ZAMFARA STATE GOVT & ORS v. N. C. G. INTEGRATED ENG. WORKS LTD & ANOR
(2021)LCN/15841(CA)
In The Court Of Appeal
(SOKOTO JUDICIAL DIVISION)
On Thursday, September 23, 2021
CA/S/48/2019
Before Our Lordships:
Saidu Tanko Hussaini Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Mohammed Danjuma Justice of the Court of Appeal
Between
1. ZAMFARA STATE GOVERNMENT 2. MINISTRY OF WORKS & TRANSPORT 3. ATTORNEY GENERAL, ZAMFARA STATE APPELANT(S)
And
1. C. G. INTEGRATED ENG. WORKS LTD 2. ENGR. GODWIN NWANKWO RESPONDENT(S)
RATIO:
LEAVE OF COURT AS A PRECONDITION TO FILING AN APPEAL
The provision of Section 242(1) of the 1999 Constitution (as amended), which provides for appeal to the Court of Appeal with leave of either the Federal High Court, State High Court or the Court of Appeal is very clear and unambiguous. In other words, under the aforementioned provision, leave of the Court is required before a competent and valid appeal can be lodged. This requirement of leave is mandatory and non-compliance therewith renders the appeal incompetent and the proceedings based on it a nullity.
In the instant case, the Appellants would have been duty bound to obtain the leave of either the High Court or the Court of Appeal following the argument of the Appellants’ Counsel. However, after the said ruling which the Appellants now contest, was delivered on the 29th day of January, 2019, the Court went further to hear the application for summary judgment which decision was made on the same 29th January, 2019 and thus determined the issues between the parties before it. Since the appeal was filed after the determination of the suit between the parties at the trial Court, I do not see the need for the Appellants to obtain leave before filing its appeal as the appeal now falls under the dictate of the provisions in Section 241(1)(a) of the Constitution of the Federal Republic of Nigeria (as amended) and thus the Notice of Appeal filed by the Appellants on the 8th day of February, 2019 is competent, and I so hold. PER MOHAMMED BABA IDRIS, J.C.A.
INTERPRETATION OF CONTRACTS
It is trite that parties are bound by the clear words of their agreement and the intention of parties in an agreement should be given its true meaning. See the cases of CBN VS. INTERSTELLA COMMUNICATIONS LTD & ORS (2017) LPELR–43940 (SC) and UWAH & ANOR VS. AKPABIO & ANOR (2014) LPELR–22311 (SC).
The position of the law is that parties are presumed to have intended what they have in fact said since an agreement ought to receive that construction which its language will admit and which will best effectuate the intention of the parties, and greater regard is to be had to the clear intention of the parties than to any particular words which they may have used. See the case of J. E. OSHEVIRE LTD VS. TRIPOLI MOTORS (1997) LPELR–1584 (SC). PER MOHAMMED BABA IDRIS, J.C.A.
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): By a Writ of Summons dated the 8th day of November, 2018 and filed on the same day, the Respondents as Plaintiffs in the Court below, claimed against the Appellants as Defendants jointly and severally the following reliefs:
1. N37,539,625.25 (Thirty Seven Million, Five Hundred and Thirty Nine Thousand, Six Hundred and Twenty Five Naira Twenty-Five Kobo) only being the contract sum owed by the Defendants to the Plaintiff for the three (3) motorized bore-holes duly executed by the Plaintiff.
2. 20% pre-judgment interest on the sum from 8/2/2012 when the plaintiffs became due for payment till judgment is delivered and 10% post judgment interest on the sum from the date of judgment till full payment of the judgment sum is liquidated.
3. A sum of N2,000,000.00 (Two Million Naira Only) being re-imbursement of the fees paid and expenses incurred by the Plaintiffs in respect of the suit.
It was the claim of the Respondents at the trial Court that on or about the 24th day of May, 2011, it entered into an agreement with the Appellants to drill three numbers motorized boreholes, one at Kwashabawa in Zurmi Local Government Area of Zamfara State and two other boreholes at Maijatau and Gidan Zuma in Maradun Local Government Area of Zamfara State totaling N37,539,625.25k.
The Respondents also claim that they completed the job and handed over the projects to the Appellants for commissioning. The Respondents further claim that the Appellants commissioned the project and the Chairman Taskforce Ongoing Project Committee, Zamfara State wrote to the Appellants that the Respondents had completed the projects up to 100% and that the scheme was already being utilized.
The Respondents also claim that the Appellants through the office of the 2nd Appellant raised payment vouchers for the Respondents and neglected to pay the Respondents though the vouchers were issued and that the Respondents after waiting and without getting any payment from the Appellants decided to file an action before the trial Court.
At the trial Court, the Respondents also filed a Motion on Notice praying for the trial Court to grant her summary judgment. The Appellants on the other hand, filed a Notice of Preliminary Objection praying the Court to strike out the suitor stay further proceedings in the matter and refer the matter to arbitration in accordance with the agreement between the parties.
The Respondents filed a counter-affidavit to the said Notice of Preliminary Objection. The parties moved their respective applications and after considering the said applications and addresses by the parties, the trial Court held on the 29th January, 2019 that there was no need for any arbitration between the parties and that the Notice of Preliminary Objection lacked merit and dismissed same accordingly.
The Respondents went on to move their application for summary judgment and no defence was filed by the Appellants to the said application even though they were served with the Respondents’ application. After considering the application of the Respondents, the trial Judge, Honourable Justice Bello Aliyu Gusau entered judgment in favour of the Respondents against the Appellants and granted all the reliefs sought on the 29th January, 2019.
Dissatisfied with the judgment of the trial Court, the Appellants filed a Notice of Appeal dated 8th February, 2019 comprising of two grounds of appeal and later amended and filed on the 9th day of September, 2020 comprising of two (2) grounds of appeal.
The Appellants filed an Amended Appellants’ Brief of Argument dated the 19th day of October, 2020 and filed on the 20th day of October, 2020 settled by their Counsel Abubakar Bello Esq. wherein two issues for determination were raised thus:
1. Whether or not the Court below was right in law to assume jurisdiction and to entertain the matter despite the fact that the parties agree in case of any dispute or differences shall arise between the parties with respect to any matter pertaining to the agreement may be referred to arbitration. Distilled from Ground Two of the Appeal.
2. Whether the decision of trial lower Court relying on inadmissible Exhibit H and H2 does not amount to serious miscarriage of justice.
On issue one, the Appellants’ Counsel argued that the Respondents did not comply with clause 47 of the agreement between the parties which is binding on them and which provided that in the event of any dispute, it should be referred to arbitration and urged the Court to hold that the Appellants were right in law to have filed a Notice of Preliminary Objection challenging the jurisdiction of the trial Court.
On issue two, the Appellants’ Counsel argued that Exhibits H and H2 were public documents which fall under the ambit of the provision of Section 102(a) of the Evidence Act. Counsel further submitted that Exhibits H and H2 relied upon by the trial Court were photocopies of the original copy of payment voucher raised by the 2nd Appellant and ought to have been certified by the issuing officer that raised the payment voucher.
In conclusion, the Appellants’ Counsel urged this Court to uphold his arguments and resolve the two issues for determination in favour of the Appellants and set aside the ruling of the Court below delivered on the 8th February, 2019 and allow the appeal.
The Respondents on the other hand also filed a Respondents’ Brief of Argument dated 22nd January, 2021 settled by their Counsel wherein the following two issues for determination were raised thus:
1. Was the Learned Trial Court not right in hearing the case and in holding that in the circumstances of this case there was no ground to strike out or stay and refer this suit for an arbitration.
2. Did the Trial Court rely on Exhibits H and H2 in the judgment and are they inadmissible evidence in this case.
The Respondents also filed a Notice of Preliminary Objection dated 20th day of January, 2021 and argued in the Respondents’ Brief of Argument on the following grounds:
1. Section 242(1) that provides for leave to appeal was not complied with – the original Notice of Appeal being an appeal against an interlocutory decision of the Trial Court needed leave to appeal to be competent.
2. That a valid amended Notice of Appeal cannot be made from an invalid and a fundamentally defective Notice of Appeal.
3. That a ground of appeal not included in the Amended Notice of Appeal is deemed abandoned.
The Respondents’ Counsel further argued the issues for determination raised in the Respondents’ Brief of Argument. On issue one, counsel submitted that the Grounds of Appeal are not compliant against the ratio decidendi of the decision of the trial Court. For example, the trial Court did not hold that parties are bound by arbitration clause.
The Respondents’ Counsel also argued that there was no dispute on the sum payable as agreed by the parties to warrant any arbitration and that it explains why the Appellants are not appealing against the summary judgment which awarded the agreed sum. Counsel thus argued that the appeal has become academic.
The Respondents’ Counsel submitted that there must be dispute before Section 4 and 5 of the Arbitration and Conciliation Act can apply and if arbitration is desired, such a party shall give notice to the other party and none of the parties did so in this case.
The Respondents’ Counsel also argued that the decision of the trial Court that there was no need for an arbitration as the Appellants accepted to pay the amount claimed in the suit was not appealed against in the appeal and that the additional ground was not included in the Amended Notice and Grounds of Appeal and thus is deemed abandoned in the circumstance.
The Appellants filed a Reply Brief of Argument on the 22nd day of March, 2021 and settled by their Counsel, Abubakar Bello, Esq. The Appellants’ Counsel argued in response to the Respondents’ Brief of Argument filed that it is immaterial whether a decision of a trial Court is interlocutory or not, and that the question begging for answer is, did such ruling culminating in the summary judgment of the trial Court, indeed finally determine the rights of the parties and in this case? The answer according to counsel is in the affirmative.
The Appellants’ Counsel also argued that since the Appellants’ ground of appeal is based on the ruling of the trial Court by entering into summary judgment when indeed the Court lacks the jurisdiction to do so, and such decision finally determined the rights of the parties and that the Notice of Appeal does not require leave of a Court pursuant to Section 241(1) (a–b) of the Constitution of the Federal Republic of Nigeria as amended.
Having summarized the Briefs of Argument filed by the parties herein, I shall now go ahead to make findings and give my decision. In doing so, it is pertinent that I first consider the Notice of Preliminary Objection filed by the Respondents.
RESOLUTION OF THE NOTICE OF PRELIMINARY OBJECTION
The Respondents’ Counsel had argued that the original Notice of Appeal borders on a clause in the agreement between the parties which is not an issue of law and also, that the Appellants appealed against the interlocutory decision of the trial Court which by Section 242(1) of the 1999 Constitution as amended, give the trial Court and this Court concurrent jurisdiction in the matter and thus the Appellants ought to have applied for leave at the trial Court before filing their Notice of Appeal.
Looking at both the Notice of Appeal filed on the 8th February, 2019 and the Amended Notice of Appeal filed on the 9th September, 2020, one thing is clear and that is the fact that the appeal is against the ruling of the trial Court delivered on the 29th January, 2019 dismissing the Notice of Preliminary Objection filed by the Appellants at the trial Court.
Section 24(2) of the Court of Appeal Act provides as follows:
“The periods for the giving of Notice of Appeal or Notice of application for leave to appeal are: (a) In appeal in civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.”
Flowing from the above provision of the law, the Appellants had14 (Fourteen) days to appeal against the ruling of 29th January, 2019. The Appellants filed their Notice of Appeal on the 8th day of February, 2019 which is within the 14 (Fourteen) days within which they ought to file the appeal from the date the ruling of the trial Court was delivered on the 29th day of January, 2019.
Section 242(1) of the 1999 Constitution (Amended) provides as follows:
“Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.”
The provision of Section 242(1) of the 1999 Constitution (as amended), which provides for appeal to the Court of Appeal with leave of either the Federal High Court, State High Court or the Court of Appeal is very clear and unambiguous. In other words, under the aforementioned provision, leave of the Court is required before a competent and valid appeal can be lodged. This requirement of leave is mandatory and non-compliance therewith renders the appeal incompetent and the proceedings based on it a nullity.
