May 27, 2025
Legalpedia Citation: (2009) Legalpedia (CA) 14613 In the Court of Appeal HOLDEN AT LAGOS Wed May 20, 2009 Suit Number: CA/L/338/07 CORAM ISA AYO SALAMI PARTIES PETER […]
CORAM
ISA AYO SALAMI
PARTIES
PETER NOSA IYEN
FEDERAL REPUBLIC OF NIGERIA
AREA(S) OF LAW
SUMMARY OF FACTS
The Prosecution/Respondent pursuant to section 174(1) of the Constitution of Federal Republic of Nigeria, 1999 and section 13(2) of the Economic and Financial Crimes Commission (Establishment) Act [No. I of 2004] filed a five count charge against the Defendant/Appellant. The Appellant brought a summon to be admitted to bail as well as an application for an order quashing the charge preferred against him. Learned counsel for both parties, elaborately and strenuously canvassed their argument for and against the application. Learned trial judge delivered a reserved but not well considered judgment, holding that it is improper to grant the application, on the basis of the proof of evidence before the court. The Applicant, aggrieved by the decision has appealed to this court. His grounds of appeal are that trial judge erred in law when he refused and/or failed to consider or determine a substantial constitutional issue raised under section 36(8) of the 1999 Constitution of the Federal Republic of Nigeria to the effect that the Accused/Appellant was charge for an offence unknown to law; and that the lower court erred in law when it failed and/or refused to operate within section 6 (6)(b) of the 1999 Constitution of Nigeria by refusing and/or failing to consider substantial issues of Jurisdiction and other salient issues of law and facts raised before it for consideration. This Court held that the two grounds of appeal are incompetent, as they did not arise from the decision of the trial court.
HELD
Appeal Dismissed
ISSUES
None
RATIONES DECIDENDI
GROUND OF APPEAL – WHETHER THE PARTICULARS OF ERROR MUST BE INCLUDED IN A GROUND OF APPEAL
“It appears to me that ground one of the grounds of appeal, shorn of the particulars of error, follows the format of a ground of appeal. It is competent to include particular of error or misdirection in the ground of appeal itself Atuyeye vs Asbamu (1987) 1 NWLR (pt 49) 267, 282; Okorie vs Udom (1960) 5 F S C 162, 164 Anyaoke vs Adi (1986) 3 NWLR (pt 31) 731. The inclusion of the particular in the ground of appeal, the ground itself having satisfied the condition for drafting a ground of appeal, the purported particulars of error attached thereto are unnecessary and, therefore, superfluous .”
GROUND OF APPEAL – CONSEQUENCE OF PARTICULARS OF ERROR NOT FLOWING FROM OR RELATED TO THE GROUND OF APPEAL
“On ground 2 of the grounds of appeal, it seems to me, with the greatest respect to the learned counsel for appellant, that the ground of appeal is incompetent. The ground itself, unlike ground 1 of the grounds of appeal, does not include particular of error or misdirection. On its own it does not attack any ratio decedendi of the judgment. The particulars of error supplied to give teeth to the ground regrettably do not relate to it. The ground and the particulars must relate. The penalty for the particulars not flowing from or related to ground of appeal is to strike out the ground or grounds of appeal. See Honika Sawmill (Nig) Ltd vs Mary Okojie Hoff (1994) 2 NWLR (pt 326) 252, 262. Once one or more of the particulars go, the remaining particulars are rendered otiose because the court will not carry out surgical operation on the ground by excising bad part. See Nwadike vs Ibekwe (1987) 4 NWLR (pt 67) 718 and Korede vs Adelodun (2001) 15 NWLR (pt.736) 463. This is because when an incompetent particular is related to a competent ground of appeal and argued together under an issue it is impossible to consider the appeal properly.”
APPEAL – NATURE OF AN APPEAL
“In Babalola vs The State (1989) 4 NWLR (pt.115) 264, 294, Supreme Court per Oputa, J S C, enunciated the principle of law as follows –
“An appeal presupposes the existence of some decision appealed against. In the absence of a decision on a point, there cannot possibly be an appeal against what had not been decided against a party (see Oredoyin & Ors. Vs Arowolo & Ors. (1989) 4 NWLR (pt.114) 172. Learned counsel for appellants should be well advised to know that they can only urge on appeal points arising from a decision of a trial court on an issue submitted to it for determination.”
And in Saude v. Abdullahi (1989) SCNJ 216, 251; (1989) 4 NWLR (pt.116) 387, 431 where the Supreme Court observed as follows –
“It is also to be observed that an appeal is usually against a ratio not normally against obiter except in cases where the obiter is so closely linked with the ratio as to be deemed to have radically influenced the latter. But even there, the appeal is against the ratio.”
The totality of this is that where a party has not appealed against a finding of the trial court, he cannot be heard that he has complained against that finding on appeal: Ijale v. Leyentis & Co. Ltd (1959) 4 FSC 108.”
ISSUE FOR DETERMINATION – STATUS OF AN ISSUE NOT ARISING FROM A GROUND OF APPEAL
“It is not permissible to canvass argument on issue having no bearing with any of the grounds of appeal: Madagwa vs State (1988) 5 N.W.L.R (pt.92) 60, African Petroleum Ltd VS Owodunni (1991) 8 NWLR (pt 210) 391 (pt 210) 391, 423 the Supreme Court 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”
And in Okoye vs Nigeria Construction and Furniture Co. Ltd (1991) 6 NWLR (pt 199) 501, 533 it was held thus-
….. Each party to an appeal, the appellant or the respondent, is entitled to formulate what are in his opinion the issue for determination, the issue so formulated must arise from and be related to the grounds of appeal filed.”
RELIEF – WHETHER A PARTY CAN CLAIM A DIFFERENT RELIEF ON APPEAL FROM THAT CLAIMED AT THE TRIAL COURT
“A party who had prayed for a particular relief and led evidence pursuing that remedy in the trial court cannot be heard on appeal to make an about turn in pursuit of the opposite of what he stood for in the court below. In Ajide vs Kelan; (1985) 3 NWLR (pt 12) 248 at 269 the Supreme Court said –
A party should be consistent in stating his case and consistent in proving it. He will not be allowed to take one stance in his pleadings, then turn or summersault during the trial then assume a non-challant attitude in the Court of Appeal only to revert to his case as pleaded in the Supreme Court. Justice is much more than a game of hide and seek. It is an attempt our human imperfection notwithstanding, to discover the truth. Justice will never decree anything in favour of so slippery a customer Justice is not interested in scoring debating points.
See also Ikeanyi vs ACB Ltd (1991) 7 NWLR (pt 205) 626.
RELIEF – WHETHER THE COURT HAS POWERS TO GRANT RELIEF(S) NOT CLAIMED BY A PARTY
“Moreover the power of the court is strictly circumscribed by the relief sought. There is no power in any court to grant a relief that was not claimed except such relief is within orders that can be properly construed as consequential order, which the order or relief being sought to the effect that the appellant was being charged with an offence not known to law is not. It is settled that a court can only grant the relief sought by a party, and any orders made outside such prayers must be refused. See Ekpeyong & Ors vs hang Effiong Nyong (1975) 2 SC 71, 80 where the Supreme Court stated as follows-
It should always be borne in mind that a court of law is not a charitable institution; its duty, in civil cases, is to render unto everyone according to his proven claims.
See also Okubula vs Oyagbola (1990) 4 NWLR (pt 147) 723, Bola Ige vs Olunloyo (1984) 1 SC 254 Ransome Kuti vs A.G Federation (1985) 2 NWLR (pt 6) 211 and Obajinmi vs A.G Western Nigeria (1968) NMLR 98.”
CASES CITED
Not Available
STATUTES REFERRED TO
Constitution of Federal Republic of Nigeria, 1999|Counterfeit Currency (Special Provisions) Act No. 22 of 1984 (as amended)|Court of Appeal Rule 2004 (now 2016)|Criminal Code Act 2004|Economic and Financial Crimes Commission (Establishment) Act, 2004|