IN THE COURT OF APPEAL OF NIGERIA
ON MONDAY, THE 22ND DAY OF FEBRUARY, 2016
CA/OW/216/2012
BETWEEN
1. CHIEF OBIOMA O. A. MGBOJI (ULELU II ELECT). ..... Appellants
2. CHIEF I. O. NWANKPA (VILLAGE HEAD) (for himself and on behalf of Umumgboji Village/kindred of Obuda Aba Autonomous Community)
3. ELDER JUSTICE R. C. AJUZIEOGU (for himself and on behalf of the Eze Selection Committee for Obuda Aba Autonomous Community)
4. HON. EVANS ONYEIKE (for himself and on behalf of the entire Obuda Aba Autonomous Community except the 1st, 6th - 9th Defendants) -
AND
1. CHIEF C. B. C. AJUZIEOGU. ............... Respondents
2. THE EXECUTIVE CHAIRMAN, ABA SOUTH L.G.A
3. THE COMMISSIONER FOR LOCAL GOVT. AND CHIEFTAINCY AFFAIRS, ABIA STATE
4. THE ATTORNEY GENERAL, ABIA STATE
5. THE GOVERNOR, ABIA STATE
6. COMRADE CHIMERE KAMA ENWEREJI
7. CHIEF CHIMA CHIGBU
8. COMRADE LOVEDAY C. C. EMMANUEL
9. VICTOR NWORGU ISIGUZO
MAIN JUDGMENT
PETER OLABISI IGE, J.C.A.(Delivering the Leading Judgment):
This appeal is against the decision of the High Court of Abia State contained in the Ruling of the Honourable Justice C. C. Thomas Adiele delivered on 30th day of July, 2012.The Appellants had by Paragraph 27 of their Amended Statement of Claim prayed the Lower Court as follows:
27. WHEREFORE THE PLAINTIFFS jointly and severally claim as follows:
i) A DECLARATION that the 1st Plaintiff is the duly selected and accepted person by the Umumgboji Village and the Obuda Aba Community as the ULELU II of Obuda Aba Community according to Custom and Tradition of the Obuda Aba people.
ii) AN ORDER directing the Defendants to recognize him as such and to set the machinery in Motion for his presentation, recognition and issuance of Staff of Office in accordance with the relevant Laws in Abia State.
iii) A PERPETUAL INJUNCTION restraining the 2nd - 5th Defendants from presenting and or recognizing any other person than the 1st Plaintiff as the ULELU II of Obuda Aba Community.
By a Motion dated 8th day of June, 2010 and filed on the same date the 3rd, 4th and 5th Respondents sought for the dismissal in limine at the Lower Court for lack of jurisdiction to hear or determine the suit. The grounds upon which the application was based were stated as follows:
(a) That before contesting for the Ezeship stool, the 1st Claimant/Respondent refused, failed or neglected to comply with the provisions of:
i) Section 7(6) (d) of the Traditional Rulers and Autonomous Communities Law, Cap 10, Vol. 1, Laws of Abia State of Nigeria, 1991 - 2000;
ii) Rules 0442 (b) and 04422 of the Abia State Public Services Rules; and
iii) Section 5(h) of the Constitution of Obuda, Aba Autonomous Community, 2000 and Article 31(h) of the Amendment Constitution of Obuda, Aba Autonomous Community, 2008.
(b) That the Statement of Claim as filed by the Plaintiffs/Respondents did not disclose any cause of Action against the 3rd, 4th and 5th Defendants/Applicants;
(c) That this Suit is Premature;
(d) That the Claimants/Respondents have no Locus Standi to institute this Suit and
(e) That the Suit is Incompetent.
