Hycin Sun Hydraulic Machinery (Nig.) Ltd. V. Ringim Galadanci (Nig.) Ltd. (2001)

LawGlobal-Hub Lead Judgment Report

VICTOR AIMEPOMO OYELEYE OMAGE J.C.A.

The issues formulated for determination in this appeal are averred by the appellant to have been made from eight original grounds of appeal contained in the notice of appeal filed on 17th day November, 1998, and the four additional grounds of appeal, which with the leave of court the appellant filed on 26/7/99.

The issues are as follows:

(1) Whether the learned trial judge did raise and determine crucial issues not borne out by the evidence on which the parties did not raise or have opportunity to address him on.

(2) Whether the affidavit in support of the appellants notice of intention to defend did not raise a good defence or triable issues.

(3) Whether the trial court had jurisdiction to hear the case on the undefended list.

The three issues are formulated from the thirteen grounds of appeal filed by the appellant against the ground of appeal filed. The respondent filed a notice of preliminary objection and proceeded to argue the grounds in his respondents brief of argument. Notice of the preliminary objection was filed under order 3, rule 15 of the court of appeal rules. In the respondents brief filed by leave of court, and deemed filed on 5th October, 2000, the respondent took objection to ground 13 of the additional ground of appeal, and submitted that the said ground which raised the issue of jurisdiction of the court below on the subject matter was not canvassed by the parties at the lower court.

He said the issue was not determined at the lower court, therefore the court of appeal cannot determine the issue because it does not flow from the decision of the lower court. Respondent submitted that any complaint raised in the ground of appeal which does not derive from the issues canvassed by the parties and the same pronounced upon, by the lower court amounts to raising a fresh point on appeal without the leave of court. Ground 13 of the appeal. Respondent submitted. should be discountenanced and struck out. Secondly the Respondent submitted that the said appellants ground 13, is incompetent as it is in breach of order 3 rule 2 of the court of appeals rules, in that the allegation contained therein is vague and general in terms. He urged the court to strike it out.

On the third objection, the Respondent submitted that grounds 2-12 of the grounds of appeal are incompetent as they offend the provisions of order 3, rule 2 (2) of the Court of Appeal rules. Respondent submitted that the allegations of error in each of the grounds 2-12, do not show a quotation of the record where the alleged error is contained. Respondent referred to AMOJAINI VS. EGUEGU (1996) NWLR pt.242. and urged the court to strike out grounds 2-12 of the grounds of appeal.

On the 4th ground of objection the respondent observed that the questions were not formulated by the appellant to cover grounds 1, 2, 5, 6, 7, 8, 9, 10, 11 and 12.

In particular the Respondent submitted that the issues were not formulated on ground 11 and 12, and where these occur the grounds are deemed to be abandoned. Respondent urged the court to hold those grounds abandoned and strike out same.

It is therefore the submission of the Respondent that the appellant has abandoned grounds 1, 2, 5, 6, 7, 8, 9, 10, 11 and 12 of the grounds of appeal consequently respondent declared that he cannot formulate any issue on the abandoned ground of appeal. The respondent formulated issues on grounds 3 and 4 only of the grounds of appeal, which combined Respondent recorded as follows:-

“Whether having regard to the entire circumstances of the affidavit evidence and numerous documents annexed thereto as exhibits, the learned trial judge was justified to have entered judgment in favour of the Respondent.”

In the appellant reply brief, the appellant submitted that ground 13, in the notice of appeal raised an issue of jurisdiction, and it was filed without a previous leave of the court because the ground of jurisdiction may be raised at any stage of the proceedings even on appeal.