3PLR – KANO TEXTILE  PRINTERS PLC V. GLOEDE AND HOFF NIGERIA LIMITED

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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KANO TEXTILE  PRINTERS PLC

V.

GLOEDE AND HOFF NIGERIA LIMITED

IN THE COURT OF APPEAL

[KADUNA DIVISION]

3PLR/2001/189  (CA)

 

OTHER CITATIONS

2 NWLR (pt 751) P 420

 

BEFORE THEIR LORDSHIPS:

ISA AYO SALAMI, JCA (Presided and delivered the leading judgment)

RABIU DANLAMI MUHAMMAD

VICTOR AIMEPOMO OYELEYE OMAGE

 

REPRESENTATION

Alhaji Aliyu Umar for appellant.

D.O. Onietan for respondent.

 

MAIN ISSUES

PRACTICE AND PROCEDURE – APPEAL – Appeal as of right against final decision of a High Court under section 241(1)a of 1999 Constitution.

PRACTICE AND PROCEDURE – APPEAL – Grounds of appeal – duty of court to strike out particulars not related to same.

PRACTICE AND PROCEDURE – APPEAL – Issues not related to the ground of appeal – whether arguments can be canvassed on same.

PRACTICE AND PROCEDURE – APPEAL – Issues not related to a ground of appeal – whether competent.

PRACTICE AND PROCEDURE – APPEAL – Raising fresh issue on appeal – whether leave is required.

CONSTITUTIONAL LAW – Appeal as of right against final decision of a High Court under section 241(1)a of 1999 Constitution.

PRACTICE AND PROCEDURE – COURT – Functus officio – when would a court be functus officio – remedy of a party aggrieved by a ruling when a court becomes functus officio.

PRACTICE AND PROCEDURE – EVIDENCE – Standard of proof in civil cases.

HUMAN RIGHTS – FAIR HEARING – Audi alteram partem rule – whether it means that the other party must be heard willy nilly.

PRACTICE AND PROCEDURE – JURISDICTION – Issue of jurisdiction – when can be raised.

PRACTICE AND PROCEDURE – Judgment in a matter reserved or entered in default against a defendant – options available to a defendant.

PRACTICE AND PROCEDURE – Prosecution of cases – duty on counsel and litigant to prosecute cases with vigilance and diligence.

 

MAIN JUDGMENT

ISA AYO SALAMI, JCA (Delivered the following judgment)

The plaintiff took out a writ of summons claiming against the defendant the sum of $341,759.79 being the balance of the price of goods supplied to the defendant. In the alternative the plaintiff claims against the defendant as a drawer of several bills of exchange for the balance of the total sum due in the amount of $341,759.79 payable to the plaintiffs month after the due dates which bills were duly presented for payment and dishonoured to the acknowledgment of the defendant.

 

Thereafter the plaintiff filed its statement of claim which was subsequently amended. The defendant was granted extension of time to file its statement of defence. After issues had been joined the matter was fixed for hearing but it suffered several adjournments usually at the instance of the defendant. On 30th October, 1996 however, the suit was adjourned, in the presence of counsel for both parties, to the 25th November, 1996 for hearing. But the hearing did not go on that day.

 

The suit was then listed for hearing on 17th February 1997 when the defendant and his counsel were not in court but sent a letter requesting for an adjournment to either the 10th, the 11th or the 12th March, 1997. The matter was consequently adjourned to the 12th March, 1997 when defendant’s counsel was absent the court proceeded to hearing. The plaintiff called only one witness and tendered a large number of documents before closing its case. The learned trial Judge reserved judgment to 18th April 1997 coupled with an order that a hearing notice be issued to the defendant. The judgment was eventually delivered on 25th April 1997. It is apt, at this stage to recite the observation of the learned trial Judge before delivering his reserved judgment:

 

“Since the defendant is aware that the case is coming up for judgment but took no steps to regularize their position I will now deliver my judgment. I have seen the proof of service on the defendant’s solicitors with an endorsement showing that the hearing notice was received by one Zuwaira Yusuf who is a lawyer. Judgment is read in court.”

 

In the judgment delivered, the learned trial Judge concluded inter alia as follows:

 

“Judgment is hereby entered in favour of the plaintiff against the defendant in the sum of $341,759.79 United States of America Dollars or its equivalent at the Central Bank of Nigeria plus 10% interest per annum with effect from 1st November, 1986 until full and total liquidation of the whole amount.”

 

The plaintiff was unhappy with this turn of events. Being dissatisfied with the decision the court arrived at, when it was not in court, it appealed to this court timeously. But, in the notice of appeal, the appellant indicated that the appeal was against a judgment delivered on 18th April, 1997 rather than 25th April 1997 when it was actually delivered. At the earlier hearing of the appeal, Chief Majiyagbe took objection to this discrepancy which forced learned counsel for the appellant, with leave of the court, to withdraw the appeal which was consequently struck out. Subsequently appellant applied for enlargement of time to appeal which was granted almost as a matter of course.

 

Thereafter briefs of arguments which were settled as appellant’s brief, respondent’s brief and the appellant’s reply brief of argument were filed and exchanged.

 

At the present hearing of the appeal, briefs of argument without more were adopted and reliance placed upon them by the respective counsel of the parties. In each appellant’s and respondent’s brief of argument, issues for determination were identified.

 

The plaintiff framed the following issues from the 5 grounds of appeal contained in its notice of appeal. The five issues (sic) formulated by the plaintiff (hereinafter referred to as the appellant) are as follows:

 

“(1)   Whether having regards to the evidence before the lower court, the respondent is entitled to judgment.

 

(2)     Whether there was a binding agreement between the appellant and the respondent in law which can be enforced by the respondent.

 

(3)     Whether the appellant was given a fair hearing having regards to the proceedings of 12th March, 1997.”

 

In the respondents brief, the following issues were grudgingly framed:

 

“(i)     Whether, having regard to the entire circumstances of the case, pleadings and evidence adduced in support thereof, the learned trial Judge was justified to have entered judgment in favour of the respondent.

 

(ii)     Whether having regard to the entire circumstances of the case, the appellant’s right to fair hearing was violated especially with respect to the proceedings of 12th March, 1997.

 

(iii)    Whether there was any binding agreement/contract between the appellant and the respondent capable of enforcement by the respondent.”

 

The appellant did not relate its formulations to the grounds of appeal contained in its notice of appeal. But the respondent did. In doing so, learned counsel for respondent stated that issue 1 is related to grounds III and V of the grounds of appeal while issue 2 is derived from ground IV of the grounds of appeal and issue 3 is culled from ground II.

 

Learned counsel went further to allege that appellant failed or neglected to distil any issue from ground I of the grounds of appeal and urged upon the court to strike out the same. In support of his contention, learned counsel cited the cases of Effiong v. State (1998) 8 NWLR (Pt. 562) 362, 368, Odutola v. Kayode (1994) 2 NWLR (Pt. 324) 1 and Tukur v. Governor of Taraba State (1997) 6 NWLR (Pt. 510) 549. In this connection, appellant responded in its appellant’s reply brief that it is unnecessary to formulate distinctively an issue for every ground of appeal as an issue may be derived from one or more grounds of appeal. He cited in support the cases of Olatunji v. Alaba (1998) 8 NWLR (Pt. 563) 569, 579 and Madagwa v. State (1988) 5 NWLR (Pt. 92) 60, 80. He then stated that issue 2 was framed from grounds one and two of the grounds of appeal.

 

I have read both grounds I and II of the grounds of appeal and I am respectfully of the view that the two grounds are incapable of resulting into the same issue contrary to the postulation of the learned counsel for appellant, that is issue 2. I recite immediately hereunder, for clarity and better appreciation of the question, the two relevant grounds of appeal:

 

“Ground 1

 

(a)     The trial court lacked jurisdiction to entertain the suit.

 

PARTICULARS

 

(a)     There was no valid agreement on the subject matter of suit K/128/92 between the appellant and the respondent.

