PASTOR EKONG E. OKON v. MRS. N. M. ASUMOGHA
(2019)LCN/13280(CA)
In The Court of Appeal of Nigeria
On Thursday, the 16th day of May, 2019
CA/C/313/2016
RATIO
APPEAL: THE TWO RIGHTS OF APPEAL
There are two types of right of appeal under the 1999 Constitution as provided for in Section 241(1) (a) and Section 242(1). The right of appeal from the High Court to the Court of Appeal is a constitutional right created by Section 241 of the 1999 Constitution (as amended). The Constitution creates two rights of appeal which are: (1) the right of an aggrieved party to appeal as of right and (2) the right of appeal with leave of Court. Where the decision appealed against falls within the cases enumerated under Section 241 (1) of the Constitution, an aggrieved party is entitled to appeal as of right. Where the decision of the High Court does not fit into any of the cases under Section 241 of the Constitution, an appeal shall lie from the decisions of the High Court to the Court of Appeal with the leave of the High Court or the Court of Appeal.PER YARGATA BYENCHIT NIMPAR, J.C.A.
APPEAL: INSTANCES WHEN AN APPEAL DOES NOT REQUIRE LEAVE TO APPEAL
The appeal here does not require leave to appeal, see MOUSSALLATI & ORS. VS. KNIGHT FRANK ESTATE AGENCY (2017) 42893 (CA) where I said:
“The Constitution does not say that the Appellants need to seek leave to appeal against a final judgment whether on grounds of fact or mixed fact and law. The Court in the case of ECO INTERNATIONAL BANK PLC VS. NIGERIA UNION LOCAL GOVERNMENT EMPLOYEES JALINGO LGC & ANOR. (2014) LPELR – 24171 (CA) held thus: “It is necessary to refer to Section 241 (1) (a) of the 1999 Constitution as Amended, which is hereby reproduced ‘An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases- (a) Final decisions in any civil or criminal proceedings before the Federal High Court or the High Court sitting at first instance in any civil or criminal proceedings.’PER YARGATA BYENCHIT NIMPAR, J.C.A.
APPEAL AS OF RIGHT: MEANING
By the aforementioned constitutional provision, appeal is as of right to this Court by any dissatisfied party on any ground of appeal, be it pure law, mixed law and fact, or fact.” See also AQUA LTD. VS. ONDO STATE SPORTS COUNCIL (1988) 4 NWLR (PT. 91) 622; MUAZU VS. BANI MUSA HOLDINGS LTD. (2011) ALL FWLR (PT. 594) 172 AND KWARA STATE MIN. OF HEALTH VS. MILI ENT. (2011) ALL FWLR (PT. 602) 1757.”PER YARGATA BYENCHIT NIMPAR, J.C.A.
APPEAL: WHERE AN ISSUE RAISED IS NOT SUPPORTED BY A GROUND OF APPEAL, IT WILL BE DISCOUNTENANCED
Where there is no ground of appeal supporting the issue raised, it will be discountenanced or rejected by the appellate Court. Grounds of appeal are the taproots of the case on appeal as they lay the foundation upon which the case grows in the appellate Court to fruition; see DAGACI OF DERE & ORS. VS. DAGACI OF EBWA & ORS. (2006) LPELR- 911(SC)PER YARGATA BYENCHIT NIMPAR, J.C.A.
APPEAL: GROUNDS OF APPEAL: IMPORTANCE AND PURPOSE
“Grounds of appeal have a fundamental purpose of audi alteram partem. The whole purpose of grounds of appeal is to give notice to the other side of the complaint or case he is going to meet and address at the appellate Court. See NIPC LTD. vs. THOMPSON ORGANISATION (1969) ALL NLR 134. That is why, and to avoid ambush, surprise and embarrassment the appellant caged and circumscribed by his grounds of appeal, is not allowed to go beyond his grounds of appeal to argue or raise issues for the determination of the appeal that are outside or alien to the grounds of appeal.” Per EKO, J.S.C in UGO VS UGO (2017) LPELR-44809 (SC).PER YARGATA BYENCHIT NIMPAR, J.C.A.
APPEAL: PARTICULARS OF GROUND OF APPAL MUST BE IN TANDEM WITH GROUNDS OF APPEAL
Of course, there is an 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 Olufeagba vs. Abdur-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.” See also Egbe vs. Alhaji (1990) 1 NWLR (Pt.128) 546; A. G. Oyo State vs. Fairlake Hotel (1988) 5 NWLR (pt.92) 1.PER YARGATA BYENCHIT NIMPAR, J.C.A.
APPEAL:GROUNDS OF APPEAL: THERE CANNOT BE A MIXTURE OF A GROUND ALLEGING ERROR OF LAW AND THAT CLAIMING MISDIRECTION OF FACTS
A party cannot name ground as error in law and turn it to one of misdirection on facts by the supporting particulars. There cannot be a mixture of a ground alleging error of law and misdirection in facts. However, the essence of the ground is covered by ground two.
There are litanies of cases dealing with how to test the efficacy of grounds of appeal. To mention just a few, see: Ade Coker vs. United Bank for Africa Plc. (1997) 2 NWLR. (Pt. 490) 641: Excel Plastic Industry Ltd. vs. First Bank of Nigeria Plc. (2005) 11 NWLR (Pt. 935) 59; Nwabueze vs. Nwora (2005) 8 NWLR (Pt. 926) 1; (2005) All FWLR. (Pt.255) 1000; Engineer Nura Khalil vs. Umaru Musa Yar’Adua & Ors. (2003) 16 NWLR (Pt. 847) 446PER YARGATA BYENCHIT NIMPAR, J.C.A.
