AJALA & ORS v. ALADEJANA & ANOR (2015)

In The Court of Appeal of Nigeria

On Wednesday, the 16th day of May, 2018

CA/EK/39/2015

Before Their Lordships

AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria


Between

1) HIGH CHIEF GABRIEL OJO AJALA
(The Elero of Ifaki-Ekiti)
2) HIGH CHIEF S.O. FAMILOYE
(The Oniwore of Ifaki-Ekiti)
3) SENIOR CHIEF S.A. ADEWUYA
(The Ejemu of Ifaki-Ekiti.)
4) SENIOR CHIEF J.O.O. OJO
(The Eleyigbo of Ifaki-Ekiti.
On behalf of themselves and entire Ifaki people) –Appellants

AND

1) HIS ROYAL HIGHNESS OBA ALADEJANA
(THE ALAWOROKO OF IWOROKO)
2) MR. BENJAMIN OGUNTUROTI –Respondents

…………………….A……………………….

FATIMA OMORO AKINBAMI, J.C.A. (Delivering the Leading Judgment): This interlocutory appeal is against the Ruling of the High Court of Ekiti State, in the Ido-Ekiti Judicial Division delivered, on the 22nd day of April, 2013 by Hon. Justice Adewale Kayode Fowe.

STATEMENT OF RELEVANT FACTS

The Appellants commenced Suit No: HID/10/2009 in the High Court of Ekiti State, Holden at Ido-Ekiti.
On the 18th day of February, 2013, the Appellants by a motion sought to withdraw their claim in its entirety before the lower Court, which application was granted without objection and the claims of the Appellants as Claimants was struck out.
The Respondents had a Counter-Claim and same was adjourned for hearing on the 14th of March, 2013.
On the 14th day March, 2013 the Appellants brought an application seeking the leave of Court to file witness Statements on Oath, List of Witnesses and List of Exhibits.
The application, which was opposed by the Respondents was dismissed as the Appellant did not provide materials for which the lower Court could predicated a favourable exercise of its discretion.

As at the time the application was made there was no claim (having been withdrawn and struck out) defence to the Counter-Claim or any application for the extension of time on which the Statements of Witnesses, List of Witnesses and List of Exhibits could be anchored or based.
The Respondents again in agreement with paragraph 3.03 of the Appellants’ Brief of Argument, insisted on trial only on their Counter-Claim and contended the Appellants had discontinued their claim with the withdrawal, by Counsel of the Appellants’ Statement of Claim (see paragraph 3.03 and 3.04 of the Appellants Brief of Argument).

As rightly contended in paragraph 3.04 of the Appellants’ Brief of argument, the Appellants were yet to comply with the new Rules of Court before their claim was struck out, and having been out of time to file their witness Statements on Oath, List of Witnesses and List of Exhibits intended to be tendered, sought an extension of time to file same, which application was dismissed by the lower Court, hence this Appeal.
The Appellants being dissatisfied filed a Notice of Appeal.
The Appellants, in their Notice of Appeal dated and filed on the 3rd day of May, 2013 and raised two grounds of Appeal contained at pages 17-18 of the Record of Appeal and they are reproduced hereunder
GROUND 1
The trial Judge erred in law and acted in utmost disregard of the principles of fair hearing when he dismissed the application of the Appellants for extension of time to file and serve their witnesses Statements on Oath, List of Witnesses and Exhibits intended to be tendered at the trial in Defence to the counter- claim.
PARTICULARS
i. The Appellants are the Claimants/Defendants in Suit No: HID/10/2009 while the Respondents are the Defendants/Counter-Claimant.
ii. The Suit No: HID/10/2009 was commenced under the old Rules of the High Court.
iii. Following the introduction of new Rules of the Ekiti State High Court which required front loading, the suit was to be made to comply with same.
iv. In the process of complying with the new Rules of the High Court there were moves to settle the matter out of Court which necessitated the Appellants applying for the discontinuance of the case at the lower Court.
v. As a result of the move to settle the matter out of Court the Appellants deemed it unnecessary to file their Witnesses Statements on Oaths, Lists of Witnesses and the List of Exhibits intended to be used at the trial.
Vi. The Appellants withdrew their Statement of Claim from the lower Court following the agreement to settle the matter out of Court.
vii. Rather than withdraw their Counter-Claim, the Respondents insisted on continuing with the case in which the Appellants were set to file their Witnesses Statements on Oath, List of Witnesses and their Exhibits intended to be tendered at the trial.
viii. The Appellants having been out of time to file their Witnesses Statements on Oath, List of Witnesses and Exhibits to be tendered, applied for extension of time to file same and the application was dismissed by the lower Court.
GROUND 2
The learned trial Judge misdirected himself when he held that the Appellants did not offer any material in the Affidavit upon which to base the exercise of his discretion in their favour.
PARTICULARS
i. The Appellants duly filed and served a Motion on Notice seeking for extension of time to file the Witnesses Statements on Oath, List of Witnesses and the List of Exhibits intended to be used at the trial.
ii. The Appellants swore to the fact that the delay in filing the witnesses Statement on Oaths, List of Witnesses and Exhibits was due to the out of Court settlement move.
The Notice of Appeal is at pages 16-20 of the Record of Appeal.
The Appellants’ Brief of Arguments settled by Obafemi Adewale Esq was filed on the 29th September, 2016 but deemed properly filed on 6th October, 2016.
The Appellants Reply Brief was dated 2/4/2017 filed on the 2/5/2017, but deemed properly filed on the 24th of January, 2018.
The Appellants distilled two issues for determination as follows:
i. Whether the trial Judge was right in dismissing the application of the Appellants for extension of time, to file and serve their witnesses Statements on Oaths, List of Witnesses and Exhibits intended to be tendered at the trial in defence to the counter-claim. (Ground One)
ii. Whether the trial Judge was right in holding that the Appellants did not offer any material in the Affidavit upon which to base the exercise of his discretion in their favour (Ground Two).

…………………….B……………………….

The Respondents Brief dated and filed on the 20th of March, 2017, but deemed properly filed on 22nd March, 2017 was settled by their counsel Ayodeji Makanjuola Esan, Esq. The Appellants??? two issues were adopted for the determination of this appeal by the Respondents.
Learned counsel for the Appellants in arguing Issue 1, contended that the dismissal of the application of the Appellants for extension of time to file and serve their witnesses Statements on Oaths, List of Witnesses and the List of Exhibits intended to be tendered at the trial, is a breach of the Appellants’ right to fair hearing enshrined in Section 36 of the 1999, Constitution, of the Federal Republic of Nigeria (as amended).
It was submitted by learned counsel that the law is clear that opportunity should have been afforded the Appellants to make representations to the administering authority before that authority makes the decision affecting the party. Counsel posed the question, how can this necessary representation be made when the Appellants are disallowed to file their witnesses Statements on Oath, List of Witnesses and the List of Exhibits to be tendered at the trial?
It was the contention of the learned counsel, that by refusing to grant the application of the Appellants for extension of time, within which to file witnesses Statements on Oath, List of Witnesses and the List of Exhibits, where doing so will do no injustice to the Respondents or the fair trial of the matter.
Learned counsel reiterated the fact that any proceeding in breach of Section 36 of the Constitution is a nullity and must be voided. See EGHOBAMIEN v. EGHOBAMIEN (2013) 3 NWLR (PT 1341)378 PARA G. it was argued by learned counsel that since the breach of the principle of audi alteram partem vitiated the proceedings of the trial Court in EGHOBAMIEN v. EGHOBAMIEN (Supra), it must vitiate the Ruling of the trial Court in this instant case.
It was submitted by learned counsel, that this Court has held that where a party in breach of a rule of Court shows that:
a. The failure to comply was not deliberated, but was due to inadvertence or some bonafide mistake.
b. The non-compliance has not caused injustice to the other party and disrepute to administration of justice and
c. The non-compliance is not fundamental, and is such that can be treated as an irregularity, any objection to the competence of such proceedings or process for non-compliance with the Rules of Court must fail. See SYLVESTER v. OHIAKWU (2014)5 NWLR (PT 1401) 511, PARAS C-G. 
It was submitted, that in the instant case, failure to comply with the time frame within which to file processes was not deliberate.
It was due to the need to comply with the new Rules of Court requiring frontloading of all processes, and later the attempt to settle the matter out of Court. The Appellants’ counsel withdrew their Statement of Claim believing that the Respondents were genuinely committed to settle out of Court, but the Respondents did not withdraw their counter-claim.
It was submitted by learned counsel, that the non-compliance with the Rules in this instant case has not caused any injustice to the other party.
It was argued by learned counsel that, the non-compliance is not fundamental and is such that can be treated as an irregularity.
Learned counsel urged this Court to resolve this issue in favour of the Appellants.
ISSUE TWO
Dwelling on this issue, Appellants learned counsel urged this Court to overrule the learned trial Judge, on his position that the Appellants did not offer any material in the Affidavit upon which the Court would base the exercise of its discretion. He pointed out, that paragraph (5) clearly stated the reason for non-compliance within the time frame is as a result of attempts to settle out of Court, which could better serve the end of justice. It is the view of learned counsel that this is sufficient material upon which the Court could base the exercise of its discretion. See the case of I.T.N.A.G.P.P.E v. P.C.N. (2012)2 NWLR (PT 1284) 262 at 280.
It was further submitted by learned counsel that the Court in the exercise of its discretion must do so first and foremost in the interest of justice and not merely take refuge in an unnecessary legal technicality which would delay or even defeat the hearing of the case. He submitted that the learned trial Judge should have in the interest of justice exercised his discretion in favour of the Appellants. That dismissing their application as the Court has done, will cause grave injustice to the Appellants.
Learned counsel contended that the reason why the Appellants in this case, could not file the witness Statements on Oaths, and other necessary processes within time, is due to the move to settle this matter out of Court, and the erroneous withdrawal of the Statement of Claim, by counsel was in good faith. He submitted that these are good reasons and sufficient materials upon which to base the exercise of the Court’s discretion. See MICRO-LION INT’L (NIG) LTD V. GADZAMA (2009)14 NWLR (PT 1162) 500 PARA F.
Learned counsel urged the Court to resolve Issue Two in favour of the Appellants.

…………………….C……………………….

The learned counsel for the Respondents, observed that Ground 1, as contained in the Notice of Appeal, from which Issue 1 formulated by the Appellants is distilled cannot be borne out by the records and is in fact at variance with the proceedings in the lower Court.
The application before the lower Court on which the appeal is predicated as contained in page 2 of the record are as follows:
i. AN ORDER granting leave to the applicants to file the Claimants/Defendants to Counter/Claimants Statements of Witnesses on Oath, List of Witnesses and the List of Exhibits intended to be used at the trial out of time.
ii. AN ORDER extending time within which the applicants may file the Claimants/Defendants to Counter-Claimants Statement of Witnesses on Oath, List of Witnesses, and List of Exhibits intended to be used at trial out of time (see application dated 13th March, 2013 and filed on 4th March, 2014 contained in pages 1-4 of the record of Appeal.
This was the application refused and struck out by the lower Court on 22nd April, 2013 hence this appeal.
However, learned counsel for the Respondents submitted that in the Notice of Appeal contained in pages 16-20 of the Record of Appeal, the Grounds of Appeal (without particulars) reads.
GROUND 1
The trial Judge erred in law and acted in utmost disregard of the principles of Fair Hearing when he dismissed the application of the Appellants for extension of time to file and serve their witnesses Statement on Oath, List of Witnesses and Exhibits intended to be tendered at the trial in Defence to the counter- claim.
GROUND 2
The learned trial Judge misdirected himself when he held that the Appellants did not offer any material in the Affidavit upon which to base the exercise of his discretion in their favour.
The learned counsel for the Respondents submitted that the Claimant/Appellant formulated the grounds to include in defence of the counter-claim, and also went further in Issue 1 to include in defence to the counter-claim knowing fully well that, that was not the application before the lower Court and same was not therefore the application refused, on which the Appeal was predicated and such does not arise from the Ruling of the lower Court.
He contended that it is not difficult to hazard a reason for this surreptitious inclusion of in defence to counter-claim both in the Grounds of Appeal and the issue distilled therefrom inspite of the glaring evidence on record to the contrary.
That, the only competent or valid application in the absence of an application to relist the claim (which had neither been sought nor granted prior to this time) can only be an application for leave and or extension of time to file processes in relation to the defence to counter-claim, and not to the trial of the main suit which had become moribund with the withdrawal of the claim,which sadly was not the application before the Court.
It is therefore the realization that, the application which was refused was incompetent as prayed, that led the Appellant to couch the Grounds of Appeal in the manner aforesaid with the tendency, and or likelihood to mislead the Court in the context.
Learned counsel for the Respondents submitted that, to the extent that the grounds of appeal does not emanate from the Ruling of the Court below, same is incompetent and is liable to be struck out, and all issues distilled therefrom and arguments thereon discountenanced by this Court.
The learned counsel for the Respondents, raised the issue that the Grounds of Appeal, do not emanate from the Ruling of the lower Court. This point raised by learned counsel goes to the root of this appeal. In the case of POROYE & ORS v. MAKARFI & ORS (2017) LPELR- 42738 (SC) the Supreme Court per Ariwoola JSC, gave the meaning of Ground of Appeal as:
A ground of appeal is the complaint of the Appellant on the judgment appealed against. Grounds of Appeal are the pillars on which the entire appeal stands. See BHOJSONS PLC v. GEOFREY K. DANIEL KALIO (2006)5 NWLR (PT 973) 330; (2006)4 SCMJ. In other words, a ground or grounds of appeal against a decision of a lower Court, must relate to the decision appealed against, and should be a challenge to the validity of the ratio decidendi, of the decision reached by the Court below to the appellate Court. See CHIEF PETER AMADI NWANKWO & ANOR V. ECUMENICAL DEVELOPMENT COOPERATIVE SOCIETY (EDCS) UA (2007)5 NWLR (PT 1027) 377; (2007) 1-2 SC 145; (2007)4 SCM 139.
However, just like pleadings in the commencement of an action tried on pleadings, parties are bound by their grounds of appeal and are not at liberty to argue grounds not related to the judgment, or decision appealed against. See ROBERT I IKWEKI & ORS v. EBELE & ANOR (2005)11 NWLR (PT 936) 397; (2005) 2 SC (PT 11)96; (2005)3 SCM 69.
I have carefully considered the two grounds of appeal filed by the Appellants, and their respective particulars and I am of the firm view that the contention of the Respondents’ learned counsel is correct that Ground 1, as contained in the Notice of Appeal, from which Issue 1 formulated by the Appellants is distilled is not borne out of the decision of the lower Court.
In KHALIL v. YAR ADUA (2003)16 NWLR (PT 847)446 at 477-478 PARA A the Supreme Court per I.T. Muhammed JSC, said:
It behooves me at this juncture to state that Grounds of Appeal are no doubt, the soul of an appeal. They are the reasons why the decision being appealed against is considered wrong by the aggrieved party. Where the validity of Grounds of Appeal is successfully challenged in an appeal, certainly nothing shall remain of that appeal.
See OKEKE AMADI v. OKEKE OKOLI (1977)11 NSCC 117 at 118; PLEIFFER v. THE MIDLAND RAILWAY COMPANY (1987)18 QBD 243; MURIFATT v. SMITH (1887)12 PD 116.
Since the Notice of Appeal is incompetent, it presupposes that there is no Notice of Appeal before the Court.
In OKEKE AMADI v. OKEKE OKOLI (1977)11 NSCC 117, the Supreme Court found all the grounds of appeal defective and suo motu struck out the incompetent Notice of Appeal.
In the case of EHINLANWO v. OKE & ORS (2008) LPELR 1054 (SC) Onnoghen JSC, (as he then was) (now CJN) held: It should be noted that a ground of appeal is the totality of the reasons why the decision complained of is considered wrong by the party appealing or the Appellant or the aggrieved party.
The trial Judge in his Ruling on page 13 of Record of Appeal stated:
A look at Order 25 of the High Court of Ekiti State (Civil Procedure) Rules, 2011 shows clearly that parties in this suit have already passed that stage of pre-trial conference as at the 18th of February, 2013, the Court in compliance with Order 25 Rule 3 (g) had struck out the Claimants’ suit and gave a date for the hearing of the counter-claim with the consent of the applicant.
In any event, the Court is functus officio in respect of the order made on the 18th February, 2013.

…………………….D……………………….

Now, a look at the affidavit in support of this application clearly shows that, it is bereft of any fact why the Court is being called upon to exercise its discretion in favour of the applicants. Look at paragraph 5 a-d of the affidavit which have not disclosed any reason why the discretion of the Court is sought.
In effect the motion dated 13th March, 2013, but filed on the 14th 2013, is hereby dismissed. The counter-claim already slated for hearing is allowed to be moved by the learned counsel for counter-claimant.
Aggrieved by this decision of the trial High Court, the claimants now Appellants lodged appeal at the Court of Appeal upon filing two (2) grounds of appeal challenging the decision of the trial Court.
Having regards to the relevance of these grounds of appeal, I will reproduce them:
GROUND 1
The trial Judge erred in law and acted in utmost disregard of the principles of fair hearing when he dismissed the application of the Appellants for extension of time to file and serve their witnesses Statements on Oath, List of Witnesses and Exhibits intended to be tendered at the trial in Defence to the counter- claim.
PARTICULARS
i. The Appellants are the Claimants/Defendants in Suit No: HID/10/2009 while the Respondents are the Defendants/Counter-Claimants.
ii. The Suit No: HID/10/2009 was commenced under the old Rules of the High Court.
iii. Following the introduction of new Rules of the Ekiti State High Court which required front loading, the suit was to be made to comply with same.
iv. In the process of complying with the new Rules of the High Court, there were moves to settle the matter out of Court which necessitated the Appellants applying for the discontinuance of the case at the lower Court.
v. As a result of the move to settle the matter out of Court the Appellants deemed it unnecessary to file their Witnesses Statements on Oaths, Lists of Witnesses and the List of Exhibits intended to be used at the trial.
Vi. The Appellants withdrew their Statement of Claim, from the lower Court following the agreement to settle the matter out of Court.
vii. Rather than withdraw their Counter-Claim, the Respondents insisted on continuing with the case in which the Appellants were set to file their Witnesses Statements on Oath, List of Witnesses and their Exhibits intended to be tendered at the trial.
viii. The Appellants having been out of time to file their Witnesses Statements on Oath, List of Witnesses and Exhibits to be tendered, applied for extension of time to file same and the application was dismissed by the lower Court.
GROUND 2
The learned trial Judge misdirected himself when he held that the Appellants did not offer any material in the Affidavit upon which to base the exercise of his discretion in their favour.
PARTICULARS
i. The Appellants duly filed and served a Motion on Notice seeking for extension of time to file the Witnesses Statements on Oath, List of Witnesses and the List of Exhibits intended to be used at the trial.
ii. The Appellants swore to the fact that the delay in filing the witnesses Statement on Oaths, List of Witnesses and Exhibits was due to the out of Court settlement move.
On the whole, I have examined the two grounds of appeal and their particulars, but found none attacking the decision of the learned trial Judge, that it is therefore not necessary to talk of breach of Appellants right to Fair Hearing enshrined in Section 36, of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
I am of the view that the Respondents in their Brief of Argument, rightly observed that Ground 1 as contained in the Notice of Appeal, from which Issue 1 formulated by the Appellants is distilled cannot be borne out by the records, and is in fact at variance with the proceedings in the lower Court.
The application before the lower Court on which the appeal is predicated as contained in page 2 of the record are as follows:
i. AN ORDER granting leave to the applicants to file the Claimants/Defendants to counter-claimants??? Statements of Witnesses on Oath, List of Witnesses and the List of Exhibits intended to be used at the trial out of time.
ii. AN ORDER extending time within which the applicants may file the claimants/defendants to counter claimants Statement of Witnesses on Oath, List of Witnesses, and list of Exhibits intended to be used at the trial out of time(see application dated 13th March, 2013 and filed on 14th March, 2014 contained in pages 1-4 of the record of appeal).
This was the application refused and stuck out by the lower Court on 22 April, 2013 hence this appeal.
However in the Notice of Appeal contained in pages 16-20 of the Record of Appeal, the Grounds:
GROUND 1

…………………….E……………………….

The trial Judge erred in law and acted in utmost disregard of the principles of fair hearing when he dismissed the application of the Appellants for extension of time to file and serve their witnesses Statement on Oath, List of Witnesses and Exhibits intended to be tendered at the trial in Defence to the counter- claim.
GROUND 2
The learned trial Judge misdirected himself when he held that the Appellants did not offer any material in the Affidavit upon which to base the exercise of his discretion in their favour.
From the above grounds, the Claimant/Appellant formulated the grounds to include:
In defence of the Counter-Claim, and also went further in Issue 1, to include in defence to the Counter-Claim knowing fully well that, that was not the application before the lower Court and same was not therefore the application refused on which the Appeal was predicated and such does not arise from the Ruling of the lower Court.
It was argued for the Appellants that, the dismissal of the Application of the Appellants for extension of time to file and serve their witnesses Statements on Oaths, List of Witnesses and the List of Exhibits intended to be tendered at the trial, it was submitted is a breach of the Appellants’ right to fair hearing enshrined in Section 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
I am in agreement with the contention of the Respondents, that having regard to the two grounds of appeal and the two issues distilled from the grounds of appeal filed by the Appellant, there was no appeal at all on the Ruling decision of the trial Judge in respect of the motion moved by the Appellants.
In the Appellants’ appeal to the Court of Appeal against the judgment of the trial High Court, the Appellants was expected to vent out his grievances against the judgment in a Notice of Appeal containing the appropriate grounds of appeal, outlining the aspect of the findings and decisions of the trial Court he disagreed with in the judgment. This is in accordance with Order 7, Rule 2 of the Court of Appeal Rules, 2016. These two grounds of appeal filed by the Appellant challenging the correctness so to say, of the judgment of the trial Court, have been earlier quoted in this judgment.
Running through these grounds of appeal, it is indisputable that the Appellants/Complaints in grounds one and two are not borne out from the decision of the lower Court. In other words to say it in plain language there was no appeal by the Appellant against the decision of the trial.
I am minded to refer to the decision in the case of CHIEF EBBA v. CHIEF OGODO & ANOR (1984)1 SCNLR 372 at 385 (1984) SC 84 at 112 where the Court said:
It should be plain to a Court of Appeal that when an issue is not placed before it, it has no business whatsoever to deal with it. A Court of Appeal is not a knight errant looking for skirmishes all about the place.
To this end, it is clear to me that the argument of the learned counsel to the Appellants, that by refusing to grant the application of the Appellants for extension of time within which to file witnesses Statements on Oath, List of Witnesses and the List of Exhibits, where doing so will do no injustice to the Respondents or the fair trial of the matter, the learned trial Judge has trampled on Section 36 (2) (a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
And that it is established that any proceeding in breach of Section 36 of the Constitution is a nullity and must be voided.
In the case of EGHOBAMIEN v. EGHOBAMIEN (2013)3 NWLR (PT 1341) PAGE 378 PARA G. This judgment is not applicable to the facts of the Appellants case.
The learned counsel for the Appellants appears to have misunderstood the real issue involved in this matter. The issue is simply that there being no appeal, against the decision of the trial High Court, which struck out the Appellants claim on their voluntary application, and declared itself functus officio in respect of the Order it made on the 18th February, 2013.
That a look at the affidavit in support of this application clearly shows that it is bereft of any fact why the Court is being called upon to exercise its discretion in favour of the Applicants.
It is trite and well settled that the Court of Appeal is only entitled to consider an appeal on the grounds of error of law or fact committed by the trial Court placed before the Court of Appeal in grounds of appeal filed, and deduced from the decision being appealed against. An Appellant cannot without leave of Court be heard on any other grounds.
See MANAGEMENT ENTERPRISES v. OTUSANYA (1987)2 NWLR (PT 55) 179 and ALLI v. ALESINLOYE (2000)6 NWLR (PT 660) 177 at 212. Definitely, the Court of Appeal cannot pronounce on Issue or finding on which the parties have not appealed against. See ADEYEMI v. OLAKUNRI (1999)14 NWLR (PT 638) 204 at 211.
It may be emphasized on this issue that the whole purpose of grounds of appeal is to give notice to the Respondent of the errors complained of.
See NATIONAL INVESTMENTS and PROPERTIES LTD v. THOMPSON ORGANISATION (1969)1 NMLR 99. Thus where an Appellant relies on any ground, this must be properly raised either by way of a ground of appeal, or as a cross-appeal in case of a Respondent. Any issue not raised in a ground of appeal in this manner is clearly not before the Court.
Accordingly, it is not open to the Court to raise an issue which the parties have not raised. See INUA v. NTAH (1961)1 ALL NLR 576. It is also the law that where a Court decides to raise such an issue because it is material for the determination of the appeal before it, the parties must be given an opportunity to argue the point before any decision is taken on it as was stated in KUTI v. BALOGUN (1978)1 SC 53.
Therefore in line with these decisions, it is quite obvious that the lower Court was well guided, when it refused to grant the reliefs sought against the Ruling it delivered on the 22nd day of April, 2013.

…………………….F……………………….

Furthermore, the proposition is both elementary and fundamental to our judicial system that there is a presumption that the judgment of the trial Court is correct, and the burden of showing the contrary is always on the Appellant. See WILLIAMS v. JOHNSON (1937)2 WACA 248; KISIEDU & ORS v. DOMPREH & ORS (1935)2 WACA 268; AKESSE v. ABABIO (1935) 2 WACA 264; FOLORUNSHO v. ADEYEMI (1975)1 NMLR 128.
Looking at this case from another angle; It is well settled that when an issue is not placed before an Appellate Court, that Court has no business whatsoever to deal with it.
It is also cardinal principle of law, in Courts exercising appellate jurisdiction, that before the findings or decisions of a trial Court can be contested at all, there must be a ground of appeal complaining of the inadequacies in the findings or decisions. See EJOWHOMU v. EDOK-ETER MANDILAS LIMITED (1986)5 WLR (PT 39)1 at 30-31 and EKPA v. UTONG (1991)6 NWLR (PT 197) 258 at 285.
Without such ground of appeal, the findings or decisions stand and no argument to undermine them, no matter even indirectly will be entertained by the Court of Appeal.
It should not be forgotten that in the determination of disputes between parties in Court, the Court must ensure that its judgment is confined to the issues raised by the parties. See COMMISSIONER for WORKS BENUE STATE v. DEVCON DEVELOPMENT CONSULTANTS LIMITED (1988)3 NWLR (PT 83)407; NIGERIA HOUSING DEVELOPMENT SOCIETY LTD v. MUMUNI (1977)2 SC 57; ADENIJI v. ADENIJI (1972)1 ALL NLR (PT1) 278 at ALLI v. ALESINLOYE (2000)6 NWLR (PT 660) 177 at 211-212.
In the case at hand, the Appellant not having raised the issue of his compliant on manner the trial High Court dealt with the question of his breach of the principle of audi alteram partem vitiated the Ruling of the trial Court in this instant case.
This is also in line with the requirement of the law that an appellate Court must confine itself to the issues raised by the parties before it. In other words, it is not open to the appellate Court to raise an issue which the parties did not raise themselves in the course of the hearing of the appeal.
On the application of the above decisions of the Court with which I am absolutely bound, there is no doubt whatsoever that in the circumstances of the present case in which the Appellant in this Appeal beforethis Court did not appeal against the decision of the trial High Court. Therefore I will not disturb the unassailable conclusion of the trial Court.
I find this appeal lacking in merit and the same is hereby dismissed. There shall be 50,000.00 costs against the Appellants in favour of the Respondents.
AHMAD OLAREWAJU BELGORE, J.C.A.: I have had the advantage of reading in draft the judgment just by my learned brother F. O. Akinbami.
I agree that the appeal is unmeritorious. I, therefore, dismiss the appeal.
PAUL OBI ELECHI, J.C.A.: I agree

Appearances

Ezekiel Agunbiade Esq., Adeyemi Adewumi Esq., Victor Ojetayo Esq., Felix Emmanuel Esq.,T. O. Obisesan Esq.-For Appellant

AND

Ayodeji Makanjuola Esan Esq., Kayode Oluwasola Esq.-For Respondent.

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