CHIRONGO & ORS V NADUKKU

CHIRONGO & ORS V NADUKKU


IN THE COURT OF APPEAL
IN THE SOKOTO JUDICIAL DIVISION
HOLDEN AT SOKOTO

ON MONDAY, 20TH FEBRUARY, 2017


Appeal No: CA/S/73/2015

CITATION:

Before Their Lordships:

HUSSEIN MUKHTAR, J.C.A.

MUHAMMED LAWAL SHUAIBU, J.C.A.

FREDERICK OZIAKPONO OHO, J.C.A.


BETWEEN

CHIRONGO

DOGMO MANI

MAGIRO DANGA KYABU
(APPELLANTS)

AND

SAMAILA NADUKKU
(RESPONDENT)


PRONOUNCEMENTS


A. APPEAL
1. Issues for Determination – The position of the law on determination of issues at Appeal

The settled position of the law is that the issues which must be determined on Appeal must of necessity be circumscribed and fall within the Grounds of Appeal filed since they must perforce arise from the Grounds of Appeal. See the cases of ADELAJA vs. FANOIKI (1990) 2 NWLR (PT. 131) 137 AT 148; CHINWEZE vs. MASI (1989) 1 NWLR (PT. 97) 254; MOMOH vs. MOMOH (1991) NWLR (PT. 169) 608; SHUKKA vs. ABUBAKAR (2012) 44 NWLR (PT. 12 – 9) 497; ZUMAX NIGER vs. BLISS INTERNATIONAL LTD. (2011) LPELR 9021 (CA); BHOJSONS PLC vs. DANIEL KALIO (2006)5 NWLR (PT. 973) 330 SC. The Supreme Court in the case ofCARLEN (NIGERIA) LTD vs. UNIVERSITY OF JOS (1994) LPELR 832 (SC) per OGUNDARE, JSC on this issue had this to say;

“It is trite that issues for determination formulated in a brief must arise out of and be related to the Grounds of Appeal relied upon in support of the Appeal and any issue not encompassed by nor relating to the Grounds must be struck out. See OKOYE AND ORS vs. NIGERIAN CONSTRUCTION & FURNITURE CO. LTD & ORS (1991) 6 NWLR (PT. 199) 501.” Per OHO, J.C.A. (Para 23) read in context

B. COURT
2. Duty of Court – The duty of the court to make pronouncement on all issues

On the issue which requires that an Appellate Court has to make pronouncements on all issues place before it, the settled position of the law is that where a party submits an issue for determination to a Court, that Court must consider and make pronouncement on it, unless such an issue is one in which the Court lacks jurisdiction to hear it due to reason of its being either academic or hypothetical. The failure of a Court, therefore, to make pronouncements on an issue when it is required to so do may amount to a breach of the right to fair hearing of the party. The right to fair hearing of a party to a suit is not only a common law requirement but also a statutory and constitutional requirement. In the case of OPUIYO vs. OMONI WARI (2007) 6 SCNJ 131, the Supreme Court, per OGUNTADE, JSC had this to say on the subject;

“As a matter of law, a Court has the duty to consider the issues submitted to it for adjudication. Where a Court failed to consider and adjudicate on such issues, it is usually an error of law because the omission constitutes a denial to the party complaining of his right of fair hearing as enshrined in the Constitution.”

It is however important to note that the principle of law requiring the Court to make pronouncement on all issues placed before it is not without its other side as it does not apply to all situations presented before the Court. Where the issues presented before the Court are not considered crucial to the determination of the case or are clearly subsumed in other issues submitted for determination, the duty of the Court to consider such issues is not imposed on the Court. See the case of COOKEY vs. FOMBO (2005) 5 SC (PT.II) 102 AT 111. Per OHO, J.C.A. (Para 13) read in context

C. JUDGMENT AND ORDER
3. Order of Retrial/Trial De Novo – Principles that guides the court in making an order of retrial

The question that should perhaps, be addressed here is whether there were indeed any irregularities found in the proceedings of the trial Court which necessitated the lower Court’s order for a re-trial of the matter before another Judge. It would be recalled that at page 00 of the printed records from lines 16 to 35 and at page 101 from lines 1 to 16, the lower Court took its time to reel out a catalogue of woes in terms of the irregularities recorded of the trial Court’s proceedings and on the basis of which it ordered a retrial of the suit before another judge. In the case of FIRST BANK PLC vs. MAY MED. CLINICS (2001) 9 NWLR (PT. 717) 28 the Supreme Court, per NNAMANI, JSC had this to say on the subject;

“In OKODUWA vs. STATE (1989) NWLR (PT. 76) 333, 355 this Court accepted one of the tests postulated in ABODUNDU vs. THE QUEEN (1959) 4 FSC 70 which is that a Court of Appeal ought to order a retrial where there has been such an error in law or an irregularity in procedure which neither renders the trial a nullity nor makes it possible for the Appeal Court to say there has been no miscarriage of justice.”

