Kayode Biobaku Ajuwon & 2 Ors V. Mr. A. A. Fashina (2007)
LawGlobal-Hub Lead Judgment Report
M. D. MUHAMMAD, J.C.A.
The Appellants before us were the Defendants against whom the Respondent, being the Plaintiff, took out a Writ at the Ota Division of the Ogun State High Court on 26/1/1994. By his Writ and Amended Statement of Claim, the Respondent sought the lower court’s declaration on his entitlement to a right of occupancy over a piece of land situate at Ajuwon Village at Ifo Local Government Area of Ogun State. He also claimed the sum of N50,000:00k damages for trespass committed by the Appellants as well as injunction against the latter, their agents, servants, privies etc.
Pleadings were ordered, filed, exchanged and settled. On the 17/5/02, Appellants’ Counsel sought and obtained the trial court’s leave to withdraw his appearance for the Appellants. Thereafter, the Appellants neither attended trial to defend the matter themselves nor had such defence put in on their behalf by another Counsel. Respondent called four witnesses to prove his case.
The court accepted and relied on the only evidence before it, that led by the Respondent, and in its judgment dated 1/8/03 granted all the reliefs sought by the Plaintiff against the Defendants.
Being dissatisfied, the Defendants have appealed against the decision on a notice containing four grounds of appeal.
In the briefs of the parties to this appeal that had been filed, exchanged and adopted at the hearing, some issues have purportedly been distilled from the grounds of appeal. The five issues formulated in the Appellants’ Brief as having arisen for the determination of the appeal read as follows:-
“(i) Whether service of hearing notice on the Appellants former Counsel after the said Counsel had withdrawn his appearance for the Appellants at the trial is good and proper service on the Appellants.
(ii) Whether in the absence of the Appellants being represented by Counsel, the Hearing Notice ordered by the trial court ought to be served personally on the Appellants as ordered by the court below or on their former Counsel.
(iii) Whether it could be said that the Appellants were given fair hearing at the court below when the case was heard and proceedings conducted subsequent to the Hearing Notice served on Appellants’ former Counsel without the knowledge of the Appellants.
(iv) Whether the Learned Trial Judge was right in holding and treating the suit as undefended considering issues i, ii, and iii above.
(v) Whether the Learned Trial Judge was right in relying on and admitting Exhibit D in evidence in the face of glaring contradiction and without proper foundation “.
At page two of the Respondent’s brief, two Issues have been formulated. The issues read thus:-
“1. Whether the Defendants are right in contending that they were deprived of an opportunity of presenting their defence and thereby denied their constitutional rights to fair hearing.
- Whether the Learned Trial Judge was right in relying on and admitting Exhibit D in Evidence”.
Given S.241 of the 1999 Constitution which created Appellants’ right of Appeal, we were constrained to and did request parties to the appeal to address us on the competence of the grounds of appeal as well as the validity of the notice of appeal on the basis of which the instant appeal was initiated and is being maintained.
In that regard, Appellant Counsel did submit that their notice of Appeal had been filed within the time prescribed by law. Although Counsel had conceded that the first ground of appeal in their notice is incompetent because it did not relate to the decision being appealed against, he insisted that the other grounds in the notice of appeal are competent .The Appeal, he contended, enures by virtue of these enduring grounds.
Learned Appellants’ Counsel further submitted that the Appellants never had the time to complain at the lower court that the notice ordered to be served personally on them after their Counsel had been granted leave to withdraw his services had infact not been served on them. They did not, because the court had, inspite of the non-service of the hearing notice on them, proceeded to hear and determine the Respondent’s case behind them. Counsel never told us why the decision of the court arrived at wrongly in the absence of the Appellants and without their being heard could not be challenged in a fresh action by the Appellants.
Learned Respondent’s Counsel was also very brief in his submissions on the validity of Appellant’s notice and the competence of the grounds of appeal which made the notice up. He said all the grounds in the notice of appeal did not arise from the decision being appealed against. The grounds as well as the notice they constitute are incompetent and invalid respectively. He said not more than these.
It is rewarding at this point to reproduce S.241 (a), S.243 (b) and S.318 of the 1999 Constitution as well as S.25 of the Court of Appeal Act which Appellant Counsel submitted must be and had been complied with ‘thereby making their appeal a valid one:
S.241 (a) of the 1999 Constitution provides:-
“(1) 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 or a High Court sitting at first instance “.
