ADIKWULU & ORS v. CHIKEND (2018)

In The Court of Appeal of Nigeria

On Wednesday, the 14th day of February, 2018

CA/E/482/2014

Before Their Lordships

HUSSEIN MUKHTAR  Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU  Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO  Justice of The Court of Appeal of Nigeria


Between

1. CHUKWUJEKWU SYLVESTER ADIKWULU
2. PETER ADIKWULU
3. EMEKA ADIKWULU-Appellants

AND

OLISA EMEKA CHIKEND-Respondent

..…………………..A…………………….

HUSSEIN MUKHTAR, J.C.A.(Delivering the Leading Judgment): This appeal is against the judgment of the Anambra State Customary Court of Appeal sitting at Awka, coram: Hon. Justice S.N. Okoye, Hon. Justice Jude Obiora and Hon. Justice C.E. Chukwurah delivered on Monday the 14th April 2014, wherein the Respondent’s appeal was allowed by Court below after striking out issue A and resolving issues B and C in favour of the Respondent herein (the Appellant at the lower Court).
The Appellants were dissatisfied with that decision and thus filed a Notice of Appeal on 30th June 2014 premised upon a lone ground of Appeal thus:
The Learned Judges of the Customary Court of Appeal of Anambra State erred in Law when they failed to dismiss the Appellant’s Appeal by determining, without jurisdiction, issue ‘A’ which did not arise from ground (1) on denial of fair hearing and came to a perverse decision occasioning a gross miscarriage of Justice.
PARTICULARS OF ERROR
a. The competence and jurisdiction of the Court was waived by entertaining issue ‘A’ touching on burden of proving that there was a pledge of the land in dispute, not related to Appellant’s ground (I) centered on denial of fair hearing.
b. A successful ground on denial of fair hearing can only lead to a new trial and not awarding the case to the Appellant who was never a Plaintiff in the trial Court.
c. An issue for determination must arise from the ground of appeal and not at large.
d. Jurisdiction is fundamental and very radical which can be raised at any time.
The Appellants distilled a lone issue for determination from the lone ground of appeal thus:
Whether the Judgment of the Customary Court of Appeal Anambra State predicated on issue ‘A’ which did not arise from ground 1 of the Notice of Appeal filed on 3/12/2013, without offering the APPELLANTS an opportunity of hearing is not perverse? 
The learned counsel for the Appellant P. S. Mwajagu, Esq endeavored to reproduce the three (3) grounds contained in the Notice of Appeal by the Respondent at the Court below, filed on 3rd December 2013 thus:
i) The Customary Court erred in law when it relied and upheld the decision of the Customary Arbitration of Ihuolum/Umunu family meeting which denied fair hearing to late Nze Umeadi Chukwendu. ii) The trial Customary Court misdirected itself in law when it held that there was a customary pledge of the land in dispute by late Onyebueke Adikwulu to late Sgt Simeon Adikwulu notwithstanding that the essential elements of a Customary pledge were not proved by the Plaintiffs.
iii) The judgment is against the weight of evidence before the Court. (See: Pages 138 – 140 of tile Records). 

It was contended for the Appellant that the issue upon which the lower Court based its judgment could not have arisen from the Respondent’s ground (1) of his Notice of Appeal, which is reproduced thus:
Furthermore, there is no evidence from the Respondent as Plaintiff at the trial Court to show that he was put in to possession of the Land in dispute based on the purported Customary pledge??? I therefore, hold that there is no valid pledge under Customary Law in this matter as the Respondent failed to adduce evidence in proof of pledge of land under Customary Land.

The lower Court, in the lead judgment by Hon Jude Obiorah, seems to be conscious of what it was doing when it stated as follows:
“It is now settled that a ground of appeal challenging the judgment of a Court (trial or appellate Court) cannot be founded on what the Court has never decided. See: Hon Zakawanu Garuba & OR Vs. Hon Ehi Bright Omokhodion & ors. (2011) 15 NWLR (pt 1269) 145 at 177.” 
It was argued for the Appellants that the lower Court failed to appreciate the nature of the appeal before it in its further pronouncement as follows:
In this case, the trial Court in its judgment did not make any decision or pronouncement on the issue of customary arbitration between the parties. The Appellants are therefore required to raise their grounds of appeal on customary arbitration only with the leave of this Honorable Court to raise the issue of customary arbitration as the trial Court did not at any time make any pronouncement or upheld the decision of the customary arbitration of Ihuolumi Umuonu family meeting.
Therefore, Ground II of the Appellant’s Notice of Appeal is incompetent for failure of the Appellant to obtain the leave of Court to raise the said ground of appeal. It follows that an issue raised from an incompetent ground of appeal is equally incompetent and there is nothing for this Honorable Court to determine in the 
said issue. Issue B is accordingly struck out. (See page 254 of the Record) 

..…………………..B…………………….

The lower Court further concluded thus:
“Issue C is whether the judgment is against the weight of evidence. This issue was formulated from ground iii of the Appellant Notice and the ground of Appeal which states that “The judgment is against the weight of evidence before the Court.” The ground of appeal is an omnibus ground of appeal that is incapable of invoking the jurisdiction of this Court. It follows that the said ground of appeal is incompetent.
The result is that no valid issue for determination can be elicited from it. See Nwaigwe Vs Okere (2008) 13 NWLR (PT.1105) 445. Issue C is therefore struck out for incompetence”. 

It was further argued, for the Appellants, that the Court below did not focus on the real issues in the Respondent???s case in its judgment. The lower Court suo motu declared thus:
“In the light of the foregoing and despite the fact that issues B & C were resolved in favour, of the Respondent, this appeal remains meritorious and accordingly allowed. The judgment of the trial Court is therefore set aside and the claim of the Respondent is hereby dismissed with cost of N30,000 in favour of the Appellants.” (See pages 254-255 of the Record) 
It was submitted for the Appellants that the lower Court misconceived the gist of their case. That the allegation of denial of fair hearing, would have led to allowing the appeal and ordering a retrial. If the issue of lack of fair hearing succeeds, an order for retrial ought to be made. There is nothing that justifies allowing the appeal at the Court below as done in the instant case.
It was further submitted for the Appellant that the decision of a Court must only be founded on grounds raised by or for the parties or either of them, which has been argued on behalf of the parties before the Court. See SHITTA-BEY Vs. FEDERAL PUBLIC SERVICE COMMISSION (1981) 1 SC. 40; SAUDE Vs. ABDULLAHI (1989) 7 SCNJ 216.
The learned counsel for the Appellant urged the Court to resolve the issue in favour of the Appellant, allow the appeal and set aside the Judgment of the Customary Court of appeal of Anambra State and restore the judgment of Mbamisi Customary Court.
The learned counsel for the Respondent, however, argued the Notice of Preliminary Objection as ISSUE 1 to wit: whether this Honourable Court has jurisdiction to hear this appeal without service of the Notice of Appeal on the Respondent? He thereby abandoned the preliminary objection by arguing the issue raised therein as an issue in the appeal.
It was argued for the Respondent that failure to serve Court process, where service is required, such as in the instant case, is a failure which goes to the root of the case. It is the service of the process of the Court on the Defendant that confers on the Court the competence and jurisdiction to adjudicate on the matter. It is clear that due service of the process of the Court is a condition precedent to hearing of the Suit. Therefore, if there is a failure to serve process of Court where the service of process is required as is in this case, a condition precedent for the assumption of jurisdiction by the Honourable Court is lacking. See MADUKOLU VS NKEMDILIM (1962) ALL NLR 589.
He urged the Court to decline jurisdiction to hear this appeal and strike it out. This issue having been abandoned is struck out.
On the core issue for determination to wit:
“Whether the Judgment of the Customary Court of appeal Anambra State predicated on issue ‘A’ which did not arise from ground 1 of the Respondent’s Notice of Appeal filed on 3/12/2013 without offering the Appellant an opportunity of hearing is not perverse.”
It was submitted for the Respondent that the Appellant’s Counsel craftily framed the said Issue to quote the ratio decidendi of the judgment of the Anambra State Customary Court of Appeal Awka in this suit out of contest. The Learned counsel for the Respondent submitted that issue ‘A’ was argued by both parties before the Court below which the Honourable Court fully evaluated in its judgment arose from Ground (ii) of the Notice of appeal dated and filed on 3rd day of December 2012.
The said Issue ‘A’ as formulated and canvassed by the Respondent as the Appellant in the Court below thus:
“Whether the Respondents as Plaintiffs in this Suit discharged their burden of proving that there was a pledge of the Land in dispute by Onyebueke Adikwulu to Sgt Simeon Chikwendu
It is the well known practice in appeal that it is the duty of the Appellant’s Counsel to indicate from which of the grounds of appeal any issue formulated for decision in

..…………………..C…………………….

the appeal was distilled. The Court in the case of ODUSOTE VS ODUSOTE (2013) ALL FWLR (PT 668) 867 at 879 paragraph D stated thus:
“Diligent practice of brief writing requires that a Counsel should clearly indicate from which of the grounds of appeal any issue formulated for decision in the appeal was distilled.”

In arguing the Appeal at the Court below, the Respondent as Appellant therein in the Counsel’s brief of argument at paragraph 4.2 on the said Issue A stated:
“This issue is distilled from Ground (ii) of the grounds of Appeal.” 
The ground ii of the grounds of the Appeal, as filed at the lower Court, by the Notice of Appeal reads thus:
ii. The trial Customary Court misdirected itself in law when it held that there was a “Customary pledge” of the Land in dispute by late Onyebueke Adikwulu to late Sgt Simeon Chikwendu notwithstanding that the essential elements of a customary pledge was not proved by the Plaintiffs.
In its well considered judgment, the Court below reproduced the three (3) issues for determination in the appeal as follows:
a. Whether the Respondents as Plaintiffs in this Suit discharged their burden of proving that there was a pledge of the Land in dispute by Onyebueke Adikwulu to Sgt Simeon Chikwendu?
b. What are the attributes of customary law arbitration to enable the Court to rely and uphold its award?
c. Whether the judgment is against the weight of evidence? 

The Court below in its said judgment considered the three (3) issues seriatim. While evaluating and considering the arguments of both Counsel in their briefs on the said “Issue A”, the Court below held thus:
“In view of the foregoing, issue A is hereby resolved against the Respondents.” 
On issue B the Court stated thus:
“Issue B is on the attributes of the Customary Arbitration to enable the Court to rely and uphold its award. The Honourable Court asked both Counsel for the parties to address the Court on the propriety of raising the above issue on appeal, which issue was not pronounced upon in the judgment of the trial Court…..” 
The Court was urged not to loose the sight of what is issue B and the ground of appeal from which it was distilled were addressed. The Respondent (as Appellant in the Court below at paragraphs 4.30 and 4.31 of his brief of argument) stated thus:
“ISSUE B – What are the attributes of a customary arbitration to enable the Court to rely and uphold its award
(This issue is distilled from ground (i) of the grounds of Appeal)
The Court below, in its judgment, adopted the three (3) Issues and treated them seriatim. The Court below summarily observed thus:
“Therefore Ground ii of the Appellant’s Notice of Appeal is incompetent for failure of the Appellant to obtain the leave of Court to raise the said ground of appeal. It follows that an issue raised from an incompetent ground of appeal is equally incompetent and there is nothing for the Honourable Court to determine on the said Issue B. It is accordingly struck out.”
It was submitted for the Respondent that the above was an accidental slip or clerical error made by the lower Court and that it was the sole bases or ground of the present appeal before this Court. The Learned counsel for the Respondent clearly confused the grounds of the appeal before the lower Court and before this Court. The grounds of appeal in the instant appeal cannot be used to support an issue raised outside the grounds of appeal before the lower Court. It is a clear misconception and the respondent’s argument thereon is unsustainable.
The declaration founded upon an issue, which none of the parties was called upon to address, was tantamount to serious misdirection in law. When the lower Court struck out both the grounds and issues formulated it could no longer rely on the same issue as the basis for its judgment. Where a court formulates an issue suo motu, it must allow the parties to address it and failure to do so was tantamount to denial of fair hearing. The principle of audi alteram partem requires that both parties must be heard on any issue raised suo motu.
See: AJAO vs. ASHIRU (1973) 11 SC , 23 ; KUTI VS. BALOGUN (1978)11 SC. 53; EJOWHOMU VS. EDOK-ETER MANDILAS LTD (1986) 5 NWLR (PT. 39) 1 ; ADEGOKE vs. ADIBI (1992) 5 NWLR (PT. 242) 410; TRANS ATLANTIC SHIPPING AGENCY vs. DANTRAS NIGERIAN LIMITED (1996) 10 NWLR (PT. 478) 360 per Muhammed, J.C.A at page 367, paras A – C, holding thus:
It is not competent for a judge to raise a point suo motu and decide it without hearing the parties. If he does so, he will then be in breach of the common law doctrine of audi alteram partem and the

..…………………..D…………………….

parties right to fair hearing as provided by the  Constitution. This rule of practice does not admit of any exception as to whether the point so raised by the Court borders on fact or law. In the instant case, the learned trial Judge raised the issue of Section 66(1) of the Companies and Allied Matters Act, 1990 suo motu, None of the counsel for the parties was given an opportunity to address the Court on that section of the Act, but the learned trial Judge went ahead and decided the pending application solely on that provision. That is wrong.
The Nigerian jurisprudence is not inquisitorial. Our judicial process is circumscribed by the case instituted by the parties and the Court adjudicates on the disputes properly submitted to it in accordance with the rules of practice of the Court.
For the foregoing analysis, the issue for determination cannot but be resolved in favour of the Appellants. The appeal is without more ado, audaciously meritorious and is hereby allowed. The judgment of the Court below delivered by Hon. Justice S.N. Okoye, Jude Obiora and C.E. Chukwurah on 14th April 2014 is hereby set aside. In the stead thereof the appeal from the Customary Court Mbamisi is referred back to the President of the Customary Court of Appeal of Anambra State to slate it for rehearing and determination by a different panel of that Court.
The parties shall bear their respective costs.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I had a preview of the judgment just delivered by my brother, Hussein Mukhtar, JCA with which I am in complete agreement and which I adopt as mine. I have nothing useful to add. I shall abide by all the consequential orders in the lead judgment.
FREDERICK OZIAKPONO OHO, J.C.A.: I received a copy of the judgment in advance from my learned Brother  HUSSEIN MUKHTAR  JCA. I am in agreement with the reasoning and conclusions in allowing the Appeal as meritorious. I abide by the consequential orders of this Court.
Appearances

P.S. Mwajagu, Esq-.For Appellants

AND

S.A. Obianiko, Esq-.For Respondent.

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