Santory Company Ltd. & Anor. V. Bank of the North Ltd. (2004)

LawGlobal-Hub Lead Judgment Report

ZAINAB ADAMU BULKACHUWA, J.C.A.

The respondent, as plaintiff before the High Court of the Federal Capital Territory by a writ of summons dated 12/4/95 claimed against the defendant/appellant the following reliefs:
“The plaintiff claim jointly and severally against the defendants the sum of N1,245,539.30 being debt owed and due to plaintiff as at January 1995 as a result of credit facilities made available to the defendants on 20th August, 1993 which debt the defendant has failed, refused and/or neglected to settle, inspite of repeated demands.

Whereof the plaintiff claim as follows:
(1) The said sum of N1,245,539.30
(2) Interest at
(a) current bank rate up to date of judgment
(b) 10% per annum till settlement of the judgment debt.

Thereafter, on the 24/4/95, the plaintiff filed a motion ex-parte whereby he sought for an order of interim attachment of vehicle Mercedes Benz 200 with registration No. LCA 7401 TA and Honda Accord registration No. PL 19 KRV, property of the 2nd defendant, pending the final determination of the motion on notice.”

The application ex-parte was moved and granted on the 25/4/95. The case was also heard on the undefended list in the absence of the defendant and judgment entered as claimed by the plaintiff on the 18/5/95.

The defendant/appellant on the 25/5/95 filed an application before the lower court where he prays for:-
(a) an order setting aside the judgment of this court dated 18/5/95 in the sum of N1,245,539.30 plus interest against the defendant;
(b) an order staying execution of the said judgment pending the determination of this application;
(c) an order discharging the ex-parte order of this court dated 25/4/95 attaching 2nd defendant/applicants Mercedes Benz No. LA 7401 TA and Honda Accord No. PL 19 KRV on the ground that the order was obtained without giving the applicant a hearing and the motion on notice was not served and moved;
(d) an order releasing the said Mercedes Benz to the 2nd defendant/applicant the lawful owner of the car.

This application was heard on the 13/6/95 and in a ruling delivered on the 7/7/95 the lower court refused the application.

The defendant, being dissatisfied appealed to this court initially against the ruling of 6/7/95 which he filed on 12/7/95, the notice of appeal containing 8 grounds of appeal. Thereafter, he applied by an application filed on 14/11/01 before this court for extension of time within which to appeal against the lower court’s judgment of 18/5/95 which application was heard and granted on the 24/4/02 and the proposed notice and grounds of appeal dated 13/11/01 annexed to the application was deemed as duly filed and served.

There is only one sole ground of appeal which reads:
“The learned trial Judge erred in law in entertaining the suit as no leave was obtained to place the suit on the undefended list.”

In the appellants’ brief of argument filed on the 1/5/02, he identified the following issues from the above ground:
“(1) Whether the trial court had jurisdiction to entertain the matter?.
(2) Whether in all the circumstances of this case, the trial court was right in entering judgment in favour of the respondent?.”

The respondent in his brief of argument deemed filed on the 19/11/03, raised a preliminary objection. His contention is that there being one ground of appeal, the appellant should not have distilled two issues from the said ground of appeal. Submitting that it is now trite that there cannot be more issues for determination in appeal than the number of grounds raised, relying on UBN Plc. v. Dafiaga (2000) 1 NWLR (Pt. 640) 175; Omo v. J.S.C., Delta State (2000) 12 NWLR (Pt. 682) 444; (2000) 7 SC (Pt. 11) 1; Fabiyi v. Adeniyi (2000) 6 NWLR (Pt. 662) 532. He urged us to strike out issue two as formulated by the appellant which he submits did not arise from the only ground of appeal and is a violation of the provisions of Order 6 of the Court of Appeal Rules.

The appellants did not file a reply brief in reply to the preliminary objection raised by the respondent in his brief, nor were they in court on the 4/2/04, the date fixed for the hearing of the appeal. When their brief filed on 5/2/02 was deemed as argued as per the provision of Order 6 rule 9(5) of the Court of Appeal Rules, 2002.

The presumption here is that the appellant has no reply to the preliminary objection raised that he has formulated two issues from one ground of appeal amounting to proliferation of issues.
It has now become trite that issues for determination in a brief of argument must of necessity be limited by the grounds of appeal filed. While an issue can cover or traverse one or several grounds of appeal, issues for determination should not be more in number than the grounds of appeal on which they are based. It is incompetent to formulate more issues than the grounds of appeal filed.
In the instant case, the appellant formulated 2 issues out of a single ground of appeal.

Only the first issue encompasses or covers the ground of appeal, the 2nd issue does not relate to the ground of appeal, it is incompetent and is therefore liable to be struck out Osinupebi v. Saibu (1982) 7 SC 104; Western Steel Works Ltd. v. Iron and Steel Workers Union of Nigeria (1987) 1 NWLR (Pt. 49) 284; Aja v. Okoro (1991)7 NWLR (Pt. 203) 260; Bakare v. L.S.C.S.C. (1992) 8 NWLR (Pt. 262) 641; Abisi v. Ekwealor (1993) 6 NWLR (Pt. 302) 643; Awoniyi v. Registered Trustees of Amore (2000) 10 NWLR (Pt. 676) 522; Gurara Securities & Finance Ltd. v. T.I.C. Ltd. (1999) 2 NWLR (Pt. 589) 29. In effect, the preliminary objection is upheld and issue 2 with all arguments based on it in the appellants’ brief is hereby struck out.