Barrister Mike Nkwocha & Ors V. Mtn Nigeria Communications Ltd. & Anor (2008)
LawGlobal-Hub Lead Judgment Report
PETER-ODILI, J.C.A.
This is an appeal against the decision of Honourable Justice B.F.M. Nyako of the Federal High court, Abuja dated 2nd February, 2005, wherein the learned trial Judge struck out the appellant’s suit in line with the decision in a sister/similar suit and for want of prosecution. The appellants being dissatisfied have filed this appeal.
Statement of Facts:
The appellants (as plaintiffs in the trial court) filed a writ and statement of claim on 25th March, 2004 at the Federal High Court, Abuja. In the suit, the appellants alleged several breaches of contract by the respondents (defendants in the Court below). They also alleged breaches by the respondents of their (i.e. respondents) Digital Mobile Licences in that the respondents failed (according to the appellants) to ensure that the traffic capacity provided in their systems would be dimensioned to guarantee a satisfactory grade of service.
The appellant therefore sought, inter alia, an order directing the defendants jointly and severally to render accounts of money received on behalf of the plaintiff’s the sum representing the monetary value of dropped and uncompleted calls (see pages 44-45 of the record).
The 1st and 2nd respondents respectively filed their notices of preliminary objection without filling their statement of defence. The matter was adjourned for hearing of the preliminary objections. On the date slated for hearing of the objection, counsel representing the 1st respondent applied that the decision on a similar notice of objection filed in a similar suit of NAAC v. MTN suit No: FHC/ABJ/CS/M/517/2003 pending before the same court (infact the same Judge) should apply to the instant case. All the parties were represent by counsel on that date and they raised no objection.
In fact, counsel to the appellants (then plaintiffs) said he had no objection. The court subsequently adopted that procedure (see page 86 of the record).
The court delivered a ruling in NAAC v. MTN on 21st October, 2004, wherein it sustained the similar notice of preliminary objection filed by the 1st respondent therein. On the 11th November, 2004, the court adjourned the appellants’ suit for hearing on 2nd February, 2005 in the presence of the appellants’ counsel.
On the date slated for hearing, the appellant was absent and unrepresented. The court struck out the matter in line with the decision reached on the notice of preliminary objection in the other suit and for want of prosecution. The appellants thus lodge the instant appeal.
Learned counsel for the appellant filed an appellants’ brief and formulated three issues for determination which are: –
I. Even though it neither heard nor determined the respondents’ preliminary objection, whether the trial court was right to strike out the appellants’ suit on the basis of its earlier decision in a different case not involving the appellants and without hearing the appellants.
- Whether the trial court was right to have considered legal and factual issues raised suo motu by the court in striking out the suit without affording the appellant the opportunity of being heard.
- Whether the trial court was right in striking out the appellants’ suit for want of prosecution.
The 1st respondent filed their brief on 1/3/06 which was deemed filed on 18/10/06 and in it framed only one issue which is: –
Whether in view of the procedure adopted by the parties, the trial court was wrong in applying the decision reached in suit No. FHC/ABJ/CS/M/517/2003 between Nationwide Action Against Corruption v. MTN Nigerian communications Limited to the appellants suit.
The 2nd respondent filed their brief on 30/10/06 and it was deemed filed on 23/11/06. They couched three issues for determination which are as follows: –
- Whether the learned trial Judge was in en-or to have relied on the decision in a similar/sister case to determine this suit?
- Whether from the circumstances of this case, it can be said that the learned trial Judge raised any issue suo motu without the input of counsel to parties.
- Whether appellants’ case was properly struck out for want of prosecution?
The appellants’ counsel abandoned issue No.2 which I strike out and so we shall consider issues I and 3, as couched by the 2nd respondent as they seem simpler and would aid the court without difficulty.
Issue No. 1:
Whether the learned trial Judge was in error to have relied on the decision in a similar/sister case to determine this suit.
Learned counsel for the appellant, Mr. Anyanwu sad that the trial court erred by striking out the substantive suit on the basis of its earlier decisions in different cases not involving the appellants and without hearing the appellants. That court by a fundamental principle of the administration of justice have the duty to hear and determine all applications brought before them on the merit. He cited N.D.I.C. v. Ifediegwu (2003) 1 NWLR (Pt. 800) 56 at 81.
Learned counsel said the trial court was bound to hear and determine the merit of the respondents’ preliminary objections, notwithstanding that the trial court may have determined similar issues in unrelated cases. He cited Mobil Production (Nig.) Unlimited v. Monokpo (2003) 18 NWLR (Pt.825) 346 at 412 – 413; Irolo v. Uka (2002) 14 NWLR (Pt. 786) 195 at 205; Chevron (Nig.) Ltd. v. Warri North L.G.C. (2003) 5 NWLR (Pt. 812) 28; Olowolaramo v. Umechukwu (2003) 2 NWLR (Pt.805) 537.
Mr. Anyanwu of counsel said the trial court neither heard nor determined the respondents’ preliminary objections, as a prelude to declining jurisdiction and so the trial court committed reversible error.
Mr. Aderogba for the 1st respondent said that one of the grounds in the said notice of preliminary objections is as follows: –
“The requisite statutory condition precedent to the institution of this suit has not been fulfilled.”
He referred to paragraphs 5 and 6 of the affidavit in support of the objection. He stated on that it was agreed by all the parties in the lower court that the substance of the objection was similar to that filed by the 3rd defendant (i.e. the 1st respondent herein) in suit No: FHC/ABJ/CS/M/517/2003 between Nationwide Action Against Corruption v. MTN Nigeria Communications Limited, a suit filed by counsel in this suit. He referred to 6th July 2004 when the objection came up for hearing. That two things are discernible from the proceedings and that is that all the parties agreed that the grounds of the 1st respondents’ objection in the case are the same as those raised in suit No: FHC/ABJ/CS/M/517/2003:
(ii) All the parties agreed that hearing in the case should abide the decision on the preliminary objection argued in suit No: FHC/ABJ/CS/M/517/04.
Learned counsel said consistent with the procedure already adopted when the suit came up on 7th October, 2004 was what happened during the proceedings of 7th October, 2004. That after the ruling in suit No: FHC/ABJ/CS/M/517/04 on 21st October, 2004, which sustained the objection in that case, the appellants’ suit in this case came up on 28th October, 2004 for mention and was therefore adjourned to 11th November, 2004 for mention. That it was when on 2nd February, 2005, the suit came up for heating and the plaintiffs’ counsel, who was in court on 11th November, 2004, was absent that the 1st respondent’ counsel observed and applied thus:
“The plaintiff must have taken the hint from the sister case. That is why (sic) they are not in court. I apply that the suit be struck out with cost of N 10,000.00.”
Learned counsel for the 1st respondent further stated that they truly in spirit of the procedure adopted by the parties, the trial Court did not hesitate in striking out the case in the light of the outcome of the preliminary objection in suit No. FHC/ABJ/CS/M/517/04. That it is trite law that where parties to a case adopted a particular procedure, as in this case, or where a party consented to a procedure he cannot challenge the procedure on ground that it worked injustice against him even if, which is not conceded the procedure was wrong or irregular. He cited Olubode v. Salami (1985) 2 NWLR (Pt. 7) 282 at 296-297 G-H; Unity Life & Fire Insurance Co. Ltd. v. I.B.WA. Ltd. (2001) 7 NWLR (Pt. 713) 610 at 626; Williams v. Mokwe (2005) 14 NWLR (Pt. 945) 249 at 265, 266, 267; Ipinlaiye II v. Olulokun (1996) 6 NWLR (Pt. 453) 148 at 167.