In the instant case, the Appellants would have been duty bound to obtain the leave of either the High Court or the Court of Appeal following the argument of the Appellants’ Counsel. However, after the said ruling which the Appellants now contest, was delivered on the 29th day of January, 2019, the Court went further to hear the application for summary judgment which decision was made on the same 29th January, 2019 and thus determined the issues between the parties before it. Since the appeal was filed after the determination of the suit between the parties at the trial Court, I do not see the need for the Appellants to obtain leave before filing its appeal as the appeal now falls under the dictate of the provisions in Section 241(1)(a) of the Constitution of the Federal Republic of Nigeria (as amended) and thus the Notice of Appeal filed by the Appellants on the 8th day of February, 2019 is competent, and I so hold.
The ruling delivered by the trial Judge in this application is a final decision which is covered by Section 241(1)(a) of 1999 Constitution. This does not require leave of Court. Rather it is as of right being a final decision ofthe Court which determines finally the rights of the parties. See the cases of WELLE VS. BOGUNJOKO (2007) 6 NWLR (PT. 1029) PAGE 123; FIRST FUELS LTD VS. NNPC (2007) 2 NWLR (PT. 1018) PAGE 276; and MADUABUCHUKWU VS. MADUABUCHUKWU (2006) 10 NWLR (PT. 989) PAGE 475.
The Respondents’ Counsel had also argued that the additional ground of appeal which this Court granted leave to the Appellants to file and argue was not filed.
The Appellants filed before this Court, a Motion on Notice on the 20th day of October, 2020 for the following reliefs:
1. An order granting leave to the Appellants/Applicants to file and argue additional grounds of appeal as shown in the Schedule A to this application.
2. An order deeming the additional Grounds as properly filed and served if prayer 1 above is granted.
3. An order of this Hon. Court granting leave to the Appellants/Applicants to amend the original Notice of Appeal dated and filed on the 8th of February 2019, in terms of Schedule 8 to this application.
4. An Order deeming the proposed amended notice of appeal as having properly filed and served in Appeal NO: CA/S/48/2019
5. An Orderdeeming as properly filed and served, the Amended Notice of Appeal attached hereto as Exhibit V separately filed and served.
6. An Order granting leave to the Appellants/Applicants to amend their Appellants brief of argument in Appeal NO: CA/S/48/2019.
7. An Order Amending the Appellants Brief of Argument in Appeal NO: CA/S/48/2019
8. An Order deeming the Amended Appellant Brief of Argument as properly filed and served in Appeal NO: CA/S/48/2019
9. AND for such further order(s) as this Hon. Court may deem fit to make in the circumstances.
The above reliefs were granted by this Court on the 20th December, 2020. The proposed additional grounds of appeal sought to be added by the Appellants as seen from the said Motion on Notice is as below:
“GROUND ONE
The Learned Trial Judge erred in law and abdicated his statutory responsibility by relying on an inadmissible evidence, thereby occasioned a serious miscarriage of Justice on the Appellants.
PARTICULARS OF ERROR
I. That the Exhibits H and H2 relied upon by the Learned Trial Judge is a public document.
II. It is trite law that public documents are onlyadmissible if properly certified.
III. That Exhibits H and H2 are not certified in line with the provision of the Evidence Act.”
Looking at the Proposed Amended Notice of Appeal attached to the Motion on Notice, the grounds contained are different as follows:
“GROUND ONE
The Court lacks jurisdiction to have heard and determined the Respondent’s suit in ZMS/GS/M610/2018
PARTICULARS OF ERROR
I. There exists an arbitration Clause in the agreement to the effect that in the event of any dispute between the parties.
II. It is trite law that parties are bound by their agreement.
GROUND TWO
The learned trial Judge erred in law when he held that parties are not bound by the arbitration clause contained in the contract agreement.
PARTICULARS OF ERROR
I. There exists an arbitration clause in the agreement to the effect that in the effect that in the event any dispute between the parties.
