Ibrahim Yusuf Ibrahim & Ors V. Philip Odeh Agiri (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decisions (Rulings and judgment) of Kaduna state High court, in suit No.KDH/KAD/429/2004, delivered by Hon. Justice Munir Ladan on 11th October 2010, 3/2/2011, and 9/3/2011. The Ruling of 11/10/2010, had refused application for adjournment by Appellant and had closed the Appellants’ case (as defendant at the Court below).

The judgment of 3/2/2011 granted the Respondent the relief sought in the suit and awarded N500,000.00 damages to the plaintiff against the Defendant (now Appellant), while the Ruling of 9/3/11 refused to set aside the judgment of 3/2/2011 and to stay the execution of the judgment.

Dissatisfied with the Rulings and judgment, the Appellants filed their Notice of Appeal, dated 11/3/2011, as per the last pages of the Records of Appeal and disclosed 8 grounds of appeal. They filed their brief of argument on 12/11/2012 and distilled 6 issues for determination, namely:

(1) “Whether the Appellant’s (sic) right to fair hearing has not been violated by closing the Appellant’s (sic) defence. (Ground 1)

(2) Whether the Respondent has proof (sic) title to the House in dispute in any of the five ways or any other way known to law to entitle him to judgment thereto. (Ground 2)

(3) Whether the Respondent is entitled to judgment when the consideration he gave for the house in dispute has been returned to him by depositing same into his account with the First Bank Plc. (Ground 3)

(4) whether the learnt trail (sic) Judge was right when he entered judgment in favour of the Respondent and granted the relives (sic) sought as per the endorsement on his writ of summons and statement of claim, when no single document was tendered by the Respondent in proof of the transaction of the sale and purchase of the property in dispute him and PW1. (Ground 4)

(5) Whether the Learnt trial judge was right in law when he relied on the evidence of PW1 which is contradictory in nature to enter judgment in favour of the Respondent. (Ground 5)

(6) Whether the Learnt trial judge was right when he refused to set aside his judgment and re-open the Appellants’ defence and allow the Appellants to complete their defence.” (Grounds 6)

The Respondent filed a Notice of preliminary objection on 13/3/14 against grounds 1 and 6 of the appeal and issues 1 and 6 thereof, saying that Appellants ought to have appealed against the interlocutory Ruling of the trial court, dated 11/10/2010, within the prescribed time, or sought leave to appeal against the same.

The Respondent also filed his brief of argument on 31/12/2012 (wherein he also raised the preliminary objection and argued it on pages 3 – 4 of the Respondents brief. The Respondent adopted the issues as formulated by the Appellants for the determination of the Appeal.

At the hearing of the Appeal on 18/03/2014, the parties adopted their briefs, starting from the Respondent, who argued the preliminary objection, and urged us to strike out the grounds of appeal and issues he objected to. Appellants did not file any Reply Brief to contest the preliminary objection.

As rightly argued by the Respondent on the pages 3 and 4 of the Respondent’s brief, Appellants did not appeal against the Ruling of the trial court, delivered on 11/10/2010 refusing Appellants’ application for adjournment and closing their defence, within the statutory period prescribed by law (being 14 days). They did not also seek the leave of the trail court, nor of this court and/or extension of time to appeal against the said ruling of 11/10/2010. They cannot therefore smuggle any ground of appeal against the said ruling of 11/10/2010 into the final appeal, filed on 11/3/2011 against the final judgment delivered on 3/2/2011, and the refusal to set it aside, delivered on 9/3/11. To appeal against that Ruling, Appellants need the leave of this court and extension of time to appeal.