Alhaji Ali Muktar Sheshe V. Alhaji Hassan Ibrahim (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Kano State in Suit No K/208/09 delivered by Honorable Justice Wada Abubakar Umar on the 30th of June, 2009. The Respondent, as plaintiff, commenced an action against the Appellant, as defendant, under the Undefended List Procedure, with leave of Court, and he prayed for:

i. The sum of N20,450,000.00 (Twenty Million Four Hundred and Fifty Thousand Naira Only) as money had and received.

ii. 10% Court interest from date of judgment till satisfaction of same.

iii. The cost of this action.

The writ with particulars of claim was dated the 14th of May, 2009 and it was supported by an affidavit of facts deposed to on the 15th of May, 2009 with exhibits attached. The processes were served on the Appellant and he responded by filing a Notice of Intention to defend dated the 27th of May, 2009 and this was supported by an affidavit of facts deposed to on the 28th of May, 2009 with exhibits attached. The lower Court took arguments in the matter on the 8th of June, 2009 and in a considered Ruling delivered on the 30th of June, 2009, it entered judgment in favour of the Respondent in the sum of N20, 450,000.00 together with interest at the rate of 10% effective from the date of judgment until final and total liquidation and cost of N25,000.00. The Appellant was dissatisfied with the judgment and he caused his Counsel to file a notice of appeal dated the 1st of July, 2009 against it. The notice of appeal contained one ground of appeal.

In arguing the appeal before this Court, the Appellant filed an amended brief of arguments dated the 7th of January, 2013 and it consisted of nineteen pages. The Appellant’s brief of arguments was deemed proper on the 14th of January, 2013. The Respondent’s brief of arguments consisting of twenty pages was dated the 28th of February, 2011 and it was filed on the 1st of March, 2011. At the hearing of the appeal on the 30th of April, 2013, Counsel to the Appellant and to the Respondent relied on and adopted their respective briefs of arguments.

Counsel to the Appellant distilled one issue for determination in his brief of arguments and this was:

Whether the claim of the Respondent before the lower Court for refund of money had and received as a consideration for a concluded land transaction where possession to the said land and original documents were given, and whether money had and received under a contract for supplies of goods which was unilaterally rescinded before the maturity date and without a breach by the Appellant can be heard and determined under the undefended list procedure provided by Order 23 of Kano State High Court Civil Procedure Rules 1988 in the face of conflicts contradictions and allegation of misrepresentation contained in the affidavits and further and better affidavits filed by both parties.

This Court has had reasons recently to explain the essence of an issue for determination in an appeal and to advise parties on how not to formulate issues for determination. This Court is compelled by the nature of the issue for determination formulated by the Appellant in this appeal to reiterate the points. Now, an issue for determination in an appeal is a point which is so crucial that if it is decided one way or the other will affect the fate of the appeal. It is a point which is so critical that if it is decided in favour of a party, such a party is entitled to win the appeal – Okoye V. Nigerian Construction and Furniture Co Ltd (1991) 6 NWLR (Pt 199) 501 and G. Chitex Industries Ltd V. Oceanic Bank International (Nig) Ltd (2005) 14 NWLR (Pt 945) 392. Issues for determination are an important part of a brief of arguments and their purpose is to enable the parties narrow the issues in the grounds of appeal filed. The characteristics of a well drafted issue for determination in a brief of argument are precision, brevity, accuracy and clarity – Uwaifo V. Uwaifo (2005) 3 NWLR (Pt 913) 479, Iloabachie V. Iloabachie (2005) 13 NWLR (Pt 943) 695, Maishanu V. Manu (2007) 7 NWLR (pt 1032) 42. The issue for determination formulated by the Appellant is a perfect example of how not to formulate an issue for determination. It is a narrative. It is too verbose. It lacks clarity and the complaint of the Appellant in the issue for determination is not clear. Is he complaining that the claims of the Respondent before the lower Court were not suited for the undefended list procedure, or that by reason of the contending facts deposed to in the respective affidavits of the parties, he should have been granted leave by the lower Court to defend the action? It is trite that an issue for determination should not comprise of other issues; it should not be a composition of two different issues – Iloabuchi V. Ebigbo (2000) 8 NWLR (Pt 668) 197, Ehikhamwen V. Iluobe (2002) 2 NWLR (Pt 750) 151, Unokan Enterprises Ltd V. Omuvwie (2005) 1 NWLR (pt 907) 293, Ikare Community Bank (Nig) Ltd V. Ademuwagun (2005) 7 NWLR (pt 924) 275.

Counsel to the Respondent did not fare much better. In his own brief of argument, Respondent agreed that there was only one issue for determination in the matter and he formulated the issue thus:

Whether having regard to the number of reasons relied upon by the trial Court based on all the documentary and affidavit evidence before it, it can be said that the judgment delivered in favour of the Respondent under the undefended list occasioned any miscarriage of justice to warrant this Honorable Court make an order of retrial.

Ordinarily, this Court should disregard the issue for determination formulated by the parties and consequently strike out this appeal. This Court will, however, not do so but it will reformulate the issue and consider the appeal in order to fulfill its duty of doing substantial justice to the parties – Fasanya V. Adekoya (2000) 15 NWLR (Pt 689) 22 and Adeyemi V. State (2011) 5 NWLR (pt 1239) 1. Counsel must, however, always bear in mind that one of the invaluable assets they must possess is good drafting skills. Drafting is an important tool in advocacy. A Counsel who cannot present his client’s case clearly in a brief of argument cannot adequately represent the interest of his clients. An otherwise good case can be destroyed and lost by bad drafting. Counsel should pay more attention to drafting as no counsel could be good and make marks in advocacy if he is poor in drafting mechanism. The need for a Counsel to display proper legal training in the preparation of court processes was emphasized by Aderemi, JCA (later JSC) in MV Arabella V. Nigerian Agricultural Insurance Corporation (2002) 15 NWLR (Pt 791) 570. The learned Justice stated thus at page 582:

“To say the least, the above five issues raised by the cross-appellant are very horrible.