Brifina Limited V. Intercontinental Bank Limited (2002)

LawGlobal-Hub Lead Judgment Report

OLAGUNJU, J.C.A

The appeal is from the decision of Obidigwe, J., of the Onitsha Judicial Division of the Anambra State High Court in which judgment was entered in favour of the respondent as the plaintiff for the sum of N168,077,485.40 with (a) 28% interest per annum on that amount from 6/5/2000 to 22/11/2000 and (b) thereafter 5% interest per annum on the judgment debt ‘until the total sum is liquidated’. In addition, the sum of N3,500,000.00 was also awarded to the respondent for the head of claim ‘comprising professional fees for hiring a solicitor and also for legal expenses for prosecuting this matter’.

The decision was the conclusion of the action filed on 22/5/2000 by the respondent under the undefended list procedure as provided by a combination of rules 13(3), 14 & 15 of Order 5 and rule 9 of Order 24 of Anambra State High Court Rules, 1988, which in succeeding references will be contracted to ‘the rules of the trial court. As prescribed by rule 14 of Order 5 the respondent filed an application in which she itemised her claims against the appellant in the verifying affidavit and this was followed by the writ of summons issued on 22/5/2000 by the Registrar of the court in conformity with rules 13(3) and 15 of Order 5 in which the case was set down for hearing on 26/6/2000. The writ of summons together with the respondent’s verifying affidavit was served on the appellant on behalf of whom a Memorandum of conditional appearance was filed on 31/5/2000 intimating that the appellant was ‘under receivership’ as per copy of the Deed which is said to be annexed to the Memorandum.

The case was not heard on 26/6/2000 as indicated on the writ of summons and another hearing notice was issued on 6/10/2000 setting the case down for hearing on 16/10/2000 on which date the case was also not heard. In the meantime, on 5/10/2000 the respondent by her counsel filed a further affidavit in support of the respondent’s claims and on 22/11/2000 the case was heard when only learned Senior Advocate for the respondent was in court (see page 29 of the record). Following a brief submission by the learned Senior Advocate judgment was entered for the respondent on the terms summarised at the opening paragraph of this judgment and on the ground that the appellant did not file any notice of intention to defend the action as stipulated by sub-rules 9(2) and (3) of Order 24 of the rules of the trial court to which the Memorandum of Conditional Appearance filed by the appellant cannot be equated Dissatisfied with the decision the defendant/appellant filed with her notice of appeal two grounds of appeal from which she formulated for determination of the following two issues:

“1. Was it right for the learned trial Judge to enter Judgment in the undefended list without placing the matter in the general cause list in view of the fact that though it was a Memorandum of Appearance which was filed but it proffered a defence that the defendant/appellant company was under receivership?

2. Is the judgment with respect to a liquidated sum, as applicable to undefended list matters?

The respondent also formulated 2 issues but raised a preliminary objection to the 2nd ground of appeal contending that the point taken in that ground is a fresh issue that was not canvassed at the trial court and that as no leave of this court was obtained before raising it as a complaint the ground of appeal and the issues formulated from it are incompetent. He relied on the decision of this court in Ibrahim v. Balogun (1999) 7 NWLR (Pt. 610) 254,274-275, and urged this court to strike out both the 2nd ground of appeal and issue two distilled from the defective ground.

Learned Senior Advocate for the appellant did not file a Reply Brief as provided rule 5 of Order 6 of the Rules of this court which is the medium for dealing ‘with all new points arising from the respondent’s brief’. Rather, he filed a motion on 27/9/2001 praying this court for leave to argue ground of appeal 2 and to deem the arguments on issue 2 in her brief of argument distilled from that ground as duly argued. In other words, the learned Senior Advocate prayed the court to give a retrospective approval for argument of the defective ground of appeal in a subtle manoeuvre to render nugatory the preliminary objection by the respondent in her brief of argument. In its unanimous ruling on 23/11/2001 this court refused the application as subtle stratagem to overreach the respondent.

The position is that failure of the appellant to file a reply brief to explain the point argued in the respondent’s brief of argument as a preliminary objection means that the point is unanswerable. Therefore, the objection by learned counsel for the respondent that the 2nd ground of appeal and the issue formulated from that ground are incompetent is deemed to have been conceded by the appellant. See Okoye v. Nigerian Construction and Furniture Co. Ltd. (1991) 6NWLR (Pt. 199) 501,534; and Popoola v. Adeyemo (1992) 8 NWLR (Pt. 257) 1,32.