 

(b)     The agreement which is the basis of respondent’s claim is enforceable in law and that the statutory approval order and waivers for enforcing same were not obtained by the respondent.

 

(c)     That the purported agreement on the basis of which the claim of the respondent was based is illegal as it offends the Foreign Exchange Control Decree of 1984.

 

Ground II

 

The learned trial Judge erred in law when he held that exhibit 22 was agreement reached between the appellant and respondent.

 

PARTICULARS

 

(a)     Exhibit 22 is an agreement between the appellant and one Hans Mehr of Germany.

 

(b)     It is trite law that only parties to an agreement can enforce the terms and conditions enshrined in the agreement.”

 

Particulars (a), (b) and (c) of ground 1 of the grounds of appeal do not relate to that ground of appeal. The three particulars raise the issue of legality or otherwise of the contract. The particulars thereto are contrary to the ground of appeal itself, challenging the jurisdiction of the court. Rather they want the court to declare the contract invalid on grounds of illegality or some other vices which are not particularized in the ground of appeal. But a court could not possibly declare an agreement invalid on grounds of failure to comply with certain statutory provisions such as Customs and Excise Act and Foreign Exchange Control Act when it has no jurisdiction to entertain same. Clearly the ground of appeal is attempting to challenge the jurisdiction of the court but the particulars do not affect or seek to oust the jurisdiction of the court. The ground and its particulars are incongruous. It follows that none of the particulars relates to the ground of appeal. The consequence of one or more particulars not relating to the ground of appeal is striking out of the particulars: Honika Sawmills Limited v. Mary Okogie Hoff (1994) 2 NWLR (Pt. 376) 326. Once the offensive particulars are struck out the ground is rendered otiose because the court will not carry out the duty of separating the bad from the good ones. See Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718 and Chief T. G. Bereyin & others v. Chief Brown Gbogbo (1989) 1 NWLR (Pt. 97) 372.

 

The result of this analysis is that ground 1 of the grounds of appeal is not competent because the particulars do not relate to the ground of appeal. It is for that reason struck out. Furthermore issue 2 derives from ground II but it does not arise from ground 1 because that issue is questioning respondent’s right to bring the action. Ground 1 and the issue that should be formulated from it should question the validity of the contract itself and not its enforceability by the respondent. It is therefore deemed abandoned for failure to relate it to an issue. It follows that ground 1 for carrying incongruous particulars is incompetent and also deemed abandoned even if competent for failure to cover it with an issue. It is not permissible to canvass and tender argument on issue having no bearing with any of the grounds of appeal Madagwa v. State (1988) 5 NWLR (Pt. 92) 60; African Petroleum Ltd v. Owodunni (1991) 8 NWLR (Pt. 210) 391, 423 where the Supreme Court said:

 

“It is well settled that any issue raised or argument advanced on an issue not arising from a ground of appeal is incompetent and liable to being struck out.”

 

And in Okoye v. Nigeria Construction and Furniture Co. Ltd (1991) 6 NWLR (Pt. 199) 501, 533 it was also stated that:

 

“……….. each party to an appeal, the appellant or the respondent is entitled to formulate what are in his opinion the issue for determination, the issue so formulated must arise from and be related to the grounds of appeal filed.”

 

See also B.P. (West Africa) Ltd. v. Nigeria Maritime Services Limited (1962) 1 All NLR 605 and Effiong v. State (1998) 8 NWLR (Pt. 562) 362, 368.

 

When an incompetent ground of appeal is related to an issue along with a competent ground and argued or tendered together under such issue it is not possible to consider the appeal properly. It is not the business of the court to perform operation on the argument, sieving argument arising from the competent ground related to the issue from those emanating from the incompetent ground. It has the effect of rendering the entire argument on the issue incompetent. See Bereyin v. Gbogbo (supra) at 380; Geosource Nig. Ltd. v. Biragbara (1997) 5 NWLR (Pt. 506) 607, 616 and Akuchie v. Nwamadi (1992) 8 NWLR (Pt. 258) 214.

 

The learned counsel for appellant, by his own showing in the appellant’s reply brief, related ground 1 to issue 2 which derives from ground II. The natural consequence of arguing ground 1, raising issue of illegality, which was not formulated in issue 2, arising from ground II, which is one of standing or locus standi together is to strike out that issue as well as all the argument canvassed thereunder. I propose however to defer the decision till I come to consider issue 2 itself.

 

I am next to consider the preliminary objection of the learned counsel for respondent which are four in number. The first one touches upon the extension of time granted appellant to appeal against the final decision of the trial court, sitting at first instance, delivered on 25th April 1997, on 5th June 2000. The appellant appealed timeously when the judgment was delivered on 25th April 1997. Rather than appeal against a decision of 25th April, 1997 it was indicated in the notice of appeal that the appellant was appealing against a decision of 18th April 1997. It is not impossible that the confusion emanated from the appellant’s failure to go to court for the judgment on 18th April, 1997 pursuant to a hearing notice served on its counsel fixing the judgment for 18th April, 1997. The date was apparently not feasible. The court had to further reserve the judgment to 25th April, 1997 when it was eventually delivered.

 

On the date originally fixed for hearing of the appeal, Chief Majiyagbe, SAN, took objection to the competence of the appeal on this rather technical ground. The court felt the appellant had not appealed against the judgment of 25th April, 1997 rather it chose to appeal a non-existent judgment. So, that notice of appeal was struck out when it was withdrawn by the appellant’s learned counsel. But with a hind sight all that was probably required was to seek amendment of the erroneous date in the notice of appeal by substitution with the correct date to rectify the irregularity.

 

The appellant subsequently brought an application for (i) extension of time to seek leave to appeal against the judgment of Kano State High Court delivered on 25th April 1997, (ii) leave to appeal and (iii) extension of time to appeal against the judgment. When the application was being heard the court felt that the decision, being a final decision of the High Court, sitting at first instance, could be appealed to this court as of right on any ground, be it of law or of fact. See section 241(a) of the 1999 Constitution. The court consequently reasoned, per Salami, JCA, and concurred in by other Justices of the court sitting with him, Muhammad and Mohammed, JJCA, in its ruling thus:

 

“The appellant has now renewed its effort to appeal. But in the present prayer he is in addition to asking for enlargement of time to appeal is applying for leave to appeal. I think this relief is superfluous since the matter was from the High Court in its first instance. The learned counsel for applicant is apparently shaken as he is acting ex cautela abudanti.”

 

The court then concluded as follows on the application:

 

“There is, therefore, an enlargement of time within which the applicant can appeal which time is extended for 14 days,”

 

It is the foregoing scenario that forms the basis of the respondent’s preliminary objection which are predicated on two decisions of the Supreme Court of Nigeria in Owena Bank (Nig.) Plc v. Nigerian Stock Exchange Ltd. (1997) 8 NWLR (Pt. 515) 1, 13 and Iroegbu v. Okwordu (1990) 6 NWLR (Pt. 159) 643 at 644. The contention of the learned counsel is that even though the constitution does not require the appellant, in the circumstance of this appeal, to first seek leave before appealing to this court the court should place extra obstacle or barrier on its path to justice. In the two cases he cited, however, the respective parties were constitutionally required to obtain leave before they could competently appeal. But that is not the case here. Both cases were decided under section 220(2) of 1979 Constitution which is in pari materia with section 241(2) of 1999 Constitution. The present appellants right to appeal emanates from section 241(1)(a) of the present Constitution which does not require it to seek leave before appealing.

 

However, since we gave our ruling in this matter on 5th June, 2000 this court was functus officio. The remedy of any party who nurses any grouse against the ruling lies in exercising its constitutional right of appeal against it to the Supreme Court which can always put its stamp of finality on it. Ebokam v. Ekwenibe (1999) 10 NWLR (Pt. 622) 242, 255 per Onu, JSC, Lawal v. Dawodu (1972) 1 All NLR (Pt. 2) 270. I am respectfully of the firm view that we cannot be brought to sit on appeal on our own decision even though the court is slightly differently constituted. The remedy of the respondent is an appeal as observed earlier to the Supreme Court and not through a surreptitious contrivance respondent labeled preliminary objection. This ground of objection fails and it is refused by me. The notice of appeal, until set aside on appeal to the Supreme Court, contrary to the contention of the respondent in its brief, is valid. To do otherwise is to give two rulings in the same proceedings: Lawal v. Dawodu (supra).

