In The Court of Appeal of Nigeria
On Friday, the 9th day of March, 2018
Before Their Lordships
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
FEDERAL REPUBLIC OF NIGERIA-Respondent
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal is against the decision of the High Court of Lagos State (the Court below) challenging the over-ruling of the no case submission made by the appellant at the close of the case for the respondent at the Court below.
Shorn of details, the facts were that the appellant and others were arraigned on sundry counts of conspiracy, stealing and conversion of funds/shares said to belong to Afribank Plc and her subscribers. The respondent closed her case after calling four witnesses and tendering in evidence avalanche of documents. The appellant made a no case submission which was overruled.
Not satisfied with the ruling of the Court below, the appellant filed a notice of appeal with 4 grounds of appeal. The respondent filed a notice of preliminary objection to the appeal. It was argued in the respondent’s amended brief of argument filed on 13.12.17 to the effect that ground 1 of the notice of appeal is vague and general in terms and offends Order 7 Rule 3 of the Court of Appeal Rules 2016 (Rules of the Court) read with the cases of Osasona v. Ajayi (2004) 14 NWLR (Pt. 894) 527 at 544-545, Professor Abe v. University of Ilorin and Ors. (2013) 16 NWLR (Pt.1379) 183, Nwosu v. Udeaja (1990) 1 NWLR (Pt. 125) 188 at 217, Abdullahi v. Oba (1998) 6 NWLR (Pt. 554) 420 at 428, Adesola v. Abidoye (1999) 14 NWLR (Pt.637) 28 at 56, consequently it was urged that ground 1 of the notice of appeal and issue 1 of the appellant’s issues for determination built on it should be struck out.
The respondent argued on the second leg of the preliminary objection that ground 2 of the notice of appeal is incompetent being a complaint against a decision that the Court below did not make as the Court below did not pronounce on the competence of the action and as a ground of appeal is expected to be precise, unequivocal and must directly attack the validity of the ratio decidendi of the case, otherwise the ground of appeal will be held incompetent, therefore ground 2 of the notice of appeal is incompetent more so it is repetition of ground 1 of the notice of appeal and should be struck out videOloruntoba-Oju and Ors. v. Abdul-Raheem and Ors. (2009) 13 NWLR (Pt. 1157) 83 at 121, Archianga v. A-G, Akwa Ibom State (2015) 6 NWLR (Pt. 1454) 1 at 36 – 37, Egbe v. Alhaji (1990) 1 NWLR (Pt. 128) 546, M.C.S. (Nig.) Ltd/Gte v. Adeokin Records (2007) ALL FWLR (Pt. 391) 1624 at 1635, Mark v. Abubakar (2009) 2 NWLR (Pt.1124) 79 at 134.
The respondent argued on the third leg of the preliminary objection that grounds 3 and 4 are on the evaluation of facts and evidence to arrive at a decision whether the appellant had a case to answer and are thus grounds of mixed law and fact requiring the leave of the Court first sought and had and not having obtained the requisite leave grounds 3 and 4 of the notice of appeal are incompetent and should be struck out vide Akinyemi v. Odu’a Investment Co. Ltd. (2012) 17 NWLR (Pt. 1329) 209 at 230, Amuda v. Adelodun (1994) 8 NWLR (Pt.360) 23 at 30, Odunukwe v. Ofomata (supra) at 426 and Section 242(1) of the Constitution of the Federal Republic of Nigeria 1999(1999 Constitution); upon which the respondent urged that the appeal should be struck out on ground of incompetence.
The reply brief of the appellant filed on 03-01-18 contended that the substance of ground 1 of the notice of appeal gave the 1st respondent sufficient information about the complaint of the appellant and cannot be described as vague and general in terms vide CBN v. Okojie (2002) 8 NWLR (Pt.768) 48 at 61, Eleburuike v. Tawa (2010) LPELR – 4099, Animashaun and Anor. v. Onyekwulujuje (2003) LPELR-7242.
The reply brief also contended that in light of the fact that ground 2 of the notice of appeal complained against the failure of the Court below to consider and make pronouncement on the fundamental point of law canvassed by the parties that the proceedings were a nullity in that they were conducted in the absence of the 3rd defendant, ground 2 of the notice of appeal is competent vide Okwara v. Okwara (1997) LPELR – 6291, Akpan v. Bob and Ors. (2010) LPELR – 376; and that grounds 3 -4 having not been grounds contesting findings of fact by the Court below but purely grounds of law which seek to challenge the failure of the Court below to apply the law to established facts, grounds 3 and 4 are not grounds of mixed law and fact and did not require the leave of the Court to file and argue them in the appeal vide Obatoyinbo and Anor. v. Oshatoba and Anor. (1996) LPELR – 2156,Abubakar v. Dankwambo (2015) 18 NWLR (Pt.1491) 213 at 228, therefore it was
urged that the notice of preliminary objection should not be countenanced for lacking in merit.
Pages 1312A -1312C of the record of appeal (the record) contain the motion on notice for the no case submission. The substantive prayer is in pages 1312A – 1312B of the record. It is for the striking out of all 35 counts of the charge sheet on the basis that the respondent did not adduce sufficient evidence in support of the counts in question and for consequential order discharging and acquitting the appellant. There is no substantive prayer for the proceedings of the Court below to be quashed on the premise that they were conducted in the absence of one of the defendants. The parties and the Court are bound by the prayers in the motion paper. They cannot stray outside it vide Okoya v. Santilli (1990) 2 NWLR (Pt.131) 172, Commissioner for Works Benue State v. Devcon Ltd. (1988) 3 NWLR (Pt.83) 407.
A party seeking to quash proceedings of a Court cannot pursue the remedy under a prayer for a no case submission. Both are mutually exclusive. The success of a prayer for a no case submission is a consequential order discharging the defendant. While the success of a request to quash the proceedings of a Court for being a nullity attracts the consequential order of a proper or fresh trial of the defendant vide the recent decision of the Supreme Court in Hassan v. F.R.N. (2017) 6 NWLR (Pt.1560) 64 at 82 per the lead judgment prepared by the eminent jurist Rhodes-Vivour, J.S.C., which I came across while preparing this judgment.
It follows that nullity of proceedings cannot be argued under a prayer for no case submission. It requires its own substantive prayer. Such a prayer is normally brought under the inherent powers of the Court. Being a special remedy, the proper procedure should have been followed in raising and urging it in this case vide Oko v. The State (2017) NWLR (Pt.1593) 24 at 47 – 48 following Adejobi v. State (2011) 12 NWLR (Pt.1261) 347 at 366 – 367 and Jov v. Dom (1999) 9 NWLR (Pt.620) 438 at 541.
True, the Court below should have considered the submission on the nullity of the proceedings and ruled one way or the other on it. Not having considered it, the appellants complaints in grounds 1 and 2 of the notice of appeal are properly laid vide Akpan v. Bob (2010) 17 NWLR (Pt.1223) 421. But I do not, with respect, see actual miscarriage of justice in the failure of the Court below to consider the submission on nullity of the proceedings when the issue was not covered by any substantive prayer in the motion paper as should be the case showing the submission had no rampart to secure/support it. I invoke the proviso to Section 19(4) of the Court of Appeal Act to most respectfully hold that there is no actual miscarriage of justice as the submission on nullity of the proceedings was not based on any substantive prayer and thus made in a vacuum.
Assuming without agreeing the point is well taken, the success of it would have led to a consequential order for the proper or fresh trial of the appellant, not a discharge of the appellant.
I have seen the grounds of appeal in pages 3552 – 3554 of the record. Ground 1 thereof is with respect not vague and general in terms. Taken together with the particulars thereof ground 1 of the notice of appeal gives the respondent sufficient notice of the complaint it shall meet at the appeal. It is a good ground of appeal, in my modest view; as the essence of a ground of appeal is to let the other party know precisely what is in contest on appeal thus leaving no room for doubt on the substance of the dispute vide Ameen v. Amao (2013) 9 NWLR (Pt.1358) 159, Best (Nigeria) Ltd. v. Blackwood Hodge (Nigeria) Ltd. and Ors. (2011) 5 NWLR (Pt.1239) 95 at 115 on clear and succinct ground of appeal wearing the toga of efficacy. Even where grounds of appeal are inelegantly drafted they can still be accommodated once the sting of the complaint is clear as in this case vide KLM Royal Dutch Airlines v. Aloma (2017) 1 NWLR (Pt.1601) 473 (on inelegantly drafted Court process). See also Ngere & Anor. v. Okuruket XIV and Anor. (2017) 5 NWLR (Pt.1559) 440 following Nnanna v. Onyenakuchi (2000) 15 NWLR (Pt.689) 92, Obijiaku v. N.D.I.C. (2002) 10 NWLR (Pt.774) 201, Apapa v. INEC (2012) 8 NWLR (Pt.1303) 409, Mba v. Agu (1999) 12 NWLR (Pt.629) 1, Hambe v. Hueze (2001) 4 NWLR (Pt.703) 372, Agbi v. Ogbeh (2005) 8 NWLR (Pt.926) 40.
Ground 2 of the notice of appeal does show at close range that it is dissimilar to ground 1 thereof and cannot be duplication of ground 1 of the notice of appeal. Nor does ground 2 overlap ground 1 of the notice of appeal. But both
grounds 1 and 2 of the notice of appeal stand on nothing having regard to the fact that there is no specific prayer in the motion paper for the Court below to adjudicate on them, therefore grounds 1 and 2 of the notice of appeal do not avail the appellant. Assuming without agreeing that grounds 1 and 2 of the notice of appeal avail the appellant, their success should lead to the consequential order for the proper/fresh trial of the appellant.
Grounds 3 – 4 of the notice of appeal are on the overruling of the no case submission. These are grounds of mixed law and fact requiring the leave of the Court first sought and had; and having not sought and obtained the leave of the Court before filing grounds 3 – 4 of the notice of appeal, the said grounds of appeal are incompetent vide Metuh v. F.R.N. (2017) 4 NWLR (pt.1554) 108 at 119 – 120 followed by the Court (Lagos Division) in Emmanuel Morah v. F.R.N. in yet unreported appeal No. CA/L/809CB/2016 decided on 24-11-17 (coram: Garba, Nimpar and Obaseki-Adejumo, JJ.C.A.) per the lead judgment of Nimpar, J,C.A. See also Section 242(1) of the 1999 Constitution and the cases of Shaka v. Salisu (1996) 2 NWLR (Pt.248) 22, Oshatoba v. Olujitan (2000) 5 NWLR (Pt.655) 159, Nigerian Air Force v. Shekete(2002) 18 NWLR (Pt.798) 129, Otti and Anor. v. Ogah and Ors. (2017) 7 NWLR (Pt.1563) 1.
Accordingly, I uphold the preliminary objection and for the reasons given (supra) hereby strike out the appeal on ground of incompetence.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother JOSEPH SHAGBAOR IKYEGH, JCA. just delivered with which I agree and adopt as mine. I have nothing more to add.
JAMILU YAMMAMA TUKUR, J.C.A.: I read before today the lead judgment just delivered by my learned brother JOSEPH SHAOBAOR IKYEGH JCA. I agree with the reasoning and conclusion arrived of in the judgment, adopt it as mine with nothing further to add.
Mr. N. A. Oragwu with him,Mr. A. Olawoye, Mr. E. Ekeanyanwu and Mr. A. Abdulsalam-For Appellants
Mr. O. Makanjuola with him,T. Giwa Esq.-For Respondent