Senator (Chief) Olayinka Omilani & Anor. V. Chief Adetunji Omisore & Anor. (2006)

LawGlobal-Hub Lead Judgment Report

OGUNBIYI, J.C.A.

The plaintiffs/appellants’ claims giving rise to this appeal were taken out by a writ of summons dated 7th and filed 8th January 2002 against the two defendants/respondents for the following –

1. A declaration that the 1st plaintiff representing the interests of the 2nd plaintiff is a bona fide Director of the 2nd defendant.
2. A declaration that the 2nd plaintiff is a shareholder of the 2nd defendant.
3. A declaration that the 1st defendant, Chairman of the 2nd defendant acted ultra vires and without lawful authority in issuing the letter dated 19th November 2001 which effectively asked for the resignation of the 1st plaintiff from the Board of the 2nd defendant.
4. A declaration that it is ultra vires the 1st defendant to ask for the resignation of the 1st plaintiff.
5. A declaration that it is only the 2nd plaintiff, the interest of whom the 1st plaintiff represents that can withdraw the 1st plaintiff’s nomination to the Board of the 2nd defendant.
6. A declaration that the 1st plaintiff is entitled to continue to receive all relevant notices, circulars and other necessary information and documents as communicated to other Directors of the 2nd defendant company and to attend or nominate a proxy to represent him at any of the company.
7. A declaration that the 2nd plaintiff is entitled to continue to receive dividends, bonus or other benefits accruing to other members of the 2nd defendant company.
8. A declaration that the letter dated 19th November 2001 written or signed by the 1st defendant purportedly on behalf of the 2nd defendant is ultra vires.
9. An order of perpetual injunction restraining the defendants from acting or taking any steps capable of denying the plaintiffs of their rights and entitlements as Director/Shareholders of the 2nd defendant company.

The appellants by their writ of summons and statement of claim in a nutshell therefore claimed entitlement to the shares in the 2nd respondent and that they are Directors of the said 2nd respondent company.

The defendants/respondents, on their behalf and in response, filed a copious 24 paragraphs statement of defence and also a counter-claim of 30 paragraphs wherein they claimed against the two appellants and GN Bishop Insurance Broker Nig. Ltd, as 3rd defendant to the counter claim evidenced at pages 32 – 45 of the record. The reliefs which are stated at page 45 are as follows:

1. A declaration that the 1st and 2nd defendants are not bona fide shareholders of the 2nd plaintiff company.
2. A declaration that the 1st and 2nd defendants are not bona fide shareholders in or members of the 3rd defendant’s company or board.

3 A declaration that the 1st and 2nd defendants are not competent and lawful directors of the 2nd defendant company.

4. A declaration that the purported merger of the 2nd plaintiff with G.N. Bishop Insurance Broker (Nig.) Ltd. sometime in 1995 was invalid, wrongful, null void, illegal and non-existent.
5. An order restraining the 1st and 2nd defendants from parading themselves as shareholders and/or Directors of the 2nd plaintiff company pursuant to the purported shareholding in the 3rd defendant and or the purported merger of the 2nd plaintiff and 3rd defendant.

Briefly from the record before us, and to state the background facts of this case Glanvill Enthoven & Co. Nig. Ltd (the 2nd respondent herein) was incorporated in the year 1957 by the Government of Western Region and one Glanvill Enthoven (U.K.) Ltd. as the first indigenous Nigerian Insurance Brokering Company and has been carrying on its business of Insurance brokering from thence until this present date. Another Company known as British G.N. Bishop U.K. Ltd. (later Plc.) had a long standing business relationship with the 2nd respondent which relationship consists in GN Bishop UK introducing insurance brokering accounts as agent to 2nd respondent and taking a third of its commission accruing therefrom as its commission.

By the provisions of the Insurance Act of 1976, the payment of commission to insurance agents not registered in Nigeria was prohibited, and thus the aforesaid agency relationship became affected. At the risk of losing the accounts brought by G.N. Bishop UK and other prospective accounts, a solution had to be found to the statutory prohibition and retained not only the accounts being brought by GN Bishop UK to 2nd respondent but also enjoy other prospective accounts from the same source.

An agreement was therefore reached between GN Bishop UK and 2nd respondent to float a company whose business shall be insurance brokering and in which G.N. Bishop UK shall hold shares, which shall be proportionate to the 1/3 commission it was earning before the Insurance Act. These are all evidenced per exhibits A1, A17, and N at pages 428, 489 and 515 – 516 of the record. By exhibit A1 therefore, GN Bishop Nig. was incorporated in 1980 and 2nd respondent acted as its manager. Clause ‘B’ of the exhibit provided:

“The company will pay to the Manager by way of remuneration for its services pursuant to this agreement 60% of its net retained brokerage and other remuneration received by the Company in respect of agreed business.”

By the averments in the statement of claim the plaintiffs alleged a merger between the 2nd defendant and GNB Nigeria in which the plaintiffs were shareholders and thus 1st plaintiff acquired the status of a Director in the 2nd defendant as a result of the merger which was alleged having been approved by the Boards of the two companies. The defendants/respondents however denied the plaintiffs aforementioned claim in its totality. In otherwords, that there was no merger between G.N. Bishop Insurance Broker Nig. Ltd. 3rd defendant to the counter claim and Glanvill Enthoven Nig. Ltd. 2nd respondent, and that the purported transfer of GN Bishop UK shares to the shares of the appellant were therefore invalid.

The appellants therefore instituted this action against the defendants in reliance to the purported merger to found their entire claim at the lower court. The respondents contended that the appellants never had any valid interest in GN Bishop Insurance Broker Nig. Ltd. and by extension in the 2nd respondent company and that shares were not validly transferred to any of the appellants.

The appellants therefore claimed entitlement to the shares in the 2nd respondent and that they are Directors of the said 2nd respondent company.

While the appellants in proof of their claims called one witness, the respondents also called only one and following which counsel addressed the court. Consequently, the court in its judgment dated 27th February, 2003 dismissed the appellants’ case in its entirety and entered judgment in favour of the respondents as per the counter-claim. The appellants being dissatisfied with the said decision of the lower court has appealed to this court by filing a notice of appeal dated 19th March, 2003 but filed on the 6th May, 2003 and which contains six grounds of appeal.

In compliance with the rules of court, both parties filed briefs of arguments and on the 12th April, 2006 when the appeal was called up for hearing the learned appellants’ counsel Mr. O. G. Oyeleke relied on their brief of arguments dated 15th and filed on the 17th October, 2003. Counsel further relied on the reply brief dated 26th April, 2004 and filed on the 7th April, 2006 having been deemed filed by order of court made 12th April 2006. In totality he urged us to allow the appeal, and set aside the decision of the lower court. Mr. Rotimi Jacobs learned counsel for the respondents in response adopted their brief which was filed the 26th April, 2004 but deemed filed and served pursuant to an order of court made on the 18th May, 2004. Heavy reliance was made on the preliminary objection raised on the appellants’ brief, and counsel in consequence urged us to dismiss the appeal and affirm the decision of the lower court, therefore.

It is significant to state that the respective briefs to both parties were prepared by their same counsel who argued the appeal in court.

With due regard to the appellants’ brief therefore, same at pages 4 and 5 had raised eight questions for determination as follows:

1. Whether the trial court was right in his assessment of the evidence and the documents before it that either or both of 1st and/or 2nd appellant cannot be entitled to the shares.
2. Whether it is at all permissible to hold the relevant share on “trust.”
3. Whether the transaction(s) raise any issue of illegality.
4. Whether a decision or opinion on the “merger” is relevant, necessarily interwoven with, and of any consequence per se to the reliefs and prayers of the appellants, as contained in their statement of claim.
5. Whether the board meeting of the 18th of October 2001 and the 1st defendant subsequent letter is sufficient to remove the 1st plaintiff as a Director of the 2nd defendant company and to divest the 2nd plaintiff of their shareholder status in the 2nd defendant company.
6. Whether the meeting of 18th October, 2001 can validly be regarded as a board meeting of the 2nd defendant company.
7. Whether the testimony of the 1st plaintiff witness is inconsistent with the claims of the plaintiffs.
8. Whether the admission of other shareholding in an Insurance Company by 1st plaintiff and the fact that he is a loss adjuster is damaging to the reliefs set out in statement of claim.

The learned respondents’ counsel in rejecting the foregoing formulations by the appellants went ahead and formulated its own five issues for determination as follows: –

1. Whether the appellants did not hold shares on trust and were also bona fide and valid holders of shares in GN Bishop Insurance Broker (Nig) Ltd. to enable either of them take benefit of the alleged merger between GN Bishop Insurance Broker (Nig.) and the 2nd respondent.
2. Whether the lower court was right in its decision that there was no valid merger in law between the 2nd respondent and GN Bishop Insurance Broker Nig. Ltd. (the 3rd defendant to the counter-claim) and thereby allowed the said decision to prejudice the case of the appellants.
3. Whether the 1st appellant was properly removed as Director of the 2nd respondent.
4. Whether the fact that 1st and 2nd appellants are separate personalities is not adverse or fatal to their case.
5. Whether having regard to the 1st appellant status as loss adjuster and Director of an Insurance Company, he can competently be a Director of the 2nd respondent.

The learned respondents’ counsel following the formulation of their different issues went further to raise a preliminary objection from two perspective by giving a notice of same as follows:

a. That the notice of appeal and the grounds of appeal filed by the appellants are incompetent and invalid in law.

b. The issues for determination formulated by the appellants and/or the argument canvassed in the appellants brief are incompetent, invalid and constitute abuse of process.

It is also of significance to restate further that the respondents grounds upon which the preliminary objection are predicated have been spelt out as follows:

a. The appellants filed six grounds of appeal in their notice of appeal but wrongly formulated eight issues for determination therefrom.

b. The issues formulated by the appellants did not arise from the grounds of appeal filed by the appellants.

c. The grounds of appeal are not based on the decision of the lower court appealed against.

d. Fresh issues were raised in the brief without the leave of this Honourable Court.

e. The brief of argument is incompetent as it offends the mandatory provisions of the rules of this Honourable Court.

For the substantiation of the preliminary objection raised, the respondents’ 1st leg of argument relates to proliferation of eight issues by the appellants from the six grounds of appeal filed.

Cited in support are the cases of Labiyi v. Anretiola (1992) 8 NWLR (Pt.258) 139 at 159; also the case of Ayangade v. O.A. U.T.H.C.M.B. (2001) 7 NWLR (Pt. 711) 187. That with some of the issues amounting to surplusage, they ought therefore be struck out. That most of the issues formulated by the appellants are alien to the grounds of appeal filed. Specific reference was made to issues one, two, and seven with prominent depiction. Further still that with issues five and six deriving their inspiration from common ground C of the ground of appeal, one of the issues ought therefore be struck out.

On the competence of the ground and issues five and six thereon, that, same counsel argued are challenging the validity of the board meeting of 18th October 2001. That there is no where in the judgment of the lower court where the court pronounced on the validity or otherwise of the said meeting. That the respondents joined issue with the appellants in paragraph 19 of their statement of defence and counter-claim and pleaded specifically that: –

“The Board of the 2nd defendant deliberated on the matter.

The plaintiffs (defendant) shall at the trial rely on the minutes of the 166 board meeting held on 18th October, 2001 which was forwarded to the plaintiff before the institution of this suit.”

Counsel re-iterated the appellants’ failure to file any reply to this specific averment. That it followed that ground C of the appellants grounds of appeal and issues 5 and 6 predicated thereon in challenging the validity of the board meeting of 18th October, 2001 are incompetent as they do not arise from the pleadings and the judgment appealed against. Copious reliance was made on the authorities in the cases of Idakula v. Adamu (2001) 1 NWLR (Pt. 694) 322; Mbakwe v. R.M.S Africa (2001) 4 NWLR (Pt. 704) 575; Simetequip (Nig.) Ltd. v. Omega Bank Plc. (2001) 16 NWLR (Pt.739) 324.

Furthermore and on the issue of the validity of the said board meeting of 18th October, 2001 counsel argued, it should at best be regarded as a new issue raised in the court and which same can only be done with the leave of this court having been previously sought and obtained. Counsel urged that ground C and issues 5 and 6 formulated thereon be struck out.

On the question of issue no 4 relating to merger, learned counsel argued the absence of any such issue having been joined at the lower court. Same he contends is therefore irrelevant to the appellants’ case. Further more that ground D and issue no 4 arising therefrom is a fresh point that can only be raised by the leave of this court. Learned counsel urged us to therefore strike out issues 1, 3, 4, 6 and 7 and the corresponding grounds C and D of the grounds of appeal as being incompetent.

Briefly on the observation made on the appellants’ brief, the learned respondents’ counsel emphasized the classical brief serving an example on how not to write a brief of argument. That the approach adopted by the learned counsel to the appellants in setting their brief is alien to the practice of good brief writing and that same is grossly defective. Learned counsel urged us to uphold the preliminary objection and to either strike out the appeal or the identified grounds of appeal and issues formulated by the appellants.

In response to the preliminary objection raised the learned appellants’ counsel rejected the position of the law as stated by the respondents’ counsel, and argued same as incorrect. Learned counsel sought to state the true position as restated by Karibi-Whyte, JSC in the case of Labiyi v. Anretiola (supra). In other words, that no mention was made by the apex court that the punishment for proliferation of issues is to strike out the excess and/or offending issues.

On the proliferation of issues counsel argued that, though undesirably distilled, same was remedied by arguing the two issues together. That it is trite under our law that the errors of counsel should not be visited on litigants and so urged us to hold. Furthermore that with issues 1 & 2 also 5 & 6 closely related, one cannot stand without the other. This situation counsel argued cannot amount to surplusage therefore. That the only instance where an issue can be struck out is when it is unnecessary or a surplus. Counsel reiterated the authority in the case of Fabiyi v. Adeniji (2000) 6 NWLR (Pt. 662) 532. It was held in that case that the refusal of the Court of Appeal or Supreme Court to be bound by the issues for determination where it considers that such issues are wrong having regards to the grounds of appeal filed, cannot amount to any injustice, impartiality bias or denial of fair hearing. Counsel therefore urged us to formulate appropriate issues consistent with their grounds of appeal i.e. grounds 1 & 3 in the unlikely event the court holds that either issues 1 & 2 and/or 5 & 6 are surplus or unnecessary. That whether or not issues are properly formulated, the court can either adopt same as distilled or suo motu formulate (albeit consistent with the grounds of appeal) in the process of dispensing substantial justice.

On the propriety of distilling two issues from one ground of appeal, that the striking out of the surplus contended by the respondents’ counsel had no legal basis and consequent to which that argument should be discountenanced. Learned counsel in the result re-affirmed the competence of their brief especially in the absence of any hard and fast rule regulating the style of brief writing.

In the totality counsel urged for the striking out of the preliminary objection to allow the appeal be determined on its merit.

Briefly and on the respondents’ brief, the preliminary objection can be summarized under five headings as follows:

a) That the appellants filed six grounds of appeal in their notice of appeal but wrongly formulated eight issues for determination therefrom.

b) That the issues formulated by the appellants did not arise from the grounds of appeal filed by the appellants.

c) That the grounds of appeal are not based on the decision of the lower court appealed against.

d) That fresh issues were raised in the brief without the leave of this court.

e) That the brief of argument is incompetent as it offends the mandatory provisions of the rules of this court.

I have specified earlier in this judgment that on the 12th April 2006 when the appeal was called up for hearing, the learned respondents’ counsel Mr. Rotimi Jacobs while adopting their brief of argument went ahead and intimated the court of the pending notice of preliminary objection challenging the notice of appeal, the grounds of appeal and the brief of arguments filed by the appellants. Learned counsel therefore urged us to dismiss the appeal and affirm the decision of the lower court.

With reference to the decision in the case of Onochie v. Odogwu (2006)2 SC (Pt.11) 153; (2006) 6 NWLR (Pt.975) 65 at 79 one of the issues considered by their Lordships of the apex court related to the effect of the failure to apply or seek the leave of court to move or argue a preliminary objection to an appeal. Specifically at pp. 155-156 of the report, His Lordship Ogbuagu, JSC had the following remarks to make:”

I note that at the hearing of this appeal, the learned counsel for the respondents, did not apply nor seek leave of the court before the hearing of this appeal to move the said objection. The consequence is deemed by the court as having been abandoned…

The preliminary objection is accordingly struck out.”

Their lordship therefore proceeded to consider and determine the similar lone issue each formulated by both parties.

In another authority of the case of Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285 at 297 Obaseki, JSC had the following to say:

“Being a preliminary objection, the objection should have been by motion or notice before the hearing of the appeal so that arguments on it can be heard by the court.

While notice of objection may be given in the brief, it does not dispense with the need for the respondent to move the court at the oral hearing for the relief prayed for.

This preliminary objection not having been raised and argued at the oral hearing the Court of Appeal cannot be condemned as having erred in allowing the then appellant (now respondent) to argue his appeals. ”

(italics is for emphasis)

The same principle of law was also applied in the case of Salami v. Mohammed (2000) 9 NWLR (Pt. 673) 469; (2000) 6 SC (Pt. 11) 37 and Tiza & Anor v. Begha (2005) 15 NWLR (Pt. 949) 616; (2005) 5 SC (Pt. 11) 1

In applying the authorities supra and without having to belabour the issue at hand, the absence of specific application seeking leave of court to move the preliminary objection raised presupposes that same is deemed abandoned and therefore struck out.

Now on the merit of the appeal before us, the appellants’ notice of appeal contain six grounds of appeal and from which they raised eight questions for determination, all which are reproduced supra.

Consequent to the foregoing questions, the appellants counsel proceeded to argue the appeal under four broad headings to wit:

1. Transfer of shares, and the issue of trust.
2. The 1st plaintiffs’ Directorship of the 2nd defendant Company, his removal and due process.
3. Merger and its consequences
4. Evidence before the court and its evaluation by the trial Judge.

It is trite law that issues are distilled from grounds of appeal.

Proliferation of issues are also not allowed as the consequence is to abandon the surplusage. This was the decision arrived at by this court in the case of Ayangade v. O.A.U.T.H.C.M.B. (2001) 7 NWLR (Pt. 711) 187 per Mukhtar, JCA (as she then was) at pages 199 and 200 wherein she said:

“It is pertinent that I point out at this juncture that only four grounds of appeal were filed by the appellant, whereas five issues were formulated for determination.

This court has always frowned on proliferation of issues for determination, for it is trite that whereas an issue can be tied to more than one ground of appeal, more than one issue cannot be tied to a single ground of appeal. Issue such as the ones above are unnecessary and amount to surplusage, and when there is such situation some issues have to give way, i.e. be struck out…”

The principles governing the formulation of issues for determination is very clear to the effect that a number of grounds of appeal could where appropriate, be condensed into a single cognizable issue. The reverse is of course very undesirable, that is to say the formulation of two issues from one ground of appeal. The case in point is Labiyi v. Anretiola (1992) 8 NWLR (Pt. 258) 139 at 159.

The law is also trite that issues formulated must arise from grounds of appeal. The significance of this is paramount and not negotiable. Any issue therefore, not arising from the grounds of appeal filed will be struck out by the court. The authorities in support are the cases of Fabiyi v. Adeniyi (2000) 6 NWLR (Pt.662) 532; Garba v. State (2000) 6 NWLR (Pt. 661) 378; Chime v. Chime (2001) 3 NWLR (Pt. 701) 527.

In the matter at hand and with the appellants raising questions in the manner they did, same are not synonymous to formulation of issues from grounds of appeal but alien thereto. In otherwords, the learned appellant’s counsel had completely missed the concept of issue formulation.

In another Court of Appeal decision of Udoete v. Heil (2002) 13 NWLR (Pt. 783) p. 64 at 87 it was held that:

” … issues for determination of appeal should not be formulated in the abstract but must be related to the grounds of appeal filed …. see Olowosago v. Adebanjo (1988) 4 NWLR (Pt.88) 275 at page 283.”

It is absurd and also out of place to note that having regard to the appellants formulation, neither the proposed issues (as questions raised) nor the grounds of appeal filed were argued in this case. Rather and strange enough, the appellants abandoned their formulation and proceeded to argue the appeal under four broad and distinct separate headings.

Order 6 rule 3(1) of the Court of Appeal Rules provides as follows:

“The brief, which may be settled by counsel, shall contain an address or addresses for service and shall contain what are, in the appellants’ view, the issues arising in the appeal as well as amended or additional grounds of appeal”. (underlining is for emphasis).

The purpose of this requirement is that, when an issue is resolved, the court will be able to determine whether the ground or grounds of appeal related to such an issue succeeds or fails depending which way it is resolved. It is the cumulative effect of success or failure of such ground or grounds of appeal that determines the extent of the outcome of an appeal. It follows therefore that to canvass and tender argument on issues which have no bearing or nexus with any of the grounds of appeal is not permissible. This was the view taken in the case of Madagwa v. State (1988) 5 NWLR (Pt. 92) 60; Also African Petroleum Ltd. v. Owodunni (1991) 8 NWLR (Pt.210) 391,423 where their Lordship of the apex court took the view and said:

“It is well settled that any issue raised or argument advanced on an issue not arising from a ground of appeal is incompetent and liable to being struck out.”

Further and in the case of Okoye v. Nigerian Construction & Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501, 533 it was also said:

” … each party to an appeal, the appellant and the respondent, is entitled to formulate what are in his opinion the issue for determination, but the issue must arise from and be related to the grounds of appeal filed.”

See also the cases of Republic Bank v. Central Bank of Nigeria (1998) 13 NWLR (Pt.581) 306 and Ajejewe v. Egbeyemi (1955-56) WRNL 51 wherein the principle laid down was that where all issues are not related to the grounds of appeal, the effect is that all the grounds have been abandoned and be liable to a dismissal. Further related authorities are the cases of Josiah Cornelius Ltd. v. Ezenwa (1996) 4 NWLR (Pt. 443) 391; (1996) 37 LRCN 618; Danfulani v. Shekari (1996) 2 NWLR (Pt. 433) 723; and Labiyi v. Anretiola (1992) 8 NWLR (Pt. 258) 139.

The issue at stake is very precarious in that not only did the appellants failed to formulate any issue from their grounds of appeal, but proceeded further and fallen into a deeper gully of failing to argue even the questions so raised but proceeded to argue different approach under broad headings contrary to the contemplation of issues. The appellants’ fall was a double jeopardy and is undoubtedly a great one.

The appellants had argued that this court should disregard the surplusage of issues which might tend to suggest proliferation of issues. With due respect to the learned appellants’ counsel, his problem is beyond the performance of a surgical operation demanded of this court. In other words and in the absence of formulated clear cut issues from the grounds of appeal, the question of what to consider and sift out from what is not, does not even arise. The Supreme Court’s authority in the case of Labiyi v. Anretiola cited supra and sought to be relied upon by the learned appellants’ counsel therefore is not in their favour. In other words, the case is remarkably distinguishable from the case at hand. In the case under reference for instance, same related to proliferation of issues which their lordships of the apex court held that the court below had the choice to have either adopted the issues so formulated or “formulate such issues that are consistent with the grounds of appeal filed by the appellant.” The grounds of appeal in that case although inelegantly drafted, the complaints therein were clear and not misleading. There was no cloud or shadow in understanding the issues in that case. There is therefore a remarkable distinction with the case at hand where no issues were at all formulated. In the same vein, the authorities of Fabiyi v. Adeniji and Ayangade v. O.A.U.T.H.C.M.B. (supra) are both also distinguishable with the case at hand and consequent to which the arguments by the learned appellants’ counsel in their respect do not also hold.

With all due respect to the learned appellants counsel, the brief has not been prepared in accordance with the provisions of Order 6 rule 3 of the Rules of this court. The appellants brief is not only inelegant or bad. It goes far beyond, as it cannot obviously be tolerated. In the absence of issues, there is no brief. The approach adopted by the learned appellants’ counsel is certainly strange to the practice and procedure of this court relating to brief filing. The defect, which the learned counsel seeks this court to cure, is beyond mere technicality but that which goes and touches right through the very marrow and foundation of the appeal. The provision of the laid down statute is meant to be enforced by the court. See the case of Awoniyi v. Eletu (1963) 2 All NLR 99, wherein the rules of court are meant to be obeyed. The appellants cannot overburden the court therefore in seeking its assistance that their brief be put in proper perspective. It is not the court’s duty to do so, or else it would be shacking its duty by using a brief which is in breach of rules of court. To sustain the appellants’ brief would amount to the court acting arbitrarily or contrary to the very rules, it is set up to enforce. The court has the duty to serve the interest of all parties as stated in the case of Willoughby v. Intercontinental Merchant Bank Nigeria Ltd. (1987) 1 NWLR (Pt. 48) 105; (1987) 1 SCNJ 46. To do otherwise would amount to treading a dangerous pathway away from its purpose of doing justice which cannot be left to the discretion, whims and caprices of individual judges. Such would certainly lead to anarchy, tyranny and absolute injustice. The purpose of law is to serve the cause of justice in adjudication. Any departure therefrom would not serve the cause and purpose for which it is set up to do. The learned appellants’ counsel cannot seek to be innovative without legal foundation. Plethora of authorities avail wherein such formulation of briefs were held to be bad and therefore incompetent. The cases in support are Korede v. Adedokun (2001) 15 NWLR (Pt. 736) 483; Bereyin v. Gbogbo (1989) 1 NWLR (Pt.97) 372. In an earlier decision of Awoniyi v. Eletu supra, the summary of the judgment of De Lestang, C.J. was to the effect that rules of court are not made for fun, but ought to be obeyed in terms strictly stated therein. Also and on a similar related matter His Lordship Salami, JCA in the case of M. O. Sekoni v. U. T.C Nigeria Plc. (2006) 8 NWLR (Pt.982) 283 at 299 had the following to say:

“The issues were not canvassed and argument tendered in support of them, rather argument were canvassed in support of some nebulous arrangement. The approach adopted by learned senior counsel is strange to the practice and procedure of this court……………

This court, like any other court, is enjoined to do substantial justice and to avoid technicalities but the court is bound by statute, both substantive and subsidiary. If the statute lays down a procedure, the court is bound to enforce its compliance.”

The appellant in the said authority, instead of arguing the two issues formulated for determination, abandoned same and proceeded to argue the appeal under separate headings different from either the issues or the grounds of appeal. The case at hand is even in a worse situation in the absence of any issue formulated. It is trite law that sustenance of an appeal must come as a result of sound arguments based upon issues formulated from competent grounds of appeal. It therefore follows that arguments proffered from grounds of appeal would be discountenanced. This was the position taken by their Lordship of the apex court in the case of Ezenba v. S.D. Ibenema (trading under the name and style Soide Engineering Works Nigeria Ltd. in suit No. SC.142/00 delivered on 2/07/05 and reported in (2084) 14 NWLR (Pt.894) 617. Their Lordships in that appeal refused to consider the grounds of appeal in respect of which arguments were advanced.

The appellants brief of arguments is neither in support of the grounds of appeal nor any formulated issue, but in respect of four broad headings different from the earlier eight questions raised for determination. With all due respect to the learned appellants’ counsel, he is totally out of con and the realities of the expectations of him. The consequential effect is that the brief is incompetent and accordingly struck out. The appeal in the absence of any brief cannot be sustained. Same should and is hereby dismissed for want of prosecution. The decision, judgment of the Federal High Court Lagos Division dated 27th February, 2003 in suit No. FHC/L/CS/17/2002 is hereby affirmed.

There shall also be an order of costs of N10,000. to the respondents.

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Other Citations: (2006)LCN/2032(CA)