Chief Akowa Nwako & Ors V. The Governor of Rivers State of Nigeria & Ors (1988)
LawGlobal-Hub Lead Judgment Report
OWOLABI KOLAWOLE, J.C.A.
On the 14th November, 1988 when this appeal came up for hearing, learned counsel for the 3rd to 8th respondents, Mr.C. A. B. Akparanta, raised a preliminary objection to grounds 2, 3, 4 and 5 of the grounds of appeal on the ground that the grounds of appeal contravene the provisions of Order 3 rule 2(2) of the Court of Appeal Rules 1981. Order 3 rule 2(2) enacts that –
”If the grounds of appeal allege misdirection or error in law the particulars and the nature of the misdirection or error in law shall be clearly stated.”
Learned counsel referred to the cases of
(1) Anyaoke & Ors. v. Felix Adi & Ors. (1986) 3 N.W.L.R. (Part 31) 731, 741.
(2) Ifediorah & Ors. v. Ume & Ors. (1988) 2 N.W.L.R. (Part 74) page 5.
(3) Onuma & Anor. v. E. Nwokoro & Ors. (1987) 1 N.W.L.R. (Part 48) 149.
(4) V. Okorie & Ors. v. P. Udom & Ors. (1960) 5 F.S.C. 162.
Mr. Akparanta submitted that all the grounds to which reference has been made do not state clearly –
(1) the particulars of the error in law alleged
(2) the nature of the error alleged.
Learned counsel asked that the grounds of appeal should be struck out in accordance with Rule (4) of Order 3.
Now, I think that the grounds of appeal against which Mr. Akparanta has seriously complained should be set out having regard to the submission of Mr. Nwanodi, learned counsel for the appellants.
The grounds are set out hereunder:
“2. The Learned trial Judge erred in law when he held that Sections 36(5) and 36(6) of the Land Use Act does not apply to the Governor of a State by virtue of Section 6(4) of the said Land Use Act.
- The Learned trial Judge erred in law when he held that “… notices of meeting in connection with land acquisition by Government (of the Rivers State) for Bori New Town – Wii Luumene/Begara farm lands…” were sufficient notice of revocation of the right of occupancy within the contemplation of Section 28(6) of the Land Use Act, 1978.
- The Learned trial Judge erred in law when he held that the principle of law enunciated in Amodu Tijani v. The Secretary of Southern Nigeria (1921) 2 A.C. 399 at pages 404 and 405 applied in this case when the basis of its application (ownership) has been replaced by the provision of Section 36(2) of the Land Use Act, 1978 and thereby failed to direct his mind as to the legal effect of the said section on the principles stated in Amodu Tijani’s case referred to before applying those principles to the case before him.
- The Learned Trial Judge having found that the subject-matter of the application was the communal property and that the application were not duly authorized by the Community to bring the application erred in law by dismissed the action rather than striking it out.”
In his submission, Mr. Nwanodi conceded that ground 4 has been abandoned because it was not canvassed in the Appellants’ Brief of Argument. That ground is accordingly struck out.
Learned counsel contended that grounds 2, 3, and 5 as formulated comply substantially with Order 3 rule 2(2) of the Rules. He cited in support the cases of
(1) Saka Atuyeye & 4 Ors. v. Emmanuel O. Ashamu (1987) 1 N.W.L.R. (Part 49) page 267 at 279 and 282.
(2) R. Lauwers Import-Export v. Jozebson Industries Co. Ltd. (1988) 3 N.W.L.R. (Part 83) 429 at 442.
(3) O. Amajideogu & 7 Ors. v. O. Ononaku & 6 Ors. (1988) 2 N.W.L.R. (Part 78) 614 at 621.
Mr. Nwanodi submitted that the case of Amajideogu v. Ononaku (supra) is not very helpful with respect to the construction of Order 3 rule 2(2) because the ground of appeal which was alleged to have contravened Order 3 rule 2(2) in that case was not set out in the judgment.
This was a judgment of this Court in which 1 observed at page 621 G-H thus –
“Three grounds of appeal were filed with the Notice of Appeal at pages 107 to 108 of the record of appeal. Leave was later sought and obtained to file and argue three additional grounds of appeal…… Before considering the grounds of appeal, I ought to say that ground (a) offends against Order 3 rule 2(2) of the Court of Appeal Rules, 1981, in that the particulars of error or misdirection alleged were not given. It has been stressed times without number that a ground of appeal which alleges error in law or misdirection without quoting the passage of the judgment where the error or misdirection occurs and supplying the particulars of error or misdirection is incompetent. Consequently, I hereby strike out ground (a) of the grounds of appeal.”