The lower Court, having clearly identified these lapses in its judgment and as a result of which it ordered a retrial; I am simply unable to fault its decision on the issue. Per OHO, J.C.A. (Para 26-27) read in context

D. PRACTICE AND PROCEDURE
4. Preliminary Objection – The position of the law on how many grounds of appeal can be attacked by a preliminary objection

It would be recalled that the Appellant’s grievance under this issue is anchored on the lower Court’s failure to address the issue of the competency of Grounds 1, 2 and 5 of the Respondent’s Grounds of Appeal filed before the Lower Court. Counsel had relied on Order 55 Rule 15(2) of the Kebbi State High Court (Civil Procedure) Rules 2011 in raising its objection and had contended that the lower Court’s failure in this regard amounted to a denial of fair hearing, which renders the proceedings null and void. There may, perhaps be the need on the part of this Court to state as part of its decision on this issue that an objection taken to the hearing of an Appeal when in fact only a few Grounds of Appeal are fingered as the culprits is not considered an objection to the hearing of the Appeal in the real sense of the word. It is rather an objection which merely and primarily quarrels against some Grounds of Appeal, particularly Grounds 1, 2 and 5 of the Respondent’s Notice of Appeal at the lower Court. The grouse of the Appellant herein was that there were no particulars supplied to these Grounds. It may also be stated here that the purpose of a Notice of Preliminary Objection when raised is to lead quickly to the termination or the dismissal of a matter in limine, to avoid the dissipation of energy and also the waste of valuable time on matters which are not worthy of taking any valuable time and resources of the Court. See the case of the YARO vs. AREWA CONSTRUCTION LTD. & ORS (2007) 6 SCNJ 418. With this at the background, this Court has observed that the substance of the objection raised by the Claimant/Respondent herein is not against the hearing of the Appellants’ Appeal but indeed an objection taken against the competence of Grounds 1, 2 and 5 of the Appellants Grounds because no particulars were supplied to these Grounds. It should be recalled that the Appellants predicated their action before the lower Court on six (6) Grounds of Appeal and not just the Grounds 1, 2, and 5 to which the Respondent has picked quarrels with. The Supreme Court, in the case of GENERAL ELECTRIC CO. vs. HARRY AKANDE (2011) 4 NSCQR P. 611 had this to say on the subject;

“…if I may add to the above, where as in this Appeal the preliminary objection was filed against some grounds of appeal and there are other grounds of appeal that can sustain the appeal, a preliminary objection was inappropriate. The Respondent ought to have filed a Motion of Notice since the preliminary objection if successful would not have terminated the hearing of the appeal as there were other grounds of appeal to sustain the appeal. Preliminary Objections are only filed against the hearing of an appeal and not against one or more grounds of appeal which cannot stop the Court from hearing the appeal…”

See also the case of ADEJUMO vs. OLAWIYE (2014) 12 NWLR (PT.1421) 252 AT 265 RATIO 15, where the Supreme Court per BODE RHODES VIVOUR, JSC had this to say on the issue;

“A preliminary objection should only be filed against the hearing of an Appeal and not against one or more Grounds of Appeal which are not capable of disturbing the hearing of the Appeal. The purpose of a preliminary objection is to convince the Court that the hearing of the Appeal comes to an end if found to be correct. If sustained, a preliminary Objection terminates the hearing of an Appeal. Where a preliminary Objection would not be the appropriate process to object or show to the Court defects in processes before it, a motion on Notice filed complaining about a few Grounds or defects would suffice.”

On the strength of this and several decided authorities on the issue, I hereby find and do hold that the Objection raised by the Respondent same having not been filed against the hearing of the entire Appeal per se, but rather against a few Grounds of Appeal, is therefore inappropriate in the circumstance in requiring a pronouncement from the lower Court on the issue as such a pronouncement would not necessarily have led to the termination of the Appeal. Having, therefore proceeded on a wrong procedure in the course of challenging the competency of Grounds 1, 2 and 5, I find myself unable to insist on a corresponding duty on the part of the lower Court in making a pronouncement on the validity of Grounds 1, 2 and 5 of the Grounds of Appeal filed before the lower Court as such a pronouncement in the circumstances of this case would have been devoid of any utilitarian value.

Apart from the foregoing, the lower Court is completely absolved by the provisions of Order 55 Rule 15 (1) of the Kebbi State High Court (Civil Procedure) Rules, 2011 which provides thus:-

“No objection on account of any defect in the form of setting forth any Grounds for Appeal shall be allowed. Unless the Court is of the opinion that the Ground of Appeal is so imperfectly or incorrectly stated as to be insufficient to enable the Respondent to enquire into the subject matter thereof or to prepare for the hearing.” Per OHO, J.C.A. (Para 15-18) read in context


LEAD JUDGEMENT DELIVERED BY OHO, J.C.A.


1. This Appeal is against the judgment of the Kebbi State High Court sitting in its Appellate jurisdiction in the Birnin Kebbi Judicial Division and delivered on the 10th day of December, 2014, Coram ELIZABETH ASABE KARATU, J (Presiding Judge), ABBAS AHMAN, J and IBRAHIM KANGIWA, J in Appeal No KB/HC/9SA/2013.

2. The Respondent herein, who was Plaintiff before the trial Court, via a Plaint note, had instituted an action against the Appellants as the Defendants at the Principal District Court 1, Zuru (hereinafter referred to as the “Trial Court”, in which the Respondent had claimed inter alia, for a declaration of title to a big farmland located at Ganna. In the course of trial, the Respondent called five (5) witnesses who testified in support of his claims against the Appellants, whilst the Appellants in their defense called four (4) witnesses. On the 5th day of December 2013, the Trial Court, in its judgment dismissed the suit and conferred title over the farmland in dispute on the Appellants. Dissatisfied with this judgment, the Respondent Appealed to the High Court of Justice, Birnin Kebbi (hereinafter referred to as the “Lower Court”). There are six (6) Grounds of Appeal. After the conclusion of hearing of the Appeal, the lower Court on the 10th day of December 2014, allowed the Appeal, setting aside the decision of the Trial Court and in its place ordered a re-trial before a different District Judge.

3. Dissatisfied with this judgment, the Appellants have brought this Appeal before this Court and for which they have filed a total of three (3) Grounds. These Grounds of Appeal have been reproduced herein without their particulars as follows;

GROUNDS OF APPEAL;

1. The Kebbi State High Court erred in law when it fails in its duty to address the issue of competence of Grounds 1, 2 and 6 which was raised before it by the Appellants as Respondents and which resulted in a denial of fair hearing and constituted an error in law which caused miscarriage of justice to the Respondents.

2. The kebbi State High Court erred in law when it deviates from the real issue in the Respondent/Appellants Grounds of Appeal before it to an issue that is not complained of in the Grounds of Appeal before it which causes serious miscarriage of justice to the Respondents.

3. The Kebbi State High Court erred in law when it reversed the decision of the Principal District Court Zuru when it found that the Respondent/Plaintiff did not establish even the founder of the land in dispute.

4. ISSUES FOR DETERMINATION;

1. Whether the Court below is under a duty to address all the issues placed before it and have actually addressed the issue of competence of Grounds one, two and five of the Respondent/Appellant’s grounds of Appeal before it (Ground one).

2. Whether the issue of compliance with the Illiterate Protection Law of Kebbi State was competently placed before it when it was not contained in any of the grounds of Appeal of the Respondent before the Court below. (Ground two).

3. Whether having found that all the witnesses called by the Respondent/Plaintiff before the Court were impeached, the Court below was right to have set aside the decision of the trial Court and ordered a retrial with the Respondent’s father.

5. On the part of the Respondent, Counsel adopted Appellant’s issues one and two for determination arising from Grounds one and two of the Notice and Grounds of Appeal, and formulated an additional issue from Ground three of the Notice and Grounds of Appeal but with great resemblance to the issue three nominated by the Appellant, viz:

“Whether from the surrounding circumstances of this case, the lower Court was right to have ordered a re-trial of the suit.”

6. The Appellant’s Brief of argument dated the 25-5-2016, settled by GARBA ABUBAKAR SHEHU ESQ., was filed on the 26-6-2016, while the Brief of argument of the Respondent dated 10-9-2016, settled by AHMED A. FINGILLA ESQ., was filed on the 31- 0-2016 and deemed properly filed on the 8-11-2016. On the 29-11-2016 at the hearing of this Appeal, learned Counsel for the parties adopted their respective Briefs of arguments and urged the Court to decide in favour of their sides. There being no disagreements as such as to the issues nominated except for a few instances of semantics, this Court shall therefore decide this Appeal on the basis of the issues nominated by the Appellant.

7. ARGUMENT OF LEARNED COUNSEL FOR THE PARTIES; APPELLANT;

ISSUE ONE;

Whether the Court below is under a duty to address all the issues placed before it and have actually address the issue of competence of one, two and six of the Respondent/Appellant’s Grounds of Appeal before it (Ground one).

In respect of this issue, it was submitted by Counsel that it is the duty of the Appellate Court to address all the issues placed before it by the parties and resolve it one way or the other. Counsel cited the case of OVUNWO vs. WOKO (2011) 46 NSCQR 516 where it was held by the Supreme Court per CHUKWUMA – ENEH, JSC thus;

“It is a Court’s duty to pronounce on every issue properly placed before it for consideration and determination before arriving at a decision and where it has failed to do so, it leads to a miscarriage of justice apart from as in the instant case breaching the right of the Appellants to fair hearing.”

Counsel also cited the case ofONWE OKE & 5 ORS vs. EZE NWAOGBUINYA & 13 ORS (2001) 5 NSCQR 93 at 117 to 118 where the Supreme Court per A. O. EJIWUNMI, JSC held thus;

“It is clearly the duty of an Appellate Court to consider the issues set out for determination by the parties before the Court. It is an inescapable duty, and more so where as in this case all the issues required to determine the merit of the case for the Appellants had been carefully set down in their brief. One of the issues which required the determination of the Court below related to res judicata. This was never considered in any shape or form by the Court below. It cannot, therefore, be right for the Respondents to argue that the only complaint of the Appellants in the Court below bordered “on evaluation of evidence by the trial judge.” It is therefore … manifest that the Appellants cannot be said to have had a fair hearing before the Court below.” It was further submitted by Counsel that the Lower Court failed in its duty to address the issue of competency of the Grounds 1, 2 and 6 of the Respondent’s Grounds of Appeal before the Lower Court. He referred Court to page 91 lines 12 to 14 of the Record of Appeal which he said is an objection moved in accordance with Order 55 Rule 15(2) of the Kebbi State High Court Civil Procedure Rules 2011. Counsel added that the failure to address an issue placed before the Court one way or the other is a denial of fair hearing, which renders the proceedings null and void. It was also contended by Counsel that the remedy for breach of right of fair hearing is that the whole decision and Judgment is null and void. He cited the case of OVUNWO vs. WOKO (Supra) where it was held thus;

“The point must be made that a breach of fair hearing once sustained in a decision afflicts and clearly vitiates the whole decision and not just as to a part of it thereof. Once it is showed as it has been showed here that the decision of the Appellate High Court has been vitiated for breaching the Appellants’ right to fair hearing it follows naturally without more that the lower Court’s resolution of issue one (1) cannot stand and so the whole decision collapses with it as it has no leg on which to stand.”

