Castles & Cubicles Ltd. V. Altimate Investments Ltd. (2003)
LawGlobal-Hub Lead Judgment Report
SIMEON OSUJI EKPE, J.C.A.
The claim of the plaintiff as endorsed on the writ of summons against the defendant is as follows:-
“(1) The plaintiff’s claim against the defendant is in the sum of N517,877.57k (five hundred and seventeen thousand, eight hundred and seventy-seven Naira and fifty-seven kobo only), being sum/sums due to the plaintiff as facilitation fees, for procuring a contract for the completion of the religious building, at the University of Calabar, from the Education Tax Fund, for the defendant.
(2) As consideration for their services, it was agreed that the plaintiff be paid the sum of N1,730,000.99 (one million, seven hundred and thirty thousand, ninety-nine kobo only) in the same percentage proportion as the defendant is paid by the Education Tax Fund.
(3) It was an express term of the agreement executed between the parties on the 3rd day of August, 1999, that the plaintiff would be entitled to the same percentage proportion of the amount paid to the defendant on account of the said contract until the amount due to the plaintiff is liquidated.”
By a motion ex parte and a supporting affidavit filed by the plaintiff’s counsel, and granted by the learned trial Judge, the suit was placed on the undefended list for service on the defendant with all other processes of the court in the suit, and was adjourned to 5/10/2000 for mention. Upon the service of the writ of summons on the defendant, a memorandum of appearance was filed for the defendant. Also a notice of intention to defend the action together with an affidavit of 20 paragraphs disclosing a defence on the merit, were filed for the defendant, pursuant to Order 23 rule 3(1) of Cross River State High Court (Civil Procedure) Rules, 1987. Annexed to the said affidavit are exhibits ‘A’ to ‘C’.
The suit came up again on the 9th of April, 2001, before Edem, J. who adjourned the same to 21st May, 2001 for hearing or ruling. On 21st May, 2001, the learned trial Judge delivered his ruling and entered judgment for the plaintiff as per the writ of summons, on the ground that the affidavit accompanying the notice of intention to defend the action was not subscribed to or sworn to before a Commissioner for Oaths as the same did not carry the signature of the Commissioner for Oaths. He alluded to section 84 of the Evidence Act, 1990 and held that both the affidavit of the defendant disclosing the defence on the merit and the exhibits annexed thereto were incompetent as none of them carried the signature of the Commissioner for Oaths. He therefore, refused to consider the said affidavit of the defendant and consequently entered judgment for the plaintiff as per the writ of summons.
Being dissatisfied with the ruling of the learned trial Judge, the defendant now appellant appealed to this court on two grounds of appeal. The two grounds of appeal, shorn of their particulars read thus:
“Grounds of appeal
Ground One: The learned trial Judge erred in law, when he held in an undefended list suit that, the affidavit attached to the notice of intention to defend not being signed by the appropriate authority was a capital omission justifying his refusal to look at or consider the said affidavit on the merits.
Ground Two: The learned trial Judge erred in law, when he neglected to do substantial justice in the circumstance by refusing to consider appellant’s affidavit disclosing his defence merely on the ground that it was not signed.”
For the appellant, three issues were formulated in the appellant’s brief for the determination of the appeal. They read:
“1. Whether in the circumstance, it would not have been proper for the learned trial Judge to invoke either section 84 or 85 of the Evidence Act?
- Whether the learned trial Judge was right to have regarded the error or defect in the affidavit as a “capital omission”?
- Whether in view of the nature of the suit (undefended) there was an overriding need for the learned trial Judge to insist on doing substantial justice than succumb perilously to a technical requirement.”
For the respondent, only one issue was formulated in the respondent’s brief of argument as arising for the determination of the appeal, namely:
“Whether the learned trial Judge was right to ignore the appellant’s purported affidavit in arriving at his verdict, and if he was not, whether the said affidavit disclosed a defence on the merit to the respondent’s claim.”
The appellant also filed a reply brief in which the points arising from the respondent’s brief of argument were addressed or considered. Let me pause here and briefly comment on the impropriety of formulating three issues by the appellant for the determination of the appeal, when the appellant raised only two grounds of appeal in the notice of appeal from which he formulated the three issues. This is very improper and unacceptable in the art or technique of brief writing. In Onyali v. Okpala (2001) 1 NWLR (Pt.694) 282, it was held that it is undoubtedly wrong for a party to an appeal be it the appellant or the respondent to formulate more issues than the grounds of appeal upon which the appeal legally arose. It is considered as a proliferation of issues to formulate more issues than the grounds of appeal filed and this is highly deprecated and discouraged by the courts: see Okelola v. Boyle (1998) 2 NWLR (Pt.539) 533 at page 546; Olafimihan v. Novalay Tech. Ltd. (1998) 4 NWLR (Pt.547) 608; Saidu v. Mahmood (1998) 2 NWLR (Pt.536) p.130.
It is trite law that issues formulated in a brief should arise from or be related to the grounds of appeal filed, and that one issue can cover several grounds of appeal and the issue should not be more than the grounds of appeal on which they are based. See Olaniyan v. University of Lagos (1985) 2 NWLR (Pt.9) 599; Adelaja v. Fanoiki & Anor. (1990) 2 NWLR (Pt.131) 137; Ayisa v. Akanji (1995) 7 NWLR (Pt.406) 129; Anon Lodge Hotels Ltd. v. Mercantile Bank Ltd. (1993) 3 NWLR (Pt.284) 721.
After a close look at the three issues formulated by the appellant, I formed the view that issues Nos. 2 and 3 arose from grounds 1 and 2 respectively of the grounds of appeal filed, while issue No.1 is not covered or related to any of the grounds of appeal. It is settled law that an issue for determination, which is not covered by or related to any of the grounds of appeal filed is incompetent and should be struck out. Similarly, where a ground of appeal is not covered by an issue for determination set out in the brief of argument, that ground of appeal must be deemed to have been abandoned and should be struck out. See Sha (Jnr.) v. Kwan (2000) 8 NWLR (Pt.670) 685; Ngilari v. Mothercat Ltd. (1999) 13 NWLR (Pt.636) 626; Ugo v. Obiekwe & Anor. (1989) 1 NWLR (Pt.99) 566. In the instant case, issue No. 1 which is not covered by any ground of appeal is incompetent and is accordingly struck out. Consequently, the argument on this issue is disregarded or discountenanced.
Having said this much, I will now consider together the appellant’s issues Nos. 2 and 3 and the respondent’s only issue for the determination of this appeal. Issue No.2 in the appellant’s brief of argument is whether the learned trial Judge was right to have regarded the error or defect in the appellant’s affidavit as a capital omission. In the argument on this issue the appellant submitted that the learned trial Judge was wrong to have regarded the defect in the appellant’s affidavit disclosing its defence on the merit, as a capital omission entitling the respondent to judgment. It was emphasized that the error or slip by the Commissioner for Oaths to append his signature on the said affidavit of the appellant disclosing its defence was not that of the appellant or its counsel but was that of the lower court’s registrar who was also the Commissioner for Oaths. The appellant referred to sections 84 and 85 of the Evidence Act, 1990 and submitted that the learned trial Judge would have been more liberal in dealing with the case of undefended list such as this, and instead of proceeding to enter judgment for the respondent, the learned trial Judge ought to have sent down the said defective affidavit of the appellant for the signature of the said Commissioner for Oaths, whose error it was for not signing the appellant’s affidavit disclosing its defence on the merit. Reference was made to the Supreme Court case of Nishizawa Ltd. v. Jethwani (1984) 12 SC 234, where it was held that even if in an undefended matter, the defendant instead of filing an affidavit disclosing a defence irregularly files a statement of defence, the statement of defence will be looked into and if it discloses a defence, the defendant must be put in to defend. Also referred to are U.T.C. (Nig.) Ltd. v. Pamotei (1989) 2 NWLR (Pt.103) 244; National Bank Ltd. v. Weide & Co. (1996) 8 NWLR (Pt. 465) 150, (1995) 10 SCNJ 148.
