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USE MOTION ON NOTICE TO CHALLENGE SOME OF THE GROUNDS OF APPEAL

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Inspector Isa Sarki V. John Lamela (2016) LPELR — 40338 (CA), the Court of Appeal stated, “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.”

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grounds of appeal

THERE CAN BE NO ISSUE WHERE THERE IS NO GROUND OF APPEAL

Issues for determination must therefore be based on, correlate and be tied to a ground of appeal. The grounds of appeal must reflect the grievance of the appellant against the judgment of the trial court. In the absence of a valid ground of appeal any issue formulated is necessarily incompetent and is liable to be struck out. Likewise any ground of appeal not related to any issue is deemed abandoned – becomes irrelevant to the appeal and is likely to be struck out.

– ADEKEYE, JCA. NOGA v. NICON (2007)

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GROUNDS OF APPEAL MUST ARISE FROM THE JUDGEMENT

In Bello v Aruwa (1999) 8 NWLR (Pt.615) 454 it was held that grounds of appeal are not formulated in abstract. They must arise from the judgment in the same way as the issues arise from the grounds of appeal. And however meritorious a ground of appeal may be, it must be connected with the controversy between the parties at the trial court.

In Abiola v Abacha (1997) 6 NWLR (pt.509) 413 it was held that the grounds of appeal must stem from the decision of the court below.

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PRINCIPLES THAT GUIDE WHETHER A GROUND OF APPEAL IS INCOMPETENT

The principle to guide the court in deciding whether a ground of appeal is incompetent is as laid down in the case of Aderounmu v. Olowu (supra) at pages 265 – 266 which has been cited and relied upon by both counsel in this appeal. In that case, Ayoola JSC stated the law, inter alia , as follows: “… what is important in a ground of appeal and the test the court should apply is whether or not the impugned grounds show clearly what is complained of as error in law and what is complained of as misdirection or as the case may be, error of fact . The view, with which I am inclined to agree, is expressed in the Court of Appeal. See the case of Nteogwuija and Ors. v. Ikuru and Ors. (1998) 10 NWLR (Pt. 569) 267 at 310, that the mere fact that a ground of appeal is framed as an error and misdirection does not make it incompetent. In my view, only general propositions can be made in a matter in which the question is not as to form. Ultimately, it is for the court before which the question is raised to decide whether viewed objectively, the ground satisfies the requirements of preciseness and clarity … what makes a ground incompetent is not whether it is framed as an error and a misdirection but whether by so stating it, the other side is left in doubt and without adequate information as to what the complaint of the appellants actually is.”

— Onnoghen JSC. Aigbobahi & Ors. v. Aifuwa, Osabuohien & Ors. (SC. 194/2001, 3 Feb 2006)

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GROUNDS OF APPEAL MUST BE BASED ON THE CONTROVERSY / DISPUTE

In all cases, the subject matter for determination must be an issue in controversy between the parties. The decision appealed against must have decided the issue. In every appeal, the issue or issues in controversy are fixed and circumscribed by a statement of the part of the decision appealed against. Hence, the grounds of appeal must ex necessitate be based on such issues in controversy – See Niger Construction Co. Ltd v. Okugbeni (1987)4 NWLR. (Pt.67) 787. Where a ground of appeal cannot be fixed and circumscribed within a particular issue in controversy in the judgment challenged, such ground of appeal cannot justifiably be regarded as related to the decision. A fortiori, no issue for determination can be formulated therefrom.

— A.G. Karibe-Whyte, JSC. Saraki v. Kotoye (1992) – S.C. 250/1991

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GROUNDS WHERE NO ISSUES ARISE FROM ARE DEEMED STRUCK OUT

It is trite that by the rules of practice and procedure, in particular, of the appellate Courts, appeals are to be determined on the issues distilled from the competent grounds of appeal raised against the judgment being appealed. Therefore, any ground of appeal from which no issue has been formulated is deemed to have been abandoned and is liable to be discountenanced and struck out by the Court. Indeed, any such ground is lifeless and may not need a specific order to have it struck out yet should still be struck out. In this appeal, no issue has been formulated from grounds 4, 5, 6, 7 & 8 of the Amended Notice of Appeal. Meaning that those grounds are deemed abandoned. Accordingly, the said grounds 4, 5, 6, 7 & 8 are struck out.

— O. Ariwoola, JSC. Galadima v. State (2017) – SC.70/2013

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INELEGANT GROUND OF APPEAL DOES NOT MAKE AN APPEAL INCOMPETENT

I would want to say in this appeal that where the presentation of the particulars are not elegantly presented that would not be used to punish a litigant to get the ground of appeal struck out for incompetence in a situation where the ground of appeal in substance is valid. See Ogboru v Okowa (2016) 11 NWLR (Pt.1522) 84, 146; Omisore v Aregbesola (2015) 15 NWLR (Pt.1482) 205; Dakolo v Dakolo (2011) 16 NWLR (Pt.1272) 22.

— Tanko Muhammad, JSC. Berger v Toki Rainbow (2019) – SC.332/2009

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