Tajudeen Adewale & Anor V. Jairus U. Angwa & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment)

The facts leading to this appeal indicate that the first to third Respondents in this appeal instituted an action before the Kaduna State High Court against the 4th Respondent, i.e., Mrs. Janet Ojo claiming the sum of ?4,000.00 (Four Thousand British Sterling) or its Naira equivalent being the sum advanced to Mrs. Janet Ojo to execute a project in Kaduna, Nigeria on behalf of the 2nd and 3rd Plaintiffs respectively which she failed, refused and/or neglected to execute and had refused to refund the money despite repeated demand; and 10% interest from the date of judgment.

The matter was heard in the Kaduna State High Court and judgment was entered in favour of the first set of Respondents against the said Mrs. Janet Ojo on 6/7/2005. Owing to the difficulty in levying execution of the said judgment in Kaduna, the Certificate of the said judgment obtained on the 5th July, 2001, was then registered before the Kano State High Court to enable them levy execution on some of by Mrs. Janet Ojo’s movable and immovable properties in Kano. On 17/7/02, the application for execution of a foreign judgment was heard and granted directing the execution of the Kaduna State High Court judgment as if it were the judgment of the Kano State High Court. After the registration, execution was levied, and some items were attached and sold. The record shows that on 16/4/2003, the 1st Appellant appeared before the Kano State High Court and informed the Court that his car was attached by the Court, and that the car was in the name of one Abubakar Kumo. The Court then struck out the application filed by the 1st Appellant, Mr. Adewale, and advised him to go and file the necessary application before the Kaduna State High Court. Then, on 28/5/2003, the Appellants filed a Motion on Notice dated the same 28/5/03 before the Kano State High Court praying firstly; for an order setting aside its ruling delivered on 16/4/2003 and secondly, an order re-listing suit No. K/M212/02 dated 24/4/2003 struck out on the 19th day of May, 2003.

The Record further shows that on 24/6/03, an order was made by the Kano State High Court relisting the Appellant’s Motion dated 28/5/2003 which was adjourned to 9/7/03 for hearing. On 9/7/03, the said Motion was heard and the Court adjourned it to 16/7/03 for ruling. However, it was further adjourned on 16/7/03 to 22/7/03 for ruling. The Court apparently did not sit on 22/7/03 because there was nothing on the record indicating same. The record depicts that the ruling was delivered on 24/7/03, and the Motion dated 28/5/03 was dismissed.

Consequent upon that, the Appellants filed a Notice of Appeal on 10/8/03 which they pivoted on two grounds of appeal. The Appellants formulated three issues out of the two grounds of appeal. I must say I could not sight any Amended Notice of Appeal that contains three grounds meaning that the Appellant proliferated their issues. This approach has been roundly condemned by the apex Court and this Court. I have myself examined the issues formulated and I am of the view that issue No. 2 does not relate to any of the Appellants’ grounds of appeal, therefore, it ought to be struck out. The issues formulated by the Appellants in their Brief are:

“1. Whether the registering court i.e. Kano High Court that ordered execution against non-judgment debtors (Appellants) cannot order the release of the goods back to the Appellants save only the same application is made before the court that gave the original judgment i.e. Kaduna High Court vide Section 109 of the Sheriff and Civil Process Act CAP 1990.

2. Whether the interest of justice was in anyway served by the dismissal order made on 24/7/2003.
3. Whether a dismissal order is a consequential order that should have been made in the circumstances of this case instead of an order striking-out the motion.”

The Respondents for their part filed a Preliminary Objection which was hinged on the following grounds:

“(i) That no leave was granted the Appellants to file Additional Grounds of Appeal and no additional Grounds of Appeal was filed as required by the law before the Appellants went ahead to file their Brief of Argument based on the purported additional Grounds of Appeal.

(ii) That the purported original Notice and Grounds of Appeal undated but filed on 20/08/03 is neither signed by the Appellants themselves or their legal practitioner as required by the law.

(iii) That the decisions sought to be appealed against stemmed from exercise of discretion of the lower Court and thus leave is required to appeal against same and there is no such leave either from the lower Court or the Court of Appeal before this appeal was purportedly filed.

(iv) That the Notice and Grounds of Appeal relied on in the Appellants’ Brief of Arguments is not contained in the record of appeal forwarded before this Honourable Court.”

Nevertheless, the Respondent raised only one issue for determination in the appeal in the event their Preliminary Objection was not sustained thus:

“Whether the Kano State High Court has jurisdiction to entertain the application brought before it by the Appellants?”

The grave issues raised by the Respondents in their Preliminary Objection were not responded to, by the Appellants. They did not file any Reply Brief thereto, particularly in respect of the competency of the Notice of Appeal.