On account of this position, Counsel urged this Court to resolve this issue in favour of the Appellant.

8. ISSUE TWO;

Whether the issue of compliance with Illiterate Protection Law of Kebbi State was competently placed before it when it was not contained in any of the Grounds of Appeal of the Respondent before the Court below (Ground two)

On account of this issue, Counsel submitted that an Appeal from the decision of the District Court is limited to the Grounds of Appeal set forth in the Notice and Grounds of Appeal. He referred to Order 55 Rule 12 of the Kebbi State High Court Civil Procedure Rules 2011 on the issue, which provides thus:

“On the hearing of an Appeal, it shall not be competent for the Appellant to go into any other reasons for Appeal than those set forth in his notice of Grounds for Appeal. Provided that where, in the opinion of the Court, other Grounds for Appeal than those set forth in the memorandum of Grounds for Appeal should have been given, or the statement of Grounds of Appeal is defective, the Court, in its discretion, may allow such amendments of the memorandum of Grounds for Appeal upon such conditions as to service upon the Respondent and as to cost as it may deem fit.”

Arising from this position, it was contended by Counsel that the issue of compliance with Kebbi State Illiterate Protection Law was not raised before the trial Court (i.e., Principal District Court, Zuru) and that it was not stated in any of the six (6) Grounds of Appeal contained in the Notice of and Grounds of Appeal of the Respondent before the Court below nor was there any amendment of the Notice of Appeal upon any condition as to service upon the Appellant as Respondent before the Lower Court. It was further contended by Counsel that despite this position, the Lower Court went ahead and entertained arguments on the question of non-compliance with Kebbi State Illiterate’s Protection Law and relied on it in setting aside the decision of the Principal District Court, Zuru when there was no Appeal on that point, which is an error in law. Counsel argued that the position is so because an Appellate Court is restricted to the Grounds of Appeal alone filed before it. See MUSA SHA (JNR) & 1 ANOR vs. DA RAP KWAN & 3 Ors (2000) 2 NSCQR 802 where it was held thus;

“An Appellate Court can only hear and decide on issues raised on the Grounds of Appeal filed before it and an issue not covered by any Ground of Appeal is incompetent and will be struck out . See MANAGEMENT ENTERPRISES vs. OTUSANYA (1987) 2 NWLR (Part 55) 179.”

See also the cases of SHUKKA vs. ABUBAKAR (2012) 44 NWLR (Part 12 – 9) 497; ZUMAX NIGER vs. BLISS INTERNATIONAL LTD. (2011) LPELR 9021 (CA); BHOJSONS PLC vs. DANIEL KALIO (2006) 5 NWLR (Part 973) 330 S.C. It was also contended that the consideration of the issue of non-compliance with the Kebbi State Illiterate’s Protection Law which was not complained of in any Ground of Appeal is an error in law which has occasioned miscarriage of justice to the Appellant and Counsel urged this Court to so hold and resolve this issue in favour of the Appellant.

9. ISSUE THREE;

Whether having found that all the witnesses called by the Respondent/Plaintiff before the ourt were impeached, the Court below was right to have set aside the decision of the trial Court and ordered a retrial with the Respondent’s father.

It was the submission of Counsel that the trial Court was wrong to have ordered a retrial of the case for the purpose of enabling the Respondent’s father Nadukuhete to file a case and call witnesses as this was bound to give the Respondent another opportunity to have a second bite at the cherry, when he happens to be a party in the instant case. This Counsel also said is after the Court had found out that all the witnesses called by the Respondent as Plaintiff were rightly impeached under Order 5 Rule 5 of the Kebbi State District Court Rules 2007 for a number of reasons, some of which included the fact that the Respondent’s father Nadukuhete is a party to the case even though his name does not appear on the printed record of the Court as a party but had been present throughout the sittings of the Court. He referred Court to page 14 lines 22-23, page 16 lines 23-24, page 19 lines 19-20 page 21 line 2-3, page 22 lines 2-3, page 26 lines 8-9 and page 44 lines 24-25 of the records of Appeal. It was therefore argued by Counsel that since he had been around and knew that the case in which his interest is at stake was being fought but chooses to standby and watch the Respondent fighting the battle without seeking to be joined, that makes a party within the meaning of the law. Counsel cited the case of OKUKUJE vs. AKWIDO (2001) 5 NSCQLR 204 at 247 where the Supreme Court per IGUH, JSC had this to say on the subject;

“It is now well settled that the term “parties” includes not only those named on the record of proceedings but also those who had direct interest in the subject matter of the dispute and had an opportunity to attend the proceedings and to join as a party in the suit but chose not to do so but were content to stand by and see the battle in which their interest is directly in issue fought by somebody else or let witnesses testify as to their title to or interest in the subject matter of the action.”

