Legalpedia Citation: (2023-06) Legalpedia 82162 (CA)

In the Court of Appeal

(ABUJA JUDICIAL DIVISION)

Mon Jun 5, 2023

Suit Number: CA/A/573/2018

CORAM

Stephen Jonah Adah JCA

Ugochukwu Anthony Ogakwu JCA

Bature Isah Gafai JCA

PARTIES

ALHAJI ABDULLAHI SHAIBU

APPELLANTS

1. SULEIMAN AUDU
2. AMODU JIBRIL JIBO
3. MUHAMMED LAWAL
4. ANKPA LOCAL GOVT. TRADITIONAL COUNCIL
5. IGALA AREA TRADITIONAL COUNCIL
6. MINISTRY OF LOCAL GOVT. & CHIEFTAINCY AFFAIRS
7. ATTORNEY GENERAL OF KOGI STATE 8. GOVERNOR OF KOGI STATE

RESPONDENTS

AREA(S) OF LAW

APPEAL, CUSTOMARY LAW, EVIDENCE, PRACTICE AND PROCEDURE

 

SUMMARY OF FACTS

The tussle in this matter is in respect of the Chieftaincy Stool of the Onu Ejefa of Enabo in Ankpa Local Government Area of Kogi State. The Appellant laid claim to being entitled to the stool and instituted an action before the High Court of Kogi State. The 1st Respondent herein, equally laid claim to the said Chieftaincy Stool and equally instituted an action before the High Court of Kogi State. Both actions were consolidated for hearing and the Appellant was designated the 1st Claimant, while the 1st Respondent was the 2nd Claimant in the Consolidated Suit.

After the cases were consolidated, the 2nd Respondent herein, applied and was joined as the 3rd Claimant in the consolidated suit. The matter proceeded to hearing, with each of the Claimants adducing testimonial and documentary evidence. The defendants, at the lower Court, filed statements of defence but they did not adduce any evidence, consequent upon which their statements of defence were deemed as abandoned. So, the action was a straight shoot-out between the Claimants as to who had made out a better case as to be entitled to judgment.

In its judgment which the lower Court dismissed the claims of the Appellant and the 2nd Respondent.

Piqued by the decision of the lower Court, the Appellant appealed against a part of the decision of the lower Court (not the whole decision) which is the decision granting the reliefs of the 2nd claimant and declaring that Oguche Omi Idoga is a ruling house.

 

HELD

Appeal dismissed

 

ISSUES

Whether Oguche Oma Idoga is a ruling house within the contemplation of Exhibit C2?

Whether the 2nd claimant/respondent proved his case on the preponderance of evidence to be entitled to the claims granted by the trial Court?

Whether by the oral and documentary evidence led by the appellant the trial Court was right to hold that the appellant failed to prove his claims?

Whether the trial Court properly evaluated the evidence led before it?

 

RATIONES DECIDENDI

APPEAL – WHERE NOTICE OF APPEAL INDICATES THE PARTS OF DECISIONS APPEALED AGAINST

It is instructive that the Appellant has not complained against or challenged the part of the decision which dismissed his case. It is therefore within the narrow confines of the complaint against and challenge to the decision of the lower Court that this appeal is to be considered and decided. Accordingly, the decision dismissing the Appellant’s case, not having been appealed against remains unchallenged. See MICHAEL v. THE STATE (2008) LPELR (1874) 1 at 7, NNADIKE v. NWACHUKWU (2019) LPELR (48131) 1 at 27-28 and POLARIS BANK LTD v. CENTRE POINT TRAVEL AGENCY LTD (2022) LPELR (57359) 1 at 9. In admirably stating the law in this regard, Ayoola, JSC asseverated as follows in CHIKERE v. OKEGBE (2000) LPELR (847) at 15-16:

“When an appeal is taken from the decision in consolidated suits and the notice of appeal has indicated that the appeal is against the whole decision, the appeal must be taken as having been from the decision as it affects the totality of the consolidated suits. Where, however, as in this case, the notice of appeal in the Court below indicated that the part of the decision appealed from is that which related to one of the consolidated suits, the appellant cannot challenge any other part of the decision, without first amending his notice of appeal.” – Per U. A. Ogakwu, JCA

 

GROUNDS OF APPEAL – WHEN GROUNDS OF APPEAL CHALLENGE PARTS OF DECISION NOT APPEALED AGAINST

These grounds five and seven of the grounds of appeal challenge the decision dismissing the Appellant’s case, which decision was not appealed against. The said grounds are therefore incompetent and are hereby struck out. Equally, the Appellant, not having complained against the decision dismissing his case cannot claim a relief, as he has done, for this Court to grant his reliefs. The said relief which is a non sequitur is not grantable. – Per U. A. Ogakwu, JCA

 

RESPONDENT – TRADITIONAL ROLE OF A RESPONDENT IN AN APPEAL

Order 19 Rule 4 (2) of the Court of Appeal Rules, 2021 stipulates:

“(2) The Respondent’s brief shall answer all material points of substance contained in the Appellant’s brief and contain all points raised therein which the Respondent wishes to concede as well as reasons why the appeal ought to be dismissed. It shall, mutatis mutandis, also conform to Rule 3 (1), (2), (3), (4), (5) and (6) of this Order.” This is the traditional role of a respondent in an appeal. To defend the decision appealed against. The 2nd Respondent did not file any appeal against the decision of the lower Court so he cannot depart from this traditional role of a respondent in an appeal. See OBI v. INEC (2007) LPELR (24347) 1 at 110, OBASANJO v. WURO BOGGA NIG LTD (2022) LPELR (58486) 1 at 6 and AGI v. PDP (2016) LPELR (42578) 1 at 100-101. The 2nd Respondent’s brief of argument which abdicates the traditional role of a respondent will play no further part in the consideration and determination of this appeal: FALUYI v. NUT (2022) LPELR (58090) 1 at 7-8, DAHIRU v. APC (2016) LPELR (42089) 1 at 3, GTB PLC v. INC. TRUSTEES OF THE M.M.M. NIGERIA (2020) LPELR (51628) 1 at 3-5 and A-G NIGER STATE v. THE EXECUTIVE CHAIRMAN, EFCC (2022) LPELR (57062) 1 at 4-5. – Per U. A. Ogakwu, JCA

GROUNDS OF APPEAL – CONDUCT OF THE COURT WHEN AN ISSUE COMES FROM COMPETENT AND INCOMPETENT GROUNDS OF APPEAL

In the course of this judgment, I have held that ground five of the Appellant’s grounds of appeal is incompetent. The Appellant has distilled his issue number one from the competent grounds two, three, four and six and the incompetent ground five. It is trite law that where an issu from an incompetent ground of appeal is argued together with those from competent grounds of appeal, then the issue will be deemed incompetent because the Court cannot sift that which is competent from the incompetent ones. Such an issue distilled from incompetent and competent grounds of appeal is incompetent as well and will be struck out. See NGIGE v. OBI (2006) 14 NWLR (PT 999) 1 at 165, SANMI v. THE STATE (2019) LPELR (47418) 1 at 7 and SET SUCCESS ENTERPRISES CO. LTD v. IBEJU-LEKKI LOCAL GOVT. COUNCIL (2021) LPELR (56608) 1 at 41-42. – Per U. A. Ogakwu, JCA

GROUND OF APPEAL – WHEN THE GROUND OF APPEAL IS AN INCOMPETENT ONE

The Appellant’s issue number three is crafted from ground seven of the grounds of appealwhich I have already held to be an incompetent ground of appeal in the diacritical circumstances of this appeal. The law is settled beyond peradventure that no competent issue for determination can arise from an incompetent ground of appeal: NJEMANZE v. NJEMANZE (2013) LPELR (19885) 1 at 31, AKPAN v. BOB (2010) LPELR (376) 1 at 87 and APM v. INEC (2021) LPELR (58375) 1 at 15-16. – Per U. A. Ogakwu, JCA

BRIEF OF ARGUMENT – WHEN INCOMPETENT ISSUES ARE ARGUED TOGETHER WITH COMPETENT ISSUES IN BRIEF OF ARGUMENT

The surviving issues for determination are issues number two and four. The manner of argument of these two competent issues in the Appellant’s brief of argument presents a different dilemma. I will explicate. I have held that Appellant’s issue number one is incompetent. The Appellant’s issue number four which is distilled from ground ten of the grounds of appeal is competent. Now, the Appellant in his brief of argument argued the incompetent issue number one together with the competent issue number four. In the same vein, I have also held that the Appellant’s issue number three is incompetent. The Appellant’s issue number two which is formulated from grounds eight and nine of the grounds of appeal is competent. The Appellant in his brief of argument argued the competent issue number two together with the incompetent issue number three. The Appellant’s presentation of his submissions in this appeal can be likened to the theatre of the absurd. It has ended up being devoid of purpose. In NZE v. ONYEACHUGWO (2021) LPELR (56658) 1 at 27, Abubakar, JSC quipped: “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.” More pungently in BARBUS & CO NIG LTD v. OKAFOR-UDEJI (2018) LPELR (44501) 1 at 7, Okoro, JSC intoned:

“The point is fairly settled in quite a number of decisions of this Court that arguments or submissions on incompetent issues and/or grounds of appeal cannot be lumped together with those of competent issues for determination. Where this is done as in this case, 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 issues from the invalid ones … such an exercise may involve Court descending into the arena of dispute which will often becloud the judgment of the Court.” See also CPC v. OMBUGADU (2013) LPELR (21007) 1 at 53, IKPEAZU v. OTTI (2016) LPELR (40055) 1 at 52 and KOREDE v. ADEDOKUN (2001) 1 NWLR (PT 736) 483 at 499. – Per U. A. Ogakwu, JCA

EVIDENCE – CONDUCT OF APPELLATE COURTS REGARDING EVALUATION OF EVIDENCE

Notwithstanding the settled legal position in this regard, there is an alluring temptation in the quest and pursuit for substantial justice to extricate and consider whatever submissions which may have been made on the competent issue numbers two and four nominated by the Appellant. But this quest presents yet another snag. The said competent issues are on evaluation of evidence and ascription of probative value thereto. The law is that an appellate Court will not lightly interfere with the evaluation of evidence and the findings made by the trial Court unless for compelling reasons: OGBECHIE v. ONOCHIE (1988) 1 NWLR (PT 47) 370, MAKINDE v. AKINWALE (2000) 1 SC 89 and AGBOMEJI v. BAKARE (1998) 9 NWLR (PT 564) 1. The conclusion of the trial Court on the facts is presumed to be correct, so that presumption must be displaced by the Appellant who seeks to upset the judgment on the facts by complaining about the evaluation of evidence and ascription of probative value thereto by the trial Court. See WILLIAMS v. JOHNSON (1937) 2 WACA 253, BALOGUN v. AGBOOLA (1974) 1 ALL NLR (PT 2) 66 and EHOLOR v. OSAYANDE (1992) LPELR (8053) 1 at 43. – Per U. A. Ogakwu, JCA

ISSUES – DUTY OF THE APPELLANT COURT WHEN COMPETENT AND INCOMPETENT ISSUES ARE ARGUED TOGETHER

Inexorably, given that the Appellant argued competent issues with incompetent issues, the duty on this Court is to order that the issues be struck out for want of competence: NZE v. ONYEACHUGWO (supra). – Per U. A. Ogakwu, JCA

CASES CITED

STATUTES REFERRED TO

Court of Appeal Rules, 2021

 

CLICK HERE TO READ FULL JUDGMENT