Alhaji Sule Haruna Tahir & Anor V. J. Udeagbala Holdings Ltd. (2003)

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BABA ALKALI BA’ ABA, J.C.A.

This is an appeal against the judgment of Yusuf J. of kano State High Court of Justice sitting at Kana and delivered on 26/3/2001. In the action filed under the undefended list by the respondent who was the plaintiff, the claims were for:

“N2,768,000.00 being sum owing by the defendants in favour of the plaintiff on account of goods sold and delivered by the plaintiff to the defendants at their request in Kana in 1999.”

As the action was filed under the undefended list, the appellants as defendants in accordance with the rules of the lower court, Order 23 of the Kano State High Court (Civil Procedure) Rules, 1988 duly filed their notice of intention to defend the action together with an affidavit in support of that notice. The learned trial Judge after considering the affidavit in support of the action and the affidavit in support of the notice of intention to defend the action, in a considered judgment, delivered on 26/3/2001, came to the conclusion that the appellants’ affidavit of their notice of intention to defend the action did not contain any defence to the action on the merit to justify allowing the appellants to defend the action. Consequently, the learned trial Judge proceeded and entered judgment for the respondent in terms of its claim contained in the writ of summons.

The appeal is therefore against the judgment.

The facts of the case may be briefly stated thus: The plaintiff company based in Kano in 1999 supplied the defendants its customers with 60 metric tones of vegetable oil as a result of which the defendants made some part payment for the said vegetable oil supplied. The defendants in payment of the vegetable oil supplied, issued post dated cheques for the months of March and April, 2000.

However, on presentation, the said cheques were not honoured for payment on their various dates.

The cheques issued by the 1st defendant are marked exhibits A, A1 – A4 while the ones issued by the 2nd defendant are marked exhibits B, B1 – B4. The total outstanding amount is N3,088,000.00 out of which the defendants have since paid the sum of N320,000.00 after the cheques were dishonoured. Inspite of the fact that the defendants have sold all the supplied vegetable oil, yet they have refused to pay the plaintiff hence the institution of the action to recover the outstanding amount, the sum of N2,768,000.00 against the defendants.

The notice of appeal filed by the appellants to challenge the decision of the court below contained at pages 78 – 80 of the record of this appeal containing five grounds of appeal without particulars are as follows:
“1. The learned trial Judge erred in law by holding that the ‘there is no single fact that raises any substantial questions that ought to go trial’.
2. The learned trial Judge erred in law by holding the 1st defendant liable.
3. The lower court erred in law by holding that the 2nd defendant is in a state of bankruptcy.
4. The lower court erred in law when it found the 1st defendant liable under section 279 and 283 of Companies and Allied Matters Act.
Judgment is against the weight of evidence in the affidavit.”

It is from these five grounds of appeal that the appellants distilled four issues for the determination of the appeal in their brief of argument. The issues are:
“1. Whether the learned trial Judge was right when he proceeded to enter judgment against the defendants/appellants under the undefended list procedure in view of the depositions in the defendants/appellants’ affidavit in support of the notice of intention to defend.
2. Whether the learned trial Judge was right when he held the 1st defendant jointly liable with the 2nd defendant in the circumstances where no reasonable cause of action is disclosed against him.
3. Whether the learned trial Judge was right when it found that the 2nd defendant is in a state of bankruptcy?.
4. Whether the learned trial Judge was right when it found the 1st defendant jointly liable with the 2nd defendant on the strength of section 279 and 283 of the Companies Allied Matters (1990).”

In the respondent’s brief of argument the four issues formulated by the appellants were adopted at pages 2 – 3 of the respondent’s brief by the respondent.

Before proceeding to determine the issues, I observed that issues 3 and 4 distilled from grounds of appeal Nos. 3 and 4 respectively neither arose from the judgment nor challenging the ratio decidendi.

A ground or grounds of appeal against a decision must relate to the decision and should be a challenge to the validity of the ratio decidendi of the decision reached by the trial court. See Metal Construction (WA.) Ltd. V. Migliore: in Re Ogundare (1990) 1 NWLR (Pt.126) 299; Egbe v. Alhaji (1990) 1 NWLR (Pt.128) 546.

The learned trial Judge merely referred to sections 279 and 283 of the Companies and Allied Matters Act, 1990 in his judgment which he was entitled to do. The provisions of the sections of the Company and Allied Matters Act referred to by the learned trial Judge were not contested by either of the counsel to the parties to warrant a determination on the issue by the learned trial Judge. While the question of the reasonableness of the cause of action was not raised at all by either counsel. I therefore hold that grounds 3 and 4 are incompetent and are struck out. Having struck out grounds 3 and 4 of the appellants’ notice of appeal, it follows that issues Nos. 3 and 4 and the argument canvassed in support of the said issues must also be struck out because in the absence of the said grounds, they have no legs to stand on.