S.243 (b) of the 1999 Constitution provides:-
“Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this Constitution shall be –
(b) Exercised in accordance with any Act of the National Assembly and rules of court for the time being in force regulating the powers, practice and procedure of the Court of Appeal “. (Underlining supplied for emphasis)
The word “decisions” as appears in S.241 (a) of the 1999 Constitution above has been defined in S.318 (1) of the very Constitution to mean “in relation to a court, any determination of that court and includes judgment, decree, order, conviction, sentence or a subsidiary recommendation”
The Court of Appeal Act, a statute enacted by National Assembly Provides in S. 25 (1) and (2)(a) thereof as follows:-
“(1) Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by the rules of court within the period prescribed by the provision of sub (2) of this Section that is applicable to the case.
(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are –
(a) in an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision “.
(Underlining supplied for emphasis)
A Community reading of the foregoing Statutory Provisions bears out the Learned Appellant Counsel in most respect.
An examination of the record of proceedings of the instant appeal shows clearly that the notice of Appeal is in respect of the judgment of the trial High Court that had finally determined the controversy between the parties before it. To the extent that such a notice had been filed within the three months prescribed under S.25 2 (a) of the Court of Appeal Act, the appeal is valid. But that is not all.
In his submissions on the competence of the grounds of appeal contained in the Appellants’ notice, Learned Counsel did rightly concede in that their first ground of appeal is incompetent. The ground does not relate to the decision appealed against. Learned Counsel did not however make same concession in respect of the other three grounds of appeal. We must therefore, ascertain whether or not all or some of the three remaining grounds of appeal are, beyond the position taken by Counsel, also competent.
The right of appeal created by S.241 (a) enures only in relation to the “decisions” of the lower court. The notice of appeal which an Appellant mandatorily gives consists of one or more grounds of appeal. In HALABY Vs. HALABY (1951) 13 W.A.C.A. 170, an appeal containing no grounds thereto was held to be an abuse of process of the court. A ground of appeal has been defined simply as the aggregate reasons why the decision appealed against is considered wrong by the Appellant and provides the very plank for setting aside the decision. It circumscribes the ratio decidendi of the judgment for the .purpose of attacking it in the light of identified lapses. See ABDULLAHI OBA (1998) 6 NWLR (Pt. 554) 420 wherein the court of appeal applied this principle as outlined by the ‘Supreme Court in MENTAL CONSTRUCTION (W.A) LTD. Vs. MIGLIORE: In Re OGUNDARE (1990) 1 NWLR (Pt. 126) 299.
It manifestly draws from S.241 (a) that this court only has jurisdiction to entertain such appeals that are constituted by ground(s) which relate to the decision appealed against. An appeal in respect of a matter that had not been heard and determined by the lower court being not against a “decision” of the trial court is incompetent. S.241 (a) under which this appeal is initiated places a heavy constitutional duty on this court to ensure that only such appeals that have proceeded on the basis of grounds in respect of which the court has jurisdiction to entertain are heard. Any appeal to this court which is founded on issue(s) that had not been heard and pronounced upon by the court below in the judgment appealed against cannot, by law, be heard by this court. In that wise the court would lack the jurisdiction to proceed. See OJEME Vs. MOMUDU II (1983) 1 SCNLR 188 At 205 and UOR Vs. LOKO (1988) 2 NWLR (Pt.77) 430. In SARAKI & ORS Vs. KOTOYE, Karibi Whyte JSC had stated this rule succinctly thus:-
“It is a well established proposition of law in respect of which there can hardly be a departure, that the grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision”
(Italics and underlining for emphasis)
In keeping with the principle, the apex Court had in seemingly endless instances held grounds of appeal which did not attack the decision appealed against and where the appeal rested wholly on such grounds incompetent.
In BABALOLA Vs. STATE (1989) 20 NSCC 97 At 294295, for example, one of the grounds of appeal the Supreme Court had to contend with contained the complaint of the Appellant, one of the accused persons at trial, that he did not know that the bank draft in respect of which he was convicted of forgery was infact forged. This being a line of defence the Appellant did not rely on at trail, the trial court did not make a decision on it.
