Tractor & Equipment (Nig.) Ltd. & Ors. V. Integrity Concepts Ltd. & Anor (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PAUL ADAMU GALINJE, J.C.A. (Delivering the Leading Judgment)

The appeal herein is against the ruling of the High Court of the Federal Capital Territory Abuja, delivered on the 19th May, 2006 by Bage J. (as he then was). The 1st and 2nd Respondents in the instant appeal, who were the applicants at the lower court, by a motion on notice brought pursuant to the leave granted to them on the 21st of November, 2005 sought for the following orders:-

1. An order of certiorari to remove and bring before this Court the proceedings and decision and order of Hon. M.A, Yusuf presiding Judge, Upper Area Court Wuse, Abuja, Holden at Gudu District delivered on 20/10/2005 in case No.CV/74/2005 between Integrity Concepts Ltd & Anor Vs Tractor Equipment & Nigeria Ltd & 2 ors for the purpose of its being quashed.
2. An order of prohibition against the Respondents prohibiting them from proceeding or continuing with the proceedings in case NO.CV/74/2005 between Integrity Concepts Ltd & Anor Vs Tractor Equipment & Nigeria Ltd & 2 ors now pending before the Upper Area Court Wuse, Abuja, Holden at Gudu.
3. A declaration that the proceedings and decision and order of Hon. M.A. Yusuf presiding Judge, Upper Area Court Wuse, Abuja, Holden at Gudu District delivered on 20th October, 2005 in case NO.CV/74/2005 between Integrity Concepts Ltd & Anor Vs Tractor Equipment & Nigeria Ltd & 2 ors was in gross violation of the applicant’s constitutional right of fair hearing and therefore illegal invalid, null and void.
4. A declaration that the purported delivery to a purported buyer by the 3rd, 4th and 5th Respondents of the 1st Applicant’s property i.e. the Caterpillar D & R Bulldozer with serial No. 9EMO 2352 valued as at January 2005 N93,576,520.00 (Ninety Three Million, Five Hundred and Seventy Six Thousand, Five Hundred and Twenty Naira) pending the determination of the substantive suit is unlawful, illegal null and void.
5. An order of mandamus to the 3rd, 4th and 5th Respondents to deliver to the premises of this Court or to any other place whatsoever in Abuja within the jurisdiction of this Court, the 1st Applicant’s property i.e. the Caterpillar D & R Bulldozer with serial No. 9EMO 2952 valued as at January 2005 N93,576,520.00 (Ninety Three Million, Five Hundred and Seventy Six Thousand, Five Hundred and Twenty Naira) pending the determination of the substantive suit.
6. An order that parties to case NO-CV/74/2005 between Integrity Concepts Ltd & Anor Vs Tractor Equipment & Nigeria Ltd & 2 ors be returned to status quo ante as at 7th October, 2005 before the Hon. M. A. Yusuf presiding Judge, Upper Area Court Wuse, Abuja, Holden at Gudu District made the orders dated 20th October, 2005.
7. An order that case NO.CV/74/2005 between Integrity Concepts Ltd & Anor Vs Tractor Equipment & Nigeria Ltd & 2 ors transferred from Upper Area Court Wuse, Abuja, Holden at Gudu District, to a Court of competent jurisdiction
8. The sum of N20 Million damages against the Respondents in favour of the Applicants for loss of profit and goodwill.

This application was heard on the 20th of March, 2006. In a reserved and considered ruling, the learned trial judge granted prayers 1 to 7 and reserved the award of damages pending the determination of the pending application in the Upper Area Court. Being dissatisfied with the decision of the lower court, the Appellants who were 3rd, 4th and 5th Respondents at the lower court brought this appeal. Their notice of appeal dated 30th day of May, 2006 and filed on the 17/07/06 contains three grounds of appeal which I reproduce hereunder without their particulars as follows:-

I. The learned judge of the lower court erred in law when he held that the delivery of the Caterpillar D & R Bulldozer with serial No- 9EMO 2352 belonging to the 1st and 2nd Respondents and valued as at January, 2005, at N193,576,520.00, by the Appellants to a third party, is unlawful, illegal, null and void.

II.. The learned judge of the lower court misdirected himself when he held that the Appellants should deliver to the premises of the Honourable Court the property in question, pending the determination of the substantive suit.

III. The learned judge of the lower court erred in law in holding that the proceedings and decisions made by Honourable M. A. Yusuf presiding Judge, Upper Area Court, delivered on 20th October, 2005, was in gross violation of the Respondents constitutional right to fair hearing.

The Appellants’ brief of argument in this appeal is dated 1st of November, 2006 and filed on the 17/11/06, but deemed filed on the 12/6/07. The Respondent did not file any brief of argument. At page 6 paragraph 3.01 (i) and (ii), two issues have been formulated for determination of this appeal. These issues read as follows:-

i. Whether in the circumstances of the case, the Honourable Judge of the High Court was right in holding that the delivery to a third Party by the Appellants of the Caterpillar D & R Bulldozer with serial No. 9EMO 2352 belonging to the Respondents is unlawful, illegal, null and void. (Grounds I and II)

ii. Whether given the circumstances of this case, the Honourable Judge of the High Court was right in holding that the proceedings and decisions made by the Honourable M.A. Yusuf Presiding Judge, Upper Area Court, delivered on 26th October, 2005 was in gross violation of the Respondents constitutional right of fair hearing’ (Ground III)

The import of the Respondents’ failure to file a brief of argument in response to the Appellants’ brief of argument is that they are deemed to have conceded to the issues raised and argued in the Appellants’ brief of argument. In ECHERE VS. EZIRIKE (2006) ALL FWLR (Pt.323) 1597 AT 1608 paragraph A-B, the Supreme Court, per Onnoghen JSC said:-

“It must be pointed out that the appeal is not contested particularly as the 7th set of Respondents who are the real opponents of the Appellants in the controversy regarding ownership of the land in dispute and who obtained judgment in their favour in the Court of Appeal, failed and or neglected to file any Respondents brief in this appeal, while the 2nd set of Respondents in their brief of argument file on 30/9/03 totally support the case of the Appellants as they have done all through the journey of the case from the trial court. In law therefore, the 7th set of Respondents are deemed not to contest the appeal of the Appellants and have therefore conceded the issues raised and argued in the Appellants brief of argument filed on 10/6/02.”

In the same case at page 1610 paragraph G-H, His Lordship, Ogbuagu JSC said:-

“It is no surprise to me that the 1st set of Defendants/Respondents, did not file any Respondents’ brief in opposition to this appeal, notwithstanding that they were only served with the relevant processes in this appeal including the Appellants’ brief. It is to be borne in mind and this also settled that, failure of a Respondent to file a Respondent’s brief is immaterial and of no moment. This is because, an Appellant, must succeed or fail in his own brief. In other words, that an Appellant, succeeds on the strength of his own case. It is not automatic that when once a Respondent fails to file his brief, that is it, the Appellant automatically, must win or succeed in the appeal. No.”

See JOHNHOLT VENTURES VS OPUTA (1996) 9 NWLR (PT.470) 10.