I think I ought to say a few words about the submission of Mr. Nwanodi with regard to the complaint that the ground (a) which was struck out in Ononaku case was not set out in the judgment. I think this is a matter of style. The grounds of appeal are filed in court. They formed part of the record and are considered from the record.
The cost of litigation in this country generally speaking is often times beyond the reach of the average peasant farmer. When the record of appeal is unnecessarily voluminous, it is always difficult for the litigant to procure the record of appeal and fulfill all other conditions of appeal without some strain. When the grounds of appeal are copied from the Notice of Appeal in the record of appeal into the body of the judgment, the folio is increased, and cost of the record to the litigants is increased. I therefore bear in mind always that as an intermediate court of appeal everything should be done to ensure that any litigant who desires to appeal ought to be able to do so from the Court of Appeal to the Supreme Court without the hazard of approaching the money lender to meet the cost of litigation.
I have for a long time been most anxious to discover the purpose of copying the grounds of appeal from the record into the judgment of the Court. In my attempt to find an answer, I have had recourse to English decisions both of the Court of Appeal and the House of Lords. I have not found one in which the grounds of appeal are set out in the body of the judgment. The judgments are written in prose form. I take two examples:
Blackshaw v. Lord and Another (1984) Q.B. 1 C.A.
The Abidin Daver (1984) A.C. 398 H.L.
The judgments of the Court of Appeal (Stephenson,Dunn and Fox L.JJ.) were delivered in ordinary spoken and written language with words in direct straight-forward arrangement without metrical structure.
The Court of Appeal case was an appeal by the defendants, the Daily Telegraph Ltd. and their economics correspondent, Mr. Lord, against a verdict of a jury and judgment entered thereon by Caulfield J. for ?45,000 for a libel on the plaintiff, Mr. Blackshaw. Apart from quoting the passages from the article complained of as it is usual in libel cases, nowhere in the judgments of their Lordships were there quotations of the grounds of appeal in the body of the judgments.
In the House of Lords decision in The Abidin Daver (Lord Diplock,Lord Edmund-Davies,Lord Keith of Kinkel, Lord Brandon of Oakbrook and Lord Templeman) an appeal from the Court of Appeal in an Admiralty case, no where did their Lordships set out the grounds of appeal but their judgments discussed the grounds which formed the basis of the appellant’s complaint in a manner that brings forth what the appellant’s complaints were without the grounds being set out in the judgments. These judgments are easily readable and they discussed what the appellant’s complaints are without the grounds being set out in the judgments.
I shall now consider the cases on this vexed question. In Anachuna Anyaoke & 3 Ors. v. Dr. Felix C. Adi & 5 Ors. (1986) 3 N.W.L.R. (Part 31) 731 at page 741, Uwais, J.S.C. in construing Order 7 rule 2(2) of the Supreme Court Rules, 1977 which is in pari materia with Order 3 rule 2(2) of the Court of Appeal Rules, 1981, observed as follows:
“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 alleged must be given.”
In Okeke Anadi v. Okeke Okoli (1977) 1 S.C. 57, Idigbe, J.S.C. observed at page 63 that –
“It is settled by a long line of decisions that when 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.”
In Vincent Okorie and 3 others v. Phillip Udom (1960) 5 F.S.C.162 Ademola,C.J.F.observed at page 164 as follows:-
“Of the three grounds of appeal filed,objection was taken by counsel for the Respondents to ground (c) which was one of misdirection, on the ground that in the three instances quoted the particulars of the various misdirections were not given. It has been pointed out from time to time that merely quoting portion of a judgment, without showing in what respect the Judge misdirected himself, is worthless. Counsel was not allowed to argue this ground of appeal and it was accordingly struck out.”
The ground of appeal to which counsel for the Respondents look objection in the Okorie case was not set out in the judgment. There is therefore no merit in the contention of Mr.Nwanodi that because the ground of appeal in the Ononaku case was not set out in the judgment, that judgment is not helpful in the construction of Order 3 rule 2(2) of the Rules of the Court of Appeal. Similarly, in J.A. Adeniji and Anor.v.Saka Disu (1958) 3 F.S.C. 104 Abbott F.J. observed thus –
“Four grounds of appeal were filed but the first was struck out because it consisted merely of quotations from the judgment of the learned trial Judge, headed by a statement that he had misdirected himself. That is not sufficient. A ground of appeal alleging misdirection should always in addition to quoting the passage where misdirection is alleged to have occurred, specify the nature of the misdirection alleged.”
