Chief Joseph Adesina V. Prince Edward a. Adeniran & Ors. (2006)
LawGlobal-Hub Lead Judgment Report
AUGIE, J.C.A.
The 1st respondent was the plaintiff at the Ila-Orangun High Court of Osun State in an action involving a chieftaincy dispute. He filed a motion on notice on the same day he filed the writ of summons, 12th February, 1999, for an order of interlocutory injunction restraining the 2nd – 4th respondents “from approving the appointment and/or installation of any person as the next Owa of Otan-Aiyegbaju from any other house/family, other than the Olamodi Ruling House”, and restraining the appellant herein “from presenting any other person outside Olamodi Ruling House to the Kingmaker for consideration as the next Owa of Otan-Aiyegbaju”. The application, which was opposed by the appellant and the 2nd & 3rd respondents, was granted by the lower court in its ruling delivered on the 13th of July 1999. On the 22nd of July 1999, the appellant filed a notice of appeal in this court against the ruling, and filed another application in the lower court on the 1st of February 2000 praying that the 1st respondent’s case be dismissed on the ground, –
“That it discloses no reasonable cause of action as it is frivolous, vexatious and as the plaintiff had been told by both the Court of Appeal and Supreme Court that he lacks the locus standi to sue”.
The application was opposed and after hearing arguments from the parties’ counsel, the lower court held in its ruling delivered on the 12th of April 2000 that the 1st respondent was “entitled to have his claim heard on its merit”, and refused the application, which he accordingly dismissed. Aggrieved, the appellant filed another notice of appeal in this court on the 8th of May 2000.
This court granted an order of consolidation of the two appeals on the 9th of April 2002. The appellant and 1st respondent filed and exchanged briefs of argument, and in the appellants’ brief prepared by Akinwumi Adeniran, Esq., 8 issues for determination were formulated as follows –
- Whether the High Court Judge can be said to have given the appellant fair hearing, when he conveniently omitted to avert his mind to the deductions and implications of the contents of the appellant’s affidavit in support of motion to dismiss 1st respondent’s case?
- Whether the Osun State High Court Ila, being an inferior court to both the Honourable Court of Appeal and Supreme Court can be allowed to reverse the pronouncement of both Superior Courts on the occupation of Owa of Otan-Aiyegbaju stool, which issue both the Honourable Court of Appeal and Supreme Court have conclusively ruled upon?
- Whether the learned trial Judge has the capacity to take the issue of counter-claim out of the context and out of the parameter of reasoning of the Supreme Court in Amusa Momoh & anor. v. Jimoh Olotu (1970) 1 All NLR 117 @ 126-127 and the decision of the Honourable Court of Appeal in Isiaka Sediu 3 Ors. v. A.-G. Lagos State & 3 Ors. (1986) 2 NWLR (Pt. 21) page 165.
- Whether the learned trial Judge was right in holding that he had some difficulty and anxious moments in respect of the truncated in FUTURO SPECULATIVE RIGHT of the 1st respondent? (sic)
- Whether the learned trial Judge was right in putting a clog in the Wheel of the Machinery of the selection process of Owaship of Otan-Aiyegbaju by granting the interlocutory injunction when all the necessary parties were not before the High Court; and the 1st respondent was so informed?
- Whether the learned trial Judge was right in injuncting a party already adjudged to have locus standi by both the Court of Appeal and Supreme Court.
- Whether the learned trial Judge was right in giving a hearing to a party in contempt of the Orders of both Honorable Court of Appeal and Supreme Court, when he refused to dismiss 1st respondent’s case?
