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Dambam v. Lele

HAMZA ALHAJI AUDU BILAM DAMBAM

V

ARDO LELE

COURT OF APPEAL

( JOS DIVISION )

JUSTIN THOMPSON AKPABIO, JCA ( Presided )

C. MITCHELL CHUKWUMA-ENEH, JCA ( Read the Lead Judgment )

ISA ABUBAKAR MANGAJI, JCA

CA/J/98/95

THURSDAY, 8TH JUNE, 2000.

APPEAL - Notice of appeal - Where defective and incompetent - Power of court suo motu to raise objection thereto

APPEAL - Appeal from Native or Customary Courts - Issues of technicalities -  Attitude of appellate courts thereto - Section 61, Area Courts Edict, 1968  considered

APPEAL - Grounds of appeal - Appellant adopting omnibus ground of a criminal appeal for a civil appeal - Whether appropriate

APPEAL - Grounds of appeal - General ground of appeal in a civil case How framed

APPEAL - Grounds of appeal - General ground of appeal in a criminal case - How couched

APPEAL - Grounds of appeal - General grounds of appeal in a civil and criminal case - Distinction between - Rationale therefor

APPEAL - Issues for determination - Need to be covered by grounds of appeal

APPEAL - Notice of appeal - Grounds of appeal - Allegation of error in law - Particulars of error not supplied  - Whether ground valid and competent

APPEAL - Notice of appeal - Grounds of appeal - Where grounds of appeal found incompetent - Appellant filing further grounds of appeal Whether sufficient to validate notice of appeal

APPEAL - Notice of appeal - Grounds of appeal - Where all grounds of appeal found incompetent - Whether appeal not thereby rendered incompetent

APPEAL - Notice of appeal - Status of as originating process for initiating an appeal - Need to state part of decision appealed against

COURT - Appellate court - Notice of appeal - Where defective and renders appeal incompetent - Power of court to raise objection thereto suo motu

COURT - Area Court - Area Court Edict, 1968, Section 61 - Stipulation that appellate court to decide matters in accordance with substantial justice without regard to technicalities - Whether provision avails to validate an otherwise incompetent appeal

CRIMINAL LAW AND PROCEDURE - Criminal appeal - Grounds of appeal -  General grounds of appeal in a criminal case - How couched

CRIMINAL LAW AND PROCEDURE - Criminal appeal - Grounds of appeal -  General grounds of appeal in civil and criminal matter - Distinction between  - Rationale therefor

CRIMINAL LAW AND PROCEDURE - Criminal appeal - Grounds of appeal -  Party in a civil suit applying the general ground of appeal in a criminal appeal to a civil appeal - Whether allowed

PRACTICE AND PROCEDURE -  Criminal appeal - Notice of appeal Ground of appeal - Allegation of error in law - Particulars of error not supplied - Whether ground valid and competent

PRACTICE AND PROCEDURE - Criminal appeal  - Notice of appeal Status of as originating process for initiating an appeal - Need to

state part of decision appealed against

PRACTICE AND PROCEDURE - Criminal appeal - Notice of appeal Where defective and renders appeal incompetent - Power of Court to raise objection thereto suo motu

PRACTICE AND PROCEDURE - Criminal appeal - Area Court Edict, 1968 , Section 61 - Stipulation that appellate court should decide matters in accordance with substantial justice without regard to technicalities - Whether provision avails to validate an otherwise incompetent appeal

PRACTICE AND PROCEDURE - Criminal appeal - Grounds of appeal Appellant adopting a general ground in a criminal appeal for a civil appeal - Whether proper

PRACTICE AND PROCEDURE - Criminal appeal - Grounds of appeal General ground of appeal in a civil case - How framed

PRACTICE AND PROCEDURE - Criminal appeal - Grounds of appeal -

General grounds of appeal in a civil and criminal matter - Distinction thereof - Rationale therefor

PRACTICE AND PROCEDURE - Appeal - Issues for determination - Need to be covered by grounds of appeal

PRACTICE AND PROCEDURE - Appeal - Notice of appeal - Grounds of Appeal - All grounds of appeal incompetent - Appellant filing further grounds of appeal - Whether sufficient to validate notice of appeal

PRACTICE AND PROCEDURE - Appeal - Notice of appeal - Grounds of appeal - All grounds of appeal found incompetent - Whether appeal not thereby rendered incompetent

PRACTICE AND PROCEDURE - Rules of court - Need to obey

STATUTE - Area Court Edict, 1968, Section 61 - Stipulation that appellate court to decide matters in accordance with substantial justice without regard to technicalities - Whether provision avails to validate an otherwise incompetent appeal

Issues:

  1. Whether a notice of appeal is not rendered incompetent by reason of the invalidity of all the grounds of appeal contained therein.
  2. Whether the filing of further or additional grounds of appeal is sufficient to cure the fundamental defect in a Notice of Appeal or render an otherwise incompetent appeal competent.

Facts:

This case emanated from the Nangere Area Court where the appellant was the plaintiff and the respondent was the defendant.  In the said court, the appellant claimed ownership of a farmland situate at Bilan Dambam in Nangere Local Government Area of Yobe State.  The Area Court, after hearing, gave judgment for the appellant.  The respondent appealed to the Fika Upper Area Court where the decision of the Nangere Area Court was overturned in his favour.  The appellant was dissatisfied and appealed to the High Court.  His Notice of Appeal which reads as follows:

  1. The decision is unreasonable and cannot be supported, having regard to the evidence.
  2. “The Court erred in law” (particulars of errors are to be supplied on the receipt of the record of proceedings.” was challenged by the respondent by a preliminary objection as being incompetent, notwithstanding the fact that it had been amended twice with the leave of court.  In a reserved ruling, after hearing the parties, the High Court upheld the preliminary objection and struck out the Appellant’s appeal. The appellant was again dissatisfied and appealed to the Court of Appeal.

In the determination of this appeal, particular reference was made to Order 3 rule 2(1) of the Court of Appeal Rules and Order II Rule 3, High Court (Appeals from Native Court) Rules Cap. 49 Laws of Northern Nigeria which read as follows:

Order 3 rule 2(1) Court of Appeal Rules provide thus:“All appeals shall be by way of rehearing and shall be brought by notice (hereinafter... called notice of appeal.”.... and shall set forth the grounds of appeal...”

Order 11 rule 3, High Court (Appeals from Native Court) Rules Cap. 49 , Laws of Northern Nigeria provides thus :

“Every appeal shall be entered by notice in writing... to be called a Notice of Appeal” presented by the Appellant or someone duly authorised to do so on his behalf.  Stating (a) ... not applicable

  1. ...”
  2. ...”
  3. the grounds of appeal in full (e)          not applicable.