Learned counsel for the 1st respondent went on to say that all the issues in the objection filed by the 1st respondent were issues already canvassed and fully argued in suit No. FHC/ABJ/CS/M/ 5/7/04 and the parties, of their volition agreed that hearing in this suit awaits the resolution of the threshold issues raised in suit No. FHC/ABJ/CS/M/517/04. That it is therefore not true that the trial Judge did not resolve all the issues in the preliminary objection in this case. That given the threshold nature of the issues raised in the objection, the court below had a valid reason not to consider the appellants’ case on the merit as to do so would have amounted to an exercise in futility, He cited the case of The State v. Onagoruwa (1992) 2 NWLR (Pt. 221) 33 at 52-59.
Mr. Aderogba further stated that what is important is the determination of whether the appellants were given fair hearing is not whether he was actually heard but whether he was given an opportunity of being heard. He referred to Malgit v. Dachen (1998) 5 NWLR (Pt. 550) 384 at 394; Kaduna iles Ltd. v. Umar (1994) 1 NWLR (Pt. 319) 143 at 159; Malgwi v. Gadzama (2000) 11 NWLR (Pt. 678) 258 at 268-269; Okotcha v. Herwa Ltd. (2000) 15 NWLR (Pt. 690) 249 at 257-258 .
That in the instant case, that appellants were given the opportunity of being heard which explained why inspite of the fact that the ruling in suit No. FHC/ABJ/CS/M/517/2003 was delivered on 21st October, 2004. The court still adjourned hearing in this case to 2nd February, 2005 to enable parties to be heard before deciding on the next stage of action in the aftermath of the said ruling. That the appellants fail to avail themselves of the opportunity afforded them and so they cannot be heard to complain.
Learned counsel for 2nd respondent said that it was right of the trial Judge to resort to the similar case for determination of the suit as it is well grounded in law and procedure. That in our common law system, the doctrine of stare decisis is strictly obeyed and applied. That it simply connotes that a court should stand by previous decisions and a court is not permitted to approbate and reprobate. That it is forbidden as it will destroy the principle of certainty which justice is known and reputed for. He cited Garba v. Galadima (1993) 4 NWLR (Pt. 285) 72; Eperokun v. University of Lagos (1986) 4 NWLR (Pt. 34); Global Trans. Oceanico S.A. v. Free Enterprises (2001) 5 NWLR (Pt. 706) 426.
Mr. Esangbedo for the 2nd respondent said that a party that has consented to a wrong procedure though not concede as such here, such a patty cannot subsequently challenge that procedure. He cited NASCO Management Services v. Amaku Transport (1999) 1NWLR (Pt. 588) 576 at 588.
He stated on that it is settled law that the decision of a court of trial on the facts is presumed to be correct and the presumption must be rebutted by the party seeking to set aside the judgment. He cited Musa v. Yerima (1997)7 NWLR (Pt. 511) 27 at 44; William v. Johnson (1937) 2 WACA 253.
That the appellant has not offered any distinguishing factors between this case and suits No. FHC/ABJ/M/517/2003 relied upon by the learned trial Judge. That the position of the law is that he who assert must prove. He cited section 136 of the Evidence Act and the case Shija v. Fari (1986) 2 NWLR (Pt. 21) 147. That the burden of proving a distinction between appellants’ case and suit No. FHC/ABJ/517/2003 is on the appellant and this he has failed to prove.
That is a summary of the submissions of counsel on whether or not the trial court should have utilised the other case’s decision to decide the present one thus bringing into the picture the doctrine of precedents.
The doctrine of precedents or what is normally referred to as stare decisis lays down the golden rule that decisions of higher courts of the land are binding on the lower courts in the land. And decisions of courts of co-ordinate jurisdiction are binding as between those courts. See Global Trans. Oceanico SA v. Free Ent. (Nig.) Ltd. (2001)5 NWLR (Pt.706) 426 at 441; Eperokun v. University of Lagos (1986) NWLR (Pt. 34) 169.
