P. D. Hallmark Contractors Nigeria Limited & Anor V. Gloria Kanrotmwa Gomwalk (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH TINE TUR, J.C.A.(Delivering The Leading Judgment)

The learned Counsel adopted their respective briefs of argument on 11th November, 2014. The ninety days for delivery of judgment was 11th February, 2015. JUSUN strike commenced on 2nd January, 2015 hence the judgment could not be delivered. I am delivering it today (13th February, 2015).

P.D. Hallmark Contractors (Nig.) Ltd. and David Moses Pwaspo hereinafter called “the appellants” took out a writ of summons against Gloria Kanrotmwa Gomwalk (“the respondent”) on 26th April, 2013 before the High Court of Justice, Plateau State holden at Jos. Pleadings were filed and exchanged. The matter proceeded to hearing. At a point in time the parties indicated their intention to settle the controversy out of Court.

The Court was however informed on 25th June, 2013 that negotiated settlement had failed hence Pw1 proceeded to testify. A number of documents were tendered through Pw1, objection was raised by the respondent’s Counsel and upheld by the learned trial Judge. They were marked “tendered and rejected” without assigning any Roman or alphabetical figures to them. Some documents were however admitted and marked as exhibits. Thereafter the matter was adjourned to 10th July, 2013 for cross-examination.

Aggrieved with the rulings that rejected certain documents, the appellants filed this appeal on 3rd July, 2013. Learned Counsel to the appellant relied on an Amended Brief of Argument filed on 8th January, 2014 but deemed properly filed on 22nd January, 2014 and served on the respondent. The following issues distilled for determination were couched as follows:

“(a) Whether the lease agreement Exhibit “1” tendered by the appellants which did not transfer nor extinguished any title to land to the appellants, but was tendered simply to prove that the appellants were in exclusive possession as lessee, must be registered for it to be admissible in evidence.

(b) Whether tendering of a certified true copy of a public document is not sufficient proof of the document and admissible in evidence without more.

(c) Whether the “die is cast” that a maker of a document must be called as a witness to tender original documents in possession of the appellants meant to prove publication, libel and defamation against the same maker who is also the respondent, sued by the appellants for a defamation, libel and trespass to land; when the maker falsely claims interest on the subject matter of the suit against the appellants that she is the owner and the landlady of the property, subject matter of dispute.

(d) Whether pictures pleaded and tendered along with the Memory Card, as the evidence by which the pleaded pictures are to be proved by the appellants are not admissible in evidence because the Memory Card was not specifically pleaded.”

The respondent’s brief filed on 21st February, 2014 set out the following lone issue for determination:

“1. Whether the applicants’ grounds of appeal are not incompetent in that the grounds of appeal together with this particulars are not narrative argumentative and a “brief of argument on its own”?”

When the appeal came up for hearing on 11th November, 2014 Counsel adopted their respective briefs of argument. My humble view is that it is the party aggrieved with a ruling or decision of a trial Court that usually appeals and, in the brief, sets out what issues he considers to arise in the judgment and the grounds of appeal which, if determined will result in his favour.

The duty of a respondent who did not cross-appeal nor file a Respondent’s Notice is to answer only the material points raised in the appellant’s brief showing why the appeal should be dismissed, or conceding to points or argument raised by the appellant as the case may be. See Order 18 rules 2 and 3(1) and 4(1) and (2) of the Court of Appeal Rules, 2011.

In the absence of a cross-appeal nor Respondent’s Notice, I do not see the authority a respondent has to formulate different issues for consideration rather than adopting the appellant’s issues if the Rules of this Court are to be obeyed. The lone issue formulated by the respondent is irrelevant to the determination of this appeal.