➥ CASE SUMMARY OF:
University Of Lagos & Ors v. H.U. Mbaso (2018) – CA
by “PipAr” Branham-Paul C. Chima.
Court of Appeal – CA/L/775/2016
➥ JUDGEMENT DELIVERED ON:
Friday, the 9th day of March, 2018
➥ AREA(S) OF LAW
Proliferation of issues;
Leave to appeal.
➥ PRINCIPLES OF LAW
⦿ FILING A PRELIMINARY OBJECTION – WHAT TO DO?
All that a Respondent intending to rely upon a preliminary objection challenging the hearing of an appeal on the ground that it is incompetent need do is to file a notice of preliminary objection giving notice of the ground of objection to the Appellant and incorporating the arguments thereon in the Respondent’s brief to afford the Appellant the opportunity of responding to the arguments in his reply brief. — B.A. Georgewill, JCA.
⦿ WHEN TO FILE A MOTION ON NOTICE VS PRELIMINARY OBJECTION
In law therefore, it is only when a Respondent is challenging the one or more grounds of appeal but not the entire appeal that resort must be had to motion by notice to strike out the incompetent ground(s) of appeal. However, where it is the competence of the entire appeal that is being challenged the proper method is by means of a notice of preliminary objection as rightly employed by the Respondent in this appeal. The Respondent’s notice of preliminary objection was filed on 23/2/2017, that way beyond the three clear days requirement of the rules of this Court, was served and duly responded to by the Appellant in their Appellants’ Reply brief and therefore, the contention by the Appellants’ counsel in this regards is misconceived and hereby discountenanced. I shall say no more! See Clement Odunukwe v. Dennis Ofomata(2010) 18 NWLR (Pt. 1225) 404 per Rhodes-Vivour, JSC. See also Ndigwe v. Nwude (1999) 11 NWLR (Pt. 626) 314; NEPA v. Ango (2001) 15 NWLR (Pt. 737) 627; Muhammed v. Military Administrator of Plateau State (2001) 16 NWLR (Pt. 740) 524; NDIC v. Oranu (2001) 18 NWLR (Pt. 744) 183. — B.A. Georgewill, JCA.
⦿ APPEAL TO NATIONAL INDUSTRIAL COURT: APPEAL ON CHAPTER IV IS OF RIGHT
In law when an appeal against the decision of the Court below, the National Industrial Court of Nigeria, borders squarely on allegation of any breach of Chapter IV of the Constitution of Nigeria 1999 (as amended) dealing with the provisions relating to fundamental rights, such an appeal lie as of right and no leave of Court is required. So also is an appeal against the decision of the Court below in criminal matters lie as of right without any need for leave of Court. However, where an appeal against the decision of the Court below in civil matter borders on grounds other than grounds alleging breach of any of the provisions of Chapter IV of the Constitution of Nigeria 1999 (as amended), happily the law is now firmly settled that it can only lie with the leave of Court. See Skye Bank v. Iwu (2017) LPELR-42595 (SC). — B.A. Georgewill, JCA.
⦿ APPEAL: WHERE LEAVE IS REQUIRED BUT NOT OBTAINED, APPEAL IS INCOMPETENT
Consequently, in law an appeal which requires the prior leave of Court but was filed without the requisite leave of Court is wholly and completely incompetent. It would have no redeeming feature to be considered on the merit no matter how tempting the zeal to do substantial justice on the merit to the parties may be. See Sections 240; 243 (1), (2) and (4); 254C (5) and (6) 3(2) of the Constitution of Nigeria 1999 (as amended). See also Skye Bank v. Iwu (supra). — B.A. Georgewill, JCA.
⦿ WHAT AMOUNTS TO PROLIFERATION OF ISSUES IN AN APPEAL
Now, what would in law amount to proliferation of issues in an appeal is no longer a vexed issue as it has been pronounced upon severally by the appellate Courts, including the apex Court. While it is true that an issue for determination must flow from the ground(s) of appeal and that this Court has the power to formulate issues for determination in appropriate and deserving circumstances or to re-formulate or modify the issues formulated by the parties, it is well settled law that an Appellant, as well as a Respondent, is not permitted or allowed to raise issues in excess of the grounds of appeal and that where the number of issues formulated are more than the number of the grounds of appeal it amounts to nothing but a proliferation of issues, which in law is not acceptable. See Dr. Arthur Agwuncha Nwankwo & Ors. v. Alhaji Umaru Yar’Adua & Ors. (2010) 12 NWLR (Pt. 1209) 518. See also Unilorin v. Oluwadare (2003) 3 NWLR (Pt. 808) 557;Padawa v. Jatau (2003) 5 NWLR (Pt. 813) 243; Sogbesan v. Ogunbiyi (2006) 4 NWLR (Pt. 969) 19; Agu v. Ikewibe (1991) 3 NWLR (Pt. 130) 385;Adelusola & Ors v. Akinde & Ors (2004) 12 NWLR (Pt. 887) 295. — B.A. Georgewill, JCA.
⦿ APPEAL CANNOT BE DECIDED WHERE NOTICE OF APPEAL IS COMPETENT
My lords, it is of utmost importance and I so bear it in my mind that it is only when a notice of appeal is competent that a determination of it on the merit will be feasible. In other words, where a notice of appeal is incompetent, it is liable to be terminated in limine and it would be of no moment no matter how meritorious it would have been if it were to be considered on the merit. In law, one of the most essential requirement or condition precedent for the competence of an appeal to be determined on the merit by the Court is a valid notice and grounds of appeal, in the absence of which such an appeal would be rendered incompetent and thus incapable of being determined on the merit by this Court for without jurisdiction there can be no competence of any cause or matter or appeal before the Court. It has long been settled in our law that jurisdiction is a fundamental one and thus can be raised at any stage of the proceedings, even on appeal for the first time as in the instant appeal by either of the parties or even by the Court suo motu and once raised it must first be determined one way or the other by the Court before any other issue touching on the merit or otherwise of the respective cases of the parties can be enquired and be determined on the merit by the Court. This is so because in the absence of jurisdiction there can be no competence in the 1st Respondent’s claim to be heard and determined on the merit, since jurisdiction is the life blood of every cause or action and thus where the requisite jurisdiction is found to be lacking, that is indeed the end of the matter. See Madukolu v. Nkemdilim (1962) 2 All NLR 581. — B.A. Georgewill, JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Biobele Abraham Georgewill, J.C.A.
⦿ FOR THE APPELLANT
Prof. Akin Ibidapo-Obe.
⦿ FOR THE RESPONDENT
P.J.N. Azubuike Esq.
➥ CASE FACT/HISTORY
By a General Form of complaint filed on 18/6/2012 and, an amended statement of facts filed on 23/6/2014, the Respondent as claimant claimed against the Appellants/Defendants the following reliefs, inter alia, namely: “A Declaration that the purported termination of the appointment of the claimant with the 1st Defendant based on a purported finding of a Senate Committee ? that the Claimant failed to exonerate himself from “the allegation of misconduct and breach of trust as a teacher in the International School”, – which finding was made without furnishing the Claimant with the full particulars of the allegations against him and without affording the Claimant the opportunity to know his accusers and confront them in cross examination is a flagrant breach of the Claimant’s right to fair hearing as required by law.”
This is an appeal against the National Industrial Court Lagos Judicial Division, Coram: K. I. Amadi J., in Suit No: NICN/LA/284/2012: H. U. Mbaso v. University of Lagos & Ors., delivered on 22/4/2016, in which the claims of the Respondent as Claimant were granted against the Appellants as Defendants.
➥ ISSUE(S) & RESOLUTION(S)
[PRELIMINARY OBJECTION: SUSTAINED]
🆕I. Whether the two grounds of appeal raised any issues bordering on the fundamental rights of the Appellant to lie as of right without the leave of Court?
RULING: IN RESPONDENT’S FAVOUR.
A. THAT THE APPELLANT DID NOT FILE A LEAVE TO APPEAL
“I have taken a calm look at the above two grounds of appeal together with their particulars. I have also critically examined the provisions of Chapter IV of the Constitution of Nigeria 1999 (as amended) dealing with the fundamental rights of the citizenry, both individuals and corporate persons, as enshrined therein. I have reviewed the judgment of the Court below appealed against in the light of the above two complaints of the Appellants. I have further scanned through the entire record of appeal and it does appear, and the Appellants did not contend anything to the contrary in their reply brief, that there is no record of any leave of court sought and obtained prior to the filing of the Appellants’ notice of appeal. Having settled the above facts of no leave of Court being sought and obtained by the Appellants before the filing of their notice of appeal on 18/5/2016 in this appeal as duly established, the only pertinent question arising for the resolution of the first arm of the preliminary objection is namely this: is the leave of Court a prerequisite for filing the Appellants’ notice of appeal on the two grounds of appeal against the decision of the Court below to this Court?”
B. THAT THE APPELLANT GROUNDS OF APPEAL DOES NOT COMPLAIN OF FUNDAMENTAL HUMAN RIGHT, HENCE CANNOT APPEAL AS OF RIGHT
“My lords, with the above position of the law now well firmly settled, I have taken a calm look at the two grounds of appeal and considered the submissions of counsel in their respective briefs on this issue, and I hold that neither ground one nor ground two in the notice of appeal filed by the Appellants on 18/5/2016 raised any issue touching on any of the provisions of Chapter IV of the Constitution of Nigeria 1999 (as amended) it follows therefore, the appeal initiated by the Appellants on the two grounds of appeal as endorsed and contained in the notice of appeal filed by them on 18/5/2016 is one which lie only with the leave of this Court being not as of right. I have looked at all the judicial authorities relied upon by the Appellants in their reply brief to support their contention that once the matter before the Court below was founded on an alleged breach of any of the provisions of Chapter IV of the Constitution of Nigeria 1999 (as amended) then automatically any appealing from the judgment of the Court below is one founded on the provisions of Chapter IV of the Constitution of Nigeria 1999 (as amended). On the contrary, the law is that in appeals from the Court below to this Court it is the grounds of appeal that confers the right of appeal either as of right or with leave. Thus, as aptly and unassailably submitted by the Respondent’s counsel, and which submission I accept as correct, there is no automatic transfer of the subject matter and issues canvassed before the Court below to this Court merely by the mere fact of an appeal but that it is the ground(s) of appeal that would determine the subject matter of the appeal.”
🆕II. Whether the Appellants’ brief in which four issues for determination were distilled as arising from the two grounds of appeal in the notice of appeal filed on 18/5/2016 is incompetent?
RULING: IN RESPONDENT’S FAVOUR.
A. THAT THE ISSUES RAISED BY THE APPELLANT ARE MORE THAN THE GROUNDS OF APPEAL
“It is crystal clear to me and I so hold that the Appellants in formulating four issues out of their two grounds of appeal in this appeal indulged in the prohibited act of proliferation of issues in this appeal, no more no less, and for which the four issues ought to be discountenanced and struck out by this Court. These things have become too elementary in the appellate litigation process to still bedevil a brief settled by a diligent practitioner of the law in this country. However, I am aware of an isolated decision to the effect that proliferation of issues may be permitted in those rare circumstances where the grounds of appeal so dictate. See Gwan v. Adole (2003) FWLR (Pt. 176) 747 @ p. 760.”
B. ISSUE 1 IS COMPETENT
“However, in the Appellants brief though four issues were distilled from the two grounds of appeal, it is could be seen that issue one was solely distilled from ground one and thus in the interest of doing substantial justice capable of being considered and determined on the merit, while issues two, three and four are struck out for being incompetent as amounting to proliferation of issues. Yet, this is not to be since the very notice of appeal on which any issue for determination must be predicated upon has been found to be incompetent and in law no valid issue can arise for determination from an incompetent notice of appeal. This is so because in law, a notice of appeal is fundamentally indispensable in initiating the appeal process. It is indeed the live wire of every appeal validly so called and thus very crucial to the animation and determination of the appeal.”
“In the circumstances therefore, the sum total of all I have been belaboring to say above in perhaps so many words, is that it has become very apparent that the failure of the Appellants to seek and obtain the prior leave of this Court before filing the notice of appeal on the two grounds of appeal had rendered this appeal grossly incompetent, notwithstanding the merit or otherwise of the substantive appeal on the issues as canvassed by the parties in their respective briefs. The notice of appeal being incompetent has clearly affected the appeal with its deadly virus of nullity and thus the appeal itself has become incompetent and not worthy of any further consideration on the merit and thus liable to be struck out.”
“Now, having come to the above inescapable conclusion that the appeal in this case is incompetent, this Court consequently lacks the jurisdictional competence to hear and determine this appeal on the merit and since Courts of law do not act in vain, there is in my view no further need or duty on this court to proceed to consider the other issues for determination in this appeal relating to the merit or otherwise of the substantive appeal in its entirety. To do so at this stage would in my view amount to a mere academic exercise and a waste of the scarce and very precious judicial time on what is already staring us in our faces as a nullity.”
“In the result, the notice of appeal, and the resultant appeal, filed by the Appellants on 18/5/2016 against the judgment of Court below delivered on 22/4/2016 without the prior leave of this Court lacks competence and is hereby struck out for being incompetent. There shall be cost of N200,000.00 against the Appellants in favor of the Respondent.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)