 

The next ground of the objection goes into the competence of ground 1 of the grounds of appeal. In this connection learned counsel for the respondent contended, in the respondent’s brief, that the ground is grossly incompetent in that the issue of jurisdiction was not canvassed by the parties at the lower court nor was the same determined by the trial court. Learned counsel argued that a ground of appeal must flow from the decision of the lower court and any ground which does not derive from the ratio decidendi is tantamount to raising a fresh point on appeal. Learned counsel contended further that the court will not ordinarily allow a fresh matter to be taken on appeal if such point was not raised and pronounced upon by the lower court unless the issue involved is one of the substantial point of law and on which no further evidence is required to determine it. Also the leave of the court must have been sought and obtained before the point can be raised.

 

In this connection, learned counsel for appellant submits with respect in the appellant’s brief that the issue of jurisdiction is so fundamental that it could be raised at any time whether at trial or on appeal. He cited in support the case of Skenconsult Nig. Ltd. and Another v. Godwin Ukey (2001) 49 WRN 63; (1981) 1 SC 6. He also referred to exhibits 21, 11 and 23 as the evidence upon which the issue could be determined.

 

I agree with the learned counsel for the respondent, that it goes without saying, that the issue of jurisdiction is a radically fundamental pre-requisite in the adjudication of any matter and can be raised at any stage, even on appeal by the appellate court suo motu. But where the court raises it suo motu which is not the case here it must afford parties opportunity to be heard on the point. It is trite that the question of jurisdiction of a trial court as well as of its competence can be raised on appeal. It is however accepted practice that where all the facts are available to the party raising the issue it is desirable to raise them at the earliest opportunity at the trial court so as to give notice to the adversary to know the nature of the case he has to meet: Shobogun v. Sanni (1974) 1 All NLR (Pt. 2) 311, 316; (1974) 11 S.C 35, 40. The appellant cannot raise the matter as of right. It is subject to certain conditions to avoid taking the other party by surprise. It cannot be raised for the first time in the appellant’s brief of argument which offends against the principle of audi alterem partem.

 

Consequently the appellant must have a ground of appeal competently raising the issue of jurisdiction and the competence of the court to hear the suit. The particulars of the ground of appeal, challenging the competence of the court, having been found not relating to the ground collapsed and the ground held incompetent. In the circumstance the appellant cannot be held to have a ground of appeal challenging the jurisdiction of the court below.

 

The leave of this court to raise the point was equally not sought and obtained before the appellant raised the issue. The appellant must seek leave of the court to raise fresh issue on appeal. A fresh issue is one which was not canvassed at the trial and pronounced up by the trial court. The Supreme Court in the case of Obioha v. Duru (1994) 10 SCNJ 48, 64; (1994) 8 NWLR (Pt. 365) 631 said:

 

“It is enough here to say that leave not having been specifically sought and obtained by the defendant to canvass additional ground 5 as a fresh point, issue 2 from which it is formulated is not properly before this court……….. that in order to urge issues or matter which were not urged In the Court below, one has to apply specifically for leave to do so. The same not having been done in the instant case additional ground 5 is incompetent and it is accordingly struck out, the argument on issue 2 is rendered inept and of no avail to the defendant.”

 

Another constrain, on raising the issue of jurisdiction and competence of court at any time and at any stage of a judicial proceeding, is if it involves substantial point of law and on which no further evidence is required to determine it. The question of jurisdiction sought to be tendered herein undoubtedly involves a substantial point of law. But there must be fact upon which the decision on the issue will be made before the court. In this connection, the appellant, in its reply brief, contended that there would be no need to call for further evidence. He pointed, in the said brief to exhibits 21, 22 23. But the documents do not talk about foreign exchange control nor “statutory approval order and waivers for enforcing same were not obtained” capitalized upon in ground 1 of the grounds of appeal. Even if they did the documents which were tendered for different purpose(s) were not pleaded nor produced in evidence for purposes of ousting the jurisdiction of the court. The parties, in other words, did not join issue on the validity or legality or otherwise of the contract. Exhibits 20, 21, 22 and 23 cannot, at this stage, without amendment of pleadings, ground an issue protesting or ousting the jurisdiction of the trial court.

 

Clearly the issue of jurisdiction being sought to be raised was not canvassed nor adjudicated upon by the trial court. Raising it now or at this stage amounts to raising a fresh issue on appeal which can only be done subject to certain limitations such as a ground of appeal, leave to raise a point or points which were not raised at the lower court in this court now and that the question raises a substantial point of law which will not require further evidence to determine. But apart from the question sought to be raised being substantial, the appellant failed to satisfy the remaining conditions precedent. This leg of objection succeeds and it is sustained. Jov. Dom (1999) 9 NWLR (Pt. 620) 538; Oshatoba v. Olujitan (2000) 5 NWLR (Pt. 655) 159, 171.

 

Ground 1 of the grounds of appeal, which is already declared incompetent as well as deemed abandoned and for those reason struck out failed to survive another onslought. Since it had already been struck out for various reasons I think it is no longer necessary to make further order striking it out.

 

In any case the responsibility for seeking local approval and obtaining foreign exchange is on the appellant. The appellant by his own contract created a duty which he is bound to fulfil: Nichols v. Marsland 2 ex. D1 at p. 4 per Mellish L.J. which was followed by Guddard LJ in Makin Ltd. v. London & North Eastern Railway Company (1941) 1 K.B 467. The appellant is not entitled to turn its own failure to make good its words a sword. There is no relief for breaker of contract: Adekoya v. Pan Electric Ltd. (1974) U.I.L.R. 56, 81. It is settled law that no one should be allowed to profit from his own wrong. This is encapsuled in the latin maxim: nallus commidum capere potest de injuria sua proprica; First Bank of Nigeria Plc v. May Medical Clinic (1996) 9 NWLR (Pt. 471) 195, 204, Adedeji v. National Bank of Nigeria Ltd. (1989) 1 NWLR (Pt. 96) 212.

 

Learned counsel for appellant next complained against ground 2 and 3 of the grounds of appeal. He contended that the two grounds are incompetent because even though christained ground of law are at best grounds of mixed law and fact for which leave is required before filing them and since no such leave was sought and granted the two grounds are incompetent. Learned counsel relied on the provisions of section 241(1)(b) of the Constitution of the Federal Republic of Nigeria 1999.

 

There is no substance in this objection. The appeal brought against the final decision of the court below, sitting as a court of first instance, is an appeal as of right which does not require leave of this court nor of the lower court. It is an appeal as of right which comes under the purview of section 241(1)(a) of the 1999 Constitution and not section 241(1)(b) postulated in the respondent’s brief. Section 241(1)(a) of the Constitution provides as follows:

 

“241(1)An appeal shall be from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases

 

(a)     Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.”

 

The case of Ajibade v. Pedro (1992) 5 NWLR (Pt. 241) 257 cited by learned counsel for respondents is irrelevant in the sense that it was a determination under section 213(1), (2) and (3) of the 1979 Constitution and not section 220(1) of the 1979 Constitution which is in pari materia with the present section 241 of 1999 Constitution. It deals with appeal from this court to the Supreme Court and not with appeal from the court below to this court. The considerations are, therefore, different. An appeal to this court from a final decision of a High Court sitting at first instance is of right irrespective of the nature of the ground or grounds of appeal. The party intending to appeal is not required to seek leave even where all the grounds of appeal are of fact or mixed law and fact. There is no merit in this ground or arm of the objection and is consequently struck out.

 

The learned counsel for respondent, in the respondent’s brief complained that grounds II, III and IV breached the provisions of order 3 rule 2(2) of Court of Appeal rules on the account that the three grounds alleged error in law on the part of the learned trial Judge without quoting the various portions or passages in the judgment where those errors manifest and supplying full particulars of such errors. Learned counsel submitted that for those reasons the grounds of appeal are incompetent.

 

I disagree with the learned counsel for respondent that grounds II, III, IV are incompetent for failure to quote the passage in the judgment where the errors alleged manifest or occurred. There is no rule of practice, statutory or otherwise, demanding for the quoting of the passage where the error occurred before particulars are attached. Order 3 rule 2(2) of the Court of Appeal Rules, Cap. 62 of the Laws of Federation of Nigeria, 1990 states:

 

“(2)   if the ground of appeal allege misdirection of error in law the particulars and the nature of the misdirection or error shall be clearly stated.

 

I have examined the three grounds which clearly state that they are of errors in law with relevant or necessary particulars attached to each ground of appeal. The three grounds, in the result, comply with the provisions of order 3 rule 2(2) of the Court of Appeal Rules Cap. 62. I am equally unable to find any finding of the Supreme Court in the case of Atuyeye v. Ashamu (1987) 1 NWLR (Pt. 49) 267, 268 and Omojaine & others v. Eguegu (1996) 1 NWLR (Pt. 424) 341, 348 – 349 where the Supreme Court enjoined that the passage in the judgment where the error or misdirection occurred must be quoted. All that is required of an appellant alleging error in law and misdirection in a ground of appeal by those cases, cited in the appellants brief, is to state the nature and particular of the error in law or misdirection. There is no substance in this ground of objection and the same is struck out.

 

Ground V of the grounds of appeal states that-

 

“The judgment of the court is unwarranted and unreasonable and cannot be supported by the evidence adduced.’

 

This is an appeal against a decision in a civil proceedings. But the ground of appeal filed and which is set out above is both inappropriate and inelegant. It is a ground of appeal in a criminal case. The general ground envisaged in a civil case is that “the judgment is against the weight of evidence” prescribed by order 3 rule 2(4) of the Court of Appeal Rules Cap. 62. This sub-rule stipulates that:

 

“(4)   No ground which is vague or general in terms or which discloses no reasonable ground of appeal shall be permitted, save the general ground that the judgment is against the weight of evidence and any ground of appeal or any part thereof which is not permitted under this rule may be struck out by the court of its own motion or on application by the respondent.”

(Italics supplied)

 

That there is a distinction between allegation that the judgment is against the weight of evidence as a ground of appeal in a civil proceeding as against a criminal appeal was brought out by the observation of the Federal Supreme Court in Okezie v. The Queen (1963) 1 All NLR 1 at 3:

 

“This court would like to stress the point that a criminal appeal on the facts is not quite the same as an appeal on the facts in a civil case. In a civil appeal the general ground is that the judgment is against the weight of evidence whilst in a criminal appeal it is that the verdict is unreasonable or cannot be supported having regard to the evidence.”

 

A civil case is decided on preponderance of evidence. The decision having to be on balance of probability the trial Judge has to place the evidence on one side and the evidence on the other side on an imaginary scale and determine which of the evidence out-weighs the other. See Atuyeye v. Ashamu (1987) 1 NWLR (Pt. 49) 267, (1987) SCNJ 72, 85 where Oputa JSC said:

 

“In such an exercise the weight of evidence on each side becomes a determining factor, the other factor being the probabilities which on the whole evidence it is natural to expect. Where therefore the evidence on the plaintiff’s side weighs more than the evidence for the defence then naturally the plaintiff ought to win. If inspite of that, the plaintiff loses then the judgment is obviously against the relative weights of the evidence. Then again the loosing party can appeal on the ground that the judgment is against the weight of evidence.”

 

Not only is this ground of appeal incompetent in a civil appeal it is also not available, in the circumstances of this case, to the appellant who did not call evidence. There is no evidence from his side to be placed against the respondent’s evidence on the imaginary scale to determine which of the evidence outweights the other. The general or omnibus ground postulates that there was no evidence which if accepted would support the findings of the learned trial Judge or the inferences which he made in the judgment. To succeed on this ground of appeal the appellant must do much more than show that his evidence was as possible as the evidence of the respondent: Mba Nta & others v. Ede Nwede Anigbo (1972) 2 E.C.S.L.R. 306; (1972) 5 S.C 156. The appellant herein has no evidence not to talk of its outweighing or equaling the rivals evidence. The consequence of this finding is that appellant’s issue 1 wherein the appellant canvassed the issue arising from its ground V of the ground of appeal is incompetent. An issue for determination in an appeal need to be encompassed by one or more grounds of appeal and any issue not based on a ground of appeal is incompetent: Idika v. Erisi (1988) 2 NWLR (Pt. 78) 563; B. P. West Africa Ltd. v. Nigeria Maritime Services Ltd. (supra) and Effiong v. State (supra) and Tukur v. Government of Taraba State (1997) 6 SCNJ 81, 99; (1997) 6 NWLR (Pt. 510) 549 where Ogundare JSC said:

 

“True enough, it is settled by a long line of cases that where a ground of appeal is not covered by any issue formulated in a party’s brief of argument, particularly the appellant’s that ground must be taken as abandoned. Similarly, an issue that is not predicated on any ground of appeal is incompetent. Thus issues for determination must relate to the grounds of appeal.”

 

Issue 1 in the appellant’s brief is struck out because it is not distilled from a competent ground.

 

I indicated earlier in this judgment that I would revisit issue 2 in the appellant’s brief. I propose to allow the issue to stand even though it is related to both a competent and an incompetent ground simply because the argument in respect of good ground can be severed from those of the bad ground.

 

In issue 2, the appellant contended that there is no binding agreement in law between the appellant and the respondent that can be enforced by the respondent in a court of law. It is appellant’s further contention that exhibit 22 was made between the appellant and Hans Mehr therefore the rights, privileges, claims and liabilities arising therefrom can only be enforced for the benefit of or against the appellant and Hans Mehr who are parties to exhibit 22.

 

In this connection, the learned trial Judge observed thus:

 

“By paragraph 9 (c) of the statement of defence the defendant challenged the plaintiff’s capacity to bring this action. Considering most of the exhibits in this suit, particularly exhibits 22, 23, 19, 20 and 21 the legal capacity of the plaintiff to institute this suit is definitely not in doubt.”

 

The learned counsel for appellant conceded in his brief of argument that the most important piece of evidence before the trial court on the issue of any valid agreement entered into between the appellant and the respondent is exhibit 22. The parties to the agreement tendered and marked as exhibit 22 reads as follows:

 

“This acknowledgement of debt and arrangement for payment made the 11th day of April 1988, by Kano Textile Printers Limited of No. 9, Independence Road, Kano, Kano State, Nigeria (hereinafter called the acknowledgor) of the first part to Hans Mehr of Germany through their agents Gloede and Hoff Nigeria Limited of No. 26B, Post Office Road, Kano, Kano State, Nigeria, (both the agent and the principal hereinafter jointly and severally called “the acknowledgee” of the other part.”

(Italics supplied)

 

The learned counsel for appellant rightly, in my view, considered exhibit 22 as the most important document on which the determination of the issue turns. The crux of the matter is the effect of the words “both the agent and the principal hereinafter jointly and severally called “the acknowledgee” of the other part” contained in the parties to exhibit 22. The phrase or words, to my mind, implies that the agreement was entered into by the appellant on one side and the respondent and Hans Mehr on the other side. In other words Hans Mehr can sue on the agreement. Gloede & Hoff Nigeria Limited in its own right can sue and be sued on the acknowledgement or agreement contained in exhibit 22. In the case of Amao v. Civil Service Commission and others (1992) 7 NWLR (Pt. 252) 214 at 226, cited in the respondent’s brief, this court per Achike, JCA (as he then was) considered the words “joint and several” and opined thus:

 

“A liability is said to be joint or several when the creditor (or plaintiff) can, at his own option institute an action against one or more of the parties to such liability, or all of them together.”