In considering the particular ground of appeal and submission thereunder, Oputa JSC stated a follows:-
“..An appeal presupposes the existence of some decision Appealed against. In the absence of such a decision on a point, there cannot possibly be an appeal against what has not been decided against a party. Learned Counsel (or the Appellants should be well advised to know that they can only urge on appeal points ensuing from a decision of the trial court on an issue submitted to it for determination. If no such question had been submitted, it cannot form the basis of a ground of appeal or an issue for determination in a brief”.
(Italics and underlining for emphasis)
See also C.C.B. LTD Vs. NWOKOCHA (1998) 9 NWLR (Pt. 564) 98 ENIGBOKAN Vs. AMERICAN INTERNATIONAL INSURANCE CO. LTD. (1994) 6 NWLR (Pt. 348) 1 and GOMWALK Vs. MILITARY ADMINISTRATOR PLATEAU STATE (1998) 6 NWLR (Pt. 555) 653.
Facets of the foregoing principle abound. It has been further held that a valid appeal, being a lawful criticism of a trial court’s decision, cannot be about the obiter-dictum in the judgment appealed against. Valid complaints against a judgment are never founded on obiter-dictum. See SANDE Vs. ABDULLAHI (1989) 4 NWLR (Pt.116) 387; OGUNBIYI Vs. ISHOLA (1996) 6 NWLR (Pt.452) 12, and OSOLU Vs. OSOLU (1998) 1 NWLR. Again, a valid ground of appeal is against the orders made by the trial judge rather than the reasons given in making the order. An appeal cannot, for example, lie against the reasons advanced by the trial court in granting the reliefs claimed by a Plaintiff or sustaining the defence raised by a Defendant. See AMEOKAJA Vs. EYIOWUOWI (1961) ALL NLR 805.
The four grounds contained in the notice of the instant appeal are hereunder supplied for ease of reference.
“GROUNDS OF APPEAL
- The Learned trial Judge erred in law in delivering the judgment against the 1st and 2nd Defendants in opposition to the principle of fair hearing enshrined in the Constitution of Federal Republic of Nigeria, 1999.
PARTICULARS OF ERROR
The Leaned Trial Judge erred in law in delivering the Judgment against the 1st and 2nd Defendants in opposition to the principle of fair hearing enshrined in the Constitution of Federal Republic of Nigeria, 1999
PARTICULARS OF ERROR
(1) The Learned Trail Judge proceeded to hear the case of the Plaintiff in the absence of 1st and 2nd Defendants/Appellants and their Counsel and more particularly in absence of hearing notices personally served on the 1st and 2nd Defendants following the withdrawal of appearance of the Defendants Counsel as stated by the Trial Judge in page two (2) of the Judgment.
(II) The Learned Trial Judge erred in law in treating and holding that the suit is undefended when at page two(2) of the judgment he declared “Having thus abandoned their case, the suit is undefended”,
PARTICULARS OF ERROR
(a) The suit was struck out on 5th of November, 1997 by the honourable court for want of diligent prosecution by the Plaintiff.
b) Prior to the striking out of the suit, the 1st and 2nd Defendants filed 37 paragraphs Statement of Defence marshalling out clear defence to the suit.
(c) After the striking out, no process were served on the Defendants personally and those purportedly served on their formal Counsel MR. ADETUNJI ONABANWO ESQ. were never dispatched to them since 1997 until judgment is given.
(d) No hearing notices and or court process were equally served on the 1st and 2nd Defendants/Appellants following the withdrawal of appearance of their former Counsel in 2002.
III. The Learned Trial Judge erred in law when he held that the Plaintiff evidence is unchallenged and believed the Plaintiff’s Witness as proofing the Plaintiff’s claim.
PARTICULARS OF ERROR
The procedure adopted and records of court clearly shows that there was no opportunity for the 1st and 2nd Defendants to challenge or controvert the Plaintiff evidence since they were not aware that the suit was re-listed after it was struck out in 1997.
(IV) The Learned Trial Judge erred in law and misdirected itself failing to evaluate the’ Plaintiff witness and evidence properly.
PARTICULARS OF ERROR AND MIS-DIRECTION
The judgment is given against the weight of evidence before the court when the court belief in Plaintiff witness and rely on purchased receipt of the land tendered by the Plaintiff notwithstanding the glaring contradiction contained therein “.
