MR. Zang & Anor V. Emmanuel Ituma & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

This is an appeal against the decision of the High Court of Cross River State, Akamkpa, delivered on the 30/3/2011 in suit No. HK/21/2007, by which judgment was entered in favour of the Respondents as counter-claimants, against the Appellants.

The 2nd Appellant had initially sued the Respondents and Moses Anyoku before the High Court for declaration and damages to its vehicle, said to have been caused by the 1st and 3rd Respondents’ recklessness. In their statement of defence to the action, the Respondents made and included a counter-claim against the Appellants and Etim Jon Effiong and Sgt. Richard Agogo.

At the trial, the Respondents called evidence to prove their counter-claim and the Appellants rested their defence to the counterclaim, on the case presented by the Respondents. so the Appellants did not call evidence on their defence to the counter-claim and after a consideration of the pleadings and evidence adduced by the Respondents in support of their counter-claim, the aforementioned judgment was entered in their favour. Being dissatisfied with the decision by the High Court, this appeal was brought against it by the Appellants vide a notice of appeal dated and filed on the 13/4/2011, containing three (3) grounds of appeal. An amended notice of appeal of four (4) grounds was filed on the 17/6/2013 and in the Appellants, brief filed on the 17/6/2013, but deemed on the 24/3/2014; the date of the oral hearing of the appeal, two (2) issues were raised for decision in the appeal. They are:-

“4.01. Whether the failure to serve the 1st to 3rd defendants (One of who is now the 1st Appellant) with the counter-claim by which the counter-claimants, now Respondents commenced action against the 1st to 3rd defendants did not amount to a denial of 1st to 3rd defendants’ right to fair hearing thereby vitiating the entire proceedings and the judgment thereof. (Ground 1)

4.02. Whether the judgment of the lower court was not perverse having regard to the facts and circumstances of the counter-claim. (Grounds 2, 3 and 4).”

In the Respondents’ brief filed on the 6/11/2013 deemed on the 24/3/14, preliminary objections to the record of the appeal and the inclusion of Etim Jon Effiong and Sgt. Richard Agogo in the Appellants’ submissions in the appeal, were argued. A further objection was raised on Appellants’ ground 1. A notice of the preliminary objection was filed on the same date with the Respondents’ brief. Two (2) issues were set out for determination in the brief as follows:-

“1. Whether, on the totality of the facts and circumstances of these proceedings at the trial court, the appellants can be heard to complain of self imposition of representation by Emmanuel Okang, Esq., none service and the denial of fair hearing? (formulated from Ground 1).

2. Whether, the Respondents’ evidence on record that was altogether un-denied and unchallenged, is not abundant or sufficient enough to entitle them to the judgment entered against the appellants? (formulated from Ground 2).”

An Appellants’ Reply brief, filed on the date of the hearing of the appeal, was deemed by the court before the hearing. All the briefs were adopted and relied on by the learned counsel for the parties at the hearing, each urging us to uphold the respective submissions therein.

As usual, I would, briefly, consider the preliminary objection raised and argued in the Respondents’ brief.

The first ground of the objection was that the record of the appeal was transmitted to the court outside the period prescribed by the Rules of the court and that leave of the court was not sought for and obtained by the Appellants. It was conceded in the Appellants’ Reply brief that the record was transmitted outside the limited by the Rules of the court, due to the fault of counsel, the sin of whom the courts do not visit on parties.

In the case of Nneji v. Chukwu (1988) 3 NWLR (81) 184, in dealing with compliance with rules of court, the Supreme Court had stated that:-

“Albeit rules of court are meant to be complied with, but the principal object of court is to decide the rights of the parties and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with those rights. The Rules of court are made to help the court in its primary duty and objective, namely, to do justice to the parties by deciding on the merits of their case. It will therefore be undesirable to give effect to rules which will merely enable one party to score, not victory on the merit, but a technical knock-out at the expense of a hearing on the merits.”

See also University of Lagos v. Aigoro (1985) 1 NWLR 143 at 154; Alsthom v. Saraki (2000) FWLR (28) 2267; Afribank v. Owoseni (1995) 2 NWLR (375) 110; F.S.B. Int. v. Imano (2000) 7 SCNJ 65 at 78.