 

In volume 3 page 108 of “Words and Phrases Legally Defined” 2nd edition by John B. Sounders the phrase “joint and several” was defined as follows:

 

“In this case we ought to look at the whole instrument: and if we do, there is no doubt what the meaning of it is. Here, a power is given to fifteen persons jointly and severally to execute such policies as they or any of them shall jointly or severally think proper. The true construction of this is, as it seems to me, that the power is given to all or any of them to sign such policies, as all or any of them should think proper.”

 

Learned counsel also referred the court to the definition of the words “joint and several” in Blacks Law Dictionary 6th edition by Henry Campbell Black at page 837. The phrase “joint and several” in terms of liability was defined as follows:

 

“A liability is said to be joint and several when the creditor may demand payment or sue one or more of the parties to such a liability separately, or all of them together at his option. A joint and several bonds or note is one in which the obligors or makers bind themselves both jointly and individually to the obligee or payee, so that all may be sued together for enforcement, or the creditor may select one or more as the object of his suit.”

 

I am well guided by the explanations proffered by the learned authors in this respective books as well as the dictum of Achike, JCA (as he then was) in Amao’s case (supra). In the circumstance of this case, my understanding of the words “jointly and severally’ in exhibit 22 is that the appellant has bound itself to the acknowledges jointly and severally. It follows that the two acknowledgees can either bring an action together or individually against the acknowledgor in event of a breach of breaches of the acknowledgement. The converse is equally true. The acknowledgor on its part can select one or both acknowledges as the object of its suit.

 

The appellant having by its own deed voluntarily bound itself to the respondent as per exhibit 22 can no longer contend that the respondent has no locus standi to bring this suit against it. This posture of the appellant seems confounded by exhibits 21 and 23. In exhibit 21 appellant submitted its proposal culminating in the making of exhibit 22 to Gloede & Hoff Nigeria Limited and not to Hans Mehr. But in exhibit 23 which was written by the appellant to the respondent, after the making of exhibit 22 the appellant removed Hans Mehr from the fore burner as far as this transaction is concerned and replaced it with Gloede & Hoff Nigeria Limited. It is interesting and apt to read substantial part of the said letter which I set out immediately hereunder;

 

“The Managing Director,

 

Gloede & Hoff (Nig.) Ltd.,

 

Kano.

 

Dear Sir,

 

Re: Payment of US$830,762.02 to Messrs Gloede & Hoff (Nig.) Ltd.

 

We refer to your letter No. GH/AMD/PEO/11963 dated 31st July, 1991 in connection with the above subject and wish to inform you that our records have been properly and clearly cross-checked and discovered that:-

 

(a)     All invoices, effecting deliveries to Gloede & Hoff (Nig.) Ltd from April, 1988 to date have been found to be correctly posted into our new ledger card which now indicates both the dollar and naira.

 

(b)     The balance of the dollars as at 3rd June, 1991 owed to Gloede & Hoff is 331,505.16$ according to our exchange rate conversion.

 

(c)     We now calculated and discovered that we did not supply to Gloede & Hoff the normal 5 bales weekly allocation for 25 weeks from 2nd October, 1990 to 15th January, 1991 and the whole months of May, June and July, 1991.

 

2. For this reason, the management of Kano Textile Printers Plc. has already started issuing 8 bales of java prints with a view to offsetting the accumulated arrears of 125 bales; i.e. 5 bales as the normal allocation while 3 bales as payment of arrears. We shall revert to the normal allocation of 5 bales when we fully pay the arrears.

 

N.B From 15th January to 15th March, 1991, we have made payment of 1 bale extra by issuing 6 bales for 9 weeks as part of the arrears, for this reason, we now reduced the quantity of the arrears from 125 bales to 116 bales.

 

Yours faithfully,

For: Kano Textile Printers Plc.”

(Italics supplied)

 

If I had entertained any scintilia of doubt which is not the case about the status or competence of the respondent to bring the action such doubt is completely wiped off my mind. In that exhibit, appellant recognized the respondent as its creditor.

 

The cases of U.B.A Limited & Another v. Mrs. E.E. Edet (1993) 4 NWLR (Pt. 287) 288, 302 and Quastell Production Limited & Another v. Akpan Ekong Bassey (1992) 5 NWLR (Pt. 239) 67, 75 – 76, cited in support of the appellant’s submission that the respondent was an agent of a disclosed principal and cannot, in that capacity, enforce the terms of the contract contained in exhibit 22, are respectfully inapplicable to the circumstances of this case. The two cases were not decided on the want of locus standi of an agent to institute an action. Rather they are authorities for saying that an action cannot be brought against an agent of a disclosed principal because he incures no liability. It was on that score that this court struck out on appeal the second defendant in each suit.

 

The suit is consequently properly constituted. There is a contract, exhibit 22 between the appellant and the respondent which the latter can enforce. Ground 2 of the grounds of appeal fails and it is dismissed.

 

The remaining argument canvassed under this issue is incompetent. It arose from a ground of appeal which had been struck out for incompetence. The argument dealing with the legality of foreign exchange and whether appropriate approval had been obtained is hereby struck out for incompatibility with other argument under the issue.

 

It is contended in appellant’s issue 2, that the appellant was denied fair hearing at the proceedings of 12th March 1997. Counsel argued that on that day, which was fixed at the instance of the appellant, the court, after hearing the case for the plaintiff rather than reserve the matter for judgment ought to have further adjourned it for the defence of the defendant, appellant herein. Learned counsel submits that the failure of the court to adjourn the suit for the defence of the appellant shut out the appellant from being heard and this violates the principle of audi alteram partem.

 

I agree with the learned counsel for the appellant that each case must be considered on its peculiar nature. To appreciate the issue, it will be important to state the scenario leading to the delivery of the judgment on 25th April, 1997.

 

After pleadings had been settled, the matter was set down for hearing on the 30th October 1996. On that day, learned counsel for appellant informed the court that he was not prepared for the hearing whereupon the court adjourned the matter for hearing to the 17th day of February 1997. The appellant and its counsel were absent from court on the 17th February 1997 when the case was to come for hearing. However learned counsel for appellant wrote a letter requesting for adjournment of hearing in the suit to either 10th, 11th or 12th March, 1997. The trial court obliged him and adjourned the suit to the 12th March, 1997 one of the dates counsel for the appellant proposed.

 

On 12th March 1997, fixed at the instance of the learned counsel for the appellant, the case was called for hearing but, both learned counsel and his client were not in court. The learned trial Judge stood down the matter to 11.30am to ensure that appellant or its counsel was in court. When the appellant and its counsel who did not excuse their absence did not show up at 11.30 am., the case was called for hearing. The court felt obliged to proceed with the trial. The plaintiff, respondent herein called one witness and closed its case. In the circumstance the court reserved its judgment coupled with an order that the appellant be served with a hearing notice. The order was complied with. One Zuwaira Yusuf, a counsel in chambers was served on 16th April, 1997. The hearing notice was attached to a further affidavit deposed to by one Pius Okiro in support of the application to set aside the judgment.

 

The conception of the appellant’s counsel of principle of audi alteram partem in the light of the preceding resume is misconceived. I respectfully cannot see any exceptional circumstance or peculiarity in nature which the learned trial Judge failed to take into account to warrant the application of the case of Doherty v. Doherty (1964) 1 All NLR 299. The learned trial Judge had no duty, in the circumstance of this case, to by pass counsel for the appellant at the court below and serve his client with hearing notice to come for the judgment. If he did, his otherwise good intention might be misconstrued. The appellant has a duty to check on his counsel if necessary steps are being taken in his case. If he failed to do so he was as guilty as his counsel and is not thereby entitled to any indulgence. Moukarim v. Agbaje (1982) 11 S.C 122, 125 – 127; John v. Blakk (1988) 4 NWLR (Pt. 90) 539; Governor of Benue State v. NCC (1997) 3 NWLR (Pt. 495) 610. It is apt to borrow the synopsis of relevant authorities made by Kolawole, JCA, in the case of John v. Blakk (supra) though the circumstances are different but the homily imparted is equally relevant to the summary of the event leading to this appeal. At pages 550 and 551 of the report Kolawole JCA said:

 

“The principles established by the Supreme Court in these cases in the constitution (sic) of order 9 rule 7 are:

 

(1)     Any litigant who fails to check on his counsel to ascertain if necessary steps have been taken to comply with the rules of court is as guilty as his counsel (Aigoro’s case).