II. It is trite law that parties are bound by their agreement.”
However, the grounds contained in the Amended Notice of Appeal filed on the 9th day of September, 2019 did not capture the groundsin the Proposed Amended Notice of Appeal neither did it contain the additional grounds of appeal applied for and already reproduced above.
The Grounds of Appeal of the Amended Notice of Appeal filed on the 9th day of September, 2020 is reproduced thus:
“GROUND ONE
The Court lacks jurisdiction to have heard and determined the Respondent’s suit in ZMS/GS/M610/2018.
PARTICULARS OF ERROR
The learned trial Judge misdirected himself to assume jurisdiction and entertain the matter which parties agreed to submit to for arbitration in the event of any dispute arising in respect of the said contract.
GROUND TWO
The Learned trial Judge erred in law when he held that parties are not bound by the arbitration clause contained in the contract agreement.
PARTICULARS OF ERROR
I. There exists an Arbitration Clause in the agreement to the effect that in the event of any dispute between the parties.
II. It is trite law that parties are bound by their agreement.”
The initiating process in this appeal is the Amended Notice of Appeal deemed as properly filed and served on the 2nd day of December, 2020. Themoment the Amended Notice of Appeal was deemed properly filed and served, the proposed copy ceased to have any effect and became spent and of no useful purpose to serve any longer. The Appellants’ brief is rooted on the deemed Notice of Appeal. See the case of UTUNG & ANOR VS. NKANTION & ANOR (2019) LPELR–47811 (CA) wherein this Court stated the status of a Proposed Notice of Appeal and the Notice of Appeal deemed as properly filed.
Going forward therefore, any additional ground of appeal for which leave was sought and not contained in the Amended Notice of Appeal filed and served is deemed abandoned.
The Notice of Preliminary Objection filed by the Respondents succeeds in part with regard to the findings of the Court made on all the arguments contained in the said application.
RESOLUTION OF THE MAIN ISSUES
Having read and summarized the brief of arguments filed by the parties herein, I shall adopt the issues for determination as raised by the Appellant herein thus:
1. Whether or not the Court below was right in law to assume jurisdiction and to entertain the matter despite the fact that the parties agree in caseof any dispute or differences shall arise between the parties with respect to any matter pertaining to the agreement may referred to arbitration.
2. Whether the decision of trial lower Court relying on inadmissible Exhibit H and H2 does not amount to serious miscarriage of justice.
ISSUE ONE
Whether or not the Court below was right in law to assume jurisdiction and to entertain the matter despite the fact that the parties agree in case of any dispute or differences shall arise between the parties with respect to any matter pertaining to the agreement may referred to arbitration.
The Appellants’ Counsel had argued that by Clause 47 of the contract between the parties they were expected once any dispute arises, to give notice in writing to the other party and such disputes would be referred to arbitration. The said Clause 47 of the agreement between the parties provides follows:
“DISPUTE AND ARBITRATION
In case any dispute or differences shall arise between the parties with respects to any matter pertaining to this agreement, then either party may give notice in writing to the other, and such dispute or difference ishereby referred to the arbitration and final decision of an arbitrator to be appointed jointly by the parties of falling their agreement, by the Chief Judge of Zamfara State.”
It is trite that parties are bound by the clear words of their agreement and the intention of parties in an agreement should be given its true meaning. See the cases ofCBN VS. INTERSTELLA COMMUNICATIONS LTD & ORS (2017) LPELR–43940 (SC) and UWAH & ANOR VS. AKPABIO & ANOR (2014) LPELR–22311 (SC).
The position of the law is that parties are presumed to have intended what they have in fact said since an agreement ought to receive that construction which its language will admit and which will best effectuate the intention of the parties, and greater regard is to be had to the clear intention of the parties than to any particular words which they may have used. See the case of J. E. OSHEVIRE LTD VS. TRIPOLI MOTORS (1997) LPELR–1584 (SC).
However, the learned trial Judge averted his mind to clause 47 of the agreement between the parties containing the terms of the arbitration agreement in comparison with the evidence before it andrealized that an irreconcilable difference which might lead to the termination of the contract is in fact what should spark off the operation of the arbitration clause.
