Ozurumba Nsirim V Dr. Samuel W. Amadi (2016)
LAWGLOBAL HUB Lead Judgment Report
WALTER SAMUEL NKANU ONNOGHEN, J.S.C.
This is an appeal against the judgment of the Court of Appeal Holden at Port Harcourt in appeal No.CA/PH/55/98 delivered on the 22nd day of April, 2004 in which the Court allowed the appeal of the instant respondent in parts.
The respondent, as plaintiff instituted suit No.PHC/341/87 in the High Court of Rivers State, holden at Port Harcourt in which he claimed the following reliefs in the Statement of Claim:
- A declaration that the plaintiff who is the next of kin of Chief Christian O. Amadi (deceased) is entitled to the grant of letters of Administration in respect of the Plot 91 Gborokiri Layout, otherwise known as No.3 Andoni Street, Gborokiri, Port Harcourt.
- A declaration that the plaintiff is entitled to the Assignment of the leasehold interest in respect of Plot 91 Gborokiri Layout, otherwise known as No. 3 Andoni Street, Gborokiri, Port Harcourt.
- An order revoking and/or nullifying the Letters of Administration dated 15/2/82 purportedly granted to the Defendant in respect of the said Plot 91 Gborokiri Layout, otherwise known as No.3 Andoni Street, Gborokiri, Port Harcourt.
1 4. AnOrder for the Defendant to account for all the rents he wrongly collected from the tenants in the premises from 23/4/80 (when his fathers interest in the property ceased to the date of judgment and payment of the same over to the estate of Chief Christian O. Amadi (deceased).
- An order of perpetual injunction to restrain the Defendant and/or his servants and agents from interfering with the said property.”
The above claim of the present respondent is based on an assignment of the land in dispute to his late brother, Chief Christian Amadi.
The appellant, however contended that the property in issue was not assigned by his late father, late John Amabibi Nsirim and that the said late John Amabibi Nsirim granted a Power of Attorney to a donee over the said property thereby having nothing left to assign to the privy of the respondent and that the respondent not being armed with Letters of Administration at the time the suit was commenced but suing as the next of kin of his late father, lacked locus standi to institute the action.
Though the High Court granted relief No 2 supra; an order revoking and/or nullifying the letters of Administration dated 15/12/82; the
2Court gave Judgment to the defendant/appellant herein on the ground that his father having granted a Power of Attorney to another, had nothing left to assign to the brother of the plaintiff//respondent herein. The Court, however, failed to consider the issue of locus standi of the plaintiff/respondent to institute the action as raised by the defendant.
Dissatisfied with the above judgment, the present respondent appealed to the Court of Appeal, Holden at Port Harcourt which Court held, in the judgment delivered on the 22nd day of April, 2004, inter alia, as follows:-
“In conclusion, the appeal is allowed only in respect of paragraph 24(2) of the Statement of Claim. Accordingly I declare that the plaintiff is entitled to the assignment of the leasehold interest in respect of Plot 91 Gborokiri Layout, otherwise known as No.3 Andoni Street, Gborokiri Port Harcourt. He may therefore take the appropriate steps to have the assignment duly registered and also apply for a rectification of the Register of Title Deeds…”
See page 150 of the record.
It should be noted, at this stage, that the present appellant, who was respondent in the Lower Court, neither cross appealed
3nor filed a respondents notice against the judgment of the trial Court for failure to determine the issue of locus standi as raised in the pleadings and address of counsel. Rather than file a cross appeal or respondent notice, the learned counsel for the respondent therein raised an issue touching and concerning the non determination by the trial Court of the issue of locus standi of the plaintiff to which the Lower Court, at pages 148 to 150 of the record had this to say inter alia:
”I now turn to issue 1 in the respondents brief which seeks to question the competency of the plaintiff’s claim. The formulation of the issues for determination have to come within the ambit of the grounds of appeal. See A-G Bendel State vs Aideyan (1989) 4 NWLR (Pt.118) 646. The respondent’s issue should arise from the grounds of appeal. See U.A.C. (Nig) Ltd vs Global Transports S.A. (1996) 5 NWLR (Pt.448) 291: Yaktor vs Gov Plateau State (1997) 4 NWLR (Pt.498) 216. Where there is no cross appeal, the respondent is duty bound to confine himself to the appellant’s grounds of appeal. See Edem vs Cannon Ball Ltd (1998) 6 NWLR (Pt.553) 298. However, a respondent to an appeal may file respondent’s Notice in accordance with Order 3
4 Rule 14(1) and (2) Court of Appeal Rules to contend that the decision being appealed against should be varied either in any event or in the event of the appeal being allowed in whole or in part or that the judgment should be affirmed or varied on other grounds. In such a case the formulation of issues and the arguments of the respondent may not be strictly in line with the grounds of appeal in the further amended grounds of appeal filed together with the further amended appellant’s brief, the complaints of the appellant were…
In none of the further amended grounds of appeal is there a ground that complained about a Ruling or finding made by the learned trial Chief Judge about the capacity of the appellant to sue. Issue No.1 in the respondent’s brief is incompetent and is accordingly struck out”
The above passage in the judgment of the Lower Court constitutes the foundation of the instant appeal, the issue for the determination of which has been formulated by learned counsel for appellant, E. B. UKIRI ESQ in the appellant brief filed on 22nd April, 2005 as follows:-“Whether or not the learned Justices at the Court of Appeal were right in refusing to
5 consider and determine the question of the capacity or locus standi of the Respondent to sue, which was a challenge to the competence of the action and, therefore the jurisdiction of the trial Court to entertain the Respondent’s claims”.
It should be noted that there is no appeal regarding the decision of the Lower Court allowing the appeal of the present respondent in respect of paragraph 24(2) of the Statement of Claim. In law, therefore, the decision of the Lower Court thereto subsists and remains binding on the parties.
In arguing the issue, learned counsel for appellant stated that though appellant raised the issue of locus standi in his pleadings and produced evidence thereto at the trial and made submissions on the issue, the trial Judge did not consider the issue in the judgment; that the same issue was raised and argued before the Lower Court which struck same out for non compliance with the provisions of Order 3 Rule 14(1) and (2) of the Court of Appeal Rules; that the Lower Court took a narrow and inaccurate approach to the very fundamental question of the competence of the action and its impact on the jurisdiction of the Lower Court; that it is trite law
6 that an issue of jurisdiction can be raised at any stage of the proceedings, even on appeal; that the Courts can even raise the issue suo motu; that the Lower Court was bound to consider the issue of jurisdiction however raised; that compliance with the provisions of Order 3 Rule 14(1) and (2) is not a condition precedent to the questioning of the jurisdiction of a trial Court’s decision on appeal. Learned counsel submitted that the striking out of the issue by the Lower Court without considering same occasioned a miscarriage of justice and urged the Court to consider and determine the issue and resolve same in favour of appellant and allow the appeal.
On his part, learned counsel for the respondent, H. SENIBO ESQ in the respondent brief filed on 10/6/05 submitted that the Lower Court was right in the decision it arrived at on the issue having regard to the proper interpretation of Order 3 Rule 14(1) and (2) of the Court of Appeal Rules: that where a respondent does not file a cross appeal or a respondent notice, he can only formulate issues based on the grounds of appeal filed by the appellant, relying on Comptroller, Nigerian Prisons Services vs. Adekanye
7 (2002) FWLR (Pt.120) 1650 at 1681 1682; Adigun vs. Ayinde (1993) 8 NWLR (Pt.313) 516 at 528; that the issue of locus standi before this Court is not a fresh issue, same had been raised before the Lower Courts. It is the further submission of counsel that the issue of locus standi raised in this case is not a direct issue of jurisdiction of the Court and urged the Court to resolve the issue against appellant and dismiss the appeal.
The issue raised in the appeal is very straight forward and simple. Can a respondent to an appeal formulate issue(s) for determination outside the grounds of appeal filed by the appellant without first and foremost filing either a cross appeal or a respondents notice The Lower Court held that he cannot, having regard to case law and the provisions of Order 3 Rule 14(1) and (2) of the Court of Appeal Rules. Appellant, on the other hand contends that he can, the issue being a matter affecting the jurisdiction of the Court which can be raised at any stage in the proceeding including on appeal irrespective of whether he files a cross appeal or a respondent notice.
I had earlier in this judgment reproduced the relevant portion of the
8 judgment of the Lower Court constituting the foundation of the instant appeal. Order 3 Rule 14(1), (2) & (3) of the Court of Appeal Rules 2002 (being the applicable Rules) provide as follows:-
”(1) A respondent who not having appealed from the decision of the Court below desire to contend on the appeal that the decision of that Court should be varied, either in any event or in the event of the appeal being allowed in whole or in part, must give notice to that effect, specifying the grounds of that contention and the precise form of the order which he proposes to ask the Court to make, or to make in that event, as the case may be.
(2) A respondent who desires to contend on the appeal that the decision of the Court below should be affirmed on ground other than those relied upon by that Court must give notice to that effect specifying the grounds of that contention.
(3) Except with the leave of the Court a respondent shall not be entitled on the hearing of the appeal to contend that the decision of the Court below should be varied upon grounds not specified in a notice given under this rule or apply for any relief not so specified or to support the decision of
9 the Court below upon any grounds not relied upon by that Court or specified in such a notice.”
It is settled law and practice that the duty of a respondent to an appeal is to defend the judgment of the Court below which is usually in his favour. His duty is not to attack the judgment already given in his favour except where he disagrees with some aspects of the judgment in which case he is required to file a cross appeal in which he prays the appellate Court to set aside the aspect of the judgment he considers against his interest or for the Court to consider an aspect of the case he put forward at the Lower Court which the Lower Court failed and/or neglected to consider and determine in its judgment.
Where however, the respondent is of the view that there is the need for the appellate Court to vary the decision of the Lower Court or affirm that decision on other grounds he has to file a respondent’s notice to that effect as provided for Order 3 Rule 14 supra.
In the instant case, both parties agree that appellant, as respondent in the Lower Court, neither filed a cross appeal nor a respondent’s notice with regard to the decision of the trial Court on appeal and
10 which was given in his favour.
The respondents issue 1 before the Lower Cout which the Court held to be incompetent is as follows:
”(1) Whether or not the plaintiff’s claim was competent, having been filed before letters of Administration were granted to him.”
An issue or issues for determination must arise from the grounds of appeal relied upon. See Nwanezia v. Idris (1993) 3 NWLR (Pt.279) 1 at 12. Therefore, when an issue(s) as formulated be not based on the ground of appeal filed, the legal effect is that it is/they are on that account irrelevant – See Ugo v. Obiekwe (1989) 1 NWLR (Pt.99) 566. Osinupebi v. Sabiu (1982) 7 SC 104, 110, 111; Western Steel Works Ltd v. Iron Workers Union of Nigeria (1987) 1 NWLR (Pt.49) 284, 304.
Jurisdiction is defined as the legal capacity of a Court to hear and determine judicial proceedings. It is a power to adjudicate concerning the subject matter controversy.
I had earlier reproduced the reliefs claimed by
11 the plaintiff in the trial Court. Can it be said that having regard to the said reliefs the trial Court does not have the requisite jurisdiction to hear and determine the issues(s) in controversy between the parties Better still, can it be said that the issue of jurisdiction is directly in contention between the parties having regard to the reliefs claimed
It is very clear from the issue formulated by learned counsel for the respondent in the Lower Court that jurisdiction is not the direct issue in contention, arising from the grounds of appeal. I agree with the general proposition of law that an issue of jurisdiction can be raised at any stage in the proceedings including on appeal but that does not mean that there are no rules governing the raising of an issue of jurisdiction or that it can be raised without regard to the Rules of Court crafted or designed to aid parties to obtain justice in the Court of law.
I had earlier pointed out in this judgment that the traditional role of a respondent in an appeal is to defend the judgment of the Lower Court given in his favour and that where he decides to challenge the judgment either as a whole or in part, he has to file a cross- appeal in which he provides the grounds of his complaints against the decision.
It is settled law that issues in appeal can only validly
12 arise from the grounds of appeal or cross appeal and that where an issue or issues for determination does/do not arise from the grounds of appeal, such an issue(s) is/are incompetent and liable to be struck out. In the instant case and as found by the Lower Court, respondents issue 1 before the Lower Court does not arise from any of the grounds of appeal filed in the appeal. The respondent filed no cross appeal, the ground(s) of which might have grounded the issue in question neither, also as found by the Lower Court, did the respondent file a respondent’s notice in the appeal.
No one is saying that a respondent in an appeal cannot raise an issue for determination of the appeal either on jurisdiction or otherwise but that the issue(s) so raised must be anchored in the grounds of appeal which must in turn arise from the ratio in the judgment on appeal, otherwise the issue(s) formulated is/are grossly incompetent. The reason, simply is that the judgment of a Court of law is presumed valid and subsisting unless set aside by an appellate Court of competent jurisdiction, upon a proper appeal or cross appeal.
As stated earlier, in this judgment, a respondent who does not
13 cross-appeal but intends to contend that the judgment of the Lower Court be varied or affirmed on grounds other than those relied upon by the Lower Court can do so by filing a respondent’s notice under the Rules of Court, otherwise any issue for determination not anchored on the grounds of appeal (main or cross) or respondents notice is grossly incompetent and liable to be struck out.
I therefore agree entirely with the decision of the Lower Court earlier reproduced in this judgment as I find same to be without reproach. In the circumstance I find no merit in the issue under consideration and consequently resolve same against appellant and dismiss the appeal.
Appeal is dismissed for want of merit with N250,000.00 costs against appellant in favour of respondent.
Appeal dismissed.
SC.40/2005
