Mallam Sani Ogu V. Manid Technology & Multipurpose Co-operative Society Limited (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LAWAL GARBA, J.C.A. (Delivered the Leading Judgment)

This appeal is against the decision of the Kogi State High Court sitting at Koton-Karfe delivered on the 12/11/08 in Suit No. HC/KK/030.CV/2004 by which judgment was entered in favour of the (Respondent who was the Plaintiff in the case). The Respondent had initially taken out a writ of summons entered under the undefended list by the High Court on which were endorsed claims for the sums of Four Million Naira (4,000,000) and Five Hundred Thousand Naira (N500,000) as costs of goods had and received by the Appellant and general damages for breach of contract respectively. Eventually the Appellant was granted leave to defend after he delivered his notice of intention to defend the suit as required by the Rules of the High Court.

The suit was however heard and determined on the affidavit evidence filed by the parties in support of their different positions on the order of the High Court. After taking oral evidence and addresses by the learned Counsel for the parties, the High Court entered the aforementioned decision by which the Appellant felt aggrieved and therefore filed this appeal against it.

The Notice of Appeal which was dated the 21/11/08 and contains eight (8) grounds of Appeal is at pages 62-66 of the printed record of appeal. With the leave of the Court, the Notice of Appeal was amended vide an Amended Notice of Appeal dated and filed on 12/10/09 but which was deemed filed on 11/3/10.

In line with the practice in this Court, briefs of argument were filed by the learned Counsel representing the parties to the appeal. The Appellant’s brief of argument settled by P D Abalaka, Esq was dated and filed on the 12/10/09 while the Respondent’s brief of argument settled by Tawo E. Tawo, Esq. ACIArb. was dated and filed on 1/4/10. An Appellant’s Reply brief was also filed on the 8/6/10 to complete the filing and exchange of briefs in the appeal.

From the eight (8) grounds of appeal, three (3) issues were raised for determination at paragraph 3.1 of the Appellant’s brief which has no pagination. They are:-

“(1) Whether the Lower Court was right in admitting and retrying on Exhibit P5. (Grounds 1, 2 and 3).

(2) Whether the Lower Court was right in the view it took of Exhibit “P3” a Solicitor’s Letter written at the instance of PW1 to the Appellant (Ground 8). (Grounds 4, 5, 6 and 7).

(3) Whether the Respondent has established that the Appellant engaged him to supply “Adoja” rice and other Packages to the Appellant”.

Issue (1) was said to have enured from grounds 1, 2 and 3 while Issue (2) was said to have arisen from grounds 4, 5, 6 and 7. It was not indicated in the Appellant’s brief from which ground of the appeal the Issue (3) was distilled. However I should say that the issue did not arise from the only other ground of appeal set out on the Notice of Appeal but which was not mentioned in the Appellant’s brief, i.e. ground 8. Ground 8 is in the following terms:-

“(8) That the learned trial judge erred in law when he held as follows:-

“This letter, in my view, strengthened the case of the claimant especially as the defendant never denied receipt of the letter”.

As can easily be observed, there is no relevant nexus between ground 8 and the Issue (3) above. In fact it is clear as crystal that Issue (3) did not arise from any of the grounds of appeal contained on the Amended Notice of Appeal. None of the grounds contained on the said Notice of Appeal complained of non-existence of an engagement by Appellant of Respondent for the supply of the goods in question. For that reason, Issue (3) appears to be hanging in the air without a foundation on which it can stand in this appeal. The law is that for an issue to be a competent one for determination in an appeal it must have arisen or come from a competent ground of appeal contained on the Notice of Appeal Where, as in the case of Issue (3) above, an issue is not shown and did not derive from any of the grounds contained on the Notice of Appeal, it is an incompetent issue for the purposes of the appeal and liable to be struck out by the Court See:- REGISTERED TRUSTEES OF THE APPOSTOLIC FAITH MISSION V. U.B. JAMES (1987) 7 SCNJ 167; AFRICAN PETROLEUM LTD. V. OWODUNNI (1991) 8 NWLR (210) 391; AKINLAGUN V. OSHOBOJA (2006) ALL FWLR (325) 53.

For that reason, the Appellant’s Issue (3) is incompetent and hereby struck out. The submissions on the issue in the Appellant’s brief would accordingly be discountenanced in the determination of this appeal. Two (2) issues were formulated in the Respondent’s brief which we were called upon to determine in the appeal.