Dr. Shirish Tanksale V. Rubee Medical Centre Limited (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

M.B. DONGBAN-MENSEM, J.C.A (Delivering the Leading Judgment)

On the 13th day of May, 2013, the Hon. Justice M. A. Ojo J., of the Ogun State High Court of Justice holden at Sango Ota Judicial Division, delivered a judgment against the Appellant as Defendant and in favour of the Respondent as Claimant. In this judgment the Claimant is referred to simply as the Appellant and the Defendant simply as the Respondent.

In the trial court, the Respondent claimed as per his Originating Summons dated the 6th of August, 2009, (Pages 1-3 of the record).

The appellant responded to the application with a Notice of Preliminary Objection challenging the jurisdiction of the trial Court on the grounds inter alia, that the Memorandum of Understanding (hereafter simply referred to as the MOU) is tainted with illegality and therefore void and unenforceable. The Appellant also contends that the MOU is against public policy, repugnant to natural justice good conscience and ineffective, that the MOU is not an enforceable cause of action against the Appellant.

The processes were supported by affidavits, counter affidavits and numerous annexures as exhibited and transmitted in the records for this appeal (See pages 4-14 & 15-64).

At the close of the case, the trial court gave a considered judgment as stated above (pages 154-175 of the record). Distraught with the decision, the Appellant, through a Notice of Appeal dated the 13th day of May, 2010 and filed 14th May, 2010 brought this appeal with its grounds as contained at pages 176-180 of the records.

The learned Counsel for the Respondent O.O. Olutalayo Esq. raised a preliminary objection on the competence of issue two as formulated by the Appellant. Counsel submits that issue (ii) is grossly incompetent as it does not arise from grounds 3, 5 and 6 of the Notice of Appeal. That the Appellant’s issue (ii) at page 5 of the Appellant’s Brief of Argument has raised two fresh issues which were neither canvassed at the lower Court nor covered by any of the grounds of appeal from which the issue was allegedly distilled.

Counsel submits that none of grounds of appeal contains a complaint on failure to make Shirish Clinics a party to the MOU or a party to the suit filed at the High Court decided by the trial judge; that it is mandatory for the Appellant to obtain the leave of this Court which he did not, to raise such points. That it is settled law that an issue for determination which does not flow from a ground(s) of appeal is incompetent and must be discountenanced by the Court.

(Refer Agbakoba v. INEC & Ors. (2008) 12 S.C. (Pt.111) 171 @ Pg.198, John Bankiole & Ors. v. Mojidi Pelu & Ors. (1991) 8 NWLR (Pt.24) 523 @ 537, Dweye & Ors. v. Iyomahan & Ors. (1983) NSCC Vol. 14, 393 @ Pg.396, Veepee Ind. Ltd. v. Cocoa Ind. Ltd. (2008) 4-5 S.C. (Pt.1) 116 @ Pg. 139 – 140, Tahir v. Kapital Ins. Co. Ltd. (2006) 13 NWLR (Pt.997) 452 @ 470.

In response to the Notice of preliminary objection, the learned Counsel for the Appellant submits that in law, and in a loose sense, every point in controversy between the Parties in an appeal is an issue, but for purposes of a brief, an issue is one which is so crucial that if decided in favour of a Party he is entitled to win the appeal. (Refer Okoye v. Nigerian Construction & Furniture Co. Ltd. (1991) 6 NWLR (Pt.199) 501 at 542).

Counsel also submits that the complaint of the Appellant in his Ground three (3) which questions an injunctive order issued by the learned trial Judge is an issue on appeal and was well captured in the argument of the Appellant in his issue No. 2 for determination. That in law, an application for injunction has, and will always be granted to support a legal right and no such threat was established. (Refer:-Akapo v. Hakeem (1992) 6 NWLR (Pt. 26) 39 1.10

Counsel further submits that raising an issue for determination which arose from an extant decision of the trial Judge cannot amount to the Appellant raising fresh issues on appeal.

That grounds 5 & 6 are also borne out of the decision of the trial court.

See pages 170 & 173 of the records.