Mr. Alexander Ajonye V. Mr. Mike Nwachukwu (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

This appeal is from the decision of the F.C.T. High Court, (to be called High court after now) in Suit No. FHC/HC/CV/820/2000 contained in a judgment delivered on the 14/6/05. The judgment was entered in favour of the Respondent as plaintiff in High court and being dissatisfied with it, the Appellant caused a notice of appeal dated the 13/9/05 to be filed on the same date against same. The notice of appeal is at pages 229-233 of the printed record of appear and contains four (4) grounds of the dissatisfaction by the Appellant against the judgment which are as follows; without their particulars:-

‘GROUNDS OF APPEAL

(1) The judgment is against the weight of evidence.

(2) The learned trial Judge erred in law when he awarded the sum of N650,000.00 (Six hundred and fifty thousand Naira) to the Respondent whereas the pleadings and evidence of the Defendant (Appellant herein) which specifically traversed the claim for it was sustained and upheld by the court

(3) The learned trial Judge erred in law when he held that the testimonies of DW1 and DW2 as to the circumstances under which Exhibit ‘C’ was made were materially contradictory.

(4) The learned trial Judge misdirected himself on the facts when he held that, the sum of N220,000 admitted by the Defendant only forms part of the amount contained in Exhibit ‘C’.”

The record of the appeal was transmitted from the High court and received in this court on the 25/9/09 and the Appellants brief of argument in respect of the appeal, was filed on the 26/9/0g, the following day. By the provisions of order 17, Rule 4(r) of the court of Appeal Rules, 2007, the Respondent to the appear was required to file a brief of argument within thirty (30) days of the service of the brief for the Appellant. The Respondent did not file the Respondents brief in the appeal and so a motion dated and filed on the 9/10/09 by the Appellant for the appeal to be heard on the Appellant’s brief alone was granted by the court on 9/6/10. The appeal was set down the hearing on the 18/1/11 by which date there was no record that the Respondent had filed a brief of argument in the appear or taken any step to do so even though duly served with hearing notice through learned counsel. On the said date of 18/1/11 when the appeal was called in Court for oral hearing, Dr. J. Y. Musa, learned Counsel who settled the Appellant’s brief of argument, leading E. E. Eko, M. C. Sojachukwu, J. O. Musa and S. Omale, Esq. appeared for the Appellant. The Respondent and Counsel were absent and there was no communication from either of them but particularly the learned counsel who was served with the hearing notice of the appeal on the 10/1/11 as indicated on the endorsement on a copy of the hearing notice filed by the Bailiff of the Court.

Since the appeal was fixed for hearing on the Appellants brief alone pursuant to the court order, the Appellant brief was adopted by the learned counsel for the Appellant as his submissions in support of the appeal on which he relied. We were urged by him to allow the appeal, set aside the judgment of the High court and pursuant to Section 16 of the court of Appeal Act, give judgment in favour of the Respondent in the sum of N220,000.00 less N70,000.00 already paid by the Appellant.

This appeal is in the circumstances set out above, an uncontested one, one which is one sided for being unchallenged. Because the Respondent to the appeal did not file a brief of argument to answer all the material points of substance contained in the Appellant’s brief, the law deems that the Respondent has conceded to all the points canvassed by the Appellant in support of the appeal. See:-

SHONA-JASON v. OMEGA ACR (2006) 1 NWLR (960) 1 at 27,

ECHERE v. EZIRIKE (2006) ALL FWLR (323) 1595 at 1608, ABUBAKAR V. INEC (2004) 1 NWLR (1854) 207.

However the law is also settled that an Appellant in this court is to succeed on the strength or merit of the grounds of appeal and issues canvassed in the appeal and not on the absence of a Respondent’s brief to answer those issues. An Appeliant is therefore not automatically entitled to judgment in an appeal simply because the Respondent/s in the appeal opted, neglected or failed to file the Respondent’s brief of argument. Before such an Appellant can or is entitled to succeed or win an appeal, he had the legal duty to demonstrate in the submissions in support of appeal, and that of the court to consider and be satisfied that the appeal is sustainable in law’ An Appellant must succeed or as the case may be fail on the merit and sustainability of the submissions contained in his brief of argument and the mere absence of the Respondent’s brief of argument would not affect or change that position. See: AKAS V. MANAGER (2001) 8 NWLR (715) 436 at 442, SOFALAHAN v. SOFOLAHAN (1999) 10 NWLR (621) 86, OKONGWU V. NNPC (1989) 4 NWLR (115) 296, ECHERE v. EZIRIKE (SUPRA) also reported in (2006) 12 NWLR (994) 386.

So I would consider the issues submitted by learned Counsel for the Appellant for determination in the appeal and the submissions made thereon and then determine whether the appeal is sustainable in law.