 

(2)     No court will stand by and see the legal content of its rules made a dead letter or violated recklessly as if the rules did not exist or exist to be broken (Aigoro’s case).

 

(3)     There is too much laxity these days on the part of a good number of legal practitioners in bringing appeals to this court and this must stop (Orabator v. Amata).

 

(4)     It will be in the interest of all if parties and their counsel endeavour to keep to the times set out in the rules for the doing of any act or taking of any steps (Iro Ogbu v. Ogburu Urum).

 

(5)     The rules of court must prima facie be obeyed, if the bar were otherwise, a party in breach would have an unqualified right to extension of time which would defeat the purpose of the rules (Iro Ogbu’s case).

 

(6)     The illness of senior counsel and the dereliction of duty by a junior counsel who never swore to an affidavit authenticating the precise instruction with which the junior counsel was entrusted by his senior in chambers were not regarded as exceptional circumstances for enlargement of time (T.O. Benson’s case).

 

(7)     There was no explanation proffered by the appellants and therefore if there was anybody to blame it is the appellants for not showing diligence in the prosecution of their appeal (Iro Ogbu’s case).

(8)     The absence of the applicant from the country and failure of junior counsel to instruct a senior counsel for the filing of brief of argument did not constitute exceptional circumstances to be considered in favour of the applicant (Balarabe Musa’s case).

 

(9)     In an application for enlargement of time the burden was on the applicants to adduce acceptable reason for their failure to file the notice in time and an applicant whose behaviour to a clear directive of the court is tardy should not expect that court to use its discretion in his favour to perfect the obeisance (sic) to the directive (Bank of Baroda’s case).”

 

The message that runs through the judgments of the Supreme Court summarized in the passage recited from the case of John v. Blakk (supra) is that the litigant cannot be divorced from his counsel. A litigant is required to be vigilant and diligent. He has duty to check on what happened to his case and where he defaults he pays the price. The appellant’s behaviour to a clear directive of the court below on hearing date is tardy. It is not entitled to a discretion of the court. The appellant did not go to the trial court on the day fixed, at their instance, for trial of their action. It failed or neglected to proffer explanation for not being in court on that day 12th March, 1997 and the day fixed for judgment.

 

The matter was adjourned for judgment on 18th April 1997. It was duly served with a hearing notice on 16th April 1997. It chose to stay away rather than move the court to halt judgment and hear its defence. The appellant did not go to court with his counsel and witness to pray the court to allow it to present its defence. The mere fact that judgment had been reserved does not shut out the defendant from presenting its defence if only it had been vigilant, diligent and interested in proffering a real defence. He could always, before judgment reserved was delivered, pray the court for leave to reopen the case to enable it present the case for the defence. Even after the judgment had been delivered in default of its appearance, the rule of the court permits it to ask for the judgment obtained in default to be set aside to permit its defence – see order 37 rule 4 of the Kano State High Court (Civil Procedure) Rules, 1988. The appellant availed itself with the opportunity but it was attended with abysmal failure. The appellant who had a duty to check on what happened to his case lied to the court that it did not receive the hearing notice served on its counsel on 16th April 1997 until well after 18th April 1997. But their assertion was borne out by the proof of service.

The court in the circumstance of this case has done what it is required of it. Order 37 rules 2 and 4 of the Kano State High Court (Civil Procedure) Rules provides as follows:

 

“2.     If, when a trial is called on the plaintiff appears, and the defendant does not appear, then the plaintiff may prove his claim, so far as the burden of proof lies upon him.

 

4. Any judgment obtained where one party does not appear at the trial may be set aside by the court upon such terms as may seem just, upon an application made within six days after the trial or within such longer period as the court may allow for good cause shown.”

 

I have read also the provisions of order 37 rules 11, 12, 13, 14, 15 and 16 to which I was referred by the learned appellant’s counsel in its brief and I am unable to find a provision asking the court not to adjourn the case for judgment but for defence after he had heard the plaintiff’s case in pursuance of rule 2 thereof. The court did what is required of it under the rule and acting in accordance with law cannot be declared illegal.

 

It is not the case of the appellant that it was unaware of the hearing date, 12th March, 1997. Neither is it its case that it was not aware that judgment had been adjourned to 18th April 1997. Its case before us is that it ignored the invitations to attend to court on both occasions, the court should have, inspite of that, waited on it. Or in the alternative the court should have looked for and served it personally.

 

The case of Doherty v. Doherty (supra) cited by the learned counsel for appellant, it seems to me has no application to the circumstance of this case. The appellant after the judgment was given against it did not show that it was displeased with the conduct of its counsel. Indeed the same counsel was retained to have the judgment set aside. The learned counsel for appellant failed to expatiate on the phrase:

 

“In view of the history of the case and attitude of the counsel to the appellant.”

 

contained in appellant’s brief of argument. No one apart from counsel for appellant can tell the court what he meant by history of the case. And how would a Judge know the attitude of a counsel to his client to justify his insisting that the appellant should be personally served with a hearing notice. Learned counsel failed to show whether or not the trial court had means such as address of the appellant in effecting personal service.

 

The principle that the other party must be heard in my respectful opinion does not mean that he must be heard willy nilly. The rule of audi alteram partem means no more than offering each party opportunity to be heard. If after affording a party opportunity to be heard and such party fails to avail itself of the opportunity, it is his own funeral. It does not mean that the other party should be put in jeopardy. If the concept means that such a party must be heard under all circumstances it will place at advantage, and at expense of doing substantial justice, a litigant who has no defence to an action but who will want to dribble, frustrate and cheat the other party out of judgment which he is entitled to by delay tactics aimed at gaining time within which he may continue to postpone meeting his obligation and indebtedness to the peril of the plaintiff. After all the court arena is not equivalent of football pitch. It is the seat of justice. And the interest of justice dictates that the prayer of the claimant must be acceded to. See Nal Merchant Bank Ltd. v. Macauly (1986) 5 NWLR (Pt. 40) 216 and Nishizawa v. Jethwani Ltd. (2001) 8 WRN 153; (1984) 12 S.C 234.

 

In the circumstance, the answer to this issue is answered in the affirmative. The ground of appeal from which it is culled fails and is dismissed. All the issues herein having been resolved against the appellant, the appeal fails and is dismissed with costs which is assessed at N3,000.00 to the respondent.

 

RABIU DANLAMI MUHAMMAD JCA: I have read before now the judgment just delivered by my learned brother Salami JCA. He has exhaustively dealt with all the issues raised in this appeal. I have nothing to add. The appeal fails and is dismissed. I abide by the order as to costs.

 

VICTOR AIMEPOMO OYELEYE OMAGE JCA: In the Court below, the appellant was the defendant having been sued in the Kano State High

 

Court in suit No. K/128/92. Quoted from the amended statement of claim dated 17th September, 1996, see page 66 of the printed record is the plaintiffs claim as follows:

 

(1)     “The plaintiff is a subsidiary of and at all times material to this suit, has acted and continues to act as agent for and on behalf of Hans Mehr of Germany who are exporters of 100% cotton carded yarn to Nigeria.

 

(2)     By means of several proforma invoices brief particulars of which are hereunder stated, the defendant ordered from the plaintiff certain quantities of yarn subject to special conditions stipulated in the said proforma invoices and the defendant agreed that payment would be by means of:

 

“D/A 90 days after B/L date, plus interest at 16% from B/L date till receipt of funds in Hamburg.”

