Halilco Nigeria Limited V. Equity Bank Of Nigeria Limited (2013)
LAWGLOBAL HUB Lead Judgment Report
NWALI SYLVESTER NGWUTA, J.S.C.
This appeal is against the judgment of Kaduna Division of the Court of Appeal delivered on 21/2/2006.
The appellant, as plaintiff, filed a Summon s ex-parte, before the Kaduna Judicial Division of the High Court of Justice, Kaduna State, on 15/12/2000 in which he prayed the trial Court for:
“An order listing under the Undefended List the Writ of Summons to be issued against the defendant.”
The respondent was the defendant in the trial High Court.
On 26/2/2001, the trial Court, having considered the summons ex-parte and the accompanying affidavit ordered that:
‘The suit is marked under Undefended List.”
Upon service on it of the Writ of Summons filed on 15/12/2000, the Respondent, as defendant, filed a Notice of Intention to Defend with Supporting Affidavit raising defences to the action. The trial Court took learned Counsel’s submissions and considered the affidavit evidence and held thus:
“As there is no defence on the merit discharged by the defendant, judgment is entered for the plaintiff against the defendant in the liquidated sum of N500,000.00 (Five Hundred Thousand Naira only) being deposited money due and payable by the defendant to the plaintiff on demand. The defendant is to pay the plaintiff 21% interest per annum being the Bank’s rate of interest from the 1st of January, 1999 to date of judgment.”
Dissatisfied with the judgment, the defendant (now respondent), appealed to the Kaduna Division of the Court of Appeal. In its judgment dated 21/2/2006, the lower Court concluded:
“In conclusion, the judgment of the lower Court delivered on 2nd April, 2001 in Suit No. K/750/2000 by Yusuf Hassan, J. When there was no Writ of Summons with claim is a nullity. Accordingly, it is hereby so declared.”
Aggrieved by the judgment, appellant who was the plaintiff in the trial Court, appealed to this Court on three grounds in a Notice of Appeal filed on the 5th of May, 2006.
Learned Counsel for the parties filed and exchanged briefs of argument. Learned Counsel for the appellant distilled the following two issues from his three grounds of appeal:
“1. Whether the Court of Appeal was not in error which occasioned a miscarriage of justice when it raised the issue of the competence of Suit No. K/750/2000 suo motu and decided some without giving the parties a hearing. (Distilled from Grounds 1 & 2 of the Grounds of Appeal).
- Whether the Court of Appeal was not in error which occasioned a miscarriage of justice when it formulated two (2) issues for determination outside the seven (7) grounds of appeal filed before it in Appeal No. CA/K/148/2001 and went ahead to determine the appeal on those two issues without giving the parties a hearing. (Distilled from Ground three (3) of the Grounds of Appeal).”
On his part, learned Counsel for the Respondent presented two issues for determination:
“1. Whether upon finding that there was no claim for the principal or interest endorsed on the Appellant’s Writ of Summons, the Court of Appeal was right in raising and deciding suo motu the issue of the competence of Suit No. K/750/2000. (This issue arises from the Appellant’s three grounds of Appeal).
- Whether the Respondent’s Notice of Intention to Defend and the Supporting Affidavit thereof in Suit
No. K/750/2000 did not disclose a defence on the merit. (This issue arises from the Respondent’s Notice doted 22/03/2007).”
In addition, learned Counsel for the Respondent filed a “Notice of Intention to contend that Ruling should be affirmed on grounds other than those relied on by the Court below. Order 6 Rule 6(2).”
Before I proceed further, it is necessary to take another look at the two issues for determination presented by learned Counsel for the Respondent,
Issue 1 on the lower Court’s decision on the competence of Suit No. K/750/2000 is said to have arisen from the appellant’s three grounds of appeal. Appellant’s grounds of appeal can be found on pages 109 to 112 of the record of proceedings. The essence of grounds 1 and 2 of the grounds of appeal is that the Court below erred by deciding the appeal on the issue it raised suo motu without affording the parties the opportunity to be heard on the said issue.
This is different from the Respondent’s issue l which rests on the competence of the Court to raise and decide an issue suo motu. The issue is short of the appellant’s complaint in grounds 1 and 2 that the issues raised suo motu by the Court below was decided without giving the parties the opportunity to be heard.
Respondent’s issue 1 cannot be said to have been framed from appellant’s grounds 1 and 2 or either of them. The complaint in ground 3 is that the Court below formulated two issues for determination of the appeal outside the seven (7) grounds of appeal filed by the appellant. Again, the appellant complained that the lower Court resolved the issues so formulated without giving the parties the opportunity to be heard. Issue 1 purportedly framed from the appellant’s three grounds of appeal does not relate to, or flow from, any or a combination of the three grounds of appeal.
Of Issue 2, learned Counsel for the Respondent said:
“This issue arises from the Respondent s Notice dated 22/03/2007.”
An issue for determination, whether framed by the appellant or the Respondent, must emerge from the appellant’s grounds of appeal. A Respondent’s notice is a separate process from the grounds of appeal and while the respondent can raise and argue issues in his respondent’s notice, he cannot raise issue from the notice along with issues drawn from the grounds of appeal.
From the above observations, it is clear that none of the Respondent’s two issues is framed from any or all of the grounds of appeal. Issue one is incompetent and liable to be struck out. See Taiwo Osinupebi v. Quadri Saka Saliu (1982) 7 SC 104; Ugo v. Obiekwe (1989) 1 NWLR (Pt.99) 566; Mohammed Garba v. The State (2000) 4 SCNJ 415.
The Respondent’s issue one, along with the argument based on it is hereby struck out as incompetent.
However if, in resolving the issues in the appellant’s brief need to deal with the Respondent’s notice arises, I will consider Respondent’s argument on issue 2 in relation to the Notice.
In Issue 1 in his brief, learned Counsel for the appellant referred to Madukolu & Ors v. Nkemdilim (1962) All NLR page 581 and conceded that the action from which this appeal arose was incompetent, not having been commenced properly. However, he contended that the Court below erred by raising the issue of competence of the Suit suo motu and resolving the issue without giving the parties an opportunity to be heard on same.
He relied on a number of cases, among which are Fabiyi v. Adeniyi & Ors. (2000) 6 NWLR (Pt. 662) 532 at 534, 546 paras B-C; Kuti & Anor. v. Mrs S. Balogun (1978) All NLR p.6 at 12. He urged the Court to resolve Issue 1 in favour of the appellant.
In Issue 2, learned Counsel complained that the Court below formulated two issues outside the seven (7) grounds of appeal in the appellant’s notice of appeal. Relying on a number of decided cases including Aja & Anor v. Okowo & Ors (1991) 7 NWLR (Pt. 203) 260 at 272-273 paras H-A; Asalu & Ors v. Dakan & Ors (2006) FWLR (Pt. 325) 90 at 98-99, paras H-A, he impugned the procedure adopted by the Court below. He urged the court to allow the appeal and declare as null and void the decision of the Court of Appeal in Appeal No. CA/K/148/2001 of 21/2/2006.
Since the Respondent’s issue one has been struck out, the only process left to be considered on the side of the Respondent along with the appellant’s brief, is the argument on the Respondent’s notice, if the need arises.
Appellant’s learned Counsel conceded a Writ of Summons bereft of claims is incompetent and further that a Court can raise an issue suo motu. In my view, these concessions are rightly made by learned Counsel. But as he rightly argued, the Court below went beyond bounds by determining the appeal on the issues it raised suo motu without calling on learned Counsel for the parties to be heard on the issues. This is more so since the outcome of the appeal turned solely on the issues so raised and resolved.
In PDP v. Okorocha (2012) 3 KLR (Pt. 308) 1155 at 1159, para D, this Court held that a Court could raise an issue suo motu but that the Court is bound to give the parties the opportunity to be heard on the issues, particularly where the decision turns on the issues.
The issue of competence, vel non, of the Writ of Summons was a critical factor in the case. lt was properly raised by the Court but the Court should have invited the Counsel for the parties to address it on the issue especially the appellant who stood to lose, before resolving them. I resolve the issue in favour of the appellant.
In Issue 2, Appellant’s notice of appeal contained seven grounds of appeal from which four issues were distilled for determination. The Court below not only jettisoned the four issues but went ahead and framed two issues from nothing or nowhere. The two issues upon which the appeal was determined did not relate to, or derive from, the grounds of appeal. Framing an issue for determination in an appeal outside the grounds of appeal is tantamount to putting something on nothing. It cannot stand. See Macfoy v. United Africa Co Ltd (1962) AC 152.
In an appeal, an issue for determination must be derived, framed or distilled from a valid ground of appeal or a combination of grounds of appeal. Any issue framed outside the grounds of appeal is incompetent and liable to be stuck out. And it goes without saying that on no account should a Court decide a matter on an issue it raised suo motu, even when the issue is properly raised, without giving the parties the opportunity to be heard on same.
The entire judgment of the Court below is null and void. There is therefore no need to consider the issue raised in the Respondent’s notice which relates to the merit of the case in the trial Court.
In conclusion, I allow the appeal and declare the judgment of the Court below null and void.
What is the proper order to be made The Court of Appeal declared null and void the judgment of the trial High Court in Suit No. K/750/2000. That decision has been declared a nullity since the process leading to it was completely flawed.
Before this Court, appellant simply prayed for an order to declare the judgment of the Court below null and void. The mere declaration sought by the appellant would leave the proceeding and judgment of the trial Court subsisting and binding even though the Court below had determined rightly that the process leading to the judgment was incompetent because the Writ of Summons bereft of any claims endorsed on it is incompetent.
If the Court below had followed proper procedure in declaring the judgment of the trial Court a nullity, it should have struck out the incompetent Suit pursuant to Section 16 of the Court of Appeal Act. Therefore, pursuant to Section 22 of the Supreme Court Act, I strike out the suit No. K/750/2000 as incompetent and the Kaduna state High Court no jurisdiction to entertain it. See Madukolu & Ors v. Nkemdilim (supra).
Appeal is allowed. Judgment of the Court of Appeal which nullified the judgment of the trial Court is, itself declared null and void, and Suit No. K/750/2000 in the High Court, Kaduna State, is struck out for being incompetent and for want of jurisdiction in the High Court to hear and determine it.
Parties herein shall bear their respective costs.