The Motion was heard by Hon. Justice OBISIKE OJI who delivered his Ruling on the application on 20th day of June, 2011. The said Learned Judge stated on page 16 of the record that even though the Applicants raised five grounds for their contention that the Suit be dismissed, it is ground (a) that governs the other grounds. The Learned trial Judge thereafter held thus:
It is also not the function of the Court when constructing statutes to supply omission therein. See OLOWU V. ABOLORE (1993) 6 SCNJ (Pt. 1) 1,19. Guided by these decisions, a look at the laws relied on by the applicant shows that it is not made a condition precedent to taking any step to seek the office of Eze of an autonomous community to first resign your public office. It is clear that it is at the point of recognition of such person by the Governor as the Eze that he must be satisfied that such a person is not a public servant. If the Law Maker intended that such person must resign his office before taking any step in such matter it would have said so in clear terms like it did in the Electoral Act. I am not prepared to read into the law what is not contained therein. On the Public Service Rules, the Claimants Counsel was on firm grounds in his submission that the rules cited refer to partisan political activity. The pleading of the Claimants they have more sufficient interest to maintain this suit. I also agree with the claimants counsel that the applicants are sued as nominal parties who will be bound by the outcome of this suit. The Nwamara Case cited by counsel is the Court of Appeal decision. The case got to the Supreme Court in CHIEF L. U. OKEAHIALAM & ANOR. V. NZE J. U. NWAMARA & ORS. (2003) 7 SCNJ 132. At page 141 that Court held:
In this country, any persons recourse to the Court is a constitutional right guarantee by Section 36 of the 1999 Constitution . There is nothing in Section 25 of Law No. 11 of 1981 (now Section 28 ) which barred such recourse. As already stated, the right of appeal in the provision to Section 25 was restricted to cases in which the ground of complaint in that the rule of natural justice has not been observed. Such is not an exclusive remedy, operating to the exclusion of the right of invoking the supervisory jurisdiction of the Courts which the Constitution granted and which only the Constitution can take away"?ý.This Suit is not premature. Having so found I hold that this application lacks merit and it is accordingly dismissed. I award no Cost. (Pages 165 - 166 of the record).
Thereafter the matter was transferred from HON. JUSTICE OBISIKE OJI OF ISUIKWUATO JUDICIAL DIVISION OF ABIA STATE HIGH COURT to HON. JUSTICE C. C. T. ADIELE of OSISIOMA JUDICIAL DIVISION of the Abia State High Court for hearing by the HON. JUSTICE S. O. E. NWANOSIKE, then Acting Chief Judge of Abia State vide a letter dated 18th day of October, 2011.
While the matter was pending before the Court at OSISIOMA JUDICIAL DIVISION the 1st, 6th - 9th Respondents brought a Notice of Preliminary Objection dated 25th day of January, 2012 and filed on 2nd February, 2012 praying for:
AN ORDER striking out or dismissing this suit for being premature, frivolous, abuse of Court process, vexations, incompetent, lacking in merit and for want of the requisite jurisdiction of this Honourable Court. AND for such further Order or Orders as this Honourable Court may deem fit and expedient to make in the circumstance?ý.
The grounds for the objection are as follows:
"1. The Cause of action in this Suit is anchored on the selection, presentation and recognition of the 1st Defendant as an Eze or Traditional Ruler of the OBUDA ABA AUTONOMOUS COMMUNITY.
2. The Claimants purport to be dissatisfied with the election and recognition of the 1st Defendant as and Eze or Traditional Ruler.
3. The Claimants seek, by this action to restrain the and to 4th Defendants from recognizing the 1st Defendant as the said Eze or Traditional Ruler of Obuda Aba Autonomous Community.
4. The Claimants?? Suit seeks to prevent the 2nd - 4th Defendants from performing their Executive/Administrative functions or duties as enshrined in the Abia State Chief Law.
5. The Claimants cannot prevent or stop the 2nd - 4th Defendants from performing their Administrative duties.
6. This Suit is premature and can only be instituted after the 2nd to 4th Defendants must have exercised their Administrative/Executive duties in this regard.