It is trite law that a trial court must decide a case on legal evidence adduced and where it has failed to follow this course, an appeal court will interfere. See Shija v. Fari (1986) 2 NWLR (Pt.21) 147; Muomvoekwu v. Egbunike & Anor.(1959) ENLR 53; Alashe v. Ilu (1964) 1 All NLR 390.
The proceedings that gave rise to this appeal had as background from 6//7/04 when the matter was for hearing of the preliminary objection and I will recant from pages 86-91, of the record of proceedings.
“Parties: Absent,
Counsel: Igo Elijah for the plaintiff.
A.I. Aderogba for the 1st defendant.
O.K. Ukoha for the 2nd defendant.
Mr. Elijah: The matter is for hearing of the preliminary objection.
Mr. Aderogba: We have a notice of preliminary objection dated 30/4/04 and another by the 2 defendants dated 26/5/04. In respect of our preliminary objection the grounds are the same as those raised in FHC/ABJ/M/517/2003, between Nationwide Action Against Corruption v. NITEL & Ors. argued by us, and ruling has been reserved to 5/10/04 in this light we pray the court that hearing in this case await that ruling.
Mr. Ukoha: We have a preliminary objection to the suggestion of the 1st defendant’s counsel.
Mr. Elijah: No objection if we are bringing the processes in that other case.
Court: The case is adjourned to 7/10/04 pending the outcome of the other case.
Signed
Hon. Justice B.F.M. Nyako
Judge
6/7/04.”
On the 7/10/04 the following transpired:
“Parties: Absent
Counsel: Elijah Igo for the plaintiff.
M.S. Ibrahim for the 1st defendant.
O.K. Ukoha for the 2nd defendant.
Mr. Ukohra: I suggest we adjourn (sic) to after the ruling of 14/10/04 which would not be delivered on 5/10/04.
Court: Case adjourned to 19/10/04 for mention.”
On the 19/10/04 the following took place:
“Parties: Absent.
C.C. Anocha Esq. for the plaintiff.
O.K. Ukoha Esq. for the 2nd defendant.
A.I. Aderogba Esq. for the 1st defendant. No sitting due to his Lordship’s (sic) ill bereavement, 28/10/04 for mention.
Registrar.
19/10/04.”
On the 28/10/04 this was recorded:
“Parties: Absent.
Tony Anyanwu Esq. for the plaintiff.
Rotimi Oguneso Esq. for the 1st defendant.
S.B. Eta (Miss) for the 2nd defendant.
No sitting due to his lordship’s (sic) iii dependants,
11/11/04 for mention.
Registrar.
28/1004.”
On the 12/11/04 it was recorded:
“Parties: Absent.
Counsel: Chimezie Anocha for the plaintiff.
Rotimi Oguneso for the 1st defendant.
Mr. Oguneso: We ask for a date for hearing.
Mr. Anocha: No objection.
Court: Case adjourned to 2/2/05 for hearing.”
On the 2/2/05 the learned trial Judge recorded as follows.”
Parties: Absent.
counsel: A.I. Aderogba with A.S. Omotosho (Miss) for the 1st defendant (sic).
O.K. Ukoha for the 2nd defendant.
Mr. Ukoha: We urge the court to strike out the suit. We also ask for cost.
D Mr. Aderogba:The plaintiff must have taken the hint from the sister case. That is (sic) why they are not in court.
I apply that the suit be struck out with cost of N10,000.00
court: Suit struck out in line with the decision in the sister/similar case and for want of prosecution.
N10,000.00 cost each to the 1st and 2nd defendants respectively against the plaintiff.”
It is contended for the appellant that their right to fair hearing was Jeopardised since a full hearing of their process was not made.
