United Bank for Africa Plc V. Alhaji Garba Abdullahi (2002)

LawGlobal-Hub Lead Judgment Report

SALAMI, J.C.A.

This is an interlocutory appeal against the decision of the Kaduna State High Court of Justice, delivered on 19th January, 2000, granting the plaintiff leave to amend his writ of summons as well as the statement of claim, by adding additional seven fresh reliefs. The ruling was consequent upon an application for leave to amend the writ of summons and statement of claim. After the motion had been argued, the learned trial Judge in a reserved ruling, delivered on 11th November, 1999, called on both parties to further address on whether the fresh claims were not statute-barred. Thereafter, counsel caused further affidavits and further counter-affidavits to be deposed to and addressed, the court on the issue, raised in the ruling of 11th November, 1999. The learned trial Judge delivered another reserved ruling in which all the reliefs sought were granted.

The defendant was dissatisfied with the ruling and appealed to this court on 3 grounds of appeal contained in its amended notice of appeal.

Briefs of argument, in accordance with practice and procedure of this court, were settled at amended appellant’s brief and respondent’s brief. In the amended appellant’s brief these issues were framed:

“1. Whether the cause of action in respect of the proposed additional claims of the plaintiff by which he challenged the validity of the deed of legal mortgage, dated 25/5/88 arose on 25/5/88 and are therefore, statute-barred or it arose in 1994, or any time thereafter, and were as a result not statute-barred,

2. Whether the cause of action arose when the plaintiff’s right to challenge the deed of legal mortgage arose on 25/5/88.
3. Whether pursuant to Order 24 rule 6 of Kaduna State High Court (Civil Procedure) Rules, the defendant was precluded from raising objection to the fresh claims and it was premature to raise objection to the addition of the fresh claim on the ground that they were statute-barred, when application was made by the plaintiff to add the fresh claims.”

OR

“Whether it was proper for the appellant to raise objection to the addition of fresh claims, which were alleged to be statute-barred, when application was made by the applicant to add the fresh claim and whether the trial court had power and jurisdiction to consider and determine whether or not the objection was valid at that stage.”

The following issues were identified as calling for determination in the respondent’s brief of argument:-

“1. Whether the provisions of Order 24 rule 6 of the Kaduna State High Court (Civil Procedure) Rules, 1987, make it mandatory for the issue of statute of limitation to be specifically pleaded and particularized for trial and determination in the substantive suit. (Ground 3)

2. Whether in the circumstances of this case, the cause of action arose and thereby time began to run from the date of the execution of the deed of legal mortgage or from the date or dates, when the appellant bank demanded for payment of the loan by the respondent.

OR

3. Whether there was any justifiable dispute or lis inter partes from the very moment of the execution of the deed of the legal mortgage in respect of which any of the parties, especially the respondent, could have invoked the judicial powers or jurisdiction of any court.”

(Grounds 1 and 2)

The appellant, having related its three grounds of appeal respectively to its three issues, proceeded to frame an alternative issue, which it failed to relate to any of the grounds of appeal. The respondent did the same thing in his own brief of argument. The appellant did not finger any of its three grounds of appeal as giving rise to the alternative issue understandably because two issues cannot be frame from one ground. It is settled law that an issue or issues for determination, in an appeal, need to encompass or derive from one or more grounds of appeal, but not a multiplicity of issues arising from the same ground of appeal- Nfor v. Ashaka Cement Co. Ltd. (1994) 1 NWLR (Pt.319) 222, and Agbetoba v. Lagos State Executive Council (1991) 4 NWLR (Pt.88) 664, (1991) 6 SCNJ 1. In the absence of any ground of appeal embracing the alternative issue, I think, it is incompetent and is for that reason struck out.

Appellant’s issue 1 is a variation of its issue 2 and both could be taken together in the manner, learned Counsel for appellant eventually canvassed them in the appellant’s brief of argument. They both cover the same issue as respondent’s issue 2. I think this is the only issue calling for consideration and determination in this appeal.

At the hearing of the appeal, counsel adopted and relied on their respective briefs of argument. The defendant will hereinafter be referred to as the appellant while the plaintiff will be referred to as the respondent.