Nze V. Onyeachugwo (2021)
LAWGLOBAL HUB Lead Judgment Report
TIJJANI ABUBAKAR, J.S.C.
This appeal is against the judgment of the Court of Appeal Owerri Division, delivered on the 22nd day of March, 20131 wherein the Appellant’s appeal against the judgment of the trial Court was unanimously dismissed by the lower Court.
The claim of the Respondent in this appeal as Plaintiff at the trial Court as per the writ of summons taken out on the 11th day of January 1989 reads as follows:
- N1,000.00 being damages for trespass to the plaintiff’s parcel of land known as and called “ALA NWOKWU” in plaintiff’s possession situate at Umunyado Irete within jurisdiction
- Injunction restraining the defendant by herself, servant and/or agent from committing further acts of trespass on the said land.
The facts grounding this appeal are that the land subject of this appeal known and called “Ala Nwokwu” is an integral part of a larger parcel of land situate at Umungada Irete. The Plaintiff’s claim at the trial Court is that the land in dispute was a gift made to him by his father, Chukwunyere about 40 years prior to the commencement of the suit at the trial Court. The Plaintiff also claimed that his own father who gifted the land to him inherited the land from his grandfather Onyeachugwo, a descendant of one Ogbuehi Akuzuo, the father of Onyeachugwo and Okenwa. Plaintiffs claim before the trial Court was therefore that the land was given to him by his father who also inherited the land from his father.
The defendant Appellant in this appeal on the other hand claims that the said land known as “Ala Nwokwu” is a family land belonging to the Plaintiff’s larger family known as Umuogbuehi. That the said land was sold to the Defendant Appellant by the head of the Urnuogbuehi family one Michael Okenwa and other principal family members. The Defendant therefore claimed that the land was sold to her by the family of the Plaintiff and that she was issued purchase receipt tendered as Exhibit C at the trial.
Both parties tendered survey plans at the trial and were admitted in evidence by consent of the contending parties. In 1977, the Appellant started to erect a building on the said land, the Respondent along with members of his family closed up the foundation. The Appellant again started to erect a wall on the land, again the Respondent pulled it down, the matter eventually went to High Court of Imo State, Owerri.
At the conclusion of trial, judgment was entered in favour of the Respondent. The Appellant became aggrieved and lodged an appeal at the lower Court, the Court of Appeal Owerri. The lower Court in its judgment delivered on the 22nd day of March, 2013, dismissed the Appellant’s appeal and affirmed the judgment of the trial Court. The decision of the lower Court therefore nettled the Appellant who further appealed to this Court on the 13th day of June, 2013. The Appellant’s notice of appeal contained nine grounds of appeal.
Appellants brief of argument was filed on the 15th day of September, 2021 by learned Senior Counsel Chief Mike l. Ahamba SAN. In the Appellant’s brief of argument, learned senior Counsel nominated and argued six issues for determination, the issues are reproduced as follows:
a) Whether the Court of appeal’s decision that the respondent proved possession of the land in dispute is correct in law considering the pleadings and legal evidence on record. (Ground 1 and 2)
b) Whether the evidence of the respondent and his witnesses on record were not inconsistent with respondent’s pleaded root of title and, if the answer is in the affirmative, whether the suit should not have been dismissed (Ground 3 and 9).
c) Whether the decision of the Court of appeal that the vice-voce denials by the respondent of the fresh facts in the statement of defence thus making a reply unnecessary was correct in law. (Ground 4).
d) Whether the applicant did not, based on the pleadings and evidence on record, proved the purchase of the land in dispute from the Umuogbuehi larger family of which the respondent is a member. (Ground 5 and 6).
e) Whether the sustenance by the Court of Appeal of the trial Court’s decision that exhibit C was without probative value, after the Court had expressly held that the validity or genuineness of the exhibit was not in issue, was correct in law. (Ground 7).
f) Whether the appellant’s defence was, as held by the Court of appeal, based on jus tertii. ( Ground 8)
The Respondent through learned Counsel J. I. Ogamba, Esq., filed the Respondents brief of argument on the 9th day of October, 2020, learned Counsel also filed notice of preliminary objection, the notice of preliminary objection was also filed on the 9th day of September, 2020.
In the Respondents brief of argument, learned Counsel crafted two issues for determination, they are also reproduced as follows:
- Whether the Court of Appeal’s decision that the respondent proved possession of the land in dispute is correct in law considering the pleadings and legal evidence on record. (Ground 1 and 2).
- Whether the evidence of the respondent and his witnesses on record were not inconsistent with respondent’s pleaded root of title and, if the answer is the affirmative, whether the suit should not have been dismissed (Ground 3 and 9)
The learned Senior Counsel for the Appellant filed reply brief on the 5th day of September, 2021. In the reply brief, learned senior Counsel reacted to the preliminary objection, learned senior Counsel Ahamba SAN also filed counter-affidavit to the preliminary objection on the 27th September, 2021.
The law is fairly settled that the Courts have a duty to hear and determine first any Preliminary Objection before proceeding to consider and determine the substantive case on the merit where so doing turns out to be necessary. I will therefore be acting in obedience to the dictates of the law, proceed to consider and determine the Respondent’s preliminary objection first.
THE PRELIMINARY OBJECTION
The Notice of Preliminary Objection was brought pursuant to Order 2 Rule 9 of the Supreme Court Rules, 1999 and Section 233 (2) and (3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), and the inherent jurisdiction of this Court. Learned Counsel for the Respondent filed six paragraph affidavit in support of the objection sworn to by Chinwe Chinaka, Legal Practitioner. Learned Counsel for the Respondent contended that the issues for determination relied on by the Appellant are invalid because the nine grounds of appeal from which the issues for determination were distilled are grounds of mixed law and facts, and the Appellant did not seek for and obtain the necessary leave of either the lower Court or this Court before bringing the appeal. Learned Counsel therefore said the appeal is incompetent, and this Court lacks jurisdiction to hear and determine the appeal since leave of Court was not sought for and obtained before commencing the appeal.
Learned Counsel referred to the Appellants notice of appeal deemed properly filed and served on the 15th day of September, 2021 and submitted that the grounds of appeal are of mixed law and facts and cannot therefore be determined without the Appellant seeking for and obtaining leave of Court to appeal against the judgment. Counsel contended that the inability of the Appellant to seek for and obtain leave to appeal offends the provisions of Section 233 (3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
Learned counsel relied on the decision in J.B OGBECHIE & ORS V. GABRIEL ONOCHIE & ORS (1986) 2 NWLR (Pt.23) 484 at 491, where this Court acknowledged the difficulty in filtering grounds of law from grounds of facts, and dissected the determinant for identifying each of these grounds. Learned Counsel lifted a portion of the decision of this Court where it was held that in identifying grounds of law or of mixed law and facts, “what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower Tribunal of the law or a misapplication of the law to the facts already proved or admitted, in which case it will be question of law, or one that requires questioning the evaluation of facts by the lower Tribunal before the application of the law in which case it would amount to question of mixed law and fact. The issue of fact is easier to determine.”
Learned counsel also contended that in general terms, it can be said that grounds of appeal which raise facts which warrant some determination either way are grounds of facts, and where the question raised by the ground is one of law as applied to disputed facts, or the ground raises partly law and partly facts, it is a ground of mixed law and facts, relying on the decision of this Court in NWADIKE V. IBEKWE (2004) WRN 32 at 71-72.
Learned Counsel outlined the five categories of errors in law as clearly set in the NWADIKE V. IBEKWE (Supra) and submitted that none of the nine grounds of appeal filed by the Appellant falls within the categories. Counsel made elaborate submissions of grounds of law and submitted that the Appellant’s grounds of appeal do not present the features set out in strict grounds of law they are at best grounds of mixed law and facts, Appellant must therefore seek for and obtain leave of Court before bringing the appeal, and having failed to do so, the appeal must be held to be patently deficient, invalid and therefore incompetent, he urged that the preliminary objection be sustained and the appeal be dismissed.
The learned Counsel for the Appellant filed seven paragraph counter affidavit to the preliminary objection sworn to by Chiguzo Isiguzo. Counsel also filed written address and identified sole issue for discourse in resolving the objection, “Whether the grounds of appeal in this appeal with its particulars are all grounds of fact or mixed law and fact”. In the written address, Counsel reproduced the grounds of appeal and the particulars, and cited several authorities to contend that the grounds are of law and law alone. Counsel cited the decisions in OGBECHIE V. ONOCHIE (1986) 2 NWLR (pt. 23) 484 at 492, NWADIKE V. IBEKWE (1987) 4 NWLR (pt. 67)a 718-733, to contend that the 9 grounds of appeal are grounds of law and law alone. Counsel urged this Court to examine the grounds of appeal and the particulars in resolving whether the grounds are of law or of mixed law and facts. Counsel finally contended that the grounds of appeal are of law and law alone and therefore urged this Court to so hold and dismiss the preliminary objection.
RESOLUTION
Before I proceed to discuss the preliminary objection, let me first reproduce the Appellant’s grounds of appeal and the particulars as filed, so doing will show whether the grounds are grounds of law or of mixed law and facts. Appellant’s nine grounds of appeal and the particulars read as follows:
Ground One
The learned Justices of the Court of Appeal erred in law when they relied only on the opening sentence of paragraph 6 of the appellant’s statement of defense in their conclusion that the appellant conceded possession to the respondent, which error led to a miscarriage of justice.
Particulars of Misdirection
a) Their Lordships failed to adopt a holistic approach in the construction of paragraph 6 of the statement of defence.
b) Paragraph 6 of the appellant’s statement of defence did not concede possession of the land in dispute to the respondent.
c) The contents of paragraph 6 of the statement of defence is not in accord with Section 146 of the Evidence Act 2004.
d) The land in dispute was specifically identified as the area verged red in the appellant’s plan
e) The land conceded to the respondent is in the area verged blue.
f) There is no evidence that the respondent was granted land outside the area verged blue by Umuogbuehi larger family for his personal use.
g) Umuogbuehi larger family is not synonymous with the respondent.
Ground Two
The learned justices of the Court of Appeal erred in law when they declared that the respondent had discharged the burden of proving long possession for over 40 years of the land in dispute.
Particulars of Misdirection
a) The respondent did not plead or lead evidence of traditional history acceptable in law.
b) The respondent did not file reply to the statement of defence in which ownership by the larger family was pleaded as against sole ownership by the respondent’s grandfather.
c) The respondent conceded ownership by the larger family of Umuogbuehi who had not partitioned their land.
d) The appellant proved long possession of land in dispute with Exhibit C, purchase receipt of 1975 when respondent was still a youth.
e) Possession is not a substitute for failed traditional history
f) The respondent participated in the sale to the appellant as a young man.
g) Respondent did not traverse appellant’s claim of possession of the land in dispute.
h) The respondent did not plead or lead any evidence of long possession.
Ground Three
The learned justices of the Court of Appeal erred in law when they failed to allow the appeal when the respondent’s evidence on record contradicted his pleaded root of title.
Particulars of Misdirection.
a) Respondent claimed devolution by inheritance from his father and grandfather
b) Respondent in evidence admitted ownership of ALA NWOKWU by the larger Umuogbuehi family members of which the respondent his father and grandfather were part.
c) Respondent neither pleaded nor led evidence of partition of the property of the larger family.
GROUND FOUR.
The Court of Appeal erred in law by sustaining the decision of the lower Court on the issue of necessity of filing a reply to the appellant’s statement of defence when, in the leading judgment of Ekpe JCA with which the rest of the justices agree, the Court held:
“I can safely say at this juncture that all through the oral testimonies of the plaintiff/respondent and his witnesses as well as the evidence that emanated from the defendant/appellant in cross-examination, the respondent had effectively traversed all the issues raised by the appellant and a reply was therefore rendered unnecessary. I refer to the case of ISHOLA V. S.G.B. NIG Ltd (1997)2 NWLR (pt. 488) at 405. In the light of the foregoing, I agree with the decision of the trial Court that the case of the defendant has been adequately met by the denials of the plaintiff in these pleadings and also in cross-examination and therefore the reply is no longer necessary. I resolve this issue in favour of the respondent.”
Particulars of Misdirection
a) Paragraph of the statement of defence contained fresh facts which were not contained in the statement of claim of the respondent.
b) Paragraph (11) (e)of the statement of defence specifically mentioned the respondent and other named youths as receiving N100.00 plus a carton of beer in furtherance of the sale transaction upon which the appellant’s case rested.
c) Fresh facts raised in a statement defence can only be traversed in a reply pleading
d) The only pleadings filed by the respondent in his statement of claim.
e) The facts proffered by oral testimonies referred to and upheld by the Court of appeal were neither pleaded in the statement of claim nor in statement of defence.
f) The Court of Appeal misconstrued and misapplied the case of ISHOLA V. SGB Nig. Ltd (supra) which has occasioned a miscarriage of justice.
g) The Court of Appeal did not consider the Supreme Court judgments cited on behalf of the appellant on filing of a reply to a statement of defence.
Ground Five
The Court of Appeal erred in law by sustaining the decision of the lower Court to the effect that the appellant’s defence that she bought the land from the plaintiff through the head and other principal members of the family were not supported by the evidence by any witness from Umuogbuehi family, when the pleading of facts on how the appellant got possession of the land was not traversed and was, thus, not put in issue at the hearing.
Particulars of error
a) Allegations of fact in a party’s pleadings not traversed by the adverse party are not put in issue for determination before a trial Court but deemed admitted. (Lewis Peat NRI V. AKHIMIEN (1976)162-164 SC.
b) The respondent did not traverse at all the appellant’s allegation in paragraph 11 (a)-(f) of how she got the land, which transaction involved the respondent and his elder brother.
c) Failure to traverse a pleaded fact is an admission of that fact.
d) The Court of Appeal sustained a conclusion by the trial Court founded on unpleaded evidence.
Ground Six
The Court of Appeal misdirect itself in law, which misdirection occasioned a miscarriage by, after holding that the issue before the Court was not whether the document is genuine or valid or even whether it was duly stamped and registered, and in the face of the state of the pleadings as they were, still concluded as follows:
“it is my view that a mere receipt without any corroborative evidence to support it cannot covey a better title to a defendant in a sale of land under native law and custom. The appellant also failed to call any witness of the principal family members or even any of the youths who were present in the face of these challenges to the sale, it becomes fatal not to call any of them and therefore a mere receipt signed by some non-family members cannot stand in the face of viva voce evidence of in a customary transaction.”
Particulars of Error
a) Viva-voce evidence of unleaded facts go to no issue and are in law subject to expunging.
b) There was no pleaded challenge of the capacity of the appellant’s grantor by the respondent in any form before the Court.
c) Consent of the family to the grantors was not put in issue at the trail by either of the parties.
d) A Court is limited to the cases of the parties as put before it by the parties.
e) The viva voce evidence of the respondent and his witnesses upon which the Court of appeal relied are evidence of unleaded facts.
f) The misdirection as to the case of the parties and the applicable law thereto before Court misled the Court into veering off its adjudicatory competence.
g) Conclusion on consent of the family by the Court of appeal is extraneous of the case of the parties on record.
Ground Seven
The Court of Appeal erred in law when it upheld the trial Court’s failure to ascribe probative value to Exhibit C, and further held that a receipt evidencing payment for land, the making or validity of which has not been challenged by an adverse party, could not prove sale of land under customary law.
Particulars of Error
a) An unchallenged averment of fact in a pleading requires minimal evidence for proof.
b) Exhibit C is unchallenged evidence of pleaded fact on record.
c) The status of signatories in the granting family was proved by unrebutted evidence on record
d) There is no claimed relief against the making of Exhibit C.
e) The learned trial judge and the Court of Appeal concurrently impugned the probative value of a legal evidence with illegal evidence.
f) Exhibit C was pleaded and admitted as a receipt evidencing payment of money for the sale transaction.
Ground Eight
The Court of Appeal erred in law by holding that the appellant rested her case on jus tertii when appellant in his pleading only alleged that the respondent and his elder brother David were part of the sale to her by the larger Umuogbuehi family.
Particulars of Error
a) Paragraph 8 of the statement of defence pleaded that ‘the plaintiff’s senior brother, David Onyeachugwo (now late) was present to witness the sale of the land to me’.
b) The appellant pleaded that amongst those ‘who sold the land to me were Michael Okenwa (the head of Umuogbuehi family, Peter Okenwa and Nathan Okenwa’.
c) The appellant pleaded in paragraph 11(e) that ‘the plaintiff Amadi Okenwa and James Anuforom were among the youths to whom she gave additional N100,00 plus one carton of bear towards the purchase of the land’.
d) These specific averments in (a)-(c) supra were not traversed in any reply.
e) Appellant’s case did not include facts relating to jus tertii
f) Jus tertii was judicially imported into the case.
Ground Nine
The Court of Appeal erred when it held that the respondent traced his root of title by the traditional evidence of PW2 and PW3 as stated earlier.
Particulars of Error
a) The parties are agreed in evidence that the land is dispute belonged to the Umuogbuehi larger family.
b) Paragraph 6 of the statement of claim in which the plaintiff’s traditional history of the land was pleaded did not plead how the land devolved on Onyeachugwo’s father before he made a gift of it to his son, the respondent
c) The testimonies of the respondent, PW2 and PW3 on which the trial Court relied are evidence of unpleaded facts.
d) There was no pleading or evidence of partition of Umuogbuehi property ALA NWOKWU.
e) The gap as to how the land developed on Onyeachugwo and his father from the larger family was fatal to Respondent’s case.
f) The appellant did not need to prove a better title to that claimed by the Respondent in an action for a declaration of title.
Now having reproduced the grounds of appeal, the stage is now set for me to consider the preliminary objection viz-a-viz the nine grounds of appeal in the Appellant’s Notice of Appeal.
Issue of mixed law and facts, facts and law alone is very delicate, mystifying and intricate, it entails complex mixture in most cases making it difficult to navigate through the muddle and untie. The Court examines the grounds upon which the appeal is erected in order to find basis of concreting its decision on where the grounds of appeal stand, that is whether they are grounds of law, law and facts, or law and law alone. The Court must do a community reading of the grounds of appeal and their particulars of error.
This Court in OGBECHIE V. ONOCHIE (1986) 2 NWLR (pt. 23) at pg.484 and seemingly endless decisions set out the principles to apply in identifying where a particular ground of appeal resides. I carefully read the grounds and particulars of error in grounds 1, 3, 4, 6, 7, 8 and 9, contained in the Notice of Appeal, they deal with issues of law and facts, ground one relates to lack of evidence, ground three relates to claim of ownership by inheritance from Respondent’s father and grandfather, ground four expressly referred to facts which the lower Court failed to consider, ground six relates to alleged error on the part of the lower Court on the issue of consent of the family, ground seven relates to unrebutted evidence on record, ground eight referred to evidence of purchase of the land subject of this appeal, and ground nine relates to reliance on the evidence of PW2 and PW3. It is therefore clear from reading grounds 1, 3, 4, 6, 7, 8 and 9 and their respective particulars of error that they are grounds of mixed law and facts.
A ground of appeal on facts could be cleverly crafted as a ground of law, so doing by the Appellant does not necessarily make it a ground of law, while a ground of law could be designed as a ground of facts, so doing by the Appellant does not also make it a ground of facts. In my view therefore, a close and critical reading of the said grounds would show that grounds 1, 3, 4, 6, 7, 8 and 9 of the Appellants grounds of appeal are grounds of mixed law and facts. The Appellant cannot therefore make his way to this Court and file an appeal on grounds of mixed law and facts without obtaining leave of Court as required by Section 233 (3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). The grounds so filed must be held to be deficient and incompetent and therefore liable to be struck out. This Court in AI MAJIR V. JALBAIT VENTURES NIG. LTD & ANOR. (2021) 1-2 S.C (pt. 2) held as follows:
“Where leave first sought and obtained is the sine qua non, under Section 233 (2) and (3) of the Constitution of the Federal Republic of Nigeria, as amended, for a valid or competent appeal, unless the leave was first sought and granted to the appellant to appeal, any appeal lodged or filed in defiance of the said mandatory provisions will be void and a nullity ab initio …”
Similarly, in MAIGORO V. GARBA (1999) 7 S.C (pt.3) this Court per my lord EJIWUNMI, JSC emphasized on the consequence of this defiance emphatically in the following words, he said as follows:
“it is therefore clear that the Court has no jurisdiction to entertain an appeal on a ground of fact or mixed law and facts, unless of course, leave has been obtained. This point has been emphasized in a number of recent decisions. It is enough to refer only to the following; Oluwole V. Lagos Development (1983) 5 S.C 1 and J.B Ogbechie & Ors V. Gabriel Onochie & Ors (No 1) (1986) 3 S.C (Reprint 32)”
Having held the view that grounds 1, 3, 4, 6, 7, 8 and 9 are incompetent and liable to be struck out, the Appellant still has two surviving grounds of appeal, grounds 2 and 5, they are grounds of law and therefore capable of sustaining the Appellant’s appeal. It is settled law that where at least one ground in an appeal raises question of law alone, that solitary ground will sustain the appeal. See OGBECHIE V. ONOCHIE (supra). In the instant appeal therefore, the Appellant’s grounds 2 and 5 are still alive and will keep the appeal before us going for the time being, having been sustained by the two grounds.
In IDIKA V. ERISI (1988)2 NWLR (pt. 78) at 5661, this Court held as follows and I quote:
“issues or questions for determination in an appeal are framed from the grounds of appeal before the Court, consequently, any issue, argument or other part of a brief which has no ground or grounds of appeal to support it or which is based on a ground of appeal for which no leave has been sought and obtained is not only incompetent but completely valueless in the appeal.”
See also GLOBE FISHING INDS. LTD V. COKER (1990) 7 NWLR (pt.162) at 265, AJA V. OKORO (1991) 7 NWLR (pt.203) 260 at 273, AG BENDEL STATE V. AIDEYAN (1989) 4 NWLR (pt. 118) 646 and OGBUANYINYA V. OKUDO (1990) 1 NWLR (pt.146) 551.
Having said this much therefore, Respondents preliminary objection succeeds in part, grounds 1, 3, 4, 6, 7, 8 and 9 and issues for determination B, C, E, and F crafted are hereby struck out. Appellants grounds 2 and 5 being grounds of law and law alone are competent. Appellant is left with grounds 2 and 5. I will now proceed to critically analyse the issues for determination distilled from the surviving grounds.
ISSUES A & D
From the records, Appellant crafted issues A and D from grounds 2 and 5. Let me examine the two issues to determine if they are capable of navigating Appellant’s appeal to the promised land.
From the Appellant’s brief of argument issues A and D, are reproduced as follows:
a) Whether the Court of appeal’s decision that the respondent proved possession of the land in dispute is correct in law considering the pleadings and legal evidence on record. (Ground 1 and 2).
d) Whether the applicant did not, based on the pleadings and evidence on record, proved the purchase of the land in dispute from the Umuogbuehi larger family of which the respondent is a member. ( Ground 5 and 6).
From the issues reproduced above as crafted by the learned Counsel for the Appellant, issue (a) is distilled from grounds 1 and 2, issue (d) is crafted from grounds 5 and 6. Looking at the issues crafted from the remaining grounds, it is clear to me that while the grounds are adjudged to be of law and law alone, the issues distilled therefrom are apparently designed to discuss facts, I am sure where an Appellant crafts a ground of law, and proceeds to distil therefrom issues dealing with facts, the issues and the ground will be incompetent.
The law is settled that where an Appellant fails to distil an issue from a ground of appeal, that ground will be deemed as having been abandoned, and a ground of appeal that is not clothed with an issue for determination will be treated as a barren and sterile ground of appeal and be designated incompetent and therefore liable to be struck out. See PDP V.INEC (2014) LPELR-23808 (SC). The two issues (a) and (d) and grounds 2 and 5 are therefore accordingly struck out.
Appellant’s grounds of appeal are therefore incompetent; they are accordingly struck out. The preliminary objection is sustained and the appeal is accordingly struck out.
Again I must not conclude without touching on the manner the issues under reference are crafted by the learned Counsel for the Appellant. In the Appellants brief of argument learned Counsel argued issues for determination (a) and (b) together, and issues (d) and (e) together. I have already declared that issues (b) and (e) are incompetent and accordingly struck them out. Appellant distilled issue (a) and (d) from a conglomeration of competent and incompetent grounds of appeal, issue (a) from (grounds 1 and 2) and issue (d) from (grounds 5 and 6), This alone will render the issues invalid and therefore incompetent and undeserving of consideration and determination by the Court. In IKPEAZU V. OTTI & ORS (2016) LPELR-40055 (SC), this Court came across similar situation, and my Lord GALADIMA, JSC did not hesitate in holding as follows:
“This point is fairly settled in a number of decisions of this Court to the effect that arguments or submissions on incompetent issues and/or grounds of appeal cannot be lumped together with those of competent grounds of appeal and issues for determination. If this is done it will not be the business of the Court to “sift the chaff from the grains” an exercise that would clearly involve arguments in respect of the valid grounds from the invalid ones. It is true that such an exercise may involve the Court in descending into the arena of dispute which will often becloud the judgment of the Court. See KOREDE v ADEDOKUN (2001) 1 NWLR (pt. 736) 483 at 499.”
It is the law that where a concoction of issues is presented to the Court by Counsel, and the issues are constituted by valid and invalid issues for determination and grounds of appeal, the Court has no business investing precious judicial time filtering arguments of Counsel or guessing which submissions are competent or incompetent, or sifting the chaff from the grain, this is not the business of the Court, the only duty on the Court is to order that the issues be struck out for want of competence. Counsel argued the issues together, this Court cannot embark on unnecessary surgical operation aimed at placing the arguments of Counsel in their place, we are not vested with such open-ended jurisdiction, any attempt at so doing would endanger the impartiality of the Court and tacitly engage the Court in doing the case of the parties. Grounds 2 and 5 and issues (a) and (d) are incompetent, they are accordingly struck out.
Respondents preliminary objection to the competence of the Appellant’s appeal is sustained, the appeal is patently incompetent it is hereby struck out.
Parties in this appeal shall bear their respective costs.
SC.532/2013