It is without dispute that any decision of a court, that determined a persons’ civil rights and obligations without giving the person whose rights and obligations were so determined the opportunity of making representations must be declared void on appeal. The decision would stand in conflict with the provision of section 36 of the Constitution of the Federal Republic of Nigeria, 1999. N.D.I.C. v. Ifediegwu (2003) 1 NWLR (Pt. 800) 56 at 80-81; U.B.N. Plc v. C.FA.O. (1997) 11 NWLR (Pt.527) 118; Ekiyor v. Bomor (1999) 9 NWLR (Pt. 519)1.
Having restated the proceedings on the relevant dates and the roles of counsel on either side, the question that has arisen is whether in fact the appellants’ right to fair hearing was withheld.
Where a party to a suit has been accorded a reasonable opportunity of being heard in the manner prescribed under the law, and for no satisfactory explanation he fails or neglects to attend the sitting of the court the party cannot thereafter be heard to complain of lack of fair hearing. See Okotcha v. Herwa Limited (2000) 15 NWLR (Pt. 690) 249; A.S.R. Co. Ltd. v. O.O. Biosah & Co. Ltd (1997) 11 NWLR (Pt. 527) 145.
A breach of the rule of fair hearing results in the nullification of the proceedings however well decided they might be. However, a failure on the part of a court to consider all the issues that have been joined by the parties and raised before it for determination may or may not result in the setting aside of the decision reached depending on whether or not miscarriage of justice is occasioned thereby. See Irolo v. Uka (2002) 14 NWLR (Pt.786) 195.
A considered look at what transpired in the court during those dates recorded shows quite clearly that the appellants not only had the right to be heard, they were heard.
What seems to be the straw on which the appellants are hanging on is that even though appellants consented to the procedure adopted as borne out by the record of proceedings, that consent can now be of no effect and that inspite of appellants’ consent to the procedure adopted they can now resile and impugn the process.
In Unity Life and Fire Insurance Co. Ltd. v. I.B.WA. Ltd. (2001) 7 NWLR (Pt. 713) 610, Iguh J.S.C. at p. 626.
“Where a party to a civil proceeding consented to a procedure at trial which procedure is neither unconstitutional nor merely wrong or irregular and he in fact suffered no injustice and no miscarriage of justice is thereby occasioned, it would be too late to complain on appeal about such wrong procedure having been adopted simply because that party lost the case in the trial court.” Okeke v. Obidife (1965) 1 All NLR 50.
A party who has consented to a procedure adopted by the trial Judge cannot subsequently challenge the procedure on the ground that it worked injustice on him. Olubode v. Salami (1985) 2 NWLR (pt.7) 282; Akhiwu v. The Principal Lottery Office, Mid-Western State (1972) 1 All NLR (Pt.1) 299 at 234.
Where counsel appearing for a party agrees to a particular procedure in court and that procedure turns out negatively, he will not be allowed to resile from the agreement. Williams v. Mokwe (2005) 14 NWLR (Pt. 945) 249 at 265.
A party who has consented to a wrong procedure by a Judge cannot subsequently challenge that procedure. Furthermore, where a party has consented to a wrong procedure at the trial court and in fact suffers no injustice, it would be too late to complain on appeal that the wrong procedure was followed. Nasco Management Services Ltd. v. A.N. Amaku Transport Ltd. (1999) 1 NWLR (Pt. 588) 576; Olubode v. Salami (1985) 2 NWLR (Pt. 7) 282; Ayanwale v. Atanda (1988) 1NWLR (Pt. 68) 22; Akhiwu v. Principal Lotteries Officers Mid-Western State (1972) 1 All NLR (Pt. 1) 229; Colony Development Board v. Kamson (1955) 21 NLR 75.
Once a party has made an election he cannot be heard to change his mind Ekperokun v. University of Lagos (1986) 4 NWLR (Pt. 34) 162.
It is argued for the appellants that the procedure to be followed is a mandatory statutory provision directing a procedure and as such cannot be waived by the appellant. This the respondents through counsel have not accepted.
That submission of counsel for the appellants cannot be taken at face value as if the alleged irregularity complained of was no objected to timeously and no miscarriage of justice was occasioned thereby, there is no justification for the applicant to raise it on appeal.