- Whether the learned trial Judge was right in denying the Olasuka Ruling House their right to the Owaship of Otan-Aiyegbaju when he in granting an injunction which restricted appellant’s selection of the next candidate for Owaship to only a candidate from Olamodi Ruling House ONLY? (sic)
The 1st respondent however argued in his brief prepared by C. J. Chukwura, Esq., that the prolix and repetitive issues raised by the appellant are predicated on erroneous and incompetent grounds of appeal, which flagrantly contravene Order 3 rules (1) – (4) & (7) of the Court of Appeal Rules as amended, therefore there are no grounds of appeal before the Court of Appeal and no valid submissions can be extracted therefrom, since the two appeals are without foundation and cannot survive in law, as rules of court “have not been made for fun or to be only in the statute book”, citing Ekpan v. Uyo (1986) 3 NWLR (Pt.26) 63. It was further submitted that grounds 1 & 6 in the two notices of appeal against the two rulings do not target any error of fact or law and are therefore incompetent; that their profuse particulars are arguments/quotations from judgments and affidavits; and the appellant did not show in the so called “particulars” what way the learned trial Judge failed to direct his mind to the affidavit depositions.
The appellant however replied in his reply brief prepared by Akinwumi Adeniran Esq., that it was necessary to be prolific “in view of the precarious position and the sorry state of libraries, even among lawyers; for ease of reference, and proper documentation materials are being reproduced; and being repeated for emphasis”, and submitted that being prolific should not be an excuse for denying the appellant fair hearing, citing Obala of Otan-Aiyegbaju & Ors. v. Adesina & Anor. (1999) 2 SC 22 & 40 – 41; (1999) 2 NWLR (Pt. 590) 163. Furthermore, that the case of Ekpan v. Uyo (supra) showed that in spite of the strong criticism of the inadequacy of the grounds of appeal and the brief filed therein, this Court went ahead to do justice deciding the case on the merit, in consonance with Order 3 rule 2 (6) of the Court of Appeal Rules.
Now, pursuant to Order 3 rule 2(1) of the Court of Appeal Rules, all appeals shall be brought by a notice of appeal, which shall set forth the grounds of appeal, and by sub-rule (2) of the same rule 2 – “if the grounds of appeal allege misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated”.
The purpose of particulars in a ground of appeal is to highlight briefly when and how the error in law occurred. The particulars must be clearly stated and must be specific so as to give sufficient notice to the respondent to enable him prepare his reply brief. They also help the court in determining the errors complained of by the appellant – see Oyede v. Olusesi (2005) 16 NWLR (Pt. 951) 341. A proper ground of appeal must relate to its particulars within the judgment appealed against. In other words, to support the ground of appeal, the particulars must be drawn from the reasoning in the judgment of the trial court – see Nwabueze v. Nwora (2005) 8 NWLR (Pt. 926) 1.
Order 3 rule 2(3) of the Court of Appeal Rules further stipulates that the notice of appeal shall set forth concisely and under distinct heads, the grounds of appeal upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative- see Nwabueze v. Nwora (supra), where the court also held that the grounds of appeal should be elegantly couched with avoidance of duplicity, repetition, verbosity and prolixity, and must be cogent, concise and articulate. See also Tiza v. Begha (2005) 15 NWLR (Pt.949) 616 at 646 where the Supreme Court held –
“A ground of appeal must set out concisely and distinctly the complaints of the appellant against the decision appealed against and upon which he intends to rely without any argument or narrative. And the particulars required or necessary to support the ground must be such that they point direct to the error or misdirection … complained of in the ground, without being independent complaints themselves”.
Sub-rule (4) of the same Order 3 rule 2 further stipulates that “no ground which is vague or general in terms or which discloses no reasonable ground of appeal shall be permitted”. A ground of appeal is vague when it is not precisely, clearly or definitely expressed or stated, as when it is couched in a manner that does not provide any explicit standard for its being understood, or when the complaint is not defined in relation to the subject, or when it is not particularized or the particulars are clearly irrelevant. The consequence is that such a ground will be struck out for being incompetent – see A. W (Nig.) Ltd. v. Supermaritime (Nig.) Ltd. (2005) 6 NWLR (Pt. 922) 563; Gov., Ekiti State v. Osayomi (2005) 2 NWLR (Pt. 909) 67.
