Ahmadu Shuaibu V. Alhaji Adamu Maihodu (1993)

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OBINNAYA ANUNOBI OKEZIE, J.C.A.

This appeal is against the judgment of the Appellate Division of Bauchi State High Court delivered on the 23rd of October, 1985. The respondent, then plaintiff had sued the appellant’s father (now deceased) in the Area Court claiming ownership of a house and two farms. The root of the respondent’s claim was that the house and two farms were given to the appellant’s grandfather on loan and that after his grandfather’s death, his father Ahmadu confirmed the continuation of the loan from one Hajiya Kellu.
The appellant’s deceased father denied the claim and stated that the properties in dispute were a gift by the said Maiuguwa Ari and not as loan.

In all, nine witnesses were called, four on each side and the court called one. After hearing the witnesses and a visit to the locus in quo the Doma Area Court gave judgment in favour of the respondent.

The defendant now the appellant being dissatisfied with the judgment of the trial Doma Area Court, appealed to the Upper Area Court Gombe. The Upper Area Court heard additional evidence, allowed the appeal, and reversed the judgment of the trial court. The respondent in the Upper Area Court was not satisfied with the judgment and he appealed to the Bauchi State High Court sitting in its appellate jurisdiction. After hearing arguments from both sides, the High Court allowed the appeal for the reason among others that the additional evidence was improperly received by the Upper Area Court. It set aside the judgment of the Upper Area Court, Gombe and affirmed the judgment of the trial Doma Area Court.

The appellant was aggrieved by the decision and has now appealed to the Court of Appeal by a Notice of Appeal which set forth the grounds of Appeal pursuant to Order 3 Rule 2 (1) of the Court of Appeal Rules, 1981. The Notice of appeal filed on the 9th August, 1989, contained three grounds of appeal. These grounds are set out hereunder:
“(a) The Bauchi High Court erred in law when it held that the evidence adduced by Ahmadu (the appellant) was wrongly or not properly received.
(b) The Bauchi High Court misconstrued the provisions of S. 59 (1) of the Area Courts Edict and thereby arrived at the wrong decision.
Alternatively, the Bauchi High Court erred in failing to advert its mind to the provisions of S. 60 of the Area Courts Edict.
(c) The decision is altogether unreasonable unwarranted and cannot be supported having regard to the weight of evidence.”

The parties in this appeal filed their respective briefs of argument. The appellant’s brief of argument which is dated 6th December, was filed on the same 6th December, 1991. Whilst the respondent’s brief of argument was filed on the 26th March, 1992.

Pursuant to Order 6 rule 3 (a) of the Court of Appeal (Amendment) Rules, 1984, the appellant formulated what are in his view the issues arising in the appeal.
Those issues are as follows:
“(1) Whether the High Court was in error when it held that the Upper Area Court, Gombe admitted fresh evidence.
(2) If issue one above is answered in the affirmative, whether such evidence was wrongly received by Upper Area Court, Gombe in view of the provisions of Section 59 (1) of the Area Courts Edict 1968.
(3) Whether the Bauchi State High Court sitting on appeal was justified in reversing the judgment of the Upper Area Court, Gombe.
(4) Whether the judgment of the Bauchi State High Court is justified having regard to the evidence and facts of the case.”

The issues formulated in the respondent’s brief are related to the issues formulated by the appellant.

When the appeal came up for hearing on the 6th, January, 1993, Mr. Hamman learned counsel for the respondent drew out attention to the notice dated the 26th, March, 1993 and filed on the 28th March, 1993 of the intention of the respondent to raise a preliminary objection to grounds a, b and c. Under Order 3 r 15 of the Court of Appeal Rules 1981.
The grounds of objection are:
“(1) That grounds of appeal number ‘a’ and ‘b’ alleging errors in law are unsupported by any particulars.
(2) That grounds ‘b’ and ‘c’ of the grounds of appeal are general and vague.
(3) That ground ‘C’ of the grounds of appeal is not known to civil appeals.”

It was the contention of Mr. Hamman learned counsel for the respondent that grounds ‘a’ and ‘b’ of the grounds contravene the provisions of Order 3 rule 2 (2) of the Court of Appeal Rules 1981. Order 3 r 2 (2) states that:

“If the grounds of appeal alleged misdirection or error in law the particulars and the nature of the misdirection or error in law shall be stated.”