APPEAL: PARTICULARS OF ERROR: NO RIGID RULES AS TO HOW PARTICULARS OF ERROR SHOULD BE COUCHED
It is trite that there is no rigid rule on how particulars of error should be couched, it is also trite that grounds of appeal can stand on their own as long as they are discernable and represent the complaint of the Appellant against the judgment. This was reiterated in the case of PROF. E. A. ABE VS. UNIVERSITY OF ILORIN & ANOR. (2013) LPELR – 20643 (SC) thus:
“Learned Counsel may be reminded that grounds of appeal may stand on their own once they represent an appellant’s complaint against the decision he is not satisfied with and in respect of which grouse he seeks the appellate Court’s intervention. Lack of or defective particulars in a ground of appeal would not necessarily render the ground itself incompetent”.PER YARGATA BYENCHIT NIMPAR, J.C.A.
EVIDENCE: DUTY OF A PARTY WHO STATES THAT THERE WAS FAILURE TO EVALUATE EVIDENCE
Furthermore, when a party complains about failure to evaluate evidence he is expected to specify in detail the piece of evidence not actually evaluated. See AKANMODE & ANOR VS. DINO & ORS. (2008) LPELR-8405 (CA) which held:
“The duty is on the Appellants who raised the issue of improper assessment/evaluation of evidence to identify or specify the evidence not properly assessed/evaluated and to show that if the error complained of had been corrected the conclusion would have been different and in their favour. See: THE STATE VS. BAKO YUSUF & ANOR. [2007] All FWLR (Pt.377) 1001 at 1010-1011.”PER YARGATA BYENCHIT NIMPAR, J.C.A.
COURT: DUTY OF THE TRIAL COURT AS REGARDS EVIDENCE
Having said that it is indubitably settled that the trial Court has the duty to evaluate all evidence presented during trial by both sides to ascribe value to it and arrive at a decision. The duty undoubtedly is that of the trial Court, see MKPINANG VS. NDEM (2012) LPELR-15536(SC) which held that:
“The trial Court had the duty to properly appraise the evidence before it. This is not the same thing as mere summary of evidence. Material evidence to be placed on an imaginary scale must be determined. This should be followed by evaluation of the evidence in order to determine on which side the scale tilts. The trial Court that saw and heard the witnesses is preeminently qualified to ascribe probative value to such evidence. See: Mogaji vs. Odofin (1978) 4 SC 91 at 94; Bello vs. Eweka (1981) 1 SC 101; Owoade vs. Omitola (1988) 2 NWLR (Pt. 77) 413 and Aromire vs. Awoyemi (1972) 1 All NLR (Pt. 1) 101.”PER YARGATA BYENCHIT NIMPAR, J.C.A.
COMPLAINT AGAINST EVALUATION OF EVIDENCE DOES NOT AFFAECT WEIGHT OF EVIDENCE
Furthermore, the complaint against evaluation presents a complaint against evaluation only and not against weight as held in the case of AWUSA VS. NIGERIAN ARMY (2018) LPELR-44377 (SC) as follows:
“The position of the law is that when an Appellant alleges that a decision is against the weight of evidence, he means that when evidence he adduced is balanced against that of the Respondent, Judgment in the Respondent’s favour is against the weight that should have been given to the totality of the evidence adduced – See Akinlagun VS. Oshoboja (2006) 12 NWLR (Pt. 993) 60 at 82 SC. The complaint is only concerned with appraisal and evaluation of all the evidence and not the weight to be attached to any particular piece of evidence – Osolu VS. Osolu (2003) 11 NWLR (Pt. 832) 608 SC.”PER YARGATA BYENCHIT NIMPAR, J.C.A.
DECLARATORY RELIEF: THE DUTY ON THE PERSON CLAIMING DECLARATPRY RELIEF AS REGARDS EVIDENCE
It is trite that any person seeking a declaratory relief must present cogent and convincing evidence to warrant the making of a declaration, and to establish their entitlements to the declarations by their own evidence. The Plaintiff is thus duty bound to satisfy the Court below. He had the burden of proof to establish such declaratory reliefs to the satisfaction of the Court. It was so held in the case of NDAYAKO & ORS. VS. DANTORO (2004) LPELR-1968(SC) thus:
“… the Court does not grant declarations of right either in default of defence or indeed on admissions without hearing evidence and being satisfied by such evidence, see Bello vs. Eweka (1981) 1 SC 101; Motunwase vs. Sorungbe (1988) 4 NWLR (Pt. 92) 90; Ogunjumo vs. Ademolu (1995) 4 NWLR (Pt. 389) 254 at 269.PER YARGATA BYENCHIT NIMPAR, J.C.A.
DECLARATORY RELIEF: WITHIN THE DISCRETION OF THE COURT
The making of a declaratory order is within the discretion of the trial Judge and the discretion should not be too readily exercised, per Taylor, JSC in Ogundairo & Ors. vs. Okanlawon & Ors. (1963) 1 All NLR 358.”
What a party who seeks a declaratory relief must show and whether same can be granted on mere admission or default of defence.PER YARGATA BYENCHIT NIMPAR, J.C.A.
EQUITABLE RELIEFS ARE AT THE DISCRETION OF THE COURTS TO BE GRANTED
It is trite law that equitable reliefs require exercise of the discretionary powers of the Court, which exercise must not only be judicial but judicious, based on the facts before the Court. It follows that there was no basis on which the Court below could properly ground the exercise of its discretionary powers in granting the said declaratory reliefs.PER YARGATA BYENCHIT NIMPAR, J.C.A.
