ISSUES MUST FALL WITHIN THE GROUNDS OF APPEAL FILED

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

FAILURE TO CONSIDER COMPETENT GROUND OF APPEAL WILL RESULT IN LACK OF FAIR HEARING

In Union Bank of Nigeria Ltd v Nwaokolo (1995) 6 NWLR (Part 400) 127: “The appellants, as clearly depicted on the Record and in the brief of argument they filed, had identified three issues for the consideration of the court below. It is also on record that appellants argued fully all three issues and by implication, the eight grounds, to which they related. At the hearing of the appeal by the court below, it is common ground that the appellants adopted their brief of argument. However, without justification the majority judgment of that court now assailed before this Court, failed to pronounce on Grounds 4, 5 and 6 covered by appellants’ Issues 2 and 3 thereat, both of which have prompted Ground 2 in the appeal to this Court which incidentally, is covered by Issue 2 now under consideration. The judgment of the majority in the court below neither adverted to nor pronounced on these grounds (4, 5 and 6 respectively).” “Having considered the grounds (4, 5 and 6) which the court below failed to consider or pronounce upon, the next logical question to ask is, what are the consequences of such a failure? Failure to consider grounds of appeal, it is now established by decisions of this Court, amount to lack of fair hearing and a miscarriage of justice. (See Atano v AG Bendel (1988)2 NWLR (Part 75) 201). See also Kotoye v CBN (1989) 1 NWLR (Part 98) 419 where Nnaemeka-Agu, JSC held at page 448 of the Report thus:- ‘For the rule of fair hearing is not a technical doctrine. It is one of substance. The question is not whether a party entitled to be heard before deciding had in fact been given an opportunity of hearing. Once an appellate court comes to the conclusion that the party was entitled to be heard before a decision was reached but was not given the opportunity of a hearing the order/judgment thus entered is bound to be set aside.’ Fair hearing within the meaning of Section 33(1) of the 1979 Constitution means a trial conducted according to all legal rules formulated to ensure that justice is done to the parties vide Ntukidem v Oko (1986) 5 NWLR (Part 45) 909.”

WHAT IS A GROUND OF APPEAL?

It is settled law that a ground of appeal is basically a highlight of the error of law or fact or mixed law and fact made by the court in the decision sought to be set aside in the appeal. It is the sum total of the reason(s) why the decision on appeal is considered by learned counsel for the appellant to be wrong and liable to be set aside. It follows therefore that for a ground of appeal to be capable of achieving the purpose of setting aside the decision appealed against, it has to be very substantial and must relate to the ratio of the decision, not directed at the obiter dictum of the court or in the judgment.

– Mukhtar JSC. Nwankwo v. Ecumenical (2007)