U.A.C. Of Nigeria Ltd Vs M.O. Fasheyitan & Anor (1998) LLJR-SC

U.A.C. Of Nigeria Ltd Vs M.O. Fasheyitan & Anor (1998)

LAWGLOBAL HUB Lead Judgment Report


The appellant company entrusted goods to the defendants/respondents to be transported by them from Lagos to Kaduna where the appellant had a branch. The goods were not delivered at Kaduna or anywhere and they were not returned to the plaintiff/appellant either. Upon this the plaintiff claimed against the defendants the sum of N42,250.00 being the value of the goods and interest at the rate of 5% from the date the writ was taken out until the final judgment. The plaintiff claimed he had difficulty in serving the writ on the defendants/respondents and prayed and got order for substituted service on them whereby service would be effected on the respondents’ premises.

On the bailiff making a return that the substituted service had been effected, the plaintiff then moved for judgment in default of appearance by the respondents. However, upon receipt of motion papers for judgment in default, the respondents brought a motion to set aside the substituted service “on the ground that the defendants have not been served with any writ of summons”. There was an affidavit as usual in support of this application to which the plaintiff filed a counter-affidavit. The learned trial judge then decided to have oral evidence to resolve the conflict in the affidavits. It must be pointed out that the first defendant who is the alter ego of the second defendant admitted his address was No. 93 Cemetery Street, Ebute Metta, on which the plaintiff claimed the bailiff served the defendants by substitution, the learned judge on hearing the oral evidence believed the service was not effected as ordered and set aside the purported service of writ of summons and statement of claim. Consequently he dismissed the motion for judgment in default of appearance. It is upon this ruling that the appellant (plaintiff) appealed to the Court of Appeal which dismissed the appeal by upholding the decision of the trial court. Thus this appeal before the Supreme Court.

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The appellant set out the following issues for determination, which the respondents adopt but regard as all hovering around one and only one aspect, that is to say the lower court was right when it held that upon all facts before it the service of process was not effected on the defendants;

“01. Whether or not the lower court erred in law in declining to reverse the decision of the High Court when the findings of the learned Judge cannot be supported by the evidence placed before him at the trial and therefore failed to draw the proper inference from the facts proved.

  1. Was the Court of Appeal in error in refusing to reverse the decision of the learned judge or interfere with his findings of fact when such findings are perverse and the learned judge did not appear to have taken proper advantage of his having seen and heard the witnesses.
  2. On the totality of the evidence before the High Court, whether or not the Court of Appeal ought to have intervened to reverse the decision of the learned Judge especially as the evidence of the defence witnesses was full of contradictions on material points in issue which were not resolved by the learned Judge.”

It must be clearly explained in this judgment that the only means to gaining access to this court from the lower court is by appeal. Thus it is the notice and grounds of appeal endorsed on the notice that make the entering of the appeal possible. However, once the appeal is entered, the procedure for the hearing of the appeal is another matter.

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By Order 6 rule 5 (1) (a) of the Supreme Court Rules, the appellant shall within ten weeks of the receipt of record of appeal file and serve the respondent a written brief, being a succinct statement of his argument in the appeal. Such brief shall contain what are, in the appellant’s view, the issues arising in the appeal (Order 6 rule 5 (1) (b) of the Supreme Court Rules). The respondent may also file a brief in answer to the appellant’s brief within eight weeks of his receiving the later’s brief, such a brief will contain the issues relied upon by the respondent for opposing the appeal. It is clear that the brief is the argument for the appeal on the issues contained therein. The issues, set out for determination in the brief, must be related to the grounds of appeal, that is to say, must be relevant to the grounds of appeal. It therefore follows that once an appellant gains access to the Court of Appeal and the Supreme Court by virtue of notice of appeal containing the grounds of appeal, it is the issues formulated in the brief of argument based on the grounds of appeal that are argued, and no longer the grounds of appeal. Any brief of argument that does not address the issues formulated therein but reverts to the grounds of appeal is not arguing the issues and will appear to abandon the issues. Elf (Nigeria) Ltd v. Sillo (1994) 6 NWLR (Pt. 350) 258; Carlen (Nigeria) Ltd v. Unijos (1994) 1 NWLR (Pt. 323) 631 SC.

A party must advance his argument in brief on the issues formulated therein and not on the grounds of appeal. In essence, the brief is the concise but condensed argument on the grounds of appeal built round the issues formulated therein and it is far beyond the grounds. Brief writing has been with us for sometime now and its structure and form ought to have been firmly ingrained in our appellate advocacy. It must therefore be re-emphasised that argument in the brief must be based on the issues formulated for determination and not on grounds of appeal. Ayanboye v. Balogun (1990) 5 NWLR (Pt. 137) 392; Onifade v. Olayiwola (1990) 7 NWLR (Pt. 161) 130; Macaulay v. NAL Merchant Bank Ltd. (1990) 4 NWLR (Pt. 144) 283; Egbunike v. A.C.B. Ltd. (1995) 2 NWLR (Pt. 375)34;A.C.B. PLC. v. Losada (Nigeria) Ltd. (1995)7 NWLR (Pt. 405) 26.

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What has happened in the appellant’s brief is that it addressed the grounds of appeal substantially but never departed from the points raised in the issues. It is more of an inelegant brief than an incurably defective brief. I believe the brief could be better. The attitude to such briefs is to take them for what they are in elegant and nothing more to militate against hearing the appeal.

As I earlier said, this appeal is based not on law but on concurrent findings of fact. The findings were based on admissible evidence and they were not perverse to cause this court to interfere. I therefore find no merit in this appeal and I dismiss it with N10.000.00 costs to respondents.

SC. 244/1990

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