In the case of NIGERIA LNG LTD VS. AFRICAN DEVELOPMENT INSURANCE CO. LTD (1995) 8 NWLR (PT. 416) PAGE 677, Uwaifo, JCA (as he then was) listed five conditions for a resort to arbitration. They are: (a) that there is an agreement between the parties thereto or a statutory provision which compels arbitration in such matters; (b) that the parties before the Court are parties to the agreement or the transaction which compels arbitration; (c) that the arbitration sought is within the contemplation of the arbitration agreement or circumstances calling it; (d) that there is no sufficient reason why reference to arbitration should not be made; and (e) that the application for stay of proceedings pending arbitration was made in time as envisaged under Section 5 of the Arbitration Act.
Clause 47 of the parties’ agreement would have brought the instant appeal under these requisite conditions but for the circumstances surrounding this particular case. By the said clause 47, the parties electedarbitration as a convenient way of settling any dispute arising between them. However, the learned trial Judge was right not to have granted the application of the Appellants in terms of the agreement between the parties as I can see clearly from the record of appeal that the Respondents completed their own part of the contract to which the Appellants issued a satisfactory note acknowledging the completion of the contract to be 100% progress and satisfactory standard of construction. See the Exhibit A attached to the counter-affidavit to the Notice of Preliminary Objection filed by the Appellants at the trial Court at page 36 of the Record of Appeal.
The Appellants even went further to raise two vouchers for payments to be made to the Respondents. See Exhibit B1 and B2 attached to the counter-affidavit to the Notice of Preliminary Objection filed by the Appellants at the trial Court at page 37 and 38 of the Record of Appeal.
What is being referred to arbitration is the dispute between the parties which emanates from the contract between the parties. It is therefore important to understand what constitutes a dispute in a bid to clearly ascertainwhether the Court can proceed to enforce the contract between the parties notwithstanding the arbitration clause contained in the contract.
In the case of BENDEX ENGINEERING CORPORATION & ANOR VS. EFFICIENT PETROLEUM NIGERIA LIMITED(2000) LPELR–10143 (CA) (P. 54, PARAS A–B), the Court of Appeal referred to page 424 of the 5th Edition of Black’s Law Dictionary in defining dispute to mean “a conflict or controversy; a conflict of claims or rights; an assertion of right, claim, or demand on one side, met by contrary claims or allegations on the other.” Therefore, any assertion of right which is not denied or controverted by the other party does not amount to a dispute in law and can be enforced directly by the Court without referral to arbitration.
The Supreme Court in KANO STATE URBAN DEVELOPMENT COMPANY BOARD VS. FANZ CONSTRUCTION COMPANY LIMITED (1990) LPELR-SC. 45/1988 (pp. 58–60, PARAS. C–B) noted that there is no dispute within the meaning of an agreement to refer disputes where there is no controversy in being, a party already admits its liability but simply fails to pay.
This Courtin the case ofUNITED WORLD LIMITED INC. VS. MOBILE TELECOMMUNICATION SERVICES (1998) 10 NWLR (PT. 586) 106 held that:
“In case of an agreement with a clause for reference to arbitration, the subject must be such as is capable of being referred to arbitration. Where a party has admitted liability or compromised his stand, by some admission capable of altering the position of the parties in respect of the matter in dispute, the matter can no longer be for reference to arbitration.”
From the foregoing, it can be gleaned that a party can proceed to enforce its claims in Court against the other party where there is an admission of liability or no dispute of liability notwithstanding the presence of an arbitration clause in the contract between the parties. This is on the premise that there is no dispute between the parties that can be referred to arbitration as parties have not joined issues on the claimant’s claim.
Just as the trial Court has observed, the Appellants at the trial Court did not file any further affidavit to deny the averments of the Respondents contained in the Counter-Affidavit to the Notice of PreliminaryObjection filed by the Appellants at the trial Court that there was any breach leading to a termination of the contract or whether there is any failure by the Respondents to fully complete the contract.
