ISSUE: PRELIMINARY OBJECTION-

DOREGOS vs. ADELE & ORS.(2020)LCN/14773(CA)

ISSUE: PRELIMINARY OBJECTION-Whether in law a notice of preliminary objection is properly deployed where it is seeking to challenge the competence of the totality of the grounds of appeal and the available issue or issues for determination distilled from either incompetent grounds of appeal or competent and incompetent grounds of appeal

PRINCIPLE:
“Now, in law, the purpose of a Preliminary Objection is to terminate in its embryonic stage, or to nip in the bud, an appeal so as to avoid the necessity of dissipating time and energy in considering a worthless or fruitless proceeding. Thus, where a Preliminary Objection is raised and upheld, the hearing of a matter or appeal is foreclosed in limine, so as to save time and energy. See APC v. INEC & Ors.(2014) 8 NWLR (Pt.1462) 531; Rabiu v. Adebajo (2012) LPELR-9709 (SC) and Igbeke v. Okadigbo & Ors.(2013) LPELR-20664 (SC). In the case of Jim Jaja v. COP, Rivers State & Ors.(2012) LPELR-20621 (SC), Ngwuta, JSC, said: “A Preliminary Objection is a preemptive strike and its resolution will determine whether or not the appeal will be determined on the merit.”

It means therefore, that where the objection dwells on the competence of only one or more of the grounds of appeal, a Preliminary Objection is not appropriate. In other words, where the objection will lead to the striking out of only one or more of the grounds while leaving some other grounds of the appeal standing upon which the appeal could be determined, a Preliminary Objection is not the appropriate remedy. That being so, where an objection is on the competence of one or some of the grounds of appeal only, a Preliminary Objection is not appropriate but a Motion notifying the Appellant that the Respondent intends at the hearing, to contest the competence of those grounds.

However, where the objection is against the whole or totality of the grounds of appeal, such that if the objection is upheld the hearing of the appeal will be truncated, a Preliminary Objection may be entertained. See Okereke v. James (2012) 16 NWLR (Pt.1326) 339 at 348 – 349; Adejumo v. Olawaiye (2014) 12 NWLR (Pt.1421) 252 at 265; NNPC & Anor. v. Famfa Oil Ltd. (2012) 17 NWLR (Pt.1328) 148 at 167 and General Electric Co. v. Akande (2010) 18 NWLR (Pt.1225) 596. Thus, in Inspector Isa Sarki v. John Lamela (2016) LPELR-40338 (CA), this Court, per Georgewill, JCA, said: “It is the law that where the purpose of an objection is merely to challenge some of the grounds of appeal and not the competence of the entire appeal, the best procedure is by way of a Motion on Notice since its success would not in any way terminate the entire appeal in limine. On the other hand, where the purpose of an objection is to terminate in limine the entirety of the appeal, the best procedure is by way of a notice of Preliminary Objection challenging the competence of the entire appeal.”
In the instant case, it is apparent that all the five (5) Grounds of Appeal in the Notice of Appeal have been challenged. Accordingly, if the challenge on the competence of all the five (5) Grounds of Appeal is upheld, it would mean that there would be no more Ground of Appeal to sustain the appeal. On that note, the Notice of Preliminary Objection raised and argued by the Respondent is appropriate. I now proceed on the merit of the Preliminary Objection.

Now, on the objection of the Respondent to the competence of Ground 2, it should be noted that there is a right of appeal in respect of question of law alone as enshrined in Section 241(1)(b) of the Constitution of the Federal Republic of Nigeria. However, where the Ground of Appeal is on question of fact or mixed law and facts, the leave of the trial Court or of this Court is required. This is so because, where an appeal does not fall within the ambit of Section 241(1)(a) – (f) of the Constitution, leave of Court is required.

The issue to be considered now, is whether Ground 2 of the Notice of Appeal is one of law alone or fact or mixed law and fact. The law is that, to determine whether a ground of appeal raises a question of law alone, or mixed law and facts, the Court will examine the ground of appeal as framed together with the particulars thereof. In other words, in order to determine whether a ground of appeal raises question of law alone or fact or mixed law and facts, the grounds of appeal and the particulars thereof must be scrutinized together. See UBA Ltd. v. GMBH (1989) 3 NWLR (Pt.110) 374; BASF Nig. Ltd v. Faith Enterprises Ltd. (2010) 1 SCM 41 at 54 and Ejiwunmi v. Costain (WA) Plc (1998) 12 NWLR (Pt.576) 149.

The purpose of such examination is to find out whether the ground of appeal is one of law alone or fact or mixed law and facts. Such determination is no doubt not an easy one. To determine the issue, the Court must therefore engage in the process of sifting the particulars in relation to the ground of appeal. It is not the cognomen given to the ground of appeal that will settle the issue. Accordingly, the Courts, particularly the Supreme Court has given a guide to the resolution of the difficulty. The test to be applied in determining whether a ground of appeal is one of law alone or of mixed law and fact has been settled in several cases such as Ogbechie v. Onochie (1986) 2 NWLR (Pt.23) 484 at 491; Nwadike & Ors. v. Ibekwe & Ors.(1987) 4 NWLR (Pt.67) 718 at 733; Metal Construction (WA) Ltd. v. DA Migliore & Ors. (1990) 2 SCNJ 20; Brossette Manufacturing (Nig.) Ltd. v. M/S Ola Ilemobola Ltd. & Ors.(2007) 14 NWLR (Pt.1053) 109; Ade Coker v. United Bank for Africa Plc (1997) LPELR-880 (SC), etc.
Thus, in the case of Molegbemi & Ors. v. Ajayi & Ors.(2011) LPELR-4501 (CA), I said: “The question now is, when will a ground of appeal be said to question the findings of fact made by a trial Court.

The determination of whether a ground of appeal is one of law, mixed law and fact, and facts simpliciter is not always an easy one. What is required is for the Court determining same to thoroughly examine the grounds of appeal in the case concerned to see whether the grounds reveal misunderstanding by the lower Court of the law or a misapplication of the law to the facts already proved or admitted in which case, it would be a question of law, or it is one that would require questioning the evaluation of facts by the lower Court before application of the law, in which case it would amount to a question of mixed law and facts… Where the ground of appeal is an invitation to the Appellate Court to investigate the existence or otherwise of certain facts made by the trial Court or where it questions the evaluation of evidence tendered, then it is a ground of fact or at best a ground of mixed law and fact. In other words, where a ground of appeal is a complaint on the findings of the trial Court based on evidence led at the trial or the evaluation of the evidence by the trial Court, it is purely a ground of fact…”
I have carefully perused Grounds 2 of the Notice of Appeal and the particulars thereof. Though the Appellant captioned the said ground as one of error of law, in reality, when read along with the particulars therefore, it is a complaint about the evaluation of the affidavit evidence placed before the Court by the learned trial Judge. To that extent, I am satisfied that ground two is a question of fact, or at best a question of mixed law and fact. The Appellant therefore required the leave of this Court, or of the lower Court, to raise same. Since such leave was neither sought nor obtained, the said ground (Ground 2) is incompetent. It is accordingly struck out.
Learned Counsel for the Respondent also contended that, Ground 5 is fundamentally defective because:
(a) It does not relate to any decision in the ruling appealed against. In other words, that it is not an attack against any ratio in the ruling appealed against.
(b) It is essentially an appeal against the order made on the 04/04/2012 wherein the Appellant’s case was closed.
(c) By referring to the Appellant’s affidavits, contested by the Respondent at the lower Court, it raised a fresh point of mixed law and fact which was not part of the ruling appealed against.

Learned Counsel for the Respondents then submitted that, in the absence of an issue or decision in the ruling appealed against on the question of whether or not the Appellant was served or not before the order of closure dated 04/04/2012 was made, Ground 5 cannot constitute a valid ground of appeal in this appeal. Learned Counsel for the Respondent also submitted that, a ground of appeal must be borne out by the record which must show what and where the Appellant’s complaint is recorded. The cases of Ogolo v. Fubara (2003) FWLR (Pt.169) 1285 and Ishe v. Ansa (2001) FWLR (Pt.80) 150 were also cited to further submit that; nowhere in the record where the Appellant’s complaint of non-service before the Court ordered the closure of his case, was made. In conclusion, learned counsel submitted that in any case, Ground (5) did not arise from the decision appealed against and ought to be struck out.

In response, learned counsel for the Appellant argued that the complaint in Ground 5 of the Notice of Appeal is against the decision of the trial Court closing the Claimant’s case. That in its ruling of 04/2/2014, the trial Court stated clearly that the Appellant’s case was closed on the 4/4/2012.

In law, an appeal is a complaint against the decision of a lower Court. In other words, an appeal is an invitation to a higher Court to review the decision of a lower Court, so as to see whether upon a proper examination of the facts placed before it and the applicable law, the lower Court made a correct decision. It is a complaint against the reason for the conclusion arrived at by the lower Court. See Nsirim v. Amadi (2016) 5 NWLR (Pt.1504) 42; Okonkwo & Anor. v. UBA Plc (2011) LPELR-23010 (SC) and Rev. King v. State (2016) LPELR-40046 (SC). For there to be a valid appeal, there must be in existence a subsisting decision of a lower Court. The ground of appeal must question the reason for that decision. In other words, it must be a complaint against the ratio decidendi for the decision. See AG, Oyo State & Anor. v. Fairlakes Hotel Ltd. (1988) 5 NWLR (Pt.92) 1; Ugwu v. State (2013) 14 NWLR (Pt.1374) 257 and Adebesin v. State (2014) 9 NWLR (Pt.1413). A ground of appeal must therefore relate to the facts and law arising from the judgment appealed against and not on extraneous matters outside the issues canvassed and pronounced upon in the decision appealed against.

The Notice of Appeal in this appeal is contained in pages 63 – 67 of the record of appeal. In the preamble to the Notice of Appeal, it is stated that complaint of the Appellant relates to decision of the Court below delivered on the 04/02/2014. The said decision (Ruling) is contained in pages 58 – 62 of the record of appeal. The Ruling pertain to an application filed by the Appellant seeking the order of the Court below to re-open his case which was closed on the 04/4/2012. In the determination of that Motion, the learned trial Judge formulated the issue to be determined in that Motion as follows:
“Whether this Court has the power to reverse itself by allowing the Claimant to reopen his case which had been closed earlier in this proceeding by the order of this Court?”

The learned trial Judge held that it had no vires to revisit its order closing the Appellant’s case. The learned trial Judge based its answer on the reason stated in page 61 of the records as follows:
“From the foregoing, it is clear that, as a matter of law, only the Court of Appeal can review the order of this Court closing the case of the Claimant in this proceeding and it is immaterial the genuineness or otherwise of the reasons proffered by the Claimant for his failure to comply with the orders of this Court directing him to frontload his case and/or call his remaining witnesses. This is more so when those facts were not placed before the said order was made despite representation of the Claimant by Counsel and several adjournments granted at his instance.”
That is the ratio upon which the learned trial Judge declined jurisdiction to reopen the Appellant’s case. Ground 5 of the Notice of Appeal, states that:
“The learned trial Judge erred in law by closing the Claimant’s case”.
It is apparent from the Appellant’s Motion seeking the order of the lower Court to reopen it’s case, that the power or vires of the trial Court to close the case was never in issue. What was in issue was whether the trial Court could reopen the case, same having been closed on the 04/4/2012. It is therefore my view that Ground 5 which contends that the learned trial Judge erred in law when it closed the Appellant’s case did not arise in the Ruling delivered on the 04/2/2014. Indeed, the prayers on the Motion filed on the 07/6/2013 and the grounds upon which the Motion to reopen the Appellant’s case bear clear testimony to that fact. I also hold that Ground 5 does not arise from the Ruling of the trial Court delivered on the 04/2/2014. Ground 5 is therefore incompetent and is ordered to be struck out.

Learned Counsel for the Respondent went on to submit that, only Grounds 1 and 3 seemingly challenge the ratio of the decision appealed against. It was however submitted that the said grounds of appeal did not meet the requirements of Order 7 rule 2 (1) of the Court of Appeal Rules, 2016 which require an Appellant to set out in a ground of appeal, the particulars and nature of error alleged, if the ground alleges an error of law. The cases of Bereyin v. Gbodo (1989) 1 NWLR (Pt.97) 372 at 379; Saka Atuyeye & 4 Ors. v. Emmanuel O. Ashamu (1987) 1 NWLR (Pt.49) 267; J. A. Adeniji & Anor. v. Saka Disu (1958) 3 FSC 104; Felix Osawaru v. Simeon Ezeiruka (1978) 6 – 7 SC135 and Bennet Ifediorah & 4 Ors. v. Ben Ume & Ors. (1988) 2 NWLR (Pt.74) 5 were cited in support. That, a cursory look at the grounds of appeal would show that they fail to meet the requirements of the said Order 7 rule 2(2) of the Court of Appeal Rules, 2016.
Learned Counsel for the Respondent then submitted that, the exercise of the right of appeal is circumscribed by rules and practice which are meant to be obeyed. The case of Kente v. Ishaku (2019) All FWLR (Pt.973) 477 at 502 was cited in support and to urge us to declare the grounds of appeal to be incompetent and strike them out.

Now, Order 7 rule 2(2) of the Court of Appeal Rules, 2016 stipulate that:
“Where a ground alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.”
After a cursory perusal of the Grounds of Appeal and the particulars thereof, I am of the view that the objection of the Respondent on this ground is not valid.

Clearly, all the Grounds of Appeal are amply supported by particulars of error or misdirection. In any case, the purpose or object of stating particulars is to give the Respondent notice of the case he is going to meet on appeal. In other words, the particulars of a ground of appeal is to explain the ground of appeal, so that the Respondent is informed of the nature of the complaint of the Appellant against the judgment on appealed. The whole essence of grounds of appeal and their particulars is to give the Respondent; notice of the case he has to meet in the Appellate Court. See Federal Medical Center, Ido-Ekiti v. Olajide (2011) 11 NWLR (Pt.1258) 256; Olufeagba v. Abdul-Raheem (2009) 18 NWLR (Pt.1173) 384 and Monguno v. Blue Whales & Co. (2011) 2 NWLR (Pt.1231) 275. The complaint of the Respondent here, cannot thus be sustained. All the grounds of appeal have been adequately supported by their particulars, and there is no complaint by the Respondent that he has been misled by any of the grounds of appeal. Grounds 1 and 3 of the Notice of Appeal are therefore competent.

Now, learned counsel for the Respondent argued that, the lone issue for determination was formulated from grounds 1, 2, 3 and 5 of the Notice of Appeal. It was then submitted that in law, issues for determination can be raised only from valid grounds of appeal; and that any issue raised from an invalid Ground of Appeal is incompetent and liable to be struck out. The cases of AP Ltd. v. Owodunni (1991) 8 NWLR (Pt.210) 391 at 423; Okoye v. NCF Co. Ltd. (1991) 6 NWLR (Pt.199) 501 at 533 and Thor Ltd. v. FCMB Ltd. (2002) 3 SCM 130 were cited in support. That where a ground of appeal is incompetent, any issue for determination based on such incompetent ground of appeal goes to no issue and should be struck out.
Learned Counsel for the Respondent then cited the cases of Bereyin v. Gbodo (supra) at 380; Akuchie v. Nwamadi (1992) 8 NWLR (Pt.258) 214 at 224; Geosource (Nig.) Ltd. v. Biragbara (1997) 5 NWLR (Pt.506) 607 at 616 – 617 and First Zenith Holdings Ltd. v. HFP Engineering Ltd. (2017) All FWLR (Pt.881) 1158 at 1177 to submit that, even if it is only one ground from which the sole issue for determination is found to be incompetent, the issue will be rendered incompetent and must be struck out.

That, once the sole issue for determination is found to be incompetent and struck out, the entire appeal must be dismissed. The case of UOR v. Loko (1988) 5 SC (Reprint) 22 at 39 was cited in support. We were accordingly urged to uphold the Preliminary Objection and to dismiss the appeal for being incompetent.

Learned Counsel for the Appellant submitted that, the sole issue raised for determination relates to and encompasses all the grounds of appeal. That, a determination of the sole issue will resolve the complaints in the grounds of appeal. That in any cases, parties have been enjoined to avoid proliferation of issues.

The law is that issues for determination in an appeal must emanate only from competent grounds of appeal. As a corollary to that, an Appellant is permitted to distill an issue from more than one ground of appeal. However, where an Appellant decides to formulate an issue from more than one ground of appeal, he must ensure that all the grounds from which the issue is distilled, are competent. This is so, because, it is the law that where an issue is distilled from both competent and incompetent grounds of appeal, such issue would be incompetent and liable to be struck out.

The Courts consider that it is not the duty of the Court to embark upon the business of sieving and separating the arguments on the competent grounds from the arguments in respect of the incompetent grounds in order to reach a decision. In such circumstance, the said issue would be declared incompetent and struck out. See Aribo v. CBN & Anor. (2011) 12 NWLR (Pt.1260) 133; Umanah v. NDIC (2016) 14 NWLR (Pt.1533) 458; Njemanze v. Njemanze (2013) LPELR-19885 (SC) and Mobil Oil Producing (Nig.) Unlimited v. Johnson & Ors. (2018) LPELR-44359 (SC).
​In the instant appeal, only one issue was distilled for determination. The said issue is said to be formulated from Grounds 1, 2, 3 and 5. It would be noted that Grounds 2 and 5 have been found to be incompetent and consequently struck out. It means therefore, that the sole issue formulated for determination in this appeal, has been distilled from both competent (Grounds 1 and 3) and incompetent Grounds (Grounds 2 and 5). That has therefore rendered the sole issue formulated for determination, incompetent. It is accordingly struck out. The sole issue having been struck out; it means that there is no more issue to be determined in this appeal. That means that the Preliminary Objection has succeeded and it is accordingly upheld.
Having found in favour of the Preliminary Objection, there is nothing more for me to determine in this appeal. The only order I shall make in the circumstances is to strike out the appeal for being incompetent. See Panalpina World Transport (Nig.) v. J.B. Olandeen Int. & Ors. (2010) 19 NWLR (Pt.1226) 1. Appeal is accordingly struck out.
I award cost of fifty thousand naira (N50,000.00) against the Appellant in favour of the Respondents jointly and severally.” Per TSAMMANI, JCA.