Abunuhu Nigeria Ltd & Anor. V. Fareast Mercantile Co. Ltd (2009)

LawGlobal-Hub Lead Judgment Report

JOHN INYANG OKORO, J.C.A.

This is an appeal against the judgment of the Kano State High Court in suit No K/537/98 delivered by Hon. Justice B.S. Adamu on the 2nd day of June 1999 in favour of the Respondent on a matter which was filed on the undefended list pursuant to Order 23 of the Kano State High Court (Civil Procedure) Rules, 1988. On receipt of the said suit, the Appellants who were defendants at the Court below, filed notice of intention to defend the suit and an affidavit in support of the said Notice. After being served with the Appellant’s notice of intention to defend, the Respondent through its Area Manager, Mr. S.M. Kumer filed a further and Better Affidavit in support of the suit with some exhibits attached. There after, there were more affidavits from both sides each trying to undo the other on the facts leading to the suit. At the end of reading these affidavits, the learned trial judge entered judgment for the plaintiff/Respondent. Dissatisfied with the stance of the Court below, the Appellants filed notice of appeal containing four grounds on the 3rd day of June, 1999 challenging the said decision.

When this appeal came up for hearing on the 20th day of April, 2009, only Counsel for the Respondent C.A. Adolor Esq. was present to adopt his brief. Learned Counsel for the Appellants was absent. However, since all briefs were filed and exchanged and in keeping with Order 17, Rule 9(4) of the Court of Appeal Rules 2007, this appeal was deemed as duly argued.

In the brief prepared and filed by Abdullahi Ali Ozegya Esq. on behalf of the Appellants, two issues are formulated for the consideration of this appeal. The issues are:-

(1) Whether the Appellants have disclosed any defence and/or triable issues on the merit to warrant the suit being transferred from the undefended cause list to the General and/or ordinary cause list.

(2) Whether or not the Respondent can sue and/or maintain an action against the second appellant on a contract and/or transaction entered wholly by the First Appellant with the Respondent.

Two issues are also decoded by the learned counsel for the Respondent for the determination of this appeal. These are:-

(1) Whether or not the Defendants/Appellants gave or furnished particulars of fraud or proved the allegation of fraud as required by law. This issue is formulated from grounds b and c of the Appellant’s notice of appeal.

(2) Whether or not the Respondent can maintain an action against the 2nd Appellant or sue both 1st and 2nd Appellants jointly. This issue relates to ground d of the Appellant’s notice of appeal.

Before I venture to consider the issues submitted for the determination of this appeal, it is my observation while reading through the brief filed by the Respondent that he has given Notice of preliminary objection on page 4 of the brief and has gone ahead to argue same on pages 5 – 8 of the said brief. But as Counsel did not draw the attention of the court to it, it seems he has abandoned the said notice of preliminary objection. This is so because it was not moved by counsel. There is need to remind parties filing processes in court that the act of filing a process is different from arguing it in court. Where notice of preliminary objection is filed, counsel has a bounded duty to move it to enable the court rule on it one way or the other. Where notice of preliminary objection is filed but not moved in court, it is as good as not having been filed. In Nsirim Vs. Nsirim (1990) 3 N.W.L.R. (Pt. 138) 285 at 296 – 297, the Apex court, per Obaseki, JSC, stated the position as follows:-

“The respondent in the instant appeal has contended that although the objection was stated in the brief, the court was not moved at the oral hearing of the appeal to strike out the grounds for failure of particulars of errors. He therefore submitted that the appellant herein should be taken to have abandoned the objection. Moreso as it was not an issue for determination in the appeal before the court of Appeal.

In my opinion, there is substantial merit in the contention of the respondent. Being a preliminary objection, the objection should have been by motion or notice before the hearing of the appeal so that argument on it can be heard by the court. While notice of objection may be given in the brief, it does not dispense with the need for the respondent to move the court at the oral hearing for the relief prayed for.

This preliminary objection not having been raised and argued at the oral hearing, the Court of Appeal cannot be condemned as having erred in allowing the then appellant (now respondent) to argue his appeals.”

I will now refer to the oral hearing of this appeal and its proceedings which took place on the 20th day of April, 2009. The entire proceedings are as follows:-