Ruling on the Objection on 30th day of July, 2012 the learned trial Judge, C. C. THOMAS ADIELE J., held thus:
At the risk of repetition, let me emphasis unequivocally that the Statutory Power of recognition vested in the Governor begins only when the Eze of the Autonomous Community is presented to the Governor. Until this is done, there cannot be any challenge to the exercise of his discretionary statutory powers. The Law as I understand, it is that once the Governor has exercised his power of recognition under Section 9 of the Abia State Traditional Rulers and Autonomous Communities Law Cap. 1166 Laws of Abia State, 2005, any person who feels his rights have been infringed is as liberty to take out an action in the High Court, which in the exercise of its jurisdiction under Section 272 (1) of the 1999 Constitution is empowered to entertain same. See EGBUSON V. IKECHUKWU (1977) 6 SC 7 AT 34; MERCHANT BANK LTD. V. FEDERAL MINISTER OF FINANCE (SUPRA)In view of the foregoing, this Honourable Court lacks the requisite jurisdictional competence to hear this action/suit because the condition precedent to the exercise of Court??s Jurisdiction has not been fulfilled, that is, the recognition or otherwise of the 1st defendant/applicant as Eze or Traditional Ruler by the Governor of Abia State (5th Defendant). See MADUKOLU V. NKEMDILIM (1962) 1 ALL NLR 587 AT 589 - 590; (1962) 2 SCNLR 341.Accordingly, I am in agreement with learned Counsel for the 1st defendant that this action is premature; this Court lacks the jurisdiction to entertain it. Suit No. A/280/2008 is incompetent and is hereby STRUCK OUT?ý.See page 195 of the record.
The Appellants were aggrieved by the decision of ADIELE J. and have by their Notice of Appeal dated 2nd august, 2012 and filed on 3rd August 2012 appealed to this Court on ten grounds which without their particulars are as follows:
GROUND ONE
The Honourable Court erred in law, which occasioned a miscarriage of justice when it assumed jurisdiction to sit on appeal over a decision of a Court of coordinate jurisdiction.
GROUND TWO
The Honourable Court erred in law which occasioned a miscarriage of Justice when it held that it is not bound by the decision of Justice Obisike Oji in the same Suit No. a/280/08.
GROUND THREE
The Honourable Court erred in law when it misdirected itself which occasioned a miscarriage of justice when it held that the Applicants and Prayers before Justice Obisike Oji in Suit No. A/280/08 were different from the Applicants and Prayers before him in the same Suit No. A/280/08.
GROUND FOUR
The Honourable Court erred in law when it exceeded its mandate and jurisdiction which occasioned a miscarriage of justice when it held that this Suit was transferred/assigned to C. C. THOMAS ADIELE J., for hearing and determination de novo by the Hon. Acting Chief Judge.
GROUND FIVE
The Honourable Court erred in law and misdirected itself in exceeding its jurisdiction which occasioned a miscarriage of justice when it held that transferred matters ought to have a breath of fresh air and commence de novo. In that case, any pending applications ought to be determined by the new Judge.
GROUND SIX
The Honourable Court erred in law when it failed to abide by the doctrine of stare decisis and hierarchy of Court system by choosing to prefer the decision of the Court of Appeal to that of the Supreme Court.
GROUND SEVEN
The Honourable Court erred in law and misdirected itself as well as misrepresented the facts when it delved into the substantive matter at the interlocutory stage when it held that it was only the 1st defendant that scaled through the hurdle of presentation to the 2nd defendant.
GROUND EIGHT
The Honourable Court erred in law which occasioned a miscarriage of justice when it held that the right of action in chieftaincy matters accrues after Governors exercise of his discretion of recognition of a traditional ruler.
GROUND NINE
The Honourable Court erred in law which occasioned a miscarriage of justice when it struck out Suit No. A/280/08 for being premature.
GROUND TEN
The Honourable Court erred in law when it granted a relief not claimed by parties when it awarded a cost of N10,000.00 against the claimants when the defendants did not ask for cost?.(Pages 197 - 201 of the record).
The Appellants Brief of Argument dated 30th day of May, 2013 was filed on 31st day of May, 2013 but deemed duly filed on 16th day of January, 2014 by this Court. The 2nd, 3rd, 4th and 5th Respondents did not filed Brief of Argument.