It was therefore contended by Counsel that if the Respondent’s father is a party to the case as was held by the Supreme Court, then the Court below after finding at page 101 line 22 to 24 of the record of Appeal that the five witnesses called by the Respondent as Plaintiff before the trial Court were rightly impeached as none of them was credible because their evidence was rightly impeached pursuant to the Order 5 Rule 5 of the District Court Civil Procedure Rules 2007 the Court ought not to grant the Respondent’s father another opportunity to have a second bite at his case before another Judge. See OKUKUJE vs. AKWIDO (Supra) at 248 where it was held thus;

“I think it can be said that the principle of law is now well settled that if a person was content to stand by and see his battle fought by someone else in the same interest instead of applying to be joined as a defendant in that case, he is bound by the result in that case and estopped from reopening the issue determined in that case. He should not be allowed to reopen the case.”

It was therefore argued by Counsel that a retrial can only be ordered where the trial Court fails to make findings on issues which depend on the credibility of witnesses before it. See MUSA SHA (JNR) & 1 OR vs. DA RAP KWAN & 3 ORS. (2000) 2 NSCQR 802 where the Supreme Court per IGUH, JSC had this to say

“Where an appeal is allowed because of the failure of the trial Court to make findings on material issues and the determination of such material issues depends on the credibility of witnesses, as in the present case, the proper order to make is that of a retrial- See KARIBO vs. GREND (1992) 3 NWLR (PART 230) 426.”

In the instant case, Counsel contended that the Court below affirmed the finding of the trial Court on the credibility of the witnesses as having been rightly impeached on grounds of marriage and affinity but erroneously ordered a retrial just to give the Respondent an opportunity to have second bite at his case, and which has occasioned a miscarriage of justice to the Appellant. Counsel, therefore urged this Court to resolve this issue in favour of the Appellant, allow the appeal and set aside the decision of the Court below and affirm the decision of the trial Court.

10. RESPONDENT;

ISSUE ONE;

Learned Respondent’s Counsel conceded that it is the duty of Court to consider all issues placed before it, but quickly submitted that there are exceptional situations where a Court is not duty bound to consider all issues raised in a proceedings and that in any case, that it is not in all cases that the failure of a Court to so do will lead to a miscarriage of justice, especially where the issue(s) raised is/are not crucial to the determination of the case. This, Counsel said was held by this Court per IYIZOBA, JCA in OBAJE vs. NIG. AIRSPACE MGT. AGENCY (2013) 25 W.B.H. Pg. 114 at 118 R. 2, where the Court held thus.-

“The failure to pronounce on all issues raised did not lead to a miscarriage of Justice or if the issues were not crucial then the decision will not be tempered with by an Appellate Court.”

Counsel also cited the case of JOSHUA vs. STATE (2010) I W.R.N. Pg. 41 at 51 R. 14, where this Court per DENTON-WEST, JCA held:-

“It is settled law that an Appeal Court must consider all issues placed before it by the parties. There are however exceptions according to the facts and circumstances of each case. As laid down by the Apex Court, one of such circumstances is where a consideration of one issue is enough to dispose of the appeal, the Court is under no obligation to consider all the issues.”

In this connection, Counsel also cited the cases of 7UP BOTTLING CO. LTD vs. ABIOLA & SONS (2001) 17 WRN 99; SANUSI vs. AMEYOGUN ( 992) 4 NWLR (PT. 237) 527. Against this position, Counsel submitted that the lower Court considered all the issues placed before it by both parties and that the lower Court dealt with the issue of admissibility or otherwise of Exhibits ‘A’ and ‘B’ tendered by the Appellants before the trial and which formed the bedrock of the decision of the trial Court. He said that once the documents are found inadmissible, the whole proceedings and judgment of the trial Court will be completely flopped. Counsel argued that there was therefore no need for the lower Court to consider the issue raised by the Appellant’s Counsel which had nothing to do with the Ground(s) challenging the documents before the Court.

It was therefore submitted by Counsel that the Grounds upon which the Appellant’s Counsel relied on challenging the competency of Grounds 1, 2 and 6 of the Notice of Appeal filed by the Respondent before the lower Court are baseless and unsubstantiated. He said that one of the reasons was that no particulars of the Grounds were given which would have allowed the Appellants to adequately prepare themselves and their minds towards the hearing of the Appeal. For ease of reference Counsel took time to reproduce the said Grounds 1, 2 and 6, thus.-

1. “The judgment of the trial Court was perverse when he admitted inadmissible evidence and based its judgment on it.”

2. “The trial Court commits error when he declared title for the defendant when the defendant did not counter-claim”.

6. “The judgment of the trial Court is against the weight of evidence.”

It was the argument of learned Counsel that the above stated Grounds were properly stated and that the fact that the Respondent’s Counsel said that he will later supply particulars to those Grounds and failed to do so does not render the Grounds incompetent. He further argued that there is no provision in the Kebbi State High Court (Civil Procedure) Rules, 2011 which states that particulars must be supplied to the Grounds of Appeal. According to Counsel Order 55 Rule 15(1) of the Kebbi State High Court (Civil Procedure) Rules, 2011 provides:-

“No objection on account of any defect in the form of setting forth any Grounds for Appeal shall be allowed. Unless the Court is of the opinion that the Ground of Appeal is so imperfectly or incorrectly stated as to be insufficient to enable the Respondent to enquire into the subject matter thereof or to prepare for the hearing.”

It was therefore contended by Counsel that none of the Grounds of Appeal as stated above was imperfectly or incorrectly stated to warrant the Appellant’s Counsel raising any objection to their competence. He urged this Court to so hold and resolve this issue in favour of the Respondent and dismiss the Appeal.

11. ISSUE TWO;

It was submitted by learned Counsel that the issue of the Illiterate’s Protection Law of Kebbi State was properly raised before the lower Court and correctly decided by the Court. He said that the Respondent’s Counsel (who was the Appellant’s Counsel before the lower Court) argued Grounds 1, 4, 5 and 6 together before the lower Court and that Ground 6 is an omnibus ground which states thus;

“The judgment of the trial Court is against the weight of evidence”.

According to learned Counsel, the Respondent in his Grounds of Appeal clearly complained about the inadmissibility of Exhibits ‘A’ and ‘B’ tendered and admitted before the trial Court. He told Court that this is contained in Ground five of the Grounds of Appeal filed before the lower Court, which reads thus:

“The trial Court commit great and grave mistake when it admitted documentary hearsay which was an ambush to the case of the plaintiff and based its judgment on it and same led to miscarriage of justice.”

Counsel contended that there was no doubt that the documents referred to above are the documents tendered by the Appellants which were admitted and marked as Exhibits ‘A’ and ‘B’ and which the trial Court relied heavily upon, particularly Exhibit ‘B’ and based its findings and judgment thereon. Counsel further said that it was based on this that the Respondent’s Counsel argued Grounds 1, 4, 5 and 6 together and brought up the issue of the Illiterate’s Protection Law of Kebbi State which has to do with the documents before the trial Court. Counsel urged this Court to so hold and resolve this issue in favour of the Respondent and dismiss the appeal.

12. ISSUE THREE;

In respect of this issue, it was submitted by Counsel that it has been settled by a plethora of decided judicial authorities that an Appellate Court has the power to exercise its judicial discretion to order a retrial of a suit where it appears to it that there has been a fundamental irregularity in the trial process. Counsel cited the case of STAR PAPER MILL LTD vs. ADETUNJI (2009) 44 W.R.N. Pg. 29 @ 38 R. 12 where the Supreme Court per ADEKEYE, JSC, had this to say;

“An Appellate Court will exercise its discretion to order a retrial among other reasons where: There has been a fundamental irregularity in the trial…”

Counsel also cited the cases of NATIONAL BANK OF (NIG.) LTD vs. P. B. OLATUNDE & CO. (NIG.) LTD (1994) 4 SCNJ PG. 65 @ 67 and MADUKOLU vs. NKEMDILIM (2001) 46 WRN 1.

Arising from this position, Counsel submitted that the lower Court rightly set aside the decision of the trial Court and ordered a retrial when it held in its judgment that there were irregularities and lapses in the proceedings of the trial Court. He urged this Court to so hold and resolve this issue in favour of the Respondent and dismiss the appeal.

13. RESOLUTION OF APPEAL

This is a relatively short Appeal but in which a few essential principles of law were brought to the fore. On the issue which requires that an Appellate Court has to make pronouncements on all issues place before it, the settled position of the law is that where a party submits an issue for determination to a Court, that Court must consider and make pronouncement on it, unless such an issue is one in which the Court lacks jurisdiction to hear it due to reason of its being either academic or hypothetical. The failure of a Court, therefore, to make pronouncements on an issue when it is required to so do may amount to a breach of the right to fair hearing of the party. The right to fair hearing of a party to a suit is not only a common law requirement but also a statutory and constitutional requirement. In the case of OPUIYO vs. OMONI WARI (2007) 6 SCNJ 131, the Supreme Court, per OGUNTADE, JSC had this to say on the subject;

“As a matter of law, a Court has the duty to consider the issues submitted to it for adjudication. Where a Court failed to consider and adjudicate on such issues, it is usually an error of law because the omission constitutes a denial to the party complaining of his right of fair hearing as enshrined in the Constitution.”

It is however important to note that the principle of law requiring the Court to make pronouncement on all issues placed before it is not without its other side as it does not apply to all situations presented before the Court. Where the issues presented before the Court are not considered crucial to the determination of the case or are clearly subsumed in other issues submitted for determination, the duty of the Court to consider such issues is not imposed on the Court. See the case of COOKEY vs. FOMBO (2005) 5 SC (PT.II) 102 AT 111.

14. It was the argument of Learned Respondent’s Counsel that the lower Court not only considered all the issues placed before it by both parties but also dealt exhaustively with the issues including the question of admissibility or otherwise of Exhibits ‘A’ and ‘B’ tendered by the Appellants at the trial and which formed the bedrock of the decision of the trial Court. It was the argument of Counsel that as long as the documents are found to be inadmissible, this affected the proceedings and judgment of the trial Court adversely such that it was no longer necessary for the lower Court to consider the issue raised by the Appellant’s Counsel which had nothing to do with the Ground(s) challenging the documents before the Court.

15. It would be recalled that the Appellant’s grievance under this issue is anchored on the lower Court’s failure to address the issue of the competency of Grounds 1, 2 and 5 of the Respondent’s Grounds of Appeal filed before the Lower Court. Counsel had relied on Order 55 Rule 15(2) of the Kebbi State High Court (Civil Procedure) Rules 2011 in raising its objection and had contended that the lower Court’s failure in this regard amounted to a denial of fair hearing, which renders the proceedings null and void. There may, perhaps be the need on the part of this Court to state as part of its decision on this issue that an objection taken to the hearing of an Appeal when in fact only a few Grounds of Appeal are fingered as the culprits is not considered an objection to the hearing of the Appeal in the real sense of the word. It is rather an objection which merely and primarily quarrels against some Grounds of Appeal, particularly Grounds 1, 2 and 5 of the Respondent’s Notice of Appeal at the lower Court. The grouse of the Appellant herein was that there were no particulars supplied to these Grounds.

16. It may also be stated here that the purpose of a Notice of Preliminary Objection when raised is to lead quickly to the termination or the dismissal of a matter in limine, to avoid the dissipation of energy and also the waste of valuable time on matters which are not worthy of taking any valuable time and resources of the Court. See the case of the YARO vs. AREWA CONSTRUCTION LTD. & ORS (2007) 6 SCNJ 418.

17. With this at the background, this Court has observed that the substance of the objection raised by the Claimant/Respondent herein is not against the hearing of the Appellants’ Appeal but indeed an objection taken against the competence of Grounds 1, 2 and 5 of the Appellants Grounds because no particulars were supplied to these Grounds. It should be recalled that the Appellants predicated their action before the lower Court on six (6) Grounds of Appeal and not just the Grounds 1, 2, and 5 to which the Respondent has picked quarrels with. The Supreme Court, in the case of GENERAL ELECTRIC CO. vs. HARRY AKANDE (2011) 4 NSCQR P. 611 had this to say on the subject;

“…if I may add to the above, where as in this Appeal the preliminary objection was filed against some grounds of appeal and there are other grounds of appeal that can sustain the appeal, a preliminary objection was inappropriate. The Respondent ought to have filed a Motion of Notice since the preliminary objection if successful would not have terminated the hearing of the appeal as there were other grounds of appeal to sustain the appeal. Preliminary Objections are only filed against the hearing of an appeal and not against one or more grounds of appeal which cannot stop the Court from hearing the appeal…”

See also the case of ADEJUMO vs. OLAWIYE (2014) 12 NWLR (PT.1421) 252 AT 265 RATIO 15, where the Supreme Court per BODE RHODES VIVOUR, JSC had this to say on the issue;

“A preliminary objection should only be filed against the hearing of an Appeal and not against one or more Grounds of Appeal which are not capable of disturbing the hearing of the Appeal. The purpose of a preliminary objection is to convince the Court that the hearing of the Appeal comes to an end if found to be correct. If sustained, a preliminary Objection terminates the hearing of an Appeal. Where a preliminary Objection would not be the appropriate process to object or show to the Court defects in processes before it, a motion on Notice filed complaining about a few Grounds or defects would suffice.”

On the strength of this and several decided authorities on the issue, I hereby find and do hold that the Objection raised by the Respondent same having not been filed against the hearing of the entire Appeal per se, but rather against a few Grounds of Appeal, is therefore inappropriate in the circumstance in requiring a pronouncement from the lower Court on the issue as such a pronouncement would not necessarily have led to the termination of the Appeal. Having therefore proceeded on a wrong procedure in the course of challenging the competency of Grounds 1, 2 and 5, I find myself unable to insist on a corresponding duty on the part of the lower Court in making a pronouncement on the validity of Grounds 1, 2 and 5 of the Grounds of Appeal filed before the lower Court as such a pronouncement in the circumstances of this case would have been devoid of any utilitarian value.

18. Apart from the foregoing, the lower Court is completely absolved by the provisions of Order 55 Rule 15 (1) of the Kebbi State High Court (Civil Procedure) Rules, 2011 which provides thus:-

“No objection on account of any defect in the form of setting forth any Grounds for Appeal shall be allowed. Unless the Court is of the opinion that the Ground of Appeal is so imperfectly or incorrectly stated as to be insufficient to enable the Respondent to enquire into the subject matter thereof or to prepare for the hearing.”

19. In the circumstances, issue one is resolved in favour of the Respondent.

20. Under issue two, the grouse of the Appellant herein is that the issue of compliance with the Kebbi State Illiterate Protection Law was not raised before the trial Court (i.e., Principal District Court, Zuru) and that it was not stated in any of the six (6) Grounds of Appeal contained in the Notice of and Grounds of Appeal of the Respondent before the Court below nor was there any amendment of the Notice of Appeal upon any condition as to service upon the Appellant as Respondent before the Lower Court. It was the further grouse of the Appellant that despite this position, the Lower Court went ahead and entertained arguments on the question of non-compliance with the Kebbi State Illiterate’s Protection Law and relied on it in setting aside the decision of the Principal District Court, Zuru when there was no Appeal on that point.

21. On the part of the Respondent herein, contrary to the submissions of Appellant’s Counsel, the issue of the Illiterate’s Protection Law of Kebbi State was properly raised before the lower Court and correctly decided by the Court. He said that the Respondent’s Counsel (who was the Appellant’s Counsel before the lower Court) argued Grounds 1, 4, 5 and 6 together before the lower Court and that Ground 6 is an omnibus ground which states thus;

“The judgment of the trial Court is against the weight of evidence.”

22. According to learned Counsel, the Respondent in his Grounds of Appeal clearly complained about the inadmissibility of Exhibits ‘A’ and ‘B’ tendered and admitted before the trial Court and that this, he said is contained in Ground 5 of the Grounds of Appeal filed before the lower Court, which reads thus:

“The trial Court commit (sic) great and grave mistake when it admitted documentary hearsay which was an ambush to the case of the plaintiff and based its judgment on it and same led to miscarriage of justice.”