In this case, grounds 1 & 6 in the appellant’s notice of appeal dated 8th May, 2000, which is similar to that in the earlier notice, reads as follows –
Ground 1
The learned trial Judge breached the Fundamental Right of the 4th defendant to fair hearing in that the ruling of the court (did not) demonstrate in full a dispassionate consideration of the issues properly raised and heard and (did not) reflect the result of such an exercise. As the learned trial Judge CONVENIENTLY omitted to aver his mind to the deductions and implication of the contents of 4th defendant’s affidavit in support of motion to dismiss.
Particulars
Affidavit in support was sworn to by Anthony Okeyode on behalf of the 4th defendant and opened thus:
(1) That I am a member of the Olasuka Ruling House and I have the authority of the 4th defendant/applicant to swear to this affidavit.
(2) That the 4th defendant and myself are members of the Olasuka Ruling House which is the Ruling House entitled to present candidate for the Obaship of Otan Aiyegbaju by virtue of the 1957 Olotan Chieftaincy declaration; as held by the Supreme Court on 5/2/97.
(3) That the 4th defendant is the present head of Olasuka Ruling House and the Lajoka of Otan Aiyegbaju.
(4) That there are four Ruling Houses in Otan Aiyegbaju and all the four Ruling Houses are not before the court.
(5) That it is the Ruling House that presents a candidate to the Kingmakers.
(6) That the present suit was not filed by any of the Ruling Houses.
(7) That I believe this action is to further delay the progress of Otan Aiyegbaju.
(8) That in 1983 myself and the 4th defendant went to the High Court of Osogbo as Suit No. HOS/46/83 which went on Appeal as Suit No. CA/I/120/87, and on further appeal to the Supreme Court; as Suit No. S.C. 22/93 and judgment was delivered on 5/2/99.
(9) On 6/9/91, the Honourable Court of Appeal at Ibadan made the following Orders:
(i) Pursuant to the Olotan Chieftaincy declaration of 1957, it is the turn of the Olasuka Ruling House to provide a candidate(s) for selection by the six kingmakers for appointment as the next Owa of Otan Aiyegbaju.
(ii) The 7th respondent being one of the sons of the immediate past Owa of Otan Aiyegbaju. His Highness Oba G.A. Oyejobi Adeniran, Owa Olamodi II, from the Olamodi Ruling House, is not entitled to the appointed the Owa elect of Otan Aiyegbaju. Therefore his appointment and recommendation to the Oyo State Government through the Ila Local Government for appointment as the next Owa of Otan Aiyegbaju by the 1st, 2nd, 3rd, 4th, 5th and 6th respondents are ultra vires and therefore null and void and of no effect.
(iii) An injunction restraining the 1st to 6th respondents, their servants, agents or privies from parading the 7th respondent as the Owa elect of Otan Aiyegbaju.
(iv) An injunction restraining the 7th respondent from parading himself as the Owa elect of Otan Aiyegbaju. The appellants are entitled to costs which I assess at N1,000.00 (one thousand Naira) in this Court and N1,500.00 in the court below.
(10) The Kingmakers and one Edward A. Adeniran present plaintiff/applicant appealed to the Supreme Court.
(11) On 2/12/92, the Supreme Court dismissed the appeal of Edward A. Adeniran.
(12) That the lingering appeal of the kingmakers was dismissed on 5/2/99 by the Supreme Court at Abuja with N10,000.00 as costs when the Supreme Court held as follows:
“In the result, this appeal fails and it is dismissed. The judgment of the Court of Appeal, Ibadan Division in which it allowed an appeal brought by the plaintiffs/respondents from the judgment of Sijuwade J. is hereby affirmed. I award N10,000.00 costs in favour of the plaintiffs/respondents.”
Throughout the ruling of the learned trial Judge, there was nothing to show that he ever averted his mind to the implications of the above averments.
Ground 6
The learned trial Judge threw caution into the winds when he imposed the following injunction on the 4th defendant:
(ii) the 4th defendant is hereby restrained from presenting for the consideration of the kingmakers any candidate for appointment as the next Owa of Otan-Aiyegbaju other than from the Olamodi Ruling House pending the determination of substantive case.”