The 1st, 6th - 9th Respondents filed their 1st, 6th to 9th Respondents?? Brief of Argument dated 20th day of September, 2013 on 16th day of January, 2014. Appellants filed Appellants Reply Brief of Argument on 5th February, 2014 heard on 28th day of September, 2015. Judgment in this appeal was not delivered before now due to the fact that I was on National Assignments which involved the hearing of appeals (both on interlocutory and final appeals) from Election Petitions Tribunals.
Now the Appellants distilled six issues for the determination of this appeal viz:
(i) Whether JUSTICE C. C. T. ADIELE has the competence and jurisdiction to sit on appeal/overrule a conclusive decision of JUSTICE OBISIKE OJI in the same suit. (GROUNDS 1 - 3 OF THE GROUNDS OF APPEAL).
(ii) Whether or not the trial Court per JUSTICE C. C. T. ADIELE exceeded its mandate in hearing the application dated 25/1/2012 or ALTERNATIVELY what was the import of the Order of Transfer made on 18/10/2011 with Ref. No. GROUNDS OF APPEAL).
(iii) Whether an autonomous community and or an interested person has to wait until a traditional ruler not selected by the community is recognized before approaching the Court, OKEAHIALAM V. NWAMARA vis-a-viz WABARA V. NNADEDE (GROUND 6 OF THE GROUNDS OF APPEAL).
(iv) Whether or not the appellants herein are to wait until their rights are breached before approaching the Court or ALTERNATIVELY whether a State Law can remove right granted citizens by the Constitution (GROUNDS 8 - 9 OF THE GROUNDS OF APPEAL).
(v) Whether a Court is competent to delve into the substantive issue at an interlocutory stage. (GROUND 7 OF THE GROUNDS OF APPEAL).
(vi) Whether or not the award of cost in this case is a proper judicial discretion (GROUND 10 OF THE GROUNDS OF APPEAL).
The 1st, 6th to 9th Respondents also formulated six issues for the consideration of the appeal thus:
"(i) Whether the Learned trial Judge, of the Osisioma Judicial Division of the Abia State High Court exceeded his jurisdiction to entertain, de novo, a suit transferred to his Court from Isuikwuato Judicial Division of the said Abia State High Court? (Ground 4).
(ii) Whether the Learned trial Judge, sat on appeal over a decision of a Court of coordinate jurisdiction to entertain Suit No. A/280/2008 transferred to his Court by the Acting Chief Judge of Abia State? (Ground 1).
(iii) Whether the Learned trial Judge delved into the substantive matter at the interlocutory stage? (Ground 7).(iv) Whether the Learned trial Judge erred in law when he allegedly held that the right of action in chieftaincy matters accrues after Governors exercise of his discretion of recognition of a Traditional Ruler? (Ground 8).
(v) Whether the Learned trial Judge properly exercised his discretion in awarding cost the Appellants? (Ground 10).
(vi) Whether or not the Appellants herein are to wait until their rights are breached before approaching the Court or ALTERNATIVELY whether a State Law can remove right granted citizens by the Constitution? (Ground 8 - 9).
The appeal will be determined based on the six Issues formulated by the Appellants. I will take Issues 1 and 2 together:
ISSUES (i) and (ii)
(i) WHETHER JUSTICE C. C. T. ADIELE HAS THE COMPETENCE AND JURISDICTION TO SIT ON APEAL/OVERRULE A CONCLUSIVE DECISION OF JUSTICE OBISIKE OJI IN THE SAME SUIT (GROUNDS 1 - 3 OF THE GROUNDS OF APPEAL).(ii) WHETHER OR NOT THE TRIAL COURT PER JUSTICE C. C. T. ADIELE EXCEEDED ITS MANDATE IN HEARING THE APPLICATION DATED 25/1/2012 OR ALTERNATIVELY WHAT WAS THE IMPORT OF THE ORDER OF TRANSFER MADE ON 18/10/2011 WITH REF. NO. JDID/CT/S/Z/V.VI/97 AT PAGE 173 OF THE RECORDS. (GROUNDS 4 - 5 OF THE GROUNDS OF APPEAL).
