Legalpedia Citation: (2023-06) Legalpedia 50015 (CA)

In the Court of Appeal

IN THE LAGOS JUDICIAL DIVISION

Fri Mar 31, 2023

Suit Number: CA/L/1058/2017

CORAM

MUHAMMAD IBRAHIM SIRAJO JCA

ABUBAKAR SADIQ UMAR

PARTIES

1. JOHN KULEPA & 3 ORS

APPELLANTS

MTN NIGERIA COMMUNICATIONS LIMITED

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The Appellants at the trial court claimed for the enforcement of their fundamental rights allegedly breached by the Respondent. He alleged that Counsel for the Respondent informed the court that her firm had just been briefed orally the previous day and that the Respondent and its investigators were on the site and would be ready to settle any claim that may arise from the Respondent’s action. That the Respondent has informed her firm that the report will be ready and that the Respondent is not willing to shirk its social responsibility. Justice M.A. Dada (a vacation Judge) after stressing that the court has a duty to encourage settlement adjourned the matter hopefully for report of settlement in the regular court.

This settlement never took place. The matter proceeded with many objections from the claimants (Appellants) claiming that the Respondents had already accepted liability.

The trial court Coram O.O. Ogungbesan eventually delivered his judgment wherein the court found that the Appellants did not make out a case of breach of fundamental rights against the Respondent and in consequence dismissed the action.

It is the said dismissal of the suit that triggered this appeal.

HELD

 

Appeal dismissed

ISSUES

Ø  Preliminary Objection

Ø  “Does the learned trial judge (Justice O.O. Ogungbesan Mrs.) of the Lagos State High Court have the jurisdiction to undermine the constitution, assist the Respondent to sort out its case and to resile from its admission or promise and or to overthrow/upturn a valid and subsisting ruling/decision made on the 24th August, 2016 by Justice M.A. Dada (Mrs.) who heard, determined and disposed of the case in line with the expeditious stance of the FREP Rules?

Ø  “Does the learned trial judge (Justice O.O. Ogungbesan Mrs.) of the Lagos State High Court have the jurisdiction to make a different case for the Respondent and in breach of the Appellants’ fair hearing when the Respondent admitted crucial issues which were no longer in dispute, more so that the Respondent’s written address entertained and acted upon by the court was also academic and in contravention of the FREP Rules?

RATIONES DECIDENDI

PRELIMINARY OBJECTION – PRELIMINARY OBJECTION IN AN APPEAL

The law is settled beyond equivocation that preliminary objection in an appeal must first be disposed of before the substantive appeal so that the court will not labour in vain if at the end of the day the appeal is found to be incompetent. See ONYEMA & ORS V EGBUCHULAM (1996) 5 NWLR (PT. 448) 224; ACHONU V. OKUWOBI (2017) LPELR-42102(SC) (PP. 4-5 PARAS. E). – Per A. S. Umar, JCA

GROUND OF APPEAL – A GROUND OF APPEAL IS TO BE EXAMINED ALONG WITH ITS PARTICULARS

It is elementary that a ground of appeal is to be examined along with its particulars to have a clear idea of what the ground is all about. A ground of appeal is said to be vague and imprecise when it is couched in a manner which does not lend itself to being understood or when what is stated is so uncertain that it is not susceptible of being understood. It may also be considered vague when the complaint is not defined in relation to the subject or it is not particularized or the particulars are clearly irrelevant. See CENTRAL BANK OF NIGERIA VS OKOJIE (2002) 8 NWLR (PT 768) 48, GOVERNOR, EKITI STATE VS OSAYOMI (2005) 2 NWLR (PT 909) 67, IMAM VS SHERIFF (2005) 4 NWLR (PT 914) 80, NWABUEZE VS NWORA (2005) 8 NWLR (PT 926) 1.  HASSAN V. BUHARI & ORS (2022) LPELR- 56677 CA (PP. 19-20 PARAS. D).

However, where the complaint in a ground of appeal is discernible from its particulars, the ground of appeal cannot be said to be vague or imprecise.– Per A. S. Umar, JCA

GROUND OF APPEAL – EVERY GROUND OF APPEAL SHALL ARISE FROM THE JUDGMENT OR DECISION APPEALED

In a nutshell, grounds 1 and 2 of the Appellants’ Notice of Appeal did not form part of the ratio decidendi of the judgment of O.O. Ogungbesan J. delivered on the 24^th May,2017. EKO, J.S.C (rtd.) in ACHONU V. OKUWOBI (2017) LPELR-42102(SC) (Pp. 44-45 paras. G) Stated the position of the law succinctly thus ‘‘every ground of appeal shall arise from the judgment or decision appealed, and must be connected to the controversy between the parties. See SARAKI v. KOTOYE (1992) 11- 12 SCNJ 26; (1992) NWLR (Pt. 264) 156. It should constitute a challenge to, or an attack on the ratio of the decision on appeal. It follows that where a ground of appeal, as formulated, does not arise from the judgment on appeal, and it purports to raise and attack an issue not decided by the judgment appealed against, as is evident in the instant appeal, the same is incompetent and liable to be struck out: See C.C.B. Plc. v. EKPERI (2007) 3 NWLR (Pt. 1022) 493.” – Per A. S. Umar, JCA

GROUND OF APPEAL – A COMPETENT GROUND OF APPEAL CANNOT BE LUMPED WITH AN INCOMPETENT GROUND OF APPEAL

It is settled law that a competent ground of appeal cannot be lumped together with an incompetent one and argued together as done by the Appellants in this case.  And where such is done the competent ground is contaminated and infected with the virus of incompetence.

This position has found expression in a legion of decisions of this court and those of the apex court. In GARBA V. GOVERNOR OF KANO STATE VISITOR KUST, WUDIL & ORS (2022) LPELR 57540 CA “And for joining the Issue 4 with imaginary Issue 6, to argue the appeal, the said Issue 4 has been contaminated, and the arguments corrupted by the strange imaginary Issue 6. See Augustine & Anor Vs. Apugo & Ors. (2019) LPELR-48822 CA. The law is that appeals are argued in the Court of Appeal on Issues, properly distilled from the grounds of Appeal. And where a party combines a given ground of Appeal or Issue with a defective one to do his argument, he falls into grave error of cancelation by attrition, as the defective ground or Issue has the effect of corrupting and deleting the good ground of appeal or Issue, making the entire argument, thereof, incompetent. Even by joining the said ground two with ground one, to argue the 1st issue, that joining has corrupted the said issue and the argument thereon… Uzoho vs. Asugha (2017) LPELR-42073 (CA). Per ITA GEORGE MBABA (PP. 12-15 PARAS. F).

The effect of joining a competent ground with an incompetent one in argument is that the argument is liable to be discountenanced as the court is not to assume the role of a surgeon performing surgery on the brief of argument of a party in an appeal in order to separate argument on a competent issue from the incompetent one. Per Mbaba in the last part of his lead judgment in Garba Vs. Governor of Kano State supra held “The law is trite, that combining an incompetent ground of appeal with a valid one, to raise and argue issue in appeal, is a serious legal blunder, and renders the issue incompetent, as the defective/incompetent ground has infected the valid ground with its virus of incompetence.” See Akpan vs. Bob & Ors (2010) LPELR-376 SC; (2010) 17 NWLR (pt. 1223) 42. I therefore discountenance the said argument of issues 2 and 3, argued together by the 1st Respondent.”

The same position was stated in NORTHWEST PETROLEUM & GAS CO. LTD & ANOR V. ILOH & ORS (2021) LPELR 55509 CA (PP. 9-11 PARAS. D) “The law is trite that arguing a valid ground(s) of appeal (or issue distilled there from) together with a defective ground(s) (or issue(s)) is not permitted, as it makes the argument incompetent. This is because, the inclusion of the defective ground(s) or issue(s) in the argument, vitiates the entire submission, as the virus of defective ground(s) or issue(s) has infected the valid ground or Issue, and the entire argument. – Per A. S. Umar, JCA

GROUND OF APPEAL – FOR A GROUND OF APPEAL TO BE VALID

The law is trite that for a ground of appeal to be valid and competent, it must arise from the judgment or decision appealed against and should constitute a challenge to the ratio of the decision appealed against. See Ugwu vs. State (2012) LPELR-20616 (SC); Okafor vs. Abumofani (2016) LPELR-40299 (SC); Co-operative and Commerce Bank Plc vs. Ekperi (2007) LPELR-876 (SC). It is equally trite that an incompetent ground of appeal cannot give birth to a competent issue for determination – Akpan vs. Bob (2010) LPELR – 376 (SC). – Per M. I. Sirajo, JCA.

CASES CITED

STATUTES REFERRED TO

1. Fundamental Rights (Enforcement Procedure) Rules 2009
2. Court of Appeal Rules 2016

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