(Italics supplied for emphasis)
In applying all the Principles so far outlined on the competence of ground(s) and/or validity of the notice of appeal to the grounds of appeal at hand, certain findings are inevitable.
The complaints contained in all the five grounds of appeal do not relate to the decision appealed against dated 1st August 2003. The decision appealed against is on Respondent’s claim against the Appellants rather than the issue of fair hearing the ground seeks to dwell upon. Parties herein had not joined Issue on the effect of non-service of hearing notice on the Appellants after the withdrawal of their Counsel and the court did not determine such issue that had not been canvassed before it. The court did not also address any objection as to the admissibility of Exhibit D and pronounced on it.
Learned Counsel would have been well informed in conceding such grounds as being incompetent for same to be discountenanced. See KASUNMU Vs. BELLO IYANDA(1966) 1 SCNLR 140; AZAATSE Vs. ZEGEOR (1994) 5 NWLR (Pt.342) 76 auld EGBE Vs. ALHAJI
(1990) I NWLR (Pt. 128) 546.
Appellants’ 2nd ground of appeal is incompetent for more than one reason. The ground appears to be a complaint against the portion of the judgment appealed against at page 115 of the record of appeal thus:-
“The first question that I will like to deal with here is the legal position of the stand taken by the Defendants herein. The position of the laws is that where a party files pleadings but fails or neglects to give evidence in respect of same is, deemed to have abandoned his case since pleadings are not and cannot be a substitute for evidence. Having thus abandoned their case, the suit was treated as undefined understandable”. (Italics supplied for emphasis)
The above passage, as one understands it, is the reason the court relied upon to find that Respondent herein had proved his case against the Appellants. A ground of appeal which attacks the reason the court relied upon in arriving at the decision appealed against, we have already surmised, being incompetent must also be ignored. See LAKE Vs. LAKE (1955) 2 ALL ER 538.
Besides, Order 3 Rules 2 (2) of the Court of Appeal Rules 2002 requires that a ground of appeal which’ alleges error of law should clearly state the particulars and nature of the error being condemned. Where the particulars supplied do not relate to the ground, the ground being bare of the particulars is incompetent. This same vice is attributable not only to Appellants’ 2nd ground of appeal but the 3rd ground as well. There must be harmony between the grounds of appeal and the particulars of the error thereunder supplied in substantiating the errors contained in the two grounds. In the instant case, the discord between the 2nd and 3rd grounds of appeal and their particulars are most glaring and obtrusive, While the two grounds of appeal appear to relate to the judgment appealed against, their respective particulars cannot be reconciled with the issue that were actually raised at and were determined by the’ court in the judgment that is being appealed against.
With the particulars of the two grounds not being in harmony with the very grounds they set out to support, some vagueness has ensued and fundamentally vitiated the entire grounds. The two grounds and the issues drawn from the grounds must equally be discountenanced. See ATUYEYE Vs. ASHANU (1987) 1 NWLR (Pt. 49) 267; ONIFADE Vs. OLAYIWOLA (1990) 7 NWLR (Pt.161) 130 and SILENCER AND EXHAUST PIPES CO. LTD. VS. OPEOLA (1994) 1 NWLR Pt.319) 126.
It further dawns on one that Appellants have formulated five issues for the determination of this appeal from the four grounds of appeal in their notice. It is procedurally wrong to formulate more issues than the grounds of appeal which provide the very source of the complaints articulated in the Issues. Whereas an Appellant can formulate a single issue form a plurality of grounds of appeal, he cannot formulate more issues than the number of grounds contained in his notice of appeal. Were the three grounds already adjudged incompetent in this judgment to be otherwise, Appellant would still have to contend with this point of prolixity noticeable in the number of issues he formulated from a lesser numbers of grounds of appeal. The bottom line in this instance, any way, is that all the issues formulated from the three incompetent grounds of appeal are equally incompetent and must accordingly be ignored. Incompetent grounds of appeal do not give rise to competent issues! See INTERNATIONAL LTD. Vs. KANO TANNERY CO. LTD. (2004) NWLR (Pt.864) 545 CA and ORAKOSIM Vs. MENKITI (2001) 9 NWLR (Pt.719) 529 SC.
