Holman Bros. (Nig.) Limited V. Kigo (Nig.) Limited & Anor (1980)

LawGlobal-Hub Lead Judgment Report

SIR U. UDOMA, J.S.C. 

My Lords, this appeal has come to this court by leave of the Federal Court of Appeal.

It has been brought by the defendants, herein appellants, against the ruling of the Federal Court of Appeal given on 31st March, 1980, refusing the appellants leave to appeal to the Federal Court of Appeal against the decision and order of the High Court, Kano State. Rowland, J., striking out the second respondents herein as Third Party in suit No. K/108/79; and thereafter refusing the appellants leave to appeal therefrom to the Federal Court of Appeal.

The appeal raises in a rather acute form the important question of the principles of law and rules of practice to be applied or followed and the approach to be adopted by the Federal Court of Appeal when an application for leave to appeal from a judgment or decision given or an order made by the High Court comes before it for consideration and determination. The quality of the materials to be placed before the court to enable it to discharge such functions satisfactorily is also involved. This area of law and practice would appear to be an uncharted terrain, involving as it does, the exercise of discretion by the Federal Court of Appeal.

Stated broadly, the main question for determination and decision in this appeal is as to whether or not the Federal Court of Appeal erred in law and also exercised its discretion on wrong principles in refusing to grant leave to the appellants to appeal against the decision and order of the High Court, Kano, made on 11th February, 1980, in the circumstances of this case.

The events which gave rise to this appeal may briefly be stated as having occurred as hereunder set forth.

On 14th May, 1979, in the High Court, Kano State, in suit No. K/108/79, Kigo (Nigeria) Limited, the first respondents, that is, as plaintiffs, claimed:

“(i) the right to reject the whole crushing Plant comprising one Goliath Primary Crusher 30 x 18 and one Goliath Secondary 30 x 24 sold and delivered by the Defendant to the Plaintiff between April and September, 1978. And

(ii) special and general damages for several breaches of contract by the Defendant in respect of goods sold and delivered by the Defendant and for several wrongs committed in tort against the Plaintiff including deceit, fraud, false representations and negligence whereby the plaintiff has suffered substantial damages.”

Special damages alone claimed amounted to the sum of N3,836,323. Interest was also claimed.

Later, the 1st respondents filed their statement of claim dated 22nd May, 1979, in obedience to an order of court made in that behalf on 21st May, 1979.

On 24th September, 1979, on the ex parte application of the appellants, Goodwin Barsby Limited of Leicester, England, were joined by order of court, Jones, CJ., as he then was, as third Party in the suit.

And pursuant to the order of court made in that behalf, Third Party Notice and other relevant papers were served on counsel in Kano, who accepted service within the jurisdiction of the court, acting for the Third Party, herein 2nd respondents.

After the occurrence of a number of other events, including appearances in court by counsel for the 2nd respondents and obtaining orders for extension of time within which to file statement of defence for the 2nd respondents and a definite date for the hearing of the suit which, at all events, was fixed by consent of all parties to commence on 26th February, 1980, counsel for the 2nd respondents applied under order 6, rule 10 and order 12, rule 3 of the High Court, Kano, Rules 1976, by motion on notice, dated 26th December, 1979 for: