Shemar Nig. Ltd V. Mokt Industries Ltd. (2009)

LawGlobal-Hub Lead Judgment Report

AMINA ADAMU AUGIE, J.C.A.

The Appellant contracted the Respondent to supply it with certain equipments worth 1.1 Million Naira. Upon the failure of the Appellant to pay up a balance of N200,000.00, the Respondent sought leave of the Kaduna State High Court, which was granted, to file an action against the Appellant under the undefended list.

The Appellant, however, filed a Notice of Intention to Defend, wherein it averred as follows in paragraphs 2 (b)-(g) of its Affidavit-

(b) That the Plaintiff was given 6 units of safety wears (shoes) which were manufacturers sample to show interested persons and companies.

(c) That the Plaintiff sold those samples with the mechanical drawings and converted the money to its own use.

(d) That the Plaintiff’s Managing Director has made several promise to pay back the money, a total sum of N6 Million Naira only which up till date the Plaintiff refused to pay.

(e) That when the transaction in issue came up, the Plaintiff through its managing Director promised he will pay part of the sum in issue, but pleaded with the M.D of the Defendant to exercise patience or he will return part of the safety wears.

(f) That the Defendant issued a postdated cheque Exhibit 3 on the understanding that the Plaintiff will bring back part of the safety wears (shoe) before the maturity date in the cheque which it refused and the Defendant instructed the Bank not to pay the Plaintiff.

(g) The Defendant shall counter-claim for the price of the safety wears (shoes) in the sum of N6, 000, 000 (six Million Naira) only and shall ask the Court to deduct the sum of N200,000.00 only from the amount counter-claimed.

In his Ruling delivered on the 12th of July 2005, the learned trial Judge, T. Zailani, J., held that the Appellant had admitted the debt of N200,000, and that it would not be in the interest of justice to deny the Respondent Judgment on the sole basis that the Appellant has a counter-claim against the Respondent. Thus, he entered Judgment for the Respondent against the Appellant.

Dissatisfied, the Appellant appealed to this Court with a notice of Appeal containing two Grounds of Appeal, which complain that –

1. The learned trial Judge erred in law when he held that the Defendant has not put a defence to the Plaintiff’s case.
2. The learned trial Judge erred in law when he held that the issue of counter-claim is not before him and there was no assurance that the Defendant would prosecute same.

In its brief of argument prepared by S. A. Akanni, Esq., the Appellant formulated only one Issue for Determination, as follows-

“Whether the learned trial Judge was right in granting the relief of the Respondent?”

The Respondent submitted in its brief settled by G. O. Akpovwa, Esq., that although it is appropriate practice to formulate an issue from one or more Grounds of Appeal, such an issue must relate or encompass or be derived from the Grounds of Appeal, citing Magit v. University of Agriculture, Makurdi (2006) ALL FWLR (Pt. 298) 1313 @1329, that the Issue formulated by the Appellant does not address or encompass the complaint of the counter claim not being before the lower Court or the assurance of its prosecution as raised therein; and that where no Issue is formulated on a Ground of Appeal, such ground of appeal is deemed abandoned and is to be struck out, citing Emespo J. Continental Ltd. v. Gorona (2006) 5 SCNJ 17. It further submitted that the Issue for determination is –