Abia State Co-operative Federation Ltd. V. Imo State Co-operative Produce Marketing Association Ltd. & Anor. (2006)

LawGlobal-Hub Lead Judgment Report

VICTOR AIMEPOMO OYELEYE OMAGE, J.C.A.

This is appeal from the judgment of Isuama. J. the Abia State High Court delivered on 25/10/96. By its title, the appeal appeared to be in connection with a decision in a dispute between what appear to be two Cooperative Societies of Imo State and Abia State whether it so ended in the court below was the issue before the court below. Here are the facts. The respondents in this appeal and there are two of them: (1) Imo State Cooperative Produce Marketing Association Ltd; and (2) Ibeneme Transport Services Ltd, who was in the court below representative by its Attorney, Chief Innocent Obi against Abia State Cooperative Federation Ltd.

The now respondent took out a writ on 9/6/93 against the defendant now the appellant. In thw writ, the plaintiff in the court below, claimed declaratory relief and injunction and for a certificate of occupancy to the building property known as No.9 Ojike Lane Abia State. On 15/6/93, the now appellant as defendant filed what he called “notice of a counter claim”. The Attorney-General Abia State also took out a writ of summons in a separate action against the respondent. Because the Attorney-General did not proceed with the prosecution of writ, it was struck out. The respondent objected to the counter-claim of the appellant, it was struck out by kalunta. J., who was then trial judge, against whom the now appellant had filed a motion asking for the case to be removed from the court, but the motion was eventually withdraw by the now appellant. After that as the matter continued the notice of counter-claim filed by the appellant was struck out for other reasons by Kalunta J. the trial judge was on 27/10/95 transferred to another judicial area. Another judge, Isuama, J., took over the matter between the parties as the trial court. The appellant filed another application seeking a relisting of his counter-claim struck out Kalunata. J. Isuama. J., considered the application of relist, and the prayer of the defendant for a stay of proceedings and refuge both applications on defendant for a stay of proceedings and refused both application on 31/7/96. The defendant filed a notice of appeal to the Court of Appeal against the rulings. Hearing started in the substantive appeal nearly two months after on 30/9/96 when evidence of PW1 was taken. Hearing continued on 14/10/96 when the appellant asked for an adjournment. The hearing was adjourned to 15/10/96 for cross examination of the plaintiff’s witnesses who had already testified on 14/10/96. At this stage it is pertinent to state that on conclusion of the case, it is said that the case file was missing and the contents of the record made here taken from the file of one of the parties. The date entered therefore does not appear to be correct in some cases. About the time this case was proceeding, Ebonyi State was created and the trial Judge. Isuama, J., was being proposed as the Chief Judge Ebonyi State. The two events had effect on the proceedings in the court below. The application of the defendant for adjournment made on 14/10/96 was refused and the defendant refused to cross-examine the witnesses. Hearing however continued on 15/10/96. PW2, PW3 subsequently testified. The plaintiff now, respondent closed his case. Again the defendant asked for an adjournment to consult his counsel. The court agreed and adjourned the matter to 22nd October 1996 to enable the defendant defend. Meanwhile, the defendant filed an application for a stay of proceedings of the matter pending the determination of the appeal which the appellant had filed in the Court of Appeal on 12/8/96. When the trial court granted an adjournment to the defendant on 15/10/96 it ruled then that the matter would resume for hearing on 22nd, 23rd and 25th October 1996, until conclusion of hearing of the case for the defence. When the court resumed on 22nd October 1996 it was confronted with a motion for a stay of proceedings to enable the defendant/applicant apply to the Court of Appeal in appeal against the ruling of the court which refused the motion for a stay of proceeding just taken and opposed by the plaintiff. The trial court refused, it however adjourned hearing to the next day and to 25/10/96 for defence and for judgment.