23. The settled position of the law is that the issues which must be determined on Appeal must of necessity be circumscribed and fall within the Grounds of Appeal filed since they must perforce arise from the Grounds of Appeal. See the cases of ADELAJA vs. FANOIKI (1990) 2 NWLR (PT. 131) 137 AT 148; CHINWEZE vs. MASI (1989) 1 NWLR (PT. 97) 254; MOMOH vs. MOMOH (1991) NWLR (PT. 169) 608; SHUKKA vs. ABUBAKAR (2012) 44 NWLR (PT . 12 – 9) 497; ZUMAX NIGER vs . BLISS INTERNATIONAL LTD. (2011) LPELR 9021 (CA); BHOJSONS PLC vs. DANIEL KALIO (2006)5 NWLR (PT. 973) 330 SC. The Supreme Court in the case ofCARLEN (NIGERIA) LTD vs. UNIVERSITY OF JOS (1994) LPELR 832 (SC) per OGUNDARE, JSC on this issue had this to say;

“It is trite that issues for determination formulated in a brief must arise out of and be related to the Grounds of Appeal relied upon in support of the Appeal and any issue not encompassed by nor relating to the Grounds must be struck out. See OKOYE AND ORS vs. NIGERIAN CONSTRUCTION & FURNITURE CO. LTD & ORS (1991) 6 NWLR (PT. 199) 501.”

24. After a careful and calm consideration of the issue raised herein, I cannot help but agree with learned Respondent’s Counsel that the documents referred to are the ones tendered by the Appellants which were admitted and marked as Exhibits ‘A’ and ‘B’ and which the trial Court relied upon, particularly Exhibit ‘B’ and based its findings and judgment thereon. It was also based on this that the Respondent’s Counsel argued Grounds 1, 4, 5 and 6 together and brought up the issue of the Illiterate’s Protection Law of Kebbi State which has to do with the documents before the trial Court. To therefore suggest as the Appellant herein had sought to do that the issue of the Illiterates Protection Act of Kebbi State was never raised in any of the Grounds is clearly of no moment in the very circumstances of this case. Issue two (2) is also resolved in favour of the Respondents.

25. In respect of the issues raised in issue three (3) the grouse of the Appellant is that the lower Court was wrong to have ordered a retrial of the case, as this had resulted in giving the Respondent’s father Nadukuhete an opportunity to have a second bite at the proverbial cherry, after being a party to the instant case under Appeal. Appellant’s Counsel had further kicked against the decision of the lower Court on the issue in which it had earlier on been found out that all the witnesses called by the Respondent as Plaintiff had been impeached under Order 5 Rule 5 of the Kebbi State District Court Rules 2007 for a number of reasons, some of which included the fact that the Respondent’s father Nadukuhete is a party to the case even though his name does not appear on the printed record of the Court as a party and had been present throughout the sittings of the Court.

26. On the part of the Respondent, an Appellate Court has the power to exercise its judicial discretion to order a retrial of a suit where it appears to it that there has been a fundamental irregularity in the trial process. It was submitted by Counsel that the lower Court rightly set aside the decision of the trial Court and ordered a retrial when it held in its judgment that there were irregularities and lapses in the proceedings of the trial Court. The question that should perhaps, be addressed here is whether there were indeed any irregularities found in the proceedings of the trial Court which necessitated the lower Court’s order for a re-trial of the matter before another Judge. It would be recalled that at page 100 of the printed records from lines 16 to 35 and at page 101 from lines 1 to 16, the lower Court took its time to reel out a catalogue of woes in terms of the irregularities recorded of the trial Court’s proceedings and on the basis of which it ordered a retrial of the suit before another judge. In the case of FIRST BANK PLC vs. MAY MED. CLINICS (2001) 9 NWLR (PT. 717) 28 the Supreme Court, per NNAMANI, JSC had this to say on the subject;

“In OKODUWA vs. STATE (1989) NWLR (PT. 76) 333, 355 this Court accepted one of the tests postulated in ABODUNDU vs. THE QUEEN (1959) 4 FSC 70 which is that a Court of Appeal ought to order a retrial where there has been such an error in law or an irregularity in procedure which neither renders the trial a nullity nor makes it possible for the Appeal court to say there has been no miscarriage of justice.”

27. The lower Court, having clearly identified these lapses in its judgment and as a result of which it ordered a retrial; I am simply unable to fault its decision on the issue. In the final analysis this Appeal fails all three (3) issues having been resolved in favour of the Respondents. Consequently, the lower Court’s judgment ordering a trial de novo of the suit on the 10-12-2014 is hereby affirmed. There shall be cost of N50,000.00 against the Appellants.

MUKHTAR, J.C.A.

1. I had the privilege of a preview of the lead judgment just delivered by my learned brother, Frederick O. Oho, JCA. He has meticulously discussed and reviewed the three issues formulated and canvassed in the briefs filed by the parties in this appeal. I agree with his reasoning and the conclusion that the appeal is bereft of substance.

2. The appeal is hereby dismissed. I adopt to the consequential orders made in the judgment including the one as to costs.

SHUAIBU, J.C.A.

I had the privilege of reading in draft the judgment of my learned brother, Frederick O. Oho, JCA, just delivered and I agree with his reasoning and conclusions that the appeal is bereft of any merit. For the reasons very ably set out in the judgment; which I adopt as mine, this appeal is dismissed by me. I endorse all the consequential orders as well as costs as assessed in the lead judgment.