Abdullahi Pate & Anor. V. Mohammed Gali (2001)

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VICTOR AIMEPOMO OYELEYE OMAGE J.C.A,

The respondent in this appeal commenced proceedings in the Upper Area Court Zaria against the appellant for the recovery from the appellant, the sum of N48,000. The said sum, the Respondent as plaintiff alleged is for payment for 120 tonnes of fertilizer, which he sold to the Appellant as defendant sometime, at a time not stated. The Upper Area Court took evidence in the suit and struck out same, saying it had no jurisdiction. The plaintiff/appellant was not satisfied with the observation made by the court in the Upper Area Court, and he appealed to the High Court Kaduna State which court takes appeal from the Upper Area Court. In the High Court, the appellate court granted leave to the appellant to file and argue additional grounds of appeal. In the appellate court Coram Mukaddas and A.D. Yahaya J.J. The grounds of appeal filed were considered after the addresses of both counsel.

This is how the court ruled:

“We agree with Mr. A.Z. Yusuf that this appeal has merit and should succeed. The plaintiff in his statement of claim to the trial court had claimed for 120 tons of fertilizer supplied to the defendant at the cost of N48.000.00. He therefore prayed for the sum of N48.000.00 to be paid to him. The defendant in his statement of defence at the trial court did not deny that he received fertilizer worth N48.000.00. He talked about two lorry loads, but there is no evidence of how many times 2 lorry loads would carry. Since the defendant did not deny in law he is deemed to have accepted the claim of N48.000.00 by the plaintiff. etc, etc. We therefore hold that all the grounds of appeal have merit and they succeed the appeal is allowed. We think this ls not a proper case for retrial. etc. etc. There is also failure to discharge the burden of payment of the admitted sum etc. etc. In place of the decision of the Upper Area Court, since there is preponderance of evidence and admission, the plaintiff has proved his case and we hereby order the respondent to pay the admitted sum of N48,000.00 cost of the fertilizer he received to the plaintiff/appellant.”

The Defendant/Respondent in the Appellate High Court was dissatisfied with the judgment of the High Court, he filed in the court below four grounds of appeal, and formulated for determination in this court four issues they are:

(1) “Whether the learned Justices were right in holding that the appellant had admitted the Respondents claim, formulated from ground 2 of the appeal.

(2) “Were the learned Justices right in ordering the payment of N48,000.00 to the Respondent where there is no evidence on the record showing that 120 tonnes of fertilizer or 2 lorry loads of fertilizer worth N48.000.00 ground 3.

(3) “Was the transaction between the appellant and the Respondent not tainted with illegality and therefore unenforceable in law.

(4) “Whether the judgment of the learned Justices was not against the weight of evidence ground 1.”

The respondent formulated three issues namely:

(a) “Can a party who voluntarily submit to judgment argue an appeal against his own interest in favour and support of opponents appeal, clearly, implicitly and unequivocally concedes an appeal to his opponent (whether tactically or otherwise) appeal against any judgment given upon the grounds conceded submitted to or argued by him? Put in another way, can a party duly represented by a counsel be allowed to approbate and reprobate on an appeal conceded by him?

(b) Whether or not the transaction between the parties was tainted by illegality”

(c) Whether or not the respondent was entitled to judgment having regard to the claim by the plaintiff, evidence before the trial court, as well as the admission by the appellant. Alternatively was the High Court right to enter judgment in favour of the respondent having regards to the weight of evidence”?

I wish in this appeal to start with a consideration of issue (a) in the respondents issue for determination. The respondent has submitted that the issue is against the entire appeal and urged the court to dismiss the entire appeal for incompetence. The issue so formulated by the respondent was the reason why the Appellant filed a reply brief. The said reply brief was deemed filed on 12/12/00, and it is part of the courts proceedings. In the reply brief, the Appellant submitted that issue (a) of the Respondent was in fact and substantially a preliminary objection to the entire appeal of the appellant but that preliminary objection failed to comply with the rules of the court of appeal. For instance the Respondent/appellant submitted, did not file a notice of preliminary objection under order 3, rule 15. The appellant submits further that the said issue (a) of the Respondent does not derive from the grounds of appeal filed by the appellant. He cited OSHOBA VS. AMUDA (1992) 6 NWLR Pt.250 at 690. Appellant urged the court to strike out the issue.