On 25/10/96 the trial court proceeded in the absence of the appellant to deliver judgment on the unchallenged evidence of the plaintiff. The defendant was dissatisfied with the judgment of Isuama. J., in the suit. He has filed this appeal on seven grounds. In the appeal, the appellant asked to abandon grounds 2 and 3 earlier filed, and replaced them with four other grounds 4, 5, 6 and 7. The appellant argued grounds four which he formulated and submitted three issues, namely:

“(1) Whether the trial judge was right when he on 25th October 1996 continued with the proceedings after he became aware that an application for a stay of proceedings was pending at the Court of Appeal.

(2) Whether the trial judge was right when he heard and determined the suit without the appellants counter claim.

(3) Whether in all the circumstances of the case the defendant was given a fair hearing in the suit.”

In the respondent’s brief filed on 7/4/2000 he adopted the appellant’s issue 2, and rephrased the issues of the appellant’s briefs of (1) and (3) in this manner:

“(1) Whether there was any basis for the trial Judge to have stayed the delivery of his judgment which was made on 25th October 1996.

(3) Whether the trial Judge was right when he held that the appellant was given ample opportunity to be heard but it refused or neglected to be heard.”

When the appellant received the respondent’s brief with issues as above, the appellant filed a reply brief and submitted thus; “that contrary to the view expressed by the respondent in his brief the issue of the counter-claim is part of the proceedings in the court below, it can therefore be properly argued that it arose in the said proceedings even if the learned trial judge did not refer to the issue of counter-claim in his judgment. Therefore the appellant submitted that his issue was properly before the court and competent. Appellant referred to Section 16 of the court of Appeal Act, which empowers the court to do what the court could not do by rehearing of same. He cited JADESIMI v. OKOTIE EBOH (1989) 1 NWLR (PT.16) page 264 at 274 para. C-D. In reply to the respondents issue one, it is the appellant’s submission that an application for a stay of proceeding when properly made can stay delivery of a judgment of the court. He urged the court to allow the appeal.

In further reply in issue 3 in the appellants reply brief, the appellant submits that he was not given ample opportunities to conclude his case.”

In this appeal, there is little difference in the three issues formulated by the appellant, and his reply and issues raised in the respondents brief. It is possible to see in issues one and three of the respondent; words which make them different from the appellant’s issues for determination of the appeal and may question the status of the respondent to raise what appear to be different issue when the respondent has not filed any cross appeal. A proper consideration of the said issue one and three will show that the words only amount to alternative view formulated on the grounds of appeal of the appellant, not a different issue and the issue properly derive as in the appellants brief from the ground of appeal filed by the appellant. I will therefore treat each issue of the appellant and of respondent together in one write up. I start with issue 2 of the appellant: “Whether the trial judge was right when he heard and determined the suit without the appellant’s counter-claim.” The respondent has submitted and asked whether the counter-claims as struck out on 27/1/95 by Kalunta, J., in the first instance and secondly by Isuama, J., formed part of judgment of the court below of 25/12/96. Did the counter-claim in substance form part of the proceeding in the court below before the judgment of 25/10/96? The respondent has submitted that the counter-claim does not form part of the judgment of the court below which was delivered on 25/10/96. Except to the extent that the application to relist the counter claim was refused and dismissed by Isuama, J., in his ruling on 31/7/96 and the appellant had previously appealed the interlocutory ruling to the court of appeal. The issue of the counter claim does not from part of the judgment of the court below delivered on 25/10/96. The issue of counter claim did not feature in the judgment of the court. It is not determined in the judgment of 25/10/96, and it is not a Subject of appeal in that ruling of the court.

It is trite law that grounds of appeal must derive from the matters contested on which the trial court has made decision in the judgment appealed against. Parties will not be allowed to argue any issue not covered in the judgment. See MOMODU v. MOMODU (1991) 1 NWLR (Pt.169) 608. The court of Appeal can entertain only issues arising from the ground of appeal if the ground of appeal can be traced to the pleadings. The Court of Appeal can entertain only issues arising from the ground of appeal if the ground of appeal can be traced to the pleadings of the parties in the court below and the issues on which the parties have joined issues on which the court below has ruled in the judgment appealed against. See CHIEF BALOGUN v. MOSES ADEJOBI & ORS (1995) 2 NWLR (Pt.376) p.131.