The Learned Counsel to the Appellants stated that the trial Court per Justice C. C. T. Adiele lacked the jurisdiction and competence to hear the 1st, 6th - 9th Respondent?ý application dated 25/1/2012 after the same Court, according to N. A. Okorie Esq., the Appellants Learned Counsel, per Obisike Oji, J. had conclusively dismissed similar application. To Learned Counsel the hearing of application by 1st, 6th - 9th Respondent??s application amounts to sitting on-appeal over the decision of a Court of Coordinate Jurisdiction. That proper steps for Respondents could have taken was to appeal the Order/Ruling of OBISIKE OJI, J. as according to Appellants it was not even open to the Respondents to apply to set aside the Order. He relied on the cases of MILITARY ADMINISTRATOR BENUE V. ULEGBE (2001) 17 NWLR (PT. 741) 194 at 199 and F.C.D.A. V. SULE (1994) 3 SCNJ 71. He also relied on page 9 of the Ruling of Justice Obisike Oji contained on page 168 of the record.
That none of the Respondents appealed the ruling of OJI, J., which decided that the action of Appellants was not premature. That the Ruling was attached as Exhibit ??B?ý to Appellants Counter Affidavit against the of 1st, 6th - 9th Respondents.
That Adiele, J. merely sought for difference where there was none and rather went ahead to review the decision of his brother Obisike Oji, J. That the Abia State High Court no longer possessed the power to set aside the Order already made by OBISIKE, J. He relied on the cases of:
NDIC V. SBN PLC. (2003) 1 NWLR (Pt. 801) 311 at 324 and SKEN CONSULT (NIG) LTD. & ORS. UKEY (1981) 4 SC 6.
He referred to the grounds contained in two applications to show that they are the same.
That it does not matter that it was not the same Respondents who filed Objection before OBISIKE, J. that filed Objection before ADIELE, J. That the decision of Obisike Oji, J., constitutes res-judicata because it was not appealed against. That the application of the 1st, 6th - 9th Respondents was an abuse of Court process. That the trial Judge was aware of OJI, J??s Ruling. He urged the Court to resolve Issue 1 in Appellants?? favour.
Arguing Issue (ii) the Learned Counsel to the Appellants N. A. Okorie Esq. contended that the trial Court per ADIELE, J., exceeded its mandate in hearing the application dated 25/1/12. That the Order of then Chief Judge of Abia Ag. Directing ADIELE, J. to hear the case did not mean hearing should be commenced de novo. That where a former Court granted an application for service out of Jurisdiction/Leave to serve by substituted means, the new Court or defendants would not expect the claimant to make the said application before new Court. That what Adiele J., ought to have done was hearing evidence of witnesses in the case since OJI, J., had held the Suit was not premature. That where a Court takes it upon itself to exercise jurisdiction it does not possess its decision will amount to nullity. He relied on the case of MINISTER OF WORKS & HOUSING V. SHITTU (2008) ALL FWLR (PT. 401) 847 at 852 ratio 9.
In his response on Issue 1, the Learned Senior Counsel to the 1st, 6th - 9th Respondents K. C. NWUFO SAN submitted that the Learned trial Judge did not exceed his jurisdiction to entertain the Suit de novo since it was transferred from Isikwuato Judicial Division of the said Abia State. That the Learned trial Judge did not sit on appeal over any decision of a fellow Judge of Coordinate Jurisdiction. That the Motion filed by 3rd - 5th Respondent was heard by OJI, J., while the Objection of the 1st, 6th - 9th Respondents was heard by ADIELE, J. That the decisions cited and relied upon by the Appellants though good authorities in themselves were grossly cited out of context in that they are in applicable. That they are all in respect of Suit pending before same Judge. That the Case of OKEAHIALAM V. NWAMARA & ORS. (2003) 7 SCNJ 132 at 141 relied heavily upon by Appellants as giving jurisdiction to a Court to entertain a suit seeking to restrain the Governor from executing or exercise his executive actions did not support Appellants position. That in the instant case the situation is different because Governor of ABIA STATE (5th Respondent) was yet to accord any recognition to the 1st Respondent as Traditional Ruler of his Community when the Appellants instituted Suit No. A/280/2008. He relied on the Case of WABARA & ORS.(2009) 16 NWLR (PART 1166 P. 204 at 219, 220, 224. That the Governor could not be restrained from exercising its discretion relying on the case of A. G. ANAMBRA STATE V. OKAFOR (1992) 2 NWLR (Pt. 224) 419. He urged the Court to resolve Issue 1 against the Appellants.
On Issue 2, the Learned Silk stated that the contention of the Appellants under Issue No. 2 is grossly misconceived. That Appellants attempt at distinguishing between the hearing of a Suit and hearing a Suit de novo is a distinction that is meaningless and a mere semantic. That as far as the matter was transferred from one Court to another, both hearing and hearing de novo are one and the same thing in the circumstance.
The 1st, 6th -9th respondents further contended that since their Notice of Preliminary Objection was in the Courts file as at the time the case was transferred to the trial Judge, the said Judge has a duty to hear and determine it one way or the other. Reliance was placed on the cases of:
1. G. E. N. ONYEKWULUJE V. G. B. ANIMASHAUN (1996) 3 SCNJ 24 at 31 per MOHAMMED J.S.C.
2. F. B. N. PLC. V. E. D. TSOKWA (2004) 5 NWLR (PART 7866) 271 at 306 C - D.
3. AUGUSTA CHIME & ORS. MOSES CHIME (2001) 3 NWLR (PART 701) 527 at 552 E - F per IGUH, JSC.
The Learned Silk therefore submitted that Motions and Notice of Preliminary Objections are to be heard or heard de novo just like the substantive suits and not to be CONTINUED. He stated the trial Judge was right in hearing the Preliminary Objection of 1st, 6th - 9th Respondents which was not heard by HON. JUSTICE OBISIKE OJI but heard for the first time by THOMAS, J.
The 1st, 6th - 9th Respondents also complained that Issue No. 3 which was distilled from grounds 4 and 5 and that it ought to be struck out. That Ground 5 of the appeal is grossly incompetent as it complains of both errors in Law and misdirection on facts. He relied on the Cases of F. B. N. LTD. V. MOSES NJOKU (1995) 3 NWLR (PART 384) 452 at 474 and CHIEF F. O. ANIBIRE & ORS. V. RAFIU WOMILOJU & ORS. (1993) 5 NWLR (Pt. 295) 623 at 630 E - H per KOLAWOLE, JCA. That when a competent issue for determination is argued together with an incompetent issue for determination, the former will become incompetent as well because the Court cannot choose and pick or differentiate between the competent and incompetent Issues for determination. He relied on the case of AMGBARE V. SILVA (2007) 1 NWLR (PART 1121) 1 at 80 (sic). He urged the Court to strike out Appellantý??s Issue No. 2 and dismiss Appellants appeal.
In their Appellants Reply Brief they maintained the Lower Court sat as Appellate Court on decision of OBISIKE OJI, J. That the cases relied upon by Respondents are not apposite.
Now the 1st, 6th - 9th Respondents had contended that Issue No. 2 distilled from Grounds 4 and 5 of Appellants grounds of appeal is incompetent because one of the grounds namely Grounds of the Appellants appeal is incompetent because it contains and complained of both errors in Law and misdirection on the facts.
There is no doubt that an Issue for determination in an appeal to Appellate Court must be distilled from competent ground or grounds of appeal. Where a ground of appeal is shown to be incompetent, it is moribund and liable to be struck out. Any issue for determination that is tied to such incompetent ground or grounds of appeal will be subsumed with the incompetent grounds or ground of appeal and will be struck out also. See:
(1) SUNKANMI ADEBESIN V. THE STATE (2014) 9 NWLR (PART 1413) 609 at 631 B - E per NGWUTA, JSC who said:
If anything, the situation is more confounded for the reason that a ground of appeal cannot be a ground of law and a ground of fact at the same time. See Nwadike V. Ibekwe (supra).Each of the grounds 1 and 2 in the appellant??s notice of appeal alleges error in law and fact as shown earlier in this judgment. This Court is ill-equipped to split a single ground of appeal complaining of error in law and error in fact to divide what part is founded on law and what part is based on fact. The two grounds are incompetent and are hereby struck out. See Aniekwe V. Okereke (1996) 6 NWLR (Pt. 452) 60 ratio 4; Nwadike V. Ibekwe (supra); Amadi V. Okoli (supra); Boogom V. Awam (1995) 7 NWLR (Pt. 410) 692.The appellant is left with only grounds 3 in his notice of appeal. Learned Counsel for the appellant did not marry either of his Issues 2 and 3 with any ground of appeal as he ought to have done but he did indicate that Issue 1 was framed from ground 3. It is therefore safe to assume, and I do assume, that Issues 2 and 3 were distilled from either grounds 1 and 2 or both. The two issues must share the fate of the incompetent grounds of appeal which gave rise to them. They are hereby struck out.
(2) BARRISTER ORKER JEV & ANOR. V. SEKAN DZUA IYORTYYOM & ORS. (2014) NWLR (PART 1428) 575 at 608 F - H to 609 A per OKORO, JSC who said:
On the other submission which stretched argument in this issue much longer, I wish to say that this Court has, in a plethora of decisions held that though one can validly lump several related grounds of appeal into one issue and argue same together, if any of the grounds so lumped together is found to be incompetent, then it contaminates the whole issue and renders it incompetent as the Court cannot delve into the said issue on behalf of the litigant and excise the argument in respect of the competent grounds from those of the incompetent grounds in the issue. The law is no doubt settled that any issue, or issues formulated for the determination of an appeal must be distilled from, or must arise or flow from a competent ground or grounds of appeal. Again, issues distilled from either incompetent grounds of appeal or a combination of competent and incompetent grounds of appeal are in themselves not competent and are liable to be struck out. An incompetent ground of appeal cannot give birth to a competent issue for determination, See Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421; Amadi v. Orisakwe (1997) 7 NWLR (Pt. 511) 161; Fagunwa & anor. V. Adibi & ors. (2004) 7 SCNJ 322; (2004) 17 NWLR (Pt. 903) 544."
Ground 5, of the Appellants?? Notice and grounds of appeal says:
The Honourable Court erred in law and misdirected itself in exceeding its jurisdiction which occasioned a miscarriage of justice when it held that transferred matters ought to have a breath of fresh air and commence de novo. In that case, any pending applications ought to be determined by the new Judge.
I am of the firm opinion that the ground of appeal just quoted is not an admixture of error in law and misdirection on the facts as erroneously argued by the 1st, 6th - 9th Respondents. The Appellants are not talking of facts but are complaining that the trial Court lacked the jurisdiction to hold as he did that transferred matters ought to have a breath of fresh air and commence de novo. Ground 5 of the said Notice and grounds of Appeal as filed by Appellants is competent and issue formulated from it along with ground 4 is competent.
On the contention of the 1st, 6th - 9th Respondents that ýHearingý and ýHearing De novoý are one and the same thing, I will call in aid the meanings given to them in BLACKýS LAW DICTIONARY, NINTH EDITION on pages 788 and 789 thereof as follows:
Hearing 1. A Judicial Session open to the public, held for the purpose of deciding issues of fact or of Law, sometimes with witnesses testifying the Court held a hearing on the admissibility of DNA evidence in the murder case
2. Administrative Law. Any setting in which an affected person presents arguments to a decision maker.
Hearing de novo -
1. a reviewing Courts decision of a matter a new, giving no difference to a Lower Courts findings.
2. A new hearing of a matter, conducted as if the original hearing had not taken place.
Hearing connotes Audi alteram patem principle encapsulated in Section 36 (1) of the 1999 Constitution which provides:
36 (1) In the determination of this civil rights and