If the Respondents had performed their own part of the contract and the Appellants have agreed that they have done so and agreed to pay them, I do not see any reason why the matter should be referred to arbitration when there is no dispute between the parties but for the Appellants to pay the Respondents what is due to them when they have agreed to do so in the first place. Doing so in my mind would amount to doing grave injustice against the Respondents which this Court would not permit.
Section 4(1) of the Arbitration and Conciliation Act, Laws of the Federation, 2004 provides as follows:
“A Court before which an action which is the subject of an Arbitration agreement is brought shall, if any party so request not later than when submitted his first statement on the substances of dispute, order a stay of proceedings and refer the parties to Arbitration.” (Emphasis Mine)
I am of the humble view that there is no substance ofdispute that should warrant the reference of the case to arbitration by the trial Court and neither did the Appellants state same except that the matter should be referred to arbitration because clause 47 of the agreement says so.
In the final analysis, the trial Court was right in law to have assumed jurisdiction and entertained the matter before it.
This issue is thus resolved against the Appellants in favour of the Respondents.
ISSUE TWO
Whether the decision of trial lower Court relying on inadmissible Exhibit H and H2 does not amount to serious miscarriage of justice.
Of the two issues formulated by the Appellants for the determination of this appeal, only issue one for now stands for consideration and which I have already done above.
The grounds of appeal contained in the Amended Notice of Appeal before this Court was not one of the grounds of appeal from which the Appellants herein had raised issue two for the determination of this appeal. The Appellants did not raise any eyebrow to the trial Court’s reliance on the evidence in Exhibit H and H2 in either of the two Grounds of Appeal contained in the Amended Notice ofAppeal filed before this Court.
The Appellants herein, also did not formulate any issue for the determination of the appeal from any of the grounds of appeal. Like I have already held during the determination of the Notice of Preliminary Objection, the Notice of Appeal filed on the 9th day of September, 2020 is substantive and therefore, any issue not raised from any of the grounds therein is incompetent and any argument made thereunder cannot survive as well.
In the case of WACHUKWU VS. OWUNWANNE (2011) 14 NWLR (PT. 1266) 1 AT 30 PARAGRAPH D, it was held that the Court can, where it deems an issue formulated for determination of an appeal is not distilled from a ground of appeal, suo motu strike out the said issue where it so finds in the course of writing its judgment. See also per Galinje, JSC in EMEJURU & ANOR VS. ABRAHAM & ORS (2018) LPELR–4633O (SC).
Issues must be attached to grounds of appeal to draw their life and nutrients from them. The grounds of appeal are the fulcrum that gives strength and support to the issues formulated and where no such issues are linked to the grounds of appeal that issue has no leg to standand must therefore collapse. It is trite that any issue formulated for determination must not only arise from the grounds of appeal but also relate to issues determined by the Court with correctness. See per Muntaka-Coomassie, JSC in MARTINS VS. COP (2012) LPELR–9821 (SC). The effect therefore is that such issue must be struck out. Issue two formulated herein by the Appellants is hereby struck out suo motu by this Court.
In conclusion therefore and having in mind all the above findings made by this Court on the issues raised for determination and argued by the parties herein, it is my decision that this appeal fails for lacking in merit and I hereby uphold the decision of the trial Court in its entirety.
This appeal is therefore hereby dismissed accordingly.
SAIDU TANKO HUSSAINI, J.C.A.: I read in draft, the lead judgment delivered by my lord Mohammed Baba Idris, JCA, with whom I agree in toto, the reasoning and conclusion. The appeal is dismissed.
MOHAMMED DANJUMA, J.C.A.: I have read in draft, the lead judgment prepared and delivered by my learned brother, Mohammed Baba Idris, JCA. I agree with the reasoning and conclusion. For thereasons so eloquently express in the lead judgment this lacks merit. I abide by the other orders in the lead judgment.
Appearances:
J. M. Dama Esq (S. S. C.)For Appellant(s)
V. O. Amechi Esq. For Respondent(s)