Alhaji Abubakar Suleiman V. Uac of Nigeria Plc (2002)

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ISA AYO SALAMI, J.C.A.

This is an appeal against the decision of Aboki, J., delivered on 30th October, 2000 wherein judgment was given against the defendant for the sum of N2, 262,430.14, an amount far less than the plaintiff’s claim of N2, 786,840, endorsed on the writ of summons taken out on 30th March, 1999. The suit was brought under the provisions of Order 23, of the Kano State High Court (Civil Procedure) Rules 1987. The writ of summons marked undefended list was supported by affidavit. Upon service of the writ of summons on the defendant a conditional appearance was entered. A notice of intention to rely on a preliminary objection was given in addition to filing notice of his intention to defend the action on the merit. The preliminary objection was considered and refused the relevant ruling rejecting the preliminary objection was delivered on 7th June, 2000.

Upon service of the notice of intention to defend, the plaintiff deposed to a further and better affidavit in which he proffered explanations for some of the averments contained in the affidavit in support of notice of intention to defend.

The learned trial judge in his reserved and considered judgment entered judgment in favour of the plaintiff in a sum other than the sum claimed in the writ of summons. The defendant was not happy with the decision of the trial court and being aggrieved appealed to this court on 9 grounds of appeal. The notice of appeal contained in the record does, however, not bear evidence of filing not to talk of its being filed within time prescribed.

In accordance with practice and procedure of this court, briefs of argument were filed and exchanged at appellant’s and respondent’s briefs. In the Appellant’s brief filed on behalf of the defendant (herein after referred to as the appellant) the following four issues were framed:-

“1. Whether the Respondent/Plaintiffs claim is sufficiently proved and the averment contained in the various affidavit filed on behalf of the plaintiff are unchallenged.

2. Whether the affidavit in support of the notice of intention to defend did not disclose any defence on the merits to entitle the suit to be transferred to the general cause list or trial.
3. Whether the suit was properly placed on the undefended list.
4. Whether failure to consider the various issues including jurisdictional issue raised in the affidavit in support of the notice of intention to defend is not a breach of fair hearing.”

On behalf of the Plaintiff (hereinafter referred to as the respondent) these two issues were identified as calling for determination:-

“(1) Whether or not the issue of alleged infringement of Order 23 rules 1 – 4 of the Kano State High Court (Civil Procedure) Rules being raised by the Appellant is competent and bonafide in this appeal and whether appellant was denied a fair hearing by the lower court on same.

(2) Whether or not in the circumstances of this case the lower court was in error in resolving against the Appellant the issues canvassed by him and as reflected in the record as constituting a defence on the merits to the plaintiff’s claim and is entering judgment against the appellant.”

At the hearing of appeal briefs of argument were adopted and relied upon. Learned counsel for appellant elaborated upon his own brief of argument.

Before returning to make a few observations on the appellant’s formulations, it is respectfully observed that issue 1 in the respondent’s identification of issues is not open to it. It is not open to the respondent because examination of the appellant’s grounds of appeal does not disclose a ground capable of giving rise to that issue. It is settled law which does not require citing of authority that it is not permissible to canvass and tender argument on an issue having no bearing with any of the grounds of appeal; but if one is required see African Petroleum Limited v. Owodunni (1991) 8 NWLR (Pt.210) 391, 423. There is no evidence on the record that the respondent cross-appealed in the result respondent’s issue 1 be and is hereby struck out by me.

Appellant’s issue 2 is substantially a variant of his issue 1. I am strengthened in this view by the learned counsel for appellant, at the hearing of the appeal, elucidating on both issues together. The two issues to avoid duplicity could conveniently, and without prejudice to either party, be taken together under appellants issue 1. Furthermore issue 1 is related to grounds (i), (ii) and (ix) of the grounds of appeal while issue 2 is alleged to be framed from grounds (iii), (iv), (viii) and (ix) of the grounds of appeal. It follows that if the two issues are canvassed and argument tendered in support thereof separately appellant would be unduly privileged by canvassing and arguing grounds (ix) of the grounds of appeal twice which ground might have failed and dismissed or succeeded and allowed under issue 1. Respectfully the appellant has no right, constitutional or otherwise, to canvass and tender argument in respect of the same ground of appeal twice.

Ground (v) of the grounds of appeal is not related to any of the issues canvassed in the appellant’s brief and is deemed abandoned: Odiase & Another v. Agho & others (1973) 11 SC 71, 76. It cannot be returned to. It is for that reason struck out.

Grounds (vi) and (vii) which are respectively related to issues 3 and 4 are respectfully incompetent. The appellant as observed earlier gave a notice of his intention to rely on preliminary objection at the trial court contending that there was no application filed nor an order of court made entering the suit for hearing under the undefended list, that it was a registrar and not a judge that marked the writ and that the appellant had not complied with Order 23 rule 2 requiring the Registrar to annex a copy of Order 23 of the Rules of court to the writ of summons. The application was taken and struck out on 7th June 2000. Being an interlocutory decision, in respect of which appellant felt aggrieved, the learned counsel for appellant has within 15 days from the date of the said ruling to appeal against it by virtue of section 25(2)(a) of the Court of Appeal Act Cap 75 of the Laws of the Federation of Nigeria, 1990.