And this brings us to Appellants” fourth ground of appeal and the 5th issue that clearly draw from the seemingly persistent ground. The question to answer here also is whether the ground as well as the issue distilled therefrom is competent to warrant our consideration of same. The Appellants’ real complaint under the 4th ground of appeal is that Exhibit D, a photocopy of a document, had been admitted without the necessary foundation put in place and in breach of S.97 of the Evidence Act. Counsel asks that Exhibit D be expunged and the lower court’s decision based on the document set aside.
Learned Respondent Counsel has countered that even if Exhibit D is expunged, evidence sufficient enough to warrant the very conclusion the trial court arrived at abounds. Learned Counsel beseeches us to ignore Learned Appellants Counsel’s invitation to temper with the decision appealed against.
It appears both Counsel have not fully grasped the Import of S.243 (b) of the 1999 Constitution in relation to the right of Appeal the Appellant asserts by virtue of S.241(a) of the same constitution. Let me stress that Appellants’ right of appeal under S.241 (a) of the constitution must, given S. 243 (b) of the 1999 Constitution, be “exercised in accordance with any Acts of the National Assembly and Rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal”. Sources other than Acts of the National Assembly and the Court of Appeal Rules 2002 currently abound “regulating the powers, practice and procedure of the Court of Appeal”.
The Evidence Act, as propounded in the many judicial decisions, contains such rules of procedure which presently govern this court. Over the years, a rule of Evidence and Practice has evolved to disallow a party who had failed to appear before the trial court to object to the reception of evidence, oral or documentary, which evidence is admissible only on the fulfillment of certain conditions, to complain on appeal against the use of such evidence. This is a rule of evidence as well as practice of sufficient antiquity. See CHUKWURA AKUNNE Vs. MATHIAS EKWUNO (1952) 14 WACA 59 from which the Supreme Court in its decision in ALADE VS. OLUKADE (1976) 2SC 183 at 188 – 9 draw. A more succinct application of this rule of practice avails in the Apex Court’s decision in ETIM & ORS Vs. EKPA & ANOR (1983) N.S.C.C. 86.
In that case, the Plaintiffs who did not object to the admission of certain documents had their claim dismissed by the trial court. Their appeal to the Court of Appeal was similarly dismissed with the affirmation of the trial court’s decision by the former. In a further appeal to the Supreme Court, the Plaintiffs/Appellants Counsel objected to the admission of certain documents admitted by the trial court. In dismissing the appeal, the Supreme Court stated as follows:-
Turning now to the Exhibits (4, 6-10) which were not objected to, all of them, previous proceedings and leases, it is somewhat perplexing to see how Counsel could turn round or appeal (before the Court of Appeal) to complain about the admissibility of a document to which he did not object when it was tendered in the court below in the course of trial. It is a cardinal rule of Evidence and of practice, in civil as well as in criminal cases that an objection to the admissibility of a document sought by a party to be put in evidence is taken when the document is offered in evidence. Barring some exceptions where, by law, certain documents are rendered inadmissible (consent or no consent of the parties notwithstanding) for failing to satisfy some conditions or to meet some criteria, the rule still remains inviolate that where objection has not been raised by the opposing party to the reception in evidence of a document (or other evidence,)… The document will be admitted evidence and the opposing party cannot afterwards be heard to complain about its admission”.
(Italics and underlining for emphasis)
In the case at hand, Appellant’s complaint is on all fours with the complaint made by the Appellants in ETIM Vs. EKPA Supra and in respect of which complaint the above decision of the Apex court was reached. ‘Appellants herein have also not argued that Exhibit D is not inadmissible anyway. Rather, it is that Exhibit D is admissible on the fulfillment of certain conditions which conditions had not been fulfilled and yet the document had been admitted. Appellants cannot, like the Appellant in ETIM Vs. EKPA Supra, be allowed to raise this complaint on appeal. Such complaint is, by practice, incompetent and must be discountenanced.
Beyond this stance however, Appellant must accept the fact that even ‘without Exhibit D, sufficient evidence abound on the basis of which the trial court’s decision to find against the Appellants would and this is hereby affirmed to persist.
Thus Appellants’ 5th issue from the 4th ground of appeal, if considered on its merit, must and is hereby resolved against the Appellants. The appeal has no merit. It is accordingly dismissed with a N5,000.00k cost in favour of the Respondent.
Other Citations: (2007)LCN/2319(CA)