In that he ignored the age long caution the Supreme Court gave to High Court Judges in the case of Ajakaiye v. Idehai (1994) 8 NWLR (pt. 364) 504 at pages 525 to 526, the Supreme Court had this to say:-
“Where there is a statutory provision for making an order or declaration, and the making of the same is reposed in a named office, whether Minister or Commissioner, or indeed whether President of the Republic or Governor of a State, such function cannot be usurped by the Court. The furthest a court can go is to declare as to validity or otherwise of that order or declaration of a public officer, but the court has not got the jurisdiction to take over the functions of such public officer by making its own order or declaration as against the statutory provisions. Learned trial judge could nullify the declaration but no law permits him to make the alternative declaration; he was therefore in error to have substituted his own notion of how the declaration ought to be for that a public officer only could make under the Chiefs Law. (Adigun and Ors. v. Attorney General of Oyo State (1987) 1 NWLR (Pt.53) 678. The Chief’s Law of Bendel State (No. 16 of 1979) clearly lays down the procedure for making a Chieftaincy declaration and who is to make it. The Court is not to make such a declaration.”
Going by the above order of interlocutory injunction; NOT ONLY has the learned trial judge at the INTERLOCUTORY STAGE declared the Owa of Otan-Aiyegbaju Chieftaincy declaration of 1957 null and void, he has gone further to substitute his own declaration.
PARTICULARS
The learned trial Judge in his own wisdom reproduced part of the decision of the Court of Appeal in Suit No. CA/I/120/87 between plaintiff and 4th defendant as follows:-
“The appellants” claim is based on exhibit “M” which is a subsidiary legislation. It has not been amended and has remained in force since 29/6/57. It is deemed to be the customary law regulating succession when a vacancy occurs in the Olotan Chieftaincy. Since it was registered it excludes any other customary law or usage and will continue to be in force until amended or set aside by a competent Court.” (As italicised by the Judge himself).
The Honourable High Court has therefore set aside that declaration exhibit M by ordering the 4th defendant to resent a candidate ONLY from the Olamodi Ruling House when by the declaration it is not the turn of Olamodi Ruling House to present a candidate but that of OLASUKA”.
Obviously, Mr. Chukura is right. These are not grounds of appeal, whatever they are, they have no place in a notice of appeal, and if they purport to be grounds of appeal, they are definitely incompetent and must be struck out. But that is not all. Mr. Chukwura further contended that Grounds 2, 3, 4, 5, & 7 of the grounds of appeal in both notices of appeal complain against errors in law and fact in the same ground, which is procedurally irregular; that the lengthy so-called particulars are “submissions and arguments and amplifications” which is bad in law, citing Bala v. Bankole (1986) 3 NWLR (pt. 27) 141; and that the first portion of ground 8 in the second notice of appeal is a repetition of ground 1, while the rest of the ground is “up in the air and utterly without merit as no meaning can be attached to it”. I agree. The said ground 8 in the notice of appeal filed on the 8th of May 2000 reads-
“The learned trial Judge breached the fundamental right of the 4th defendant to fair hearing in that the ruling of the court (did not) demonstrate in full a dispassionate consideration of the issues properly raised and heard and (did not) reflect the result of such an exercise; in that the ruling of the Honourable High Court is against the spirit of the “sacred principles” of stare decisis since by that ruling the Honourable High Court has thrown over board the decision of both the Court of Appeal and the Supreme Court to the effect that it is the 4th defendant and his family Olasuko Ruling House that has the locus standi and that the plaintiff lacks the locus standi to sue in that matter.
Particulars
In striking out the counter-claim of the plaintiff in Suit No. HOS/46/83, CN/I/120/87, SC. 22/93 both the Honorable Court of Appeal and Supreme Court held that the principle in Seidu’s case is applicable to the plaintiff and that in this case he has no locus standi to sue. The High Court is bound by the reasoning and conclusion of both the Court of Appeal and the Supreme Court and therefore the High Court is duty bound to dismiss plaintiff’s case as lacking in locus standi to sue”.
