Ministry Of Education, Anambra State & Ors V. Obong-ifiok (Dr) Anny Asikpo (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ONYEKACHI A. OTISI, J.C.A.(Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Akwa Ibom State sitting at Uyo, delivered on 10th May, 2010.

The Respondent, an Educational Publisher based in Akwa Ibom State, entered into a contract with the 3rd Appellant for the production, supply and delivery of one million, fifteen thousand copies of the ABBNNY Uniform Continuous Assessment Tests and Evaluation Workbooks for use by Anambra State students for 2007/2008 academic year. The total value of the Workbooks was N209,000,000.00 (two hundred and nine million Naira). The Workbooks were to be paid for on or before the end of the 2007/2008 academic year: but of the end of this period, the sum of N71,400,000.00 remained outstanding.

The Respondent as plaintiff filed Suit No HU/UND/320/2009 before the High Court of Akwa Ibom State, Uyo, for the recovery of the outstanding sum. The suit was brought on the Undefended List, seeking the following Reliefs against the Appellants as defendants, jointly and severally:

1. The sum of N71,400,000.00 (Seventy-one Million four hundred thousand Naira) only being the remaining balance of the proceeds for the Workbooks had been supplied by the Plaintiff and received by the Defendants.
2. Post judgment interest on the judgment debt at the rate of 10% per annum until the judgment debt is fully liquidated.

The Appellants filed a Notice of Intention to Defend; as well as a Preliminary Objection challenging the jurisdiction of the trial court to hear the suit. The trial court heard the preliminary objection, and, fixed 10/5/2010 for Ruling. On that date, the court ruled on the preliminary objection and then delivered a final Judgment in favour of the Respondent.

Dissatisfied with the Judgment, the Appellants filed a Notice and Grounds of Appeal on 2/8/2010, seeking on Order of this Court, setting aside the Judgment.

Don Adizue Esq.,Principal State Counsel,Ministry of Justice, Anambra State filed the Appellants’ Brief on 29/11/2011, but deemed properly filed and served on 27/6/2012. Obot E. Obot, Esq., for the Respondent filed the Respondent’s Brief on 3/12/12, but deemed properly filed and served on 9/5/2013. The Appellants’ Reply Brief was filed on 18/3/2013 but deemed properly filed and served on 9/5/2013. These Briefs were adopted by respective Counsel on 9/5/2013.

The Appellants filed six Grounds of Appeal, but formulated two issues as follows:

1. Whether the trial Court was right to assume jurisdiction regarding Section 11(2) Anambra State Proceeding Law Cap. 134 Laws of Anambra State 1991 on pre-action notice as Anambra State Civil Procedure Rule which is not applicable in Akwa-Ibom State High Court?
2. Whether the judgment of trial court was right in view of Clause 3 of the agreement between parties?

The Respondent’s Counsel submitted, as a preliminary issue, that issue No 1 covered Grounds 2 and 4, while Issue No 2 covered only Ground 5. That Grounds 1, 3, and 6, from which the Appellants have formulated no issues, should be deemed abandoned. He further submitted that Issue No 1 formulated from Ground 4 is mixed law and fact, and, can only be argued where leave of court has first been obtained. That Ground 4 should be struck out because no leave of court was obtained. He relied on Yaro vs. Arewa Construction Ltd (2007) NSCQR 30 (PT.11) 1193 at 1219. It is further submitted that since Issue No 1 is formulated from Grounds 2 and 4, if Ground 4 is found to be incompetent, the arguments covered in Issue No 1 become incompetent, as the arguments cannot be separated.

Learned Counsel to the Appellants in reply submitted that leave was not required in respect of Ground 4.

It is trite law that issues for determination in an appeal must be formulated from the grounds of appeal. This is because on Appellate Court cannot hear and decide grounds of appeal but issues distilled from the grounds of appeal filed before it. Therefore, a ground of appeal in respect of which no issue has been distilled or formulated, is deemed to have been abandoned. Such ground of appeal, as well as, all the arguments based on it are liable to be struck out. See: Adelekan v Ecu-line NV (2006) 8 MJSC 142: Aderibigbe v Abidoye (2009) 4 MJSC (PT 3) 77.

It has rightly been contended for the Respondent that no issues were distilled by the Appellants from Grounds 1, 3, and 6. These Grounds 1, 3, and 6 are therefore deemed abandoned; and, are hereby struck out.

The exercise of appellate jurisdiction is entirely statutory in that an Appellate Court derives its jurisdiction from the statute creating it, comprising the Constitution and other enabling statutory provisions. Relevant for consideration here are the provisions of Section 241(1)(a) of the 1999 Constitution, as amended:

241(1)(a) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:-