Mr. Bitrus learned counsel for the appellant did not file a reply to the objection to these grounds raised in the respondent’s brief of argument. Although the filing of a reply is not mandatory under Order 6 Rule 5 of the Court of Appeal Rules 1984. But where an appellant fails to file a reply to a point of law raised in the respondent’s brief and merely relies on or adopts his brief at the hearing of the appeal, without an oral reply, it may amount to a concession of the points of law or issues raised. See: Popoola v. Adeyemo (1992) 8 NWLR (pt 257) 1 at 32.

All these notwithstanding there is a long line of authorities that a ground of appeal which alleges a misdirection or an error in law must in, addition to clearly stating the passage where the misdirection or error in law was alleged to have occurred, state the nature of the error and give full and substantial particulars of the alleged error or misdirection. And in this regard I will refer to the following passages in Anyaoke & 3 Ors v. Felix C. Adi (1986) 2 NWLR (Pt 3) 731 at 741, Uwais, J.S.C. in considering Order 7 rule 2 (2) of the Supreme Court Rules, 1977 which is in pari materia with Order 3 r 2 (2) of the Court of Appeal Rules 1981 stated thus:
“The effect of this is that once an error in law or misdirection is alleged in a ground of appeal the particulars of the error or misdirection must be given.”
Also in Okeke Anadi v. Okeke Okoli (1977)7 S.C. 57, Idigbe, J.S.C. observed at page 63 that:
“It is settled by a long line of decisions that where a ground of appeal alleges ‘error in law ‘or’ misdirection’ on the part of the Court of trial particulars of the said errors or misdirection must be given (i.e. set out clearly) in the ground of appeal.”
See Adeniji v Saka Disu (1958) SCNLR 408; (1958) 3 FSC 104, Atuyeye v. Ashamu (1987) 1 NWLR (Pt 49) 267 at 279; Nsirim v. Nsirim (1990) 3 NWLR (Pt 138) 285 at 297.
It is to be noted that the requirements of Order 3 rule 2 (2) relating to grounds of appeal as shown in decided cases are:
“(i) Allegation of misdirection or error in law.
(ii) Clear statement of the passage where the misdirection or error is alleged to have occurred.
(iii) The nature of the misdirection or error must be specified.
(iv) Full and substantial particulars of the alleged error or misdirection.”

As the grounds (a) and (b) of the grounds of appeal which allege misdirection or error in law have not complied with any of the particulars such grounds are incompetent and must be struck out.

Grounds (a) and (b) failed to specify the nature of the alleged misdirection or error in law and are therefore incompetent, and are hereby struck out.

Learned counsel for the respondent further submitted that the appeal before the Court was incompetent on the ground that the third ground (c) which reads:
“The decision is altogether unreasonable, unwarranted and cannot be supported having regard to the weight of evidence.”
Was not in accordance with Order 3 rule 2 (1) of the Court of Appeal Rules 1981.

It is pertinent to set down the provisions of Order 3 rule 2 (4).
“4. No ground which is vague or general in terms or which discloses, no reasonable ground of appeal shall be permitted, save the general ground that the judgment is against the weight of evidence, and any 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.”
This rule relates directly against grounds which are vague and expressed in general terms thereby disclosing no reasonable ground of appeal. The last mentioned sub-rule expressly saves from invalidity appeals in civil cases on the ground that “The judgment is against the weight of evidence”. The Supreme Court stated the principle clearly in the following decisions; Elijah Okezie v. The Queen (1963) 1 All N.L.R. 1 at 3; Mobil Oil Nigeria Ltd v. Coker (1975) 3 S.C 175, (1963) 1 SCNLR 24; Atuyeye & Ors v Ashamu (supra). Ground (c) which is reproduced above is incompetent in a civil appeal. It was held that where the wrong or inappropriate form is used the ground will be struck out; See Chrisray (Nig.) Ltd. v. Elson & Neil Ltd., (1990) 5 NWLR (Pt 152) 604 at 614; Otti v. Otti (1992) 7 NWLR (Pt 252) 3 NWLR (Pt. 140) 630 at 640; Innih v. Ferado Agro & Const. Ltd. (1990)187 at 203.

The above ground of appeal set forth in the Notice of Appeal is appropriate only in a criminal appeal. A Notice of Appeal filed which sets forth no grounds of appeal as Order 3 r 2 (1) provides that there is no competent appeal before the court.
In the circumstance, ground (c) of the ground of appeal is hereby struck out.

It follows that having struck out all the grounds of appeal no appeal has been brought. The appeal is therefore dismissed with costs assessed in favour of the respondent in the sum of N500,000.00 against the appellant.

Other Citations: (1993)LCN/0160(CA)