In addition to the meaningless babble in the appellant’s grounds of appeal, Mr. Chukura also pointed out, and it is true, that the appellant transposed portions of a ruling into grounds of appeal in a notice of appeal on a totally different ruling, which he submitted is “stranger than fiction” because under the rules of this court, each notice of appeal is filed and directed against a particular ruling. Once again, I agree. It is well settled that grounds of appeal against a decision must be related to the decision being appealed against and should constitute a challenge to the ratio of the decision. Thus, a ground of appeal must arise from the judgment or ruling appealed against. Where it is not so related, the ground of appeal is incompetent and must be struck out – see International Offshore Construction Ltd. v. S.L.N. Ltd. (2003) 16 NWLR (pt. 845) 157; M.B.N. Plc v. Nwobodo (2005) 14 NWLR (pt. 945) 379 SC; & A.-G. Fed., v. A.N.P.P. (2003) 15 NWLR (pt. 844) 600 @ 645, where Oguntade JCA (as he then was) stated as follows-
“A ground of appeal should be a concise and succinct statement of the error or misdirection being ascribed to the judgment or ruling appealed against. The particulars then set out also briefly that aspect of the substantive or procedural law that has been infracted by the error or misdirection identified or complained of.” (Italics mine).
In this case, I hasten to say that there are no redeeming features in the grounds filed by the appellant; they must be struck out as incompetent. What makes his case even more pitiable is that this is not the first time his counsel will be committing the same blunders. In reply to the case of Ekpan v. Uyo (supra) cited by Mr. Chukura, wherein the Supreme Court held grounds of appeal should be drawn up with the greatest legal skill, accuracy, elegance and expertise which a solicitor can muster, Mr. Adeniran referred the court to the case of Obala of Otan-Aiyegbaju v. Adesina (supra).
It turns out that the appellant who was a party in that case, was also represented therein by Mr. Adeniran. Mohammed, JSC had this to say at page 179 –
“After the decision of the High Court, in this case, the appeal to the Court of Appeal, Ibadan, would have been a very straight-forward one in view of the provisions of the 1957 chieftaincy declaration for the stool of Owa of Otan-Aiyegbaju. But Mr. Akinwunmi Adeniran, learned counsel for the plaintiffs/appellants before the Court of Appeal, made a simple appeal difficult when he filed 11 grounds of appeal with particulars which were written in wide and irrelevant details. The grounds and the particulars given to them cover most of the pages in the judgment of the Court of Appeal. To make it worse the learned counsel formulated 22 issues, couched in a particular style which makes their meaning difficult to decipher. I agree entirely with both Chief Folake Solanke, SAN and Chief G.O.K. Ajayi, SAN, that the way the grounds of appeal were couched made it difficult for them to formulate issues from them. However, the learned Justice of the Court of Appeal went through such difficult analysis, following the observations and objections raised by the two Senior Advocates, and concluded that grounds 2, 3, 6, 7, 8, 9 & 10 were incompetent because the so called particulars given to the grounds did not identify how the decision, finding or holding of the learned trial Judge was faulty or erroneous. The learned Justice however accepted that grounds 1, 4 & 5, although inelegantly drafted, had some substance and he gave them a pass mark”. (Italics mine)
This time, I cannot indulge Mr. Adeniran. There comes a time, in my view, when the sins of counsel must be visited on his client. In this case, there is no pass mark that I can give any of the grounds of appeal in the two notices of appeal filed on behalf of the appellant, who unfortunately will have to bear the brunt of his counsel’s failure to obey the rules of court, which “have not been made for fun or to lie only in the statute books” – see Ekpan v. Uyo (supra).The said grounds failed all known tests used in assessing the validity of a ground of appeal. Consequently, they are incompetent and are hereby struck out. The appeal itself is thereby rendered incompetent and is also struck out. The respondents are awarded costs of N5,000.00.
Other Citations: (2006)LCN/1926(CA)
