Citation: (2022) 6 NWLR PT. 1826 AT 251.
PARTIES IN FULL:
SET SUCCESS ENTERPRISES AND COMPANY LIMITED
V.
1. IBEJU- LEKKI LOCAL GOVERNMENT COUNCIL
2. THE CHAIRMAN, IBEJU- LEKKI LOCAL GOVERNMENT COUNCIL.

Courtesy: Moruff O. Balogun Esq.

Summary of facts:
The appellant instituted an action at the High Court of Lagos state claiming against the respondent the Sum of N26.5 Million being special and general damages for a stabilization contract awarded to the appellant by the respondent.

A the close of hearing, the trial Court delivered judgment in favour of the appellant against the respondent in the sum of N6, 000,000.00 only with interest at the rate of 10% per annum until the Judgment debt is fully paid. The claims for general damages were dismissed.

Dissatisfied with the judgment of the trial Court, the appellant appealed to the Court of Appeal.
The Court of Appeal in its judgment resolved the appeal against the appellant and in favour of the respondent thereby dismissing the appeal.

Dissatisfied by the judgment of the Court of Appeal, the appellant appealed to the Supreme Court.
The respondent at the Supreme Court raised a preliminary objection challenging the competence of the appellant’s notice of appeal on the ground that they offended the provisions of Order 8 rule 2(3) and (4) of the Supreme Court Rules (as amended).
Order 8 rule 2(3) and (4) of the Supreme Court Rules (as amended) provides:

“2(3) the notice of appeal shall set forth concisely and under distinct head the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.

(4) No ground which is vague or general in terms which discloses no reasonable ground of appeal shall be permitted, save the general ground that the judgment is against the weight of evidence, and any ground of appeal or any part thereof which is not permitted under this rule may be struck out by the court of its own motion or on application by the respondent.”

Held (Unanimously striking out the appeal):

The following issues were raised and determined by the Supreme Court:

On what appellate court will seek to know where judgment is attacked as being against the weight of evidence-
Where a decision of a Court is challenged on the ground that the trial Court failed to properly consider the appellant’s case, the appellate Court in the exercise of its primary judicial responsibility, ought to take into account certain fundamental factors, namely:
the nature of the evidence before the trial Court or the Court of Appeal;
whether the Court of Appeal accepted or rejected any evidence upon the correct perception;
whether the Court of Appeal used the imaginary scale of justice to weigh the evidence on either side of the divide; and
whether the Court of Appeal appreciated, upon the preponderance of evidence, which side the scale weighed having regard to the burden of proof.

On purpose and nature of appeal –
An appeal is a challenge against the decision of the trial Court or the Court of Appeal, as the case may be. Essentially, an appeal challenges the correctness of the decision being appealed against on three fundamental grounds:
On the grounds of law;
mixed law and facts;
or on facts simpliciter.

Thus, to justify the intervention of the appellate court on any of the grounds of the notice of appeal before it, the appellant has an up-hill task of establishing that the decision of the court below he seeks to be reversed or set aside was wrongly
arrived at, or the opinion expressed therein is not supported by the pleadings and evidence on the record.

On need to distill issues for determination from ground of appeal-
An issue for determination must be predicated upon or distilled from a competent ground of appeal. This is indeed so, whether or not the issue is raised by the appellant or the respondent. Thus,an issue for determination not distilled or derived from a competent ground of appeal, ought to be struck out along with the incompetent ground in question.

One cannot put something on nothing and expect it to stand. It would crumble and fall.
In the instant appeal, the issue 2, distilled from ground 3 did not at all relate to the decision of the Court of Appeal, because the court only affirmed the position of the trial court that the appellant was only entitled to N6 million at the interest rate of 10% per annum. There ought not to have been a complaint about damages that was not awarded.

Hence, against the backdrop of the foregoing postulations, the most inevitable conclusion that could be arrived at in the instant appeal, was to the effect that the respondent’s preliminary objection was meritorious, and thus ought to be granted.

On purpose of preliminary objection to an appeal and effect if successful-
A preliminary objection as a veritable threshold, is pre-emptive in nature. It fundamentally aims at aborting the appeal in limine. An appellate court is required to, first and foremost, determine the preliminary objection in the appeal. It does not
matter whether such an objection is frivolous, it should not be disregarded.

Thus, where the preliminary objection meritoriously succeeds, the court has no option other than to grant same, and at that point strike out the appeal for being incompetent. Indeed, the rationale of a preliminary objection is that where it succeeds, there would be no need at all to proceed to determine the appeal on the merits; as doing so is tantamount to a futile, wasteful exercise.

On features of a ground of appeal and effect of absence thereof-
Grounds of appeal, as a strict rule, must not be verbose, argumentative and vague, as these features rob it of its substance. To achieve its object, it must be concise, straight to the point. It must convey a message. Where this is not the case, such grounds are not permitted under the rules of court.

That is why the court said that drafting of grounds of appeal require special expertise, because the consequence of non compliance is that the grounds of appeal may be struck out thereby making the issues formulated thereon incompetent.

On what constitutes a vague ground of appeal-
Vagueness of a ground of appeal may arise where it is couched in a manner which does not provide any explicit standard for its being understood. It may also be considered vague when complaint is not defined in relation to the subject or it is not particularised, or the particulars are irrelevant.

A ground of appeal is said to be vague if it is illusive, ambiguous, broad, debatable, disputable, evasive and inexact. On the other hand, a ground of appeal which is precise, concise, exact and unequivocal cannot be said to be vague since it would by the nature of clarity speak loudly of the complaint. The ground and their particulars must be restricted to the errors complained of in the judgment.

In other words, that the grounds and particulars or errors should not be framed at large. Particulars of error alleged in a ground of appeal are intended to highlight the complaint against the judgment on appeal.They are specification of the error or misdirection in order to make clear how the complaint is going to be canvassed in an attempt to demonstrate the flaw in the relevant aspect of the judgment. Particulars of a ground cannot be different from the grounds because, they form part and parcel of the complaint.

The particulars of a ground are only meant to be an addendum. In the instant appeal, the particulars of ground one were not only fundamentally defective, they also increased the confusion as to the perceived error in the judgment.

On purpose and nature of issues for determination –
The rationale behind the formulation of issues is to narrow the field of dispute. It is to narrow the issues in the grounds of appeal filed in the interest of accuracy, clarity and brevity.
Once issues for determination are formulated, it supersedes the grounds of appeal.

On effect of issue formulated from incompetent ground of appeal argued together with issue formulated from competent ground of appeal-
Where an incompetent ground of appeal is argued together with those formulated from competent grounds, the issue will be deemed incompetent, because the court cannot sift that which is competent from the incompetent ones. In the instant appeal, issue two formulated out of ground 3 was strange to the decision of the Court of Appeal, because the court only affirmed the position of the trial court that the appellant was only entitled to N6 Million at the interest rate of 10% per annum. The appellant did not prove he was entitled to the sum claimed. That was the decision of the Court of Appeal. If it, at the Court of Appeal established same, there could not be complaint about damages that was not awarded.

On power of Court of Appeal in respect of incompetent ground of appeal –
The Court can raise suo motu the issue of the incompetence of an appeal. Where no objection is raised to the competence of the grounds of appeal filed by the appellant, the Court on its own can raise the issue.

On principles governing formulation of issues for determination in an appeal-
A respondent to an appeal cannot formulate issues for determination outside the grounds of appeal filed by the appellant. Justice cannot be done as between the parties when the respondent is at a loss as to the complaint of the appellant. The door of justice is open to genuine complaints as otherwise a waste of the precious time of the
Court will ensue. Even the cry that substantial justice demands that the appeal should still be heard would not save the appeal.

In the instant appeal, the grounds of appeal did not disclose reasonable grounds of appeal for being in general terms and vague, and so were struck out.

On attitude of appellate Court to inelegantly drafted ground of appeal –
The rules of court providing for the form and content of a notice of appeal are meant primarily to assist the Court and the respondent to discern, in a concise manner, the nature of the complaint from the decision appealed against. While the rules of Court are meant to be obeyed, the Court has usually taken a liberal approach to a complaint that grounds of appeal are not in conformity with the rules, where it is nonetheless possible to identify the nature of the complaint or, to put it in another way, where despite the fact that the grounds of appeal are inelegantly drafted, neither the Court nor the respondent is misled as to the real nature of the complaint.

This is in conformity with the Court’s desire to do substantial justice in the appeal before it and not to jettison an appeal on technical grounds. The leaning of the Court in favour of doing substantial justice must,however, never be taken for granted.
In the instant appeal,on technical grounds. The leaning of the Court in favour of doing substantial justice must, however, never be taken for granted. In the instant appeal, the grounds of appeal along with their particulars revealed an apparent confusion in the mind of counsel who drafted them as to the aspect of the judgment he intended to challenge.

No amount of ingenuity could assist the Court or the respondent to decipher the actual complaint in grounds 1 and 2 against the judgment of the Court of Appeal. Counsel should be wary of prolixity in the drafting of grounds of appeal and their particulars, as they run into the danger of obfuscating the real nature of the appellant’s complaint. As regards ground 3, it was wholly unrelated to the decision of the Court of Appeal. The complaint was that the court erred when it held that the appellant was not entitled to
an award of damages upon “the interpretation of the outcome of the case.” Apart from being vague, the Court of Appeal, in fact, affirmed the finding of the trial court that the appellant was entitled to the sum of N6 million being the balance of 60% first installment as approved by the Executive Committee of the 1st respondent, which he proved successfully.

On need for ground of appeal to arise from decision appealed against-
For a ground of appeal to be competent, it must be derived from the ratio decidendi of the decision appealed against.
In this case,ground 3 of the grounds of appeal were wholly unrelated to the judgment appealed against.

On nature and function of “particulars of ground of appeal”-
Particulars of error alleged in a ground of appeal are intended to highlight the complaint against the judgment on appeal. They are specifications of the error or misdirection in order to make clear how the complaint is going to be canvassed in an attempt to demonstrate the flaw in the relevant aspect of the judgment. In this case, the particulars of ground one were not only fundamentally defective, they also increased the confusion as to the perceived error in the judgment.

On effect of failure to seek leave to appeal where required-
The failure to obtain leave where leave is required, renders the notice of appeal null and void. In this appeal, although the three grounds of appeal were couched as “error in law”, a careful examination thereof revealed that all the grounds were of mixed law and fact, for which prior leave ought to have been sought and obtained in compliance
with section 233 (3) of the 1999 Constitution, as amended.

Courtesy:
Moruff O. Balogun Esq.
Ijebu Ode, Ogun State.
08052871414
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