See State v. Gwonto (1983) 1 SCNLR 142.
It is true that the competence of a court or of the proceedings in court is a fundamental issue which cannot be waived even if the reason for seeking the waiver is based on the argument that it is in the interest of substantial justice. Once the incompetence is established, the consent of the parties cannot validate what took place under it and preclude the inevitable result of nullity. See Menakaya v. Menakaya (2001) 16 NWLR (Pt. 738) 203 at 263; Odofin v. Agu (1992) 3 NWLR (Pt. 229) 350; Olanrewaju v. Government of Oyo State (1992) 9 NWLR (Pt. 265) 335.
It is not every slip in a judgment that will result in the judgment being set aside and the appeal against allowed. It is only when such a slip or error is substantial in that it has occasioned a miscarriage of justice that the appellate court is bound to interfere. Ipinlaiye II v. Olukotun (1996) 6 NWLR (Pt. 453) 148 at 174; Onajobi v. Olanipekun (1985) 450 (Pt. 2) 156 at 163; Oje v Babalola (1991) 4 NWLR (Pt. 155) 267 at 282; Ike v. Ugboaja (1993) 6 NWLR (Pt.301) 539; Famuroti v. Agbeke (1991) 5 NWLR (Pt. 189) 1.
I may not handle the proceedings as the learned trial Judge did but clearly there has not been a miscarriage of justice nor the substance of what is at stake compromised. The appellants with the respondent supervised by the trial Judge chose a method that was found by them all convenient and not fundamentally defective. It met the justice of the case and it is now too late for the appellant just because they lose to distance themselves from what they were party to. See Williams v. Mokwe (supra) at 265; Olubode v. Salami (supra) 282; Unity Life & Fire Insurance Co. Ltd. v. I.B.WA. Ltd. (2001) 7 NWLR (Pt. 713) 610 at 626.
It is on that note and the foregoing, that I answer the issue No. 1 in the negative, that is, the learned trial Judge was not in error to have relied on the decision in a similar/sister case to determine this suit. All that I have to say is that the learned trial Judge should have in making the ruling given more details of the ratio decidendi of the sister case based upon which the decision in the present suit would be easily seen. That however did not detract from the substance of what happened and that the principle of fair hearing was accommodated and the appellants consented with full knowledge of the implication of the procedure adopted.
Issue 2 (formerly 3):
Whether the trial court was right in striking out the appellants’ suit for want of prosecution.
Learned counsel for the appellant said the trial court was wrong in striking out the appellants’ suit for lack of prosecution as Courts are to be hesitant in making such orders. He cited Ogar v. James (2001) 10 NWLR (Pt. 722) 621 at 637.
He said the record is bereft of “inordinate delay” that would have manifestly indicated non-diligent prosecution. That by contrast and as evidenced by the record of appeal, the appellants’ counsel has diligently prosecuted this mater.
Learned counsel for the 1st respondent said that at page 2 of the appellants’ brief, learned counsel for the appellants after formulating their issue III, indicated that the issue is drawn from “grounds 1 & 4”. That a combined reading of the alleged error of law in ground 1 and particulars of error attached thereto, what the appellants challenged was the striking out of the suit in line with the decision in the sister/similar case and there was no particulars of error with respect to want of prosecution. That the appellants issue III now II has no nexus with ground 1 of the notice of appeal and so it cannot arise therefrom. He cited Western Sate Works Ltd. v. Iron & Steel Workers Union of Nigeria (1987) 1 NWLR (Pt. 49) 284 at 304, Okpala v. Ibeme (1989) 2 NWLR (Pt. 102) 208 at 220; Agwasim v. Ejivumenvehaye (200t) 9 NWLR (Pt. 718) 395 at 407-408.
Learned counsel for the 1st respondent said that ground 4 is the omnibus ground which states: –
“The ruling and/or order striking out the suit is against the weight of evidence”.
B That no issue can be framed from an omnibus ground. Irmiya Ijahenda v. Iyau (1999) 10 NWLR (pt. 628) 686 at 689.
Learned counsel for the 1st respondent said a look at this issue three now two formulated by the appellants as arising from this omnibus ground will reveal that the issue challenges the exercise of C discretion by the trial Judge in striking out the appellants’ case. That in striking out the appellants’ case, the trial Judge made a finding to wit: the appellants’ were not diligent in prosecuting their case and this is a finding on a specific issue and therefore follows that a challenge or attack on such a finding amounts to an attack on a finding of a trial Judge on a specific issue. That it is settled law that an appellant can only challenge a specific finding of fact of a trial Judge by a substantive ground of appeal and not under the omnibus ground of appeal. He referred to Michael Ndiwe v. Okocha (1992) 7 NWLR (Pt. 252) 129 at 139-140; Abdullahi v. Alfa Oba (1998) 6 NWLR (Pt. 554) 420 at 428.
Mr. Aderogba submitted that this issue three now two cannot derive from ground 4 of the notice of appeal and the effects are:-
(a) It render that issue raised and arguments proffered incompetent and liable to be struck out; and
(b) It implies that no issue was formulated on ground 4 with the resultant effect that the said ground is deemed abandoned.
He cited Ndiwe v. Okocha (supra) 138-139; Godwin v. The Christ Apostolic Church (1998) 14 NWLR (Pt. 584) 162 at 174; Henkel Chemicals Ltd. v. A.G. Ferrero & Co. (2003) 4 NWLR (Pt.810) 306 at 317-318, 327.
Learned counsel for the 1st respondent further stated that an examination of this issue and arguments canvassed therein shows that the appellants are contending that the trial Judge did not exercise her discretion properly. That the exercise of discretion properly or otherwise is a question of law and for any ground of appeal to properly ground an issue touching on point of law, such ground must be a substantive ground of appeal and not an omnibus ground. That it is trite law that an omnibus ground of appeal cannot sustain specific issues of law. He referred to Calabar East Co-operative v. Ikot (1999) 4 NWLR (Pt. 638) 225; Henkel Chemicals Ltd. v. A.G. Ferrero & Co. (supra). That this issue should be stuck out.
It is the law that issues are formulated from grounds of appeal, they must be based on, related to, or arise from the grounds of appeal.
See Agwasim v. Ejivumel1vehaye (2001) 9 NWLR (Pt. 718) 395; Idika v. Erisi (1988) 2 NWLR (Pt. 78) 563; Chinwuba v. Alade (1997) 6 NWLR (Pt. 507) 85.
An omnibus ground of appeal is usually directed at the summary and evaluation or appraisal of evidence by the trial court as well as its ascription of probative value to the evidence adduced before it. It postulates that there was no evidence, which if accepted, would support the findings of the trial court or the inference which it had drawn thereon. It is settled that the omnibus ground cannot sustain or give rise to a specific point of law. See Henkel Chemical Ltd. v. A.G. Ferrero & Co. (2003) 4 NWLR (Pt. 810) 306 at 317-318; Musa v. Yerima (1997) 7 NWLR (Pt. 511) 27 at 36 per Onu J.S.C:
“This court has decided in relation to general omnibus grounds of appeal in Anyaoke v. Adi (1986) 3 NWLR (Pt. 31) 731 at 742 followed in the case of Saka Atuyeye & 4 Ors. v. Emmanuel Ashamu (11987) 1 NWLR (Pt.49) 267, that in a civil appeal, a ‘general’ or ‘omnibus’ ground of appeal, that the lower courts judgment ‘is against the weight of evidence’ is permissible and proper.”
An appeal predicated on the omnibus or general ground is not at large thus it cannot be used to raise issues of law. Such an issue of law must be raised as a separate ground of appeal and not made an adjunct to the omnibus ground of appeal. See Calabar East Cooperative thrift & Credit Society Ltd. (1999) 14 NWLR (Pt. 638) 222 at 246, Onaga v. Micho & Co. (1961) 2 SCNLR 101.
An omnibus ground of appeal permits an appellant to raise issues relating to admissibility of evidence, relevance and credibility of evidence. It does not require particulars to support it by virtue of the provisions of Order 3 rule 2(4) Court of Appeal Rules. Abdullahi v. Oba (1998) 6 NWLR (Pt. 554) 420 at 427; Dam v. Jov (1992) 6 NWLR (Pt. 246) 195; Finnih v. Imade (1992) 1 NWLR (Pt. 219) 511.
An appellant who is challenging a specific finding of fact by a trial court on a specific issue should do so by a substantive ground of appeal and not under the omnibus ground of appeal. Abdullahi v. Oba (1998) 6 NWLR (554) 420 at 428; Ndiwe v. Okocha (1992) 7 NWLR (Pt. 252) 129.
Where the trial court makes a finding of fact on a specific issue before it, such an issue should be raised as a substantive ground of appeal by the appellant who is challenging the finding of fact and it cannot be covered under the omnibus ground of appeal. See Ndiwe v. Okocha (1992) 7 NWLR (Pt. 252) 129 at 139-140.
An issue not tied to any ground of appeal is incompetent and should be discountenanced by the court in the determination of an appeal. See Ijahenda v. Iyau (1999) 11 NWLR (Pt. 628) 686 at 689-690; Hart v. Hart (1987) 4 NWLR (Pt.63) 105; Ogida v. Oliha (1986) 1 NWLR (pt. 19) 786; Fasoro v. Beyioku (1988) 2 NWLR (Pt. 76) 263; Akinbinu v. Oseni (1992) 1 NWLR (Pt. 215) 97.
In exercising its discretion, the court must act judicially and judiciously and not arbitrarily or capriciously but in accordance with established principles of law on sufficient material. Saffieddine v. C.O.P (1965) 1 All NLR 54; Ugbonna v. Olize (1971) 1 All NLR 8; Ogar v. James (2001) 10 NWLR (Pt. 722) 621.
Ordinarily, a court of appeal does not interfere with the exercise of discretion by a lower Court, and it seldom does, but if it appears that the result of the exercise of discretion by a lower court is to defeat the rights of the parties altogether, that is, if it will occasion injustice to one or the other of the parties, then the appellate Court will review the order made in order to ensure that there is no miscarriage of justice. See Ogar v. James (2001) 10 NWLR (Pt.722) 721; Enekebe v. Enekebe (1964) 1 All NLR 102; Haruna v. Ladeinde (1987) 4 NWLR (Pt. 67) 941; University of Lagos v. Aigoro (1985) 1NWLR (Pt. 1) 143.
A trial court has power to strike out a suit for non- appearance of parties but before it could do so, it must ensure the following:
(a) that the parties had notice of hearing for the particular day; and
(b) that the case was not on the cause list for the day for mention. See Mbadinuju v. Esuka (1994) 8 NWLR (Pt. 364) 535 at 554; Eastern Breweries Plc v. Inuen (2000) 3 NWLR (Pt. 650) 662 at 674-675.
Bearing the conditions above stated in the consideration of the exercise of the discretion of the learned trial Judge, it can safely be said in line with the record that there was proper exercise of the discretion of the trial Judge since the appellants having been represented by counsel on the day the dale of the subsequent striking out was taken and they failed to show up, nothing justifies impugning the proper exercise of the discretion by the court in the striking out for want of prosecution. My answer to the question raised in this issue 2 formerly issue 3 is in favour of the respondent.
In conclusion, it can be seen glaringly that this appeal lacks merit and I dismiss it, and affirm the decision of the court below. I award N20,000.00 costs to the respondents to be paid by the appellants.
Other Citations: (2008)LCN/2636(CA)