 

In the amended statement of claim 4 proforma invoices are recorded as a-d numbered R/6092-R/6095 on 14/7/80 of 30,000 rules carded yarn R/6092-R/6093 each being U.S $145,344.00 while R/6094 & R/6095 each in U.S $135,672.00.

 

(3)     The defendant having secured its import licence and form M. for the purpose, confirmed requisition to the plaintiff and the letter by means of several invoices etc. etc. invoiced the quantities of yarn to the defendant etc.

 

In consequence of the several bills of lading shipments consignment of cotton yarns made by the plaintiff to the defendants, the plaintiff drew bills stated on four invoices described in the claim on the defendant on 90 days D/A, with interest at 16% per annum. When the defendant defaulted with the payment of the shipment made to it the plaintiff gave notice of dishonour of the bills, and demanded immediate payment by several letters sent to the defendant. The defendant did not deny indebtedness but promised by a letter dated 14th July, 1981, that arrangement for payment would soon be made on the re-opening of its factory. At that stage the principal sum and interest owing by the defendant to the plaintiff stood at U.S $1,098,936.92, still the defendant did not pay.

 

Despite all concessions made by the plaintiff which include the following:

 

(a)     An agreement dated 11/4/1988, wherein the defendant acknowledged its indebtedness to the plaintiff of a total sum of U.S $1,098,937.00, made up of the principal outstanding sum of U.S $562,587.13. 50% of acknowledged interest valued at U.S $268,174.89.

 

An undertaking by the defendant to make initial payment monthly of N52,060 to Hans Mehr through their agent Gloede Hoff Nigeria Ltd.

 

(b)     Where the defendant who is described in the agreement as the acknowledged fails to settle the total indebtedness within an agreed five and a half years.

 

(4)     Or fail to perform any of the conditions, interest shall be calculated from 1st November 1986, to the time of the default, and interest shall thereafter become due and payable.

 

“The plaintiff shall also rely on the photocopy of the agreement between the defendant and Alhaji Mustapha Danlami dated 11/4/88. The original having been misplaced.”

 

“In compliance with the terms of the aforementioned agreement,” (part of which I have paraphrased as indicated by the absence of quotation marks).

 

“The defendant commenced payment by way of weekly supply of consignments of java prints products of the defendant) to the plaintiff or its agents/representatives to the value of N52,060 per month from 13 April, 1988.”

 

The plaintiff to inform the defendant that it would institute court action within one week from the date of the letter. In a letter dated 14/8/91, the defendant acknowledged to Gloede & Hoff is U.S $331.055.16 at the then current rate of exchange. It is the plaintiff’s contention that the correct sum due to it is U.S $341,759.79 on 30/11/91 at the current rate of exchange then. When subsequently the plaintiff asked for a continuation of the java print export, the defendant responded that it could no longer perform an “illegal agreement.” This propelled the plaintiff to commence action viz:

 

“By reason of the above premises the plaintiff claims the sum of U.S $341,759.79, being balance of the price of goods sold and delivered by the plaintiff to the defendant plus interest at the rate of 16% per annum from the 1st day of November, 1986, until payment.”

 

“In the alternative, the plaintiff claims against the defendant as the drawer of several bills of exchange for U.S $341,759.79 as per particulars stated in paragraph 4 supra payable to the plaintiff months after due date, which were duly presented for payment and dishonoured, whereof the defendant had due notice, and the plaintiff claims the said sum of U.S $341,759.79 and further claims interest on the said sum at 16% per annum from 1st November 1986, until payment. The amended statement of claims is dated 17th September, 1996.

 

“Exhibits 1-12, on pages 1-90 on the printed record are the acceptance order to the defendant. In each of them are the words written, “thank you for your order through Gloede Hoff Nig. Ltd. Kano.”

 

In each order is contained the signature indicating receipt of goods dispatched by Hans Mehr official to Kano Textile Printers Ltd. P.M.B. 3224, Kano Nigeria.

 

In its statement of defence dated 10th July, 1992, the defendant denied almost every averment made in the statement of claim made by the plaintiff even though the plaintiff’s claim was amended by order of court and it is dated September, 1992, while statement of defence was filed in 1992. In each such averment made by the plaintiff/respondent, the appellant In the Court below put the plaintiff to the strictest proof of same. The statement of defence concluded;

 

“The defendant further aver that the plaintiff lacks the capacity to bring this action, and this part will be taking as a preliminary objection.”

 

In the judgment of the court, Coram Wada Abubakar Rano J. of the High Court No. 6 Kano, the following appeared on page 22, of the printed record.

 

“The defendant was duly served on 14/4/92 the plaintiff’s claim.”…… “Pleadings were ordered filed and exchanged. On 17th October 1996, the defendant’s counsel Mallam Mohammed Mustapha, with the consent of the plaintiff’s counsel Mr. Emeka Okoro took 30th day of October 1996, for hearing, but on that day, hearing could not go on at the instance of the defendant. On 17th February 1997, when the matter came up for hearing again, the defendant’s counsel sent a letter to the court excusing his absence on personal grounds and suggested 10th or 11th or 12th days of March, 1997 for hearing. Mr. Emeka Okoro, learned counsel for the plaintiff conceded to an adjournment on terms and the case was consequently adjourned to 12th March 1997. On 12th March 1997, the defendants counsel did not appear in court for the hearing of this case despite the fact that he suggested this date himself. After waiting up to 11.30 am. The court decided to proceed with hearing in the absence of the learned defence counsel. The only witness for the plaintiff is Mr. Peter Okeh, the Administration Manager of the plaintiffs, who testified as PW1. He testified that Hans Mehr Germany is the parent company of the plaintiff. The plaintiff is affiliated to Hans Mehr which is a major exporter of carded cotton yarn. All the activities of Hans Mehr in Nigeria are carried out by the plaintiff.”

 

After reviewing the evidence of the plaintiff in the absence of the defendant and considering the exhibits tendered by the plaintiff, the court below concluded as follows:

 

“Finally, I am satisfied that the plaintiff is entitled to the judgment of this court based on the oral and documentary evidence at my disposal. The plaintiff has certainly proved its case on a balance of probability. Judgment is hereby entered in favour of the plaintiff against the defendant in the sum of $341,759.79 United States of America dollars or its naira equivalent at the rate of exchange approved by the Central Bank of Nigeria plus 16% interest per annum. From 1st November, 1986, until full and total liquidation of the whole amount.”

 

It is against this decision that the defendant appellant now appeals, having failed to secure In the Court below, the prayers for a setting aside of the judgment and or for stay of execution of the judgment. The defendant In the Court below filed five grounds of appeal with particulars. Because of the preliminary objection raised in the respondent’s brief to the grounds. I deem it desirable to state them in parenthesis before I record the issues formulated on them.

 

The appeal is against the whole judgment, and the grounds without the particulars are:

 

(1)     The trial court lacked jurisdiction to entertain the suit, this is allegedly based on the purported unenforceability of the agreement because (a) the respondent was not a party thereto, (b) its alleged illegality.

 

(2)     The learned trial Judge erred in law when he held that exhibit 22 was an agreement reached between the appellant and respondent.

 

(3)     The learned trial Judge erred in law when he held that the respondent had proved its case on the evidence adduced, and hence it is entitled to judgment as per the evidence of PW1 and the documents tendered.

 

(4)     The learned trial Judge erred in law by refusing the appellant the opportunity of being heard.

 

(5)     The judgment of the court is unwarranted, unreasonable and cannot be supported by the evidence adduced.”

 

On the above grounds without particulars in each case, the appellant has formulated these issues for determination.

 

“(1)   “Whether having regards to the evidence before the lower court the respondent is entitled to judgment.

 

(2)     Whether there was a binding agreement between the appellant and the respondent in law which can be enforced by the respondent.

 

(3)     Whether the appellant was given a fair hearing having regards to the proceedings.”

 

I wish here to state the alternative submission of the respondents in its brief which was formulated just in case the appellants ground of appeal succeeds.