On issue No.3, the appellant submitted that courts of law are established to do justice to the parties in the cases before them. It was further argued that this need to do justice is so overwhelming and overriding that technicalities that block the way of justice are ignored by the courts and this point has been emphasized by the Supreme Court in a plethora of authorities. It was contended that in view of the fact that the appellant had done all that it was required to do by paying the oath fee and filing the affidavit disclosing its defence, and that the omission to sign the affidavit being that of the Registrar (Commissioner for Oaths), the learned trial Judge should have considered the appellant’s affidavit in order to do justice. It was also contended that the learned trial Judge readily succumbed to a technical defect and allowed technicality to take the place of substantial justice. The appellant referred to the case of Shuaibu v. Nigeria Arab Bank Ltd. (1998) 5 NWLR (Pt. 551) 582, (1998) 4 SCNJ 109 at page 123, where the Supreme Court observed that the prime duty of any court in taking any decision is to do substantial justice and that the wheel of justice could no longer be allowed to be clogged with technicalities. Reference was also made to the case of Nneji v. Chukwu (1988) 3 NWLR (Pt.81) 184, where the Supreme Court strongly sounded a note of warning on the desirability of relaxing strict rules of procedure for the purpose of doing substantial justice. Stressing on the authority of Nneji v. Chukwu (supra) at page 188, the appellant submitted that it is a principle of law that the sin of counsel should not be visited on the party, and opined that it was clear injustice to the appellant for the learned trial Judge to punish the appellant for the sin, not even of the appellant’s counsel, but that of the Commissioner for Oaths. The appellant therefore urged this court to allow the appeal and set aside the judgment of Edem, J. dated 21st May, 2001.
The sole issue in the respondent’s brief of argument is, whether the learned trial Judge was right to ignore the appellant’s purported affidavit in arriving at his verdict and if he was not, whether the said affidavit disclosed a defence on the merit to the respondent’s claim.
In arguing the issue, the respondent conceded to the point made by the appellant that the learned trial Judge ought not to have ignored the affidavit of the appellant disclosing its defence. The case of Nishizawa Ltd. v. Jethwani (1984) 12 SC 234, was alluded to. It was the submission of the respondent that although the document or affidavit filed by the appellant in defence of the respondent’s suit was stricto sensu not an affidavit in the true legal parlance, having not been signed by or sworn to before a Commissioner for Oaths, yet the learned trial Judge ought, ex debito justicia, to have had recourse to the said document or affidavit before reaching his final verdict.
It was however, submitted that by ignoring the appellant’s affidavit, the learned trial Judge merely wrongly excluded the evidence contained therein and by virtue of section 227(2) of the Evidence Act 1990, that omission is not sufficient to reverse the decision appealed against. Expatiating on the point, the respondent contended that the thrust of its argument is, that notwithstanding the error of the learned trial Judge in ignoring the appellant’s affidavit, had the affidavit been considered by the learned trial Judge, it would have been incapable of affording the appellant a defence on the merit to the respondent’s claim. The respondent strongly argued that the essential facts upon which the respondent’s claims were predicated were never disputed by the appellant whose defences as disclosed in its affidavit were spurious and a complete sham. It was contended that the features introduced by the appellant in the affidavit are completely alien and extrinsic to the clear and unambiguous terms of exhibit ‘A’, the agreement between the parties, and were merely intended to alter, contradict or vary the express terms of the written agreement between the parties. Referring to the provision in section 132(1) of the Evidence Act, 1990, the respondent contended that those defences in the appellant’s affidavit are inadmissible in law.
The respondent, therefore, submitted that this court is in as good a position as the court below and should consider the respective affidavits of the parties and reach a verdict one way or the other, and referred to section 16 of the Court of Appeal Act.