The ground of appeal the subject of the objection in the Adeniji case was not set out in the judgment but the complaint against the ground was clearly understood from the statement of Abbutt F.J. It is my view therefore that the case of Amajideagu v. Onanaku (supra) is in line with a stream of cases on the interpretation of Order 3 Rule 2(2).
Mr. Nwanodi relied heavily on two decisions of the Supreme Court that once the ground of appeal states clearly the error complained of such ground has substantially complied with the provisions of Order 3 rule 2(2) of the Court of Appeal Rules,1981 without following the age long practice of supplying the particulars of error under a separate heading and the nature of such error.
I shall consider each of the two cases. The first is Saka Awyeye and 4Ors. v. Emmanuel O. Ashamu (1987) 1 N.W.L.R. (Part 49) 267. The complaint in that case was that of the four grounds of appeal filed three of them alleged error in law and misdirection and the fourth ground alleged that “the judgment was unreasonable and cannot be supported having regard to the weight of evidence.” At the Court of Appeal, Learned counsel for the appellants, Chief F.R.A. Williams. S.A.N. filed a motion on notice praying for leave to amend the grounds of appeal by substituting a new set of four grounds of appeal. Learned counsel for the Respondent. Alhaji M. O. Oseni,filed a Notice of Preliminary objection alleging that:
The appeal is incompetent because the Notice of Appeal is defective in that there was no valid ground of appeal contained therein.”
The basis for the objection was that grounds 1-3 which alleged error in law and misdirection in law were in breach of Order 3 Rule 2(2) of the Court of Appeal Rules and that ground 4 was not only inappropriate in civil proceedings but also in breach of Order 3 Rule 2(4) of the Rules of the Court of Appeal. Learned Counsel contended that even if the Court granted the prayer and the new grounds were substituted, still there would be no appeal properly before the Court on the maxim ‘ex nihilo nihil fit’ meaning “from nothing nothing comes.” The Court having granted Chief Williams application for amendment to substitute four new set of grounds of appeal overruled the preliminary objection of Alhaji M. O. Oseni.
The Court of Appeal allowed the appeal. Alhaji Oseni appealed 10 the Supreme Court on the sole ground relating to the Competence of the appeal before the Court of Appeal. At page 275E Coker, J.S.C. observed as follows:-
“The contention of Alhaji Oseni, that all the four grounds were not valid, including the general ground that the judgment is against the weight of evidence cannot be correct. At least, ground four,the general ground was a proper ground of appeal in the court below.”
The appeal was dismissed on that same ground as the general ground of appeal kept the appeal alive to which the new set of grounds were attached. At page 279E, Oputa, J.S.C. commented as follows:-
“Any ground of appeal alleging a misdirection or Error in Law must in addition to quoting the passage where the misdirection or error was alleged to have occurred
(a) specify the nature of the error and
(b) give full and substantial particulars of the alleged error or misdirection. It is not enough to merely allege an error or a misdirection…”
Mr. Nwanodi relied on the views of Oputa, J.S.C. at page 282 C – D where his Lordship expressed the opinion obiter dicta that –
“I agree that in practice, it is customary after stating “Error in Law” to follow that up with “particulars of error.” I do not think there is anything wrong in including the “Particulars of Error” in the “Error” itself”
The various judicial interpretations given to Order 3 rule 2(2) of the Court of Appeal Rules 1981 or Order 7 rule 2(2) of the Supreme Court Rules demand that a ground of appeal which alleges an error in law or misdirection in law must comply with three conditions for such ground to be a valid ground of appeal; it must:-
(1) quote the passage in the judgment where misdirection or error in law is alleged to have occurred.
(2) specify the nature of the error in law or misdirection and
(3) give full and substantial particulars of the alleged error or misdirection.
I am of the view that Mr. Nwanodi is aware of these requirements and for that reason he formulated ground one of his grounds of appeal as follows:-
“1. The learned trial Judge erred in law when he held as follows:-
“The contention of counsel relating to the breach of the Town and Country Planning Law cannot be sustained as that is not the relevant law applicable to the instant case where the acquisition can properly be done under the Public Lands Acquisition Law Cap. 105 Laws of Eastern Nigeria 1963…”
Particulars
(i)…………………
(ii)…………………
Why did he not do the same in respect of grounds 2, 3,and 5?
