Kadzi International Ltd. V. Kano Tannery Company Ltd. & Ors (2003)

LawGlobal-Hub Lead Judgment Report

ISA AYO SALAMI, J.C.A.

This is an appeal brought against the decision of the Kano State High Court of Justice setting aside its own judgment delivered against the first defendant for want of jurisdiction but affirming the same judgment against the second defendant, the receiver or manager of the first defendant. The second defendant has also cross appealed against the judgment, with leave of this court granted on the 27th March, 2000 and the notice of appeal duly filed in the registry of the trial court on 5th April, 2000, within the time extended by this Court, and same accordingly served on the appellant.

The plaintiff commenced this action, under undefended list, claiming against the defendants jointly and severally the sum of N3,548,535.43 being the money advanced to the first defendant together with the agreed profit entered into with first defendant. The defendants did not file their notice of intention to defend the action as demanded of them by the provisions of Order 23 rule 3(1) of the Kano State High Court (Civil Procedure) Rules notwithstanding of appearance of counsel for both of them up till judgment. The court below, therefore, entered judgment against the two defendants in the sum of N3,548,535.43 jointly and severally and accordingly issued writ of execution which was duly executed. Thereafter the defendants, in conjunction with another party, applied to the trial court for the judgment to be set aside as well as writ of fifa, amongst other reliefs, on account of lack of jurisdiction. The third applicant was the custodian of the goods in respect of which executions were levied.

The plaintiff allegedly gave a notice of preliminary objection challenging the competence of the lower court to entertain the application and that the applicant lack ‘locus standi”. Learned trial Judge, notwithstanding the notice of preliminary objection duly served, discountenanced the preliminary objection and proceeded to entertain argument for and against defendant’s application. He subsequently delivered his ruling wherein he concluded thus:
“Lastly, the submission of Mr. Olatunji as to fact that the 1st defendant is under receivership is relevant and valid. I am therefore of the opinion that I have no jurisdiction to hear and determine the suit against the defendant. The judgment of this court of 5th March, 1997 against the 1st defendant is set aside for want of jurisdiction. Finally, Mr. Olatunji asked for an order directing the plaintiff, Alhaji Sani, Deputy Director (Litigation), High Court, Miller road and the bailiffs of this court to produce the whole properties attached and carried not to court premises but to an unknown place forthwith. I am granting the order as prayed. I am further ordering that this order be complied with within 48 hours of this ruling. This order is to be served on all parties and the Deputy Director Litigations, Alhaji Sani. The writ of attachment against the 1st defendant Kano Tannery limited is set aside.” (Italics mine)

The plaintiff was dissatisfied with the decision of the learned trial Judge and appealed to this Court on five grounds of appeal from which he formulated these three issues:
“1. Whether the appellant’s claim as disclosed in the writ of summons raises any issue of receivership to warrant the learned trial Judge setting aside his judgment delivered against the 1st respondent in favour of the appellant for Jack of jurisdiction.
2. Whether the learned trial Judge was right in setting aside the writ of attachment issued and executed against the 1st respondent in this suit.
3. Whether the learned trial Judge was right in refusing to hear and determine the appellants objection validly raised against the 1st respondents applications dated the 10th and 13th day of March, 1997.”

The first and second defendants (hereinafter referred to as first and second respondents) formulated the following issues:

“1. Whether or not the High Court, Kano had the jurisdiction to entertain this suit arising from the alleged breach of Tanning Contract against the 1st respondent in receivership under the 2nd respondent, the receiver/manager when it is a matter and incident flowing from the operation of the Companies and Allied Matters Act, Cap. 59, Laws of the Federation of Nigeria, 1990.

2. Whether or not the lower court was wrong in setting aside the writ of fifa irregularly issued less than 24 hours after judgment contrary to Order IV rule 1(2) Sheriffs and Civil Process Judgment Enforcement Rules, Cap. 123, Laws of Northern Nigeria, 1963 applicable to Kano State.

3. Whether or not there was any miscarriage of justice in the consideration of the appellant’s case by the lower court and whether issue 3 of the appellant is competent.”

The third respondent adopted the three issues framed by the appellant in its brief as it considers them as all encompassing. It merely reproduced the three formulations for purposes of clarity or avoidance of doubt.

The 2nd respondent was not happy with the ruling of the learned trial Judge and cross-appealed with leave of the court on 2 original and one additional grounds of appeal. The cross-appellant framed these issues from the three grounds of appeal:
“1. Whether or not in the circumstances of this case the lower court was not in error in refusing to set aside the judgment entered against the 2nd respondent after setting aside judgment against the 1st respondent.
2. Whether or not the appellant has locus standi to institute this suit against the respondents.”

The cross-respondent in its cross-respondent brief formulated the following issues:
“1. Whether or not the lower court was wrong in refusing to set aside its judgment against the 2nd respondent.
2. Whether the ground contained in the cross-appeal ground three and issue No. are competent grounds 2 (sic) of the cross-appeal are competent before the court.”

The third respondent-cross-respondent again filed a cross-respondent brief to the cross-appeal in which brief he framed only one issue.

Its sole identification of issue reads as follows:
“Issue 2 formulated by the cross-appellants adopted by the 3rd respondent.
2. Whether or not the appellant has locus standi to institute this suit.”