Finally, the respondent urged the court to dismiss the appeal and confirm the judgment of the court below as the affidavit of the appellant did not disclose any defence on the merit. In the reply brief, the appellant’s counsel hailed the professional uprightness of the learned Counsel to the respondent for conceding the fact that the learned trial Judge was wrong in ignoring the affidavit of the appellant for the reason that the said affidavit was not signed by the Commissioner for Oaths, but he disagreed with the respondent’s counsel for submitting that the said affidavit did not disclose any defence on the merit and that even if the leaned trial Judge had considered the affidavit, he would have ignored the same as not disclosing any defence to the respondent’s claim.
It was contended that even if the appellant’s affidavit disclosing its defence was a sham or stupid or foolish, the learned trial Judge ought to have considered the affidavit before proceeding to judgment and the refusal to consider the affidavit was fatal to the judgment. It was further argued that the error committed by the learned trial Judge cannot be mitigated by the supposition of counsel for the respondent that even if the learned trial Judge had considered the defence in the affidavit of the appellant, that would not have made any difference to the said judgment. It was also contended that the failure to consider the appellant’s affidavit disclosing the defence affected the result of the case and occasioned a miscarriage of justice. The appellant submitted that sections 227(2) and 132(1) of the Evidence Act 1990, referred to by the respondent are inapplicable in the case. It was finally submitted by the appellant that although it is not every error of a trial court that will lead to the reversal of a judgment on appeal, but an error that can do so must be fatal to the decision and occasion a miscarriage of justice. The error complained of in this case, the appellant contended, is fatal and is such that will lead to the reversal of the judgment of the trial court. References were made to M/V Da Qing Shan v. AOM Ltd. (1991) 8 NWLR (Pt.207) 92 at 101; Olubode v. Salami (1985) 2 NWLR (Pt.7) 282 at p. 297; Mercantile Bank Ltd. v. Adalma (1990) 5 NWLR (Pt.153) 747 at 767.
I have carefully considered the arguments and submissions of the learned Counsel for the parties in this appeal. To my mind, the main and crucial issue for the determination of the appeal is whether the learned trial Judge was right to ignore the appellant’s affidavit on the ground that the affidavit was not signed by the Commissioner for Oaths.
As can be clearly seen from the respondent’s brief of argument, the learned Counsel to the respondent was honest and courageous enough to concede to the appellant’s argument that the learned trial Judge was not right to ignore or refuse to consider the appellant’s affidavit on the ground that the affidavit was not signed by the Commissioner for Oaths. I am highly impressed by the exemplary conduct of the learned Counsel to the respondent. Indeed, this is how it should be and I strongly commend him.
The law has long since been established in a plethora of cases that in a suit brought under the undefended list procedure that, where the defendant has filed a notice of intention to defend with an affidavit disclosing a defence on the merit, the trial court is bound in the interest of justice between the parties to consider the affidavit filed by the defendant, though irregularly, and should not shut his eyes to the facts alleged in the affidavit and in good conscience shut the defendant out in a mere technical point. See U.B.A. Ltd. v. Dike Nwora (1978) 11-12 SC 1, (1978) 11 NSCC 519; Nishizawa Ltd. v. Jethwani (1984) 12 SC 234; UTC Ltd. v. Pamotei (Nig.) Ltd.(1989) 2 NWLR (Pt.103) 244; Smart Essang v. Bank of the North Ltd. (2001) 6 NWLR (Pt.709) 384; Kisari Investment Ltd. & 2 Ors. v. La Terminal Co. Ltd. (2001) 16 NWLR (Pt.739) 381. This approach by the courts is consistent with their duty to do substantial justice devoid of legal technicalities. In Otapo v. Sunmonu (1987) 2 NWLR (Pt.58) 587, It was held by the Supreme Court that it is the duty of the courts to aim at doing substantial justice between the parties and not to let that aim be defeated by technicalities. See also Sanni v. Layokun (1990) 3 NWLR (Pt.141) 753.
I therefore hold that the learned trial Judge was grievously in error to have ignored the affidavit of the appellant disclosing its defence on the merit on the ground that the affidavit was not signed by the Commissioner for Oaths, whose duty it was to sign the said affidavit. By entering judgment against the appellant without considering its affidavit disclosing the defence on the merit, the learned trial Judge was clearly in breach of the appellant’s right to fair hearing entrenched in section 36 of the 1999 Constitution of the Federal Republic of Nigeria. In Agbo v. C.B.N. (1996) 10 NWLR (Pt.478) 370 at page 379, it was held that the law on fair hearing proceeds on the basis that no man should be condemned unheard or without being given an opportunity to be heard as this is one of the pillars of justice based on the rule of law. See Ugo v. Obiekwe (1989) 1 NWLR (Pt.99) 566. In the instant case, the appellant was denied a hearing or an opportunity to be heard before the judgment was slammed against him by the learned trial Judge in favour of the respondent and this has occasioned a miscarriage of justice.
It is settled law that a party who will be affected by the result of a judicial enquiry must be given an opportunity of being heard, otherwise, the action taken following the enquiry will be unconstitutional and illegal. Once the appellate court concludes that the party was not given the opportunity of a hearing, the judgment thus entered is bound to be set aside. See Ogundoyin v. Adeyemi (2001) 13 NWLR (Pt.730) 403, (2001) FWLR (Pt.71) 1741.
It is trite that where there is a breach of the principle of fair hearing which is an aspect of the rule of natural justice, the entire proceedings become a nullity and are liable to be set aside. See Dawodu v. Ologundudu (1986) 4 NWLR (Pt.33) 104. Finally, let me deal with the invitation by the learned Counsel for the respondent to this court to act under section 16 of the Court of Appeal Act, 1999 and reappraise and evaluate the respective affidavit of the parties and reach a decision one way or the other. I cannot accede to this invitation. It seems to me that by this invitation, there is a misconception by the learned Counsel for the respondent as to the purport of section 16 of the Court of Appeal Act, 1990, where a trial court did not properly evaluate the evidence before it, the Court of Appeal being in as good a position as the trial court can reappraise and evaluate such evidence and make appropriate findings thereon from the printed record. It will do so instead of ordering a retrial. See Tinubu v. Khalil & Dibbo Trains. Ltd. (2000) 11 NWLR (Pt.677) 171 at page 183; Salako v. Dosunmu (1997) 8 NWLR (Pt. 517) 371; Nneji v. Chukwu (1996) 10 NWLR (Pt.478) 265 at page 278; Ifeadi v. Atedze (1998) 13 NWLR (Pt.581) 205 at pages 230 to 231. In the instant case, the complaint against the judgment/ruling of the learned trial Judge is not that of improper evaluation of the evidence adduced before the trial Judge. But the complaint against the trial Judge is that he completely ignored the affidavit of the appellant disclosing its defence on the merit and thus, entered judgment in favour of the respondent. The question of appraisal and evaluation of the evidence adduced before the trial court did not arise in this case. The issue here, in my view, is that of breach of the appellant’s right to fair hearing by the learned trial Judge, by jettisoning the appellant’s affidavit without any consideration as if the affidavit did not exist or did not form part of the proceedings before him. In my considered view, therefore, section 16 of the Court of Appeal Act, 1990, is inapplicable to this case and cannot be invoked.
The conclusion that I therefore reach, is that this appeal is meritorious and should be allowed. I accordingly, allow the appeal. The ruling/judgment of Edem, J. in this suit, No. HC/224/2000, delivered on the 21st day of May, 2001, is hereby, set aside as a nullity for being in breach of the appellant’s right to fair hearing. It is hereby, ordered that the suit be remitted to the High Court of Cross River State, Calabar Judicial Division, for retrial by another Judge. I award the sum of N5,000.00 costs in favour of the appellant.
Other Citations: (2003)LCN/1347(CA)