 

In responding in its brief, the respondent elegantly wrote as follows:

 

“In the most unlikely event that the appellants ground of appeal comes out of the crucible unscathed, the respondent submits that the following issues fall for determination.

 

(1)     Whether having regard to the entire circumstances of the case, pleadings and evidence adduced in support thereof the learned trial Judge was justified to have entered judgment in favour of the respondent.

 

(2)     Whether having regard to the entire circumstances of the case, the appellants rights to fair hearing was violated especially with respect to the proceedings of 12th March, 1997.

 

(3)     Whether there was any binding agreement or contract between the appellant and the respondent capable of enforcement by the respondents.”

 

In compliance with the provisions of order 3, rule 15 of the Court of Appeal Rules, the respondent served on the appellants within the prescribed period a notice of intention to raise preliminary objection on the grounds of appeal filed by the appellant, urging that the appeal be struck out for lack of jurisdiction. The grounds of objection are numbered in the said notice. At the hearing of the appeal, and before adopting his brief, the respondent sought leave and was allowed to withdraw his ground of objection to ground 6 thereto.

 

I intend in this judgment to treat simultaneously the contents of appellants reply brief, in answer to the respondent’s preliminary objection. The appellant’s reply brief was filed in this court on 27/2/01.

 

The respondent has objected to the competence of the appeal, which he said was filed without compliance with section 25 of the Court of Appeal Act 1976, which section prescribes the time within which a final appeal may be lodged; and that no appeal should be lodged subsequently without the leave of the court. Such leave of the court he submitted cannot procedurally be obtained without first asking for an extension of time. After this time has been extended for leave, the time to apply for leave to appeal should also be applied for, before the application for extension of time can be granted upon application. My understanding of the respondent’s objection is that as time to appeal has elapsed the judgment having been delivered since 25th April 1997, the mere application of the appellant for extension of time to appeal, which was granted on 5th June 2000 by this court, is inadequate to confer a right on the appellant to lodge this appeal before the court, and the appeal being incompetent should be struck out. The appellant’s reply is as follows. Since the Court of Appeal has granted the direct order which granted time which enabled him to proceed with the appeal, the court has made a final order thereon which cannot at this stage be reversed, unless on appeal. While it is true that in the absence of proof of fraud in obtaining the order the Court of Appeal being functus officio, cannot withdraw or strike out the order. The operative provision is that the rule in section 25 of the Court of Appeal Rules being a rule of procedure should not be allowed to stand in the way of substantial justice.

 

The rules are after all handmaids of justice, if therefore there is a conflict in its operations which stands in the way of doing substantial justice, the need to do substantial justice should superceed. See Nishizawa v. Jethwani (2001) 8 WRN 153; (1984) S.C. 234 at 286. also see University of Lagos v. Aigoro (1985) 1 NWLR (Pt. 1) 143.

 

I am not by the above advocating that the rules of court be jettisoned. The apex court has put a final seal that the application usually referred to as the trinity prayer must be complied with see: Owena Bank Nig. Plc. V. Nigerian Stock Exchange (1997) 8 NWLR (Pt. 515) page 1. The provision of section 25 of the Court of Appeal Rules are necessary rules which oil, which smooth on the operation and the structures of the law. They create, and help to achieve orderliness the practice In the Court of Appeal. The appellant incredibly succeeded in getting the ultimate order for extension of time without first obtaining leave or even extension of time for leave before he seeks extension of time to appeal, and proceeded straight to obtain extension of time to file his notice of appeal. The order having been granted to the appellant by the court, it would be adhering to strict technicality to revoke the order made in other for appellant to start from the beginning. Such adherence to technicality could hinder or inhibit justice. In the event I quote here Lord Denning, the father of modern pragmatism in the practice of law, and say, as he said in Vandervelis Trust No. 2, White & Ors. v. Vandervelis Trustees Ltd. (1974) 3 LR 205.

 

“If technicality will inhibit justice, it should not be observed.”

 

I will here follow the example of the great jurist when I record that the appeal should therefore be, and in my judgment is competent. I over rule the respondent’s objection. The objection one of the respondent is struck out. The respondent raises an objection to ground one in the appellant’s notice of appeal. The ground of respondents objection is that the issue of jurisdiction was not canvassed by the parties at the lower court, and that:

 

“A ground of appeal should flow from the issue.”

 

Further, respondent submitted that the ground raised on appeal should not without the leave of court be a fresh ground.

 

I find no response to this objection in the appellant’s reply brief except to deny that the appellant has not abandoned the issue. In answer to the objection made by the respondent to ground one in the appellant’s notice of appeal, in doing so, I must comment on a curious submission quoted above in respondents brief, when he said the ground file should flow from the issue canvassed. See page 6, paragraph “(6) ground 1 of notice” of appeal in respondents brief. My knowledge of the established rule is that the issue must derive from the ground of appeal filed, while the ground of appeal must derive or flow from the decision of the court below. See Egbe v. Alhaji (1990) 1 NWLR (Pt. 128) 546 at 590. Against the objection of the respondent above, I find acceptable the submission of the appellant in his reply brief that he has formulated issue on ground one of the appeal which he said he formed with other issues in order to avoid multiplicity of issues. Ground one is not therefore abandoned. It is not the practice on appeal to argue or base submission on grounds of appeal, rather issues are formulated on the grounds upon which submissions are based. (1) Anie & Ors. v. Uzorka & Ors. (1993) 8 NWLR (Pt. 309) 17 (II) Odubeko v. Fowler (1993) 7 NWLR (Pt. 308) 637 (III) Emeghara v. Health Management Board of Imo State & 2 Ors. (1987) 2 NWLR (Pt. 56) 330. Therefore issues not derived from the grounds of appeal are deemed abandoned. The objection raised by the respondent on issue is in my view premature, it is overruled, and struck out.

The respondent’s objection on grounds 2 and 3 is that in each case the ground is incompetent because the appellant failed to obtain the leave of court before each is filed, when each ground of 2 and 3, is of mixed law and of fact, and thereby contravene the provision of section 241 (b) of the 1999 Constitution. The submission of the appellant on the objection is that by the nature of the grounds which attach a finding of fact made by the court, the appellant cannot without the leave of court file the grounds of appeal as of right. I have looked at grounds 2 and 3 of the grounds of appeal, each ground infact attach the finding of fact made by the court below, when each ground complained that the court was in error in making the finding that it did.

 

In Ajibade v. Pedro (1992) 5 NWLR (Pt. 241) page 257 at 267, the Supreme Court prescribed an index for recognizing a ground of mixed law and fact. The learned apex court ruled that a challenge in a ground of appeal to the finding of fact of the court below is a ground of mixed law and fact. In the instant appeal when in ground 2, the appellant complained that the finding of court was in error which found that exhibit 22 before the court was an agreement between the parties. Secondly in ground 3, the appellant complained that the court was in error when the court held that the evidence of fact presented by the respondent was sufficient proof of the respondents claim, when the law requires proof on a civil matter on a balance of probabilities, the appellant has by the two grounds filed as grounds 2 and 3 grounds of mixed law and fact which under the provision of section 241(b) of the 1999 Constitution of Nigeria require before filing of such grounds, the leave of court. The appellant did not in the record or in his brief show compliance with the provisions of section 241(b) of 1999 Constitution of Nigeria by obtaining the leave of court before the grounds were filed. The grounds being of mixed fact and law, do not like a ground of law only give a direct right of appeal. The grounds are therefore incompetent they are struck out together with the issues formulated on them.

 

The appellant failed in the brief to indicate the grounds upon which the issue formulated are based. In my view as grounds 2 and 3 are incompetent, they should be struck out. Issue 2 of the appellant’s brief was formulated on the two grounds of appeal struck out. It reads:

 

“Whether there was a binding agreement between the appellant and the respondent in law which can be enforced by the respondent.”

 

Generally, as issue 2 in the appellant’s brief is unsupported by any ground of appeal it should have been struck out, because any issue not rooted on a ