⦿ CASE SUMMARY OF:
Alhaji Tahir Maigoro v. Alhaji Jibrin Garba (1999) – SC
⦿ LITE HOLDING
To file a notice of appeal which contains ground of facts, the leave of either the Supreme Court or the Court of Appeal should be obtained.
⦿AREA OF LAW
– Law of Torts
– Preliminary objection.
– Leave of Court.
Alhaji Tahir Maigoro
Alhaji Jibrin Garba
(1999) JELR 40931 (SC)
⦿ LEAD JUDGEMENT DELIVERED BY:
A. O. EJIWUNMI, J.S.C
* FOR THE APPELLANT
* FOR THE RESPONDENT
⦿ FACT (as relating to the issues)
The facts of this case are simple. On the night of the 21st of November, 1988 at about 2.00 a.m. one of the vehicles owned by the respondent was engulfed by fire that eventually destroyed it. The respondent then made a report to the police about the incident. At the Station, when asked if he knew who could have done the act, he confessed that he knew of no one. When he was further asked if there was anyone he could describe as his enemy, the respondent mentioned the appellant as his old political enemy.
Following that disclosure, the police promptly arrested the appellant and was detained at the Police cell for about three days. Though he was later granted bail, he was arraigned before the Upper Area court No. 1 Yola, but was eventually discharged by that Court for the offences for which he was charged. It was after he was so discharged that the appellant commenced this action against the respondent.
In the High Court of Yola, holden at Yola, the plaintiff (now appellant) commenced this action against the defendant (now respondent) in Suit No. GGSY/11/89.
By paragraph 15 of his Statement of Claim, dated 11th April, 1989, the appellant’s claims against the defendant were as follows:-
“By reasons of the matters aforesaid, the plaintiffs was wrongfully detained in police cell, and deprived of his liberty, and has greatly injured his credit, character and reputation and portrayed falsely as an arsonic (sic) criminal has been put to contempt, ridicule to his family and the entire public and has been put to considerate trouble, inconvenience, and anxiety. (i) An injunction against the defendant his agents, servants, privies however from further false malicious prosecution, defamation, or criminal allegation however against the plaintiff. (ii) And the plaintiff claims against the defendant the sum of N500,000.00 (Five hundred thousand Naira) being damages for defamation, false malicious prosecution, injury to his character and reputation, wrongful detention and false detention as a result of malicious criminal defamation and allegations made to the police at the instance of the defendant together with 10% interest from the date of judgment until payment.”
After pleadings had been filed and exchanged, the matter proceeded to hearing. At the end of the trial, the learned trial Judge, Abba, J. delivered a considered judgment wherein he upheld the claim of the appellant.
As the respondent was not satisfied with that judgment, he appealed to the Court below. The respondent was successful in the Court below as his appeal was allowed.
Not satisfied with the judgment and orders of the court below, the appellant has now appealed to this Court.
A preliminary objection was raised as to the grounds of appeal being incompetent.
⦿ RESOLUTION OF ISSUE(S)
THE PRELIMINARY OBJECTION WAS UPHELD, AND SO THE SUIT SUBSTANCE WAS NOT HELD.
i. A careful examination by me of ground one of the appellant’s ground of appeal shows that the appellant is therein complaining about the general appraisal of the evidence led at the trial. It seems to me that the complaint is mainly based on facts. In ground two, the appellant’s complaint began with the assertion that the learned Justices of the Court of Appeal erred in law when they dismissed the appellant’s case as having not been proved before the trial Court, and that the police and not the respondent caused appellant’s arrest, detention, imprisonment and prosecution. This was followed by four paragraphs containing what were described as errors in law and misdirection. After a close study of this ground and its particulars, it is manifest that this Court would have to re-examine the facts that formed the basis of the complaint of the appellant and of the facts found at the trial and which formed the basis of the judgment. The ground, therefore, is not a ground of law simpliciter. It is in my respectful view a ground of mixed law and fact, and I so hold. I have read and re-read ground 3 of the appellant’s grounds of appeal and I must confess that its true purport eludes me. Apart from the allegation that the learned Justices of the Court of Appeal erred in law and misdirected themselves, the remaining part of it is an admixture of various facts and allegations. In the end, all that can be said of this ground is that the appellant would want a re-examination of record of proceedings. Ground 3, is in my view, a classic example of how not to draft a ground of appeal. It is, however, my respectful view that at best, this ground may be classified as one of mixed law and fact. It is also manifest that though the appellant has alleged in grounds 4 and 5 that the learned Justices of the Court of Appeal erred in law and misdirected themselves, the real attack of the appeal in respect of these grounds of appeal is aimed at the facts that formed the basis of the judgment of the Court below. In effect, the appellant would want this Court to re-evaluate and reconsider the facts as found by the trial Court and which had been upheld by the Court below.
ii. As it is common ground that in the instant appeal, the appellant had not sought and obtained the leave of this Court or the Court of Appeal, the grounds of appeal so filed are incompetent. As the grounds of appeal of the appellant are incompetent it follows that the appellant has no valid appeal before this Court. This appeal must therefore be struck out upon the preliminary objection of the respondent, though it was raised in the respondent’s brief.
⦿ ENDING NOTE BY LEAD JUSTICE – Per
S. 213 Constitution of the Federal Republic of Nigeria 1979 (as amended).
⦿ SOME PROVISION(S)
Ajide v. Kelani (1985) 3 NWLR (Pt.12) 240; (1985) 2 NSCC 1298 where Bello, JSC (as he then was) explained the reasons for the rule at P. 1396 when His Lordship said:- “The object of the rule is to give an appellant before the hearing of his appeal notice and grounds of any preliminary objection to the hearing of the appeal in order to enable him to meet the objection at the hearing of the appeal. The rule is a safeguard against embarrassing an appellant and taking him by surprise. Although no form has been prescribed for taking a preliminary objection under the rule, the fact that the rule requires the notice and the grounds of objection to be filed with the Registrar implies that the notice and the grounds of objection must be in writing.”
⦿ RELEVANT CASE(S)
S.U. Ojenten and Ors. v. His Highness Williams O. Momodu II (The Ogirrua of Irrua) and Ors. (1983) 1 SCNJ 188, at page 203, stated at page 203, thus:- “The phrase ‘an appeal shall lie from the decisions of the Federal (sic) Court of Appeal to the Supreme court as of right’, in my view, implies that an absolute right of appeal is granted by the Constitution to an aggrieved party to challenge the decision of the Federal (sic) Court of Appeal in the Supreme Court on grounds which involve questions of law alone. On the other hand, the provision that an ‘appeal shall lie… to the Supreme Court with leave of the Federal (sic) Court of Appeal or Supreme Court’ implies that only the right to apply to the Federal Court of Appeal or Supreme Court for leave to appeal is conferred by the Constitutions on the aggrieved party. ‘Leave’ in this context means permission. (See Webster’s New Twentieth Century Dictionary Unabridged). It is the courts i.e. the Federal (sic) Court of Appeal and the Supreme Court that are given the power to grant the permission to aggrieved persons to appeal in this class of cases falling outside those which are within section 213(2)(a) of the Constitution.”
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
Ordinarily, a respondent by Order 2 Rule 9 of the Rules of this Court could give notice of a preliminary objection to the hearing of the appeal and shall also give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection and shall file such notice together with ten copies thereof with the Registrar within the same time. Admittedly, the respondent did not bring notice of this preliminary objection to the appellant in accordance with the provisions of Order 2 Rules 9 of the Rule of this Court. His failure to do so would not render ineffective the notice of his preliminary objection. – Ejiwunmi JSC. Maigoro v. Garba (1999)
Since the essence of a preliminary objection is to bring the objection to the Appellant’s notice before the appeal takes off, once such notice of objection is incorporated in the Respondent’s Brief the Appellant cannot be heard to deny being aware of the notice merely because it did not strictly conform with the specific procedural Rule of court. That will be taking refuge under the technical rule of procedure. Suffice it to say that the courts for a long time have shifted emphasis from undue reliance on technicalities to doing substantial justice to the parties, having regard to the circumstances of the case. Respondent’s failure to comply with the procedural provisions under Order 2 Rule 9 will not derogate from the duty on this Court to give consideration to the preliminary objection on its merit. – Achike JSC. Maigoro v. Garba (1999)
One obvious result of this state of the law is that where an appellant’s grounds of appeal are only of facts or mixed law and facts, the grounds, and hence the appeal must be struck out unless leave had been obtained. On the other hand, where no leave had been obtained and some of the grounds are of law and other are competent. All grounds of fact or mixed law and fact must be struck out. – Ejiwunmi JSC. Maigoro v. Garba (1999)