In Felix O. Osawaru v. Simeon O. Ezeiruka (1978) 6/7 S.C. 135 Aniagolu. J.S.C. observed at page 137 (lines 9-15) thus:-
“There were 3 additional grounds which he ought to argue. They complained of errors in law. But grounds 1 and 2 contained no particulars and the nature of the errors in law complained of as required by Order 7 rule 2(2) of the Supreme Court Rules. Those grounds were accordingly struck out.”
Here again, the grounds which were in breach of the relevant rules of court were not set out in the judgment. The Supreme Court struck out those grounds which did not contain the particulars and the nature of the errors in law complained of just as grounds 2, 3 and 5 in this appeal do not contain the particulars and the nature of the errors in law complained of. The Rules of Court are made to be complied with. The grounds of appeal against which Mr. Akparanta has complained have not complied with the requirements of the Rule. The grounds of appeal are therefore worthless.
The last authority relied upon by Mr. Nwanodi is the case of R. Lauwers Import-Export v. Jozebson Industries Co. Ltd. (1988) 3 N.W.L.R. (Part 83) 429 at page 442. Learned counsel took objection at the Supreme Court to grounds 2, 5 and 7 of the additional grounds of appeal which alleged error in law; the grounds contained no particulars of such errors. Learned counsel therefore contended that such ground, are incompetent in law as grounds of appeal; they are worthless and should be struck out.
In dealing with the objection raised to grounds 2, 5 and 7, Agbaje, J.S.C. stated at page 443 G-H as follows:
“I can easily dispose of these objections. Grounds 2, 5 and 7 which are evidently grounds of law, although they do not contain particulars of error under a separate heading, they have incorporated in the grounds of appeal reasons for saying that the errors of law alleged have been committed. In other words, each of the grounds of appeal does not stop at saying that an error of law has been committed. It goes on to say why the allegation has been made. In the circumstances, I cannot see how it can be said that each of the grounds of appeal does not contain particulars of the error of law alleged.”
His Lordship after referring to the dicta of Oputa, J.S.C. to which I have earlier made reference in Saka Atuyeye’s case, overruled the objection.
From this latest decision of Jozebson Industries Co. Lid. (supra) it does seem to me that there are now two schools of thought as to the proper interpretation of Order 3 rule 2(2) of the Court of Appeal Rules which is the same as Order 7 rule 1(1) of the Supreme Court Rules 1977. The first school of thought appears to demand that in drafting the ground of appeal alleging error in law or misdirection in law, a statement of the error must be set out –
(1) quoting the passage in the judgment where the misdirection or error in law is alleged THEN –
(2) specifying the nature of the error in law or misdirection and
(3) giving full and substantial particulars of the alleged error or misdirection.
The second school of thought is represented by the obiter dicta of Oputa, J.S.C. in Saka Atuyeye (supra) at page 282 where his Lordship stated thus”
“I do not think there is anything wrong in including the “particulars of error” in the “error” itself.”
The view of Oputa, J.S.C. has now become one of the rationes decidendi in the case of Jozebson Industries Co. Ltd. at page 442 G-H which I have reproduced above. Powerful and forceful as the views of Agbaje, J.S.C. are which are binding on the Court of Appeal, earlier decisions on this subject to which I have referred were not cited to the Supreme Court. What is being advocated by the second school of thought now is that in a ground of appeal alleging error in law or misdirection, the particulars of error and the nature of the error need not be set out under a separate heading, the reasons for saying that the errors of law alleged have been committed may be incorporated in the grounds of appeal. This is a departure from what has been accepted to be the law over three decades.
The fear is undoubtedly entertained that if the Supreme Court could change its mind the result would be undue uncertainty in the law. It is quite a different matter if the Supreme Court has overruled the earlier decisions. In both Saka Atuyeye’s case and Jozebson Industries Co. Ltd. all the Justices who concurred in the lead judgments of Coker, J.S.C. and Agbaje, J.S.C. did not make any comment on the new trend in the interpretation of Order 3 rule 2(2) of the Court of Appeal Rules. What will now happen is that each Division of the Court of Appeal may pick and choose which of the two schools of thought it prefers. So if each doubtful question were allowed to be reargued there would be great uncertainty by reason of the different decisions and disastrous inconvenience would result.
In Salmond on Jurisprudence, eleventh edition by Glanville Williams, the learned author stated at page 181 that where the Court of Appeal is faced with two inconsistent decisions of the House of Lords, the solution would appear to be simple: “Let the lower courts make it a rule to follow the later decision of the House”, when the House of Lords has in effect changed its mind by radical “distinguishing.” This was what led me to the view which I held in Alhaji Maigari D. Yusuf v. Fred Egbe (1987) 2 N.W.L.R. (Part 56) 341 when I observed at page 355 B-C thus-
“We, sitting as a Court of Appeal, must accept loyally the decisions of the Supreme Court and when the decisions manifestly conflict it is in my view the latter decision that is binding on the Court of Appeal.”
Earlier, I had stated at the same page that –
“In consequence when a broad principle has been clearly decided by the Supreme Court the decision should not be weakened or frittered away by fine distinction, and an erroneous decision of the Supreme Court upon a question of law can he set right either by the Supreme Court itself or by statute.”
What then is the position in the present case with a stream of authorities supporting the first school of thought and the second school represented by the case of Jozebson Industries Co. Ltd. where the earlier cases were not cited, or referred to in the latter? As Salmond put it at page 206 –
“One may sometimes suspect that the “inadvertence” is intentional – a Nelsonian “blind eye.”
As Salmond put it at page 206 –
“Whenever a relevant prior decision is not cited before the court, or mentioned in the judgments, it must be assumed that the court acts in ignorance or forgetfulness of it. If the new decision is in conflict with the old, it is given per incuriam and is not binding on a later court.”
Since those decisions have neither been referred to nor distinguished, the Court is bound by the earlier decisions. This I do with some trepidation knowing as I do how well consider judgments of Agbaje. J.S.C. have always been from the days when I had the privilege to practice before him at the High Court.
This case is of course distinguishable from the case of Adegoke  Motors Limited v. Dr. Babatunde Odesanya & Ors. (1988) 2 N.W.L.R. (Part 74) 108 where Ademola, J.C.A. said at page 121 C – D:
“I must say that my understanding have always been that where there are two conflicting decisions of a higher court the lower court is free to choose which of the decisions is to follow.”
The two cases referred to were irreconcilably in conflict that is Skenconsult v. Ukey (1981) 1 S.C. 6 and Ezomo v. Oyakhire (1985) 1 N.W.L.R. (Part 2) 195. Here the distinction is that in Jozebson Industries Co. Ltd. the earlier cases of –
(1) Adeniji (1958) 3 F.S.C. 104
(2) Okorie (1960) 5 F.S.C. 162
(3) Anadi (1977) 7 S.C. 57
(4) Osawaru (1978) 6/7 S.C. 135
(5) Anyaoke (1986) 3 N.W.L.R. (Pt.31) 731
which are relevant decisions were not cited before the Court or mentioned in the judgments. In the circumstance, following the earlier decisions on the interpretation of Order 3 rule 2(2). I am of the view that grounds 2, 3 and 5 of the appellants’ grounds of appeal are incompetent.
But assuming that the later decision of Jozebson Industries Co. Ltd. is the binding authority on this construction. I must examine each ground of appeal to discover whether the reasons for saying that the errors of law alleged committed have been incorporated in the grounds of appeal.
Upon a close perusal of grounds 2 and 3 there is nothing to show that the particulars of the error committed and the nature of error alleged have been incorporated in each of grounds 2 and 3. Ground 2 merely quoted what the learned trial Judge said without specifying the nature of the error alleged or the full and substantial particulars of the error in the ground. Similarly ground 3 falls into the same category. Ground 5 sets out the passage in which the appellant thought the alleged error occurred hut it did not differentiate between the nature of the error in law and the full and substantial particulars of the error. These are the essential ingredients in a ground of appeal which alleges error in law or misdirection. Decisions of the Supreme Court which have been followed for over 30 years cannot be swept under the carpet without a full panel of the Supreme Court to examine whether those many decisions should he overruled. The practice has gained root in the legal profession that a change from what has been accepted as the law by the profession over the years needs the consideration of the full court. Decisions which have stood the test of time for over 30 years (1958 – 1988) demand the views of a full court with the benefit of full arguments from both sides on that question so that some certainty may be brought into the meaning of Order 3 rule 2(2) of the Court of Appeal Rules.
The result is that grounds 2, 3 and 5 of the grounds of appeal are in breach of Order 3 rule 2(2) of the Court of Appeal Rules 1981 and therefore worthless.
The objection of Mr. Akparanta therefore succeeds and grounds 2, 3 and 5 of the grounds of appeal are accordingly struck out with costs in favour of the 3rd – 8th Respondents/Applicants which I assess at N300.00 against the appellants jointly and severally.
Other Citations: (1988) LCN/0046(CA)