That being the case, ground of appeal 2 being a complaint about a matter that was not canvassed at the court below is a fresh issue that can be raised on appeal only with leave of this court. It follows that the appellant having failed to obtain the necessary leave before filing ground of appeal 2 the ground is incompetent and the issue formulated from the incompetent ground is, eo ipso, incompetent. See Idika v. Erisi (1988) 2 NWLR (Pt. 78) 563,580; A.-G., Oyo State v. Fairlakes Hotels Ltd.(1988) 5 NWLR (Pt. 92) 1,29; Honika Sawmill v. Hoff (1994) 2 NWLR (Pt. 326) 252 or (1994) 2 SCNJ 86,93; and Atoyebi v. Governor of Oyo State (1994) 5 NWLR (Pt. 344) 290 or (1994) 5 SCNJ. 62,78-79. Accordingly, objection by learned counsel for the respondent is well taken and I strike out ground of appeal 2 and Issue Two in the appellant’s Brief of argument formulated from the defective ground of appeal.

The result is that by the success of the preliminary objection the respondent would appear to have cut her nose to spite her face as one of the two issues she formulated would have to give way on the general principle that a party cannot formulate more issue than one from a ground of appeal and the correlative principle that a respondent who does not cross-appeal or file a respondent’s notice cannot frame issues outside the ground of appeal filed by the appellant: See Eze v. Federal Republic of Nigeria (1987) 1 NWLR (Pt. 51) 506, 521 & 522; Atanda v. Ajani (1989) 3 NWLR (Pt. 111) 511, 543-544; and Idika v. Erisi (supra) at page 579. Therefore, I will discountenance the 2nd Issue formulated by the respondent in her brief of argument and consider along with the lone surviving issue formulated by the appellant the only viable issue in the respondent’s brief of argument which reads:

“Did the defendant/appellant disclose ground(s) of defence in the document filed by him?”

Arguing the lone issue, learned Senior Advocate for the appellant conceded that the learned counsel who represented the appellant at the trial court did not file the notice of intention to defend the action as enjoined by sub-rule 9(2) of Order 24 of the rules of the trial court. He, nonetheless, argued that by filing a Memorandum of Conditional Appearance intimating the court below that the appellant as the defendant at the trial is under receivership he did raise a triable issue within the con of sub-rule 9(2) of Order 24 justifying the case being transferred to the general cause list to be heard on the merits. The caveat, he submitted, amounts to putting the respondent and the court below on notice that the proper defendant was not before the court. He argue further that failure to join the receiver who thus became unaware of the proceeding renders any decision by the trial court to be null and void as one done without jurisdiction.

To buttress this point, the learned Senior Advocate referred to sections 393 and 394 of the Companies and Allied Matters Act, Cap. 59 of the Laws of Federation of Nigeria, 1990, on the powers of a receiver, in particular to sub-section 393(4) thereof which provides that upon the appointment of a receiver his powers over the property or undertaking of the company supersedes the powers of the directors or liquidators of the company contending that inasmuch as the company had been divested of any power over its affairs at the time the Writ was issued the Memorandum of Conditional Appearance is a defence to the respondent’s action. He submitted that on the test posited in Jipreze v. Okonkwo (1987) 3 NWLR (Pt. 62) 737,744, the defence that the appellant was under receivership is not a fanciful one; it discloses a triable issue, he agitated. He commended to this court the analogy of the pragmatic approach by the Supreme Court in U.T.C (Nigeria) Ltd. v. Pamotei (1989) 2 NWLR (Pt. 103) 244, where on a summary trial, as in the case in hand, the court did not support the rejection by the trial court of the defendant filing a statement of defence instead of an affidavit stipulated for raising a defence to the action. What is important, he contended, is whether the facts about receivership mentioned in Memorandum of Conditional Appearance disclosed a defence justifying the case being heard on the merits.

The learned Senior Advocate emphasised the fact that filing the memorandum of Conditional Appearance, instead of notice of intention to defend is a mistake of the counsel for which he urged this court not to penalise the appellant on the principle of law that the sin of a counsel should not be visited on his client in support of which he cited Doherty v. Doherty (1964) NMLR 144 (1964) 1 All NLR 299; Akinyede v. The Appraiser (1971) 1 All NLR 162, 165; Ahmadu v. Salawu (1974) 1 All NLR (Pt. 11) 318,324; Anisiubu v. Emodi (1975) UILR 252; and Bowaje v. Adediwura (1976) 6 SC 143,147.