there can be the error of arguing valid issues together with invalid issues, such as arguing issues not arising from the grounds of appeal together with these that arise from the grounds of appeal, or arguing an issue on a ground of appeal not arising from the judgment appealed against etc, etc. Where such a situation arises, the law is settled that the invalid issue together with the argument preferred in support thereof must be struck out… However, where the argument in support of the surviving valid issue(s) is clearly identifiable from the argument in support of the struck out issue and argument in support of same…the court is enjoined to do substantial justice between the parties, having regard to the facts and circumstances of the case by relying on the argument proffered in support of the valid surviving issue in resolving the issue in controversy between the parties . . .”
Of course, the reverse is also possible that the argument in respect of the invalid issue, which was struck out, may not be clearly identifiable from that of the valid issue/argument. And that may infect and corrupt the argument on the valid issue, such that it is not possible to separate the valid issue/argument from ‘the invalid issues/arguments, lawfully. Of course, conjoined twin can only be separated, by surgical operation, where their vital organs are not conjoined to make survival impossible! Such too is the limit of legal/judicial operation, in such circumstances.
Of course, the above argument would only be valid where the issues for determination have been adjudged competent; to be argued. In this appeal that hurdle has not been scaled, as 1st Respondent has already spotted some error in the way the two issues for determination were “distilled, Appellant having linked one of the grounds of appeal with the two issues for determination! Having earlier distilled issue 1 from ground one of the appeal, the said ground one was no longer available to join grounds 2 and 3 to give birth to issue 2. Its inclusion in the list of grounds giving birth to issue 2 tended to corrupt the Issue 2 and the arguments thereunder, especially as the said ground one (as the other grounds) had been adjudged defective. This is because the virus of the defective ground of appeal, with its corrupting effect, has infected the other ground(s) of appeal, when argued together in one issue.
In the case of Tela Danboyi vs. Dali Sa’adu (2011) 15 NWLR (pt.1269) 1 at 16-17, where a similar problem of arguing a defective ground of appeal with a good (omnibus) ground together in an issue for determination occurred, YAKUBU JCA said-
“I am in agreement with the learned counsel to the respondent that the incompetent ground 2 ought not to have been argued together with omnibus ground 3, as was argued by the appellant’s counsel. The authorities of this court in Bereyin vs. Ebebo (1989) 1 NWLR (Pt.97) 372 at 380; Idaayor vs. Tigidam (1995) 2 NWLR (pt 377) 359 at 378 are quite apposite. In the circumstances, I hold that the Omnibus ground of appeal, having been infirmed by the incompetent ground 2, with which it was argued together, is incompetent…”
That decision (above) was followed by this court in the case of Alhaji Rilwama Dauda Jude & Anor vs. People’s Democratic Party (PDP) & Ors, an unreported decision of this court in CA/YL/EPT/TR/SHA/19/2011, delivered on 23/1/2012, where we said –
“Thus, the competent grounds, 2, 3, 4, 5, 8, 10 and 13 of this appeal are therefore soiled by their association with grounds 1, 6, 7 and 11, adjudged legally offensive and so, contageous. That even accords with the moral principle which holds that evil association corrupts good character! ”
It is therefore clear that the Appellant’s Counsel goofed greatly when he stated in page 4 of the Appellant’s Brief- “The above mentioned issue (1) is framed form (sic) Ground 1 only while issue (ii) is framed from Grounds 1, 2 and 3 of the Notice of Appeal”.
That means, even if the grounds of appeal were valid and competent (and they were not), association of ground 1 (which had already given birth to an issue) again with issue 2 for determination was a serious procedural error, which cannot be remedied by this court. It could only have been remedied by the Appellant at the hearing of the appeal, by applying to correct such error. In the case of Usman vs. New Nigeria Bank (2013) LPELR – 20201 (CA) at page 28-29 this court held-
“Appellants counsel, in this appeal, had distilled the 1st issue for determination from ground 1 of the Appeal. He also, erroneously, claimed to have distilled the 2nd Issue from grounds 1 and 2. He cannot do that, having formulated the 1st issue from the 1st ground of Appeal! Appellant cannot split a ground of appeal into two issues. The Law rather permits combination of two or more grounds of appeal to raise an issue for determination, not otherwise. See the case of AFRIBANK NIG. PLC vs YELWA (2011) 12 NWLR (pt.1261) 286.”
The 1st Respondent’s Counsel had also argued and submitted that Appellant needed the leave of court, sought and obtained, in respect of grounds two and three of the appeal, as the same were grounds of fact or of mixed law and fact. He relied on Section 242 (1) of the 1999 Constitution as well as on some decided authorities. I think 1st respondents counsel was wrong on this point, having applied those authorities wrongly. This is because the need for leave to argue a ground of fact or of mixed law and fact does not apply to appeals “against final decision of the High Court, sitting at first instance”. See Section 241 (1)(a) of the 1999 Constitution, as amended, and the case of Agrovet Sincho Pharm Ltd vs. Estate of Engr. Dahiru (2013) LPELR 20364 (CA) at page 19, where this court held-
“I think the learned Counsel for the Respondents has greatly misconstrued the provisions of the law relating to requirement for leave to argue grounds of facts and of mixed law and facts, as amended, as such legal hurdles do not stand in the way of an appeal against a final decision of the High Court, sitting at first instance. See Section 241 (1) (a) of the 1999 Constitution, as amended.” See also Ekemezie vs. Ifeanacho & Ors (2009) (Pt.726) 93; Samuel vs. Etubi (2011) LPELR – CA/A/288/2010.
Having found merit in the preliminary objection that Appellant’s grounds of appeal are incompetent and the two issues distilled from them compromised and corrupted, I hold that the same succeeds, the effect of which makes this appeal incompetent and unworthy of consideration on the merits. The appeal is accordingly struck out for incompetence.
Parties shall bear their respective costs.
DALHATU ADAMU, J.C.A, CFR : I have the advantage of reading in draft the lead judgment delivered by I. G. Mbaba JCA in this appeal. I am in full agreement with reasoning and the conclusion he reached that the preliminary objection that the appellant’s grounds are incompetent and the two issues formulated from the grounds are also incompetent has succeeded. Consequently the appeal is therefore incompetent and it is struck out by me. I abide by the order on costs as made in the lead judgment.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment just delivered by my learned brother, Mbaba, JCA. I agree with the reasoning and conclusions contained therein. I wish to make some additional comments.
The first Respondent filed a notice of preliminary objection to this appeal. It was dated the 28th of June, 2004 and was filed on the 30th of June, 2004. The notice of preliminary objection was argued on pages 2 to 14 of the first Respondent’s amended brief of arguments. At the hearing of this appeal on the 26th of June, 2013, counsel to the first Respondent sought for and was granted leave by this Court to argue the preliminary objection before the hearing of the appeal and he relied on and adopted the arguments thereon contained in the brief of arguments. Counsel urged the Court to uphold the preliminary objection and to strike out the appeal. Counsel to the Appellant did not urge anything on this court against the arguments proffered by Counsel to the first Respondent on the notice of preliminary objection. This however does not mean that this court must accept the arguments of the counsel to the Respondent as gospel truth. This is because the address of Counsel is not binding on the Court. The Court must still assess the arguments – Oruboko Vs Oruene (1996) 7 NWLR (pt.462) 555, Eya vs Oropade (2011) NWLR (Pt.1259) 505 and Independent National Electoral Commission Vs Nyako (2011) 12 NWLR Pt.1262) 439. In Edonkumoh vs Mutu (1999) 9 NWLR (Pt.620) 633, Ibiyeye, JCA stated at 652 E-F thus:
“It is pertinent to point out that the learned counsel for the first respondent did not proffer any response to this issue in his brief of argument. It follow therefore that he has little to urge on it. The fact that there is want of response by the first respondent is no licence to accede to the arguments and submissions of learned Counsel for both the appellant and the second to fourth respondents. Those submissions will still be meticulously considered and opined upon accordingly.”
This Court shall consider the merits of the notice of preliminary objection.
The objection of the first Respondent to this appeal was predicated on two main grounds; namely (i) that there was a disconnection between each of the three grounds of appeal filed by the Appellant and the respective particulars filed in support thereof; and (ii) that the two issues for determination formulated by Appellant in the brief of arguments did not flow from the grounds of appeal. The three grounds of appeal of the Appellant and their particulars as well as the arguments of Counsel to the first Respondent on the notice of preliminary objection have been eloquently set out in the lead judgment and I need not repeat them here.
On the first ground of objection, it is trite that the purpose of the requirement of stating particular of a ground of appeal is to inform the respondent and the court of the errors or misdirection alleged in a ground of appeal so as to enable the respondent meet the case of the appellant and for the court to be aware of the nature of the error or misdirection complained of – Munguno v. Bluewhales & Co. (2011) 2 NWLR (Pt.1231) 275. Particulars of error are intended to highlight the complaint against the judgment on appeal and they show how the complaint against the judgment is going to be canvassed by the appellant – Osasona v. Ajayi (2004) 14 NWLR (Pt.894) 527, Diamond Bank Ltd v. Partnership Investment Co. Ltd. (2009) 18 NWLR (Pt.1172) 67. Particulars of a ground of appeal are there to support and explain further the complaint raised in the ground of appeal – Federal Medical Center, Ido-Ekiti v. Olajide (2011) 11 NWLR (Pt.1258)256. Thus, there must be a synergy between a ground of appeal and the particulars contained in the notice of appeal in support of the ground of appeal; the particulars of a ground of appeal must arise from the main complaint in the ground of appeal – Vincent v. Vincent (2008) 11 NWLR (Pt.1097) 35. Where there is a disconnection between a ground of appeal and the particulars in support thereof, the ground of appeal is said to be defective and incompetent – Olufeagba v. Abdul-Raheem (2009) 18 NWLR (Pt.1173) 384, Aribo v. Central Bank of Nigeria (2011) 12 NWLR (Pt.1260) 133.
Looking at the first ground of appeal as contained in the Appellant’s notice of appeal and the particulars stated thereon it is obvious that they are not in tandem and they are talking about completely different issues. The particulars have nothing to do with the complaint of the Appellant in the ground of appeal. With regards to the second ground of appeal, the particulars did not elucidate the allegation of error in law and fact on the part of the Lower Court made by the Appellant in the ground of appeal.
The net effect being that the complaint of the Appellant in the ground of appeal was vague and unclear and thereby defeating the whole purpose that a ground of appeal is suppose to serve which is to sufficiently identify error of law or misdirection complained of by an appellant.
It is trite that where a ground of appeal alleging an error in law lacks particulars as to how the alleged error took place, it is a mere statement of a general nature, vague and disclosing no reasonable ground of appeal- Nwokoro Vs Onuma (1999) 12 NWLR (Pt 631) 342, Asogwa Vs Peoples Democratic Party (2013) 7 NWLR (Pt.1353) 207. The third ground of appeal complained that the Lower Court did not properly evaluate the evidence led at trial but none of the particulars gave details of the non-evaluation and they were just at Sea. I agree with the Counsel to the first Respondent that there was a disconnection between the grounds of appeal and the particulars filed in support of each one. The grounds of appeal are thus defective and incompetent.
On the second ground of the objection, it is an elementary rule of appellate court practice that the issues for determination in an appeal must flow from and be distilled from the grounds of appeal. In other words, it is not permissible for appeal to canvass an issue that has no bearing with any of the grounds of appeal. An issue would be competent for determination only if it relates to or arise from any of the grounds of appeal. If an issue is not related or does not arise from a ground of appeal, it is incompetent – Alataha Vs Asin (1999) 5 NWLR (Pt 601) 32, Punch (Nig) Ltd Vs Jumsum (Nig) Ltd (2011) 12 NWLR (Pt 1260) 162, Contract Resources (Nig) Ltd V. Standard Trust Bank Ltd (2013) 6 NWLR (Pt.1350) 260. The Appellant formulated two issues for determination from the three grounds of appeal. It must be stated that with the finding that the three grounds of appeal of the Appellant are incompetent, it automatically follows that the issues for determination are also incompetent because an issue framed on incompetent ground of appeal is itself incompetent – Abubakar v. Joseph (2008) 13 NWLR (Pt.1104) 307, Lagos State Water Corporation vs Samakori Construction (Nig) Ltd (2011) 12 NWLR (Pt.1262) 569.
Further, the first issue for determination formulated by the Appellant read thus “whether the Panel of Enquiry was competent to determine the guilt of the Appellant.” The Appellant stated that this issue for determination was distilled from the first ground of appeal which read thus:
“The learned trial Judge misdirected himself in law and in fact when he regarded the mere invitation of both Appellant and Investigating Police Officer of the first Respondent (Mr. Akinolu) by the Panel as satisfy the constitutional requirement of fair hearing to be accorded a Person accused of committing a crime.”
The second issue for determination of the Appellant went thus “whether in determining the case of the Appellant, the Respondent duly observed the principles of fair hearing and natural justice.” The Appellant said that he distilled this issue from the three grounds of appeal. Grounds two and three of the notice of appeal read thus:
“The learned trial Judge erred in law and in fact when he preferred the oral address of the first Respondent’s counsel to the testimony of the Appellant, thus coming to the conclusion that, there is no sufficient evidence presented by the plaintiff to justify the interference of the court supporting an order of court declaring the plaintiff’s dismissal as being illegal and an order of reinstatement.
The learned trial Judge misdirected himself by not properly evaluating the evidence of the Appellant who had clearly made out a prima facie case against the Respondent, but rather came to the conclusion that Appellant’s case totally lacks merit and is bound to fail.”
Reading the two issues for determination along with the three grounds of appeal, it is apparent that they do not flow from nor were they predicated on the grounds of appeal. They are thus incompetent.
Obviously, the nemesis of this appeal is the lack of proper drafting skills by the Counsel to the Appellant who filed the notice of appeal and prepared the brief of arguments. The Court of Appeal, 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.”
The need for a counsel to display proper legal training in the preparation of court processes was emphasized, by Aderemi, JCA (now JSC) in MV Arabella vs Nigerian Agricultural Insurance Corporation (2002) 15 NWLR (Pt.791) 570. The learned Justice stated thus at page 582:
“To say the least, the above five issues raised by the cross-appellant are very horrible. They do not indicate that a person with legal training has drafted them. It seems to me that an ordinary prose writer who has no learning in the profession of law will produce far better and knowledgeable issues than the above five issues. If the profession of law will not be subjected to ridicule, I think counsel of the type holding himself out as representing the cross-appellant in this matter will do well to seek the assistance of able and well learned senior members of the Bar (and they are legion in Nigeria) to always help in vetting whatever processes he prepares before filing same in the Registry of any court.”
It is hoped that the counsel to the Appellant will learn from this experience and take very urgent steps to improve his drafting skills.
On what an appellate court should do where there are no valid grounds of appeal or competent issues for determination in an appeal, the Supreme Court in Calabar East Co-operative vs Ikot (1999) 14 NWLR (Pt.638) 225 at 246-247 per Achike, JSC stated thus:
“There is a long unending chain of authorities which establish that an issue is incompetent unless it is predicated on a ground of appeal. The court has no powers to engage itself in consideration of issues which do not arise from a ground of appeal. If an issue is incompetent it should be struck out. To do otherwise and give consideration to the issues is to embark on a worthless academic pursuit. It is bad advocacy for learned counsel to ignore prudence and his reasonability as an officer of the court, and expressly urge the court to embark on a fruitless academic frolic, all in the perceived interest of justice. I shall not accede to such a request. Pronouncements or decision made on incompetent issues or defective grounds of appeal cannot advance the appellant’s case, not even the interest of justice nor our jurisprudence, one jot, because, at best, such pronouncements are mere obiter dicta. Stricto sensu, an appellate court lacks jurisdiction, in the sense of competence, to entertain an appeal which is not fought on valid grounds of appeal…”
It is for these reasons, and the fuller reasons contained in the lead judgment, that I, too, uphold the preliminary objection of the first Respondent. The appeal is incompetent and I endorse the order striking out the appeal. I abide the order on costs in the lead judgment.
Appearances
Lliya Dauda and Co.For Appellant
AND
S. O. Sangotayo Esq., with him Dickson Nwatu Esq., and Amina Umar Esq. for the 1st Respondent
2nd Respondent – Nil
B. G. Abba Esq. (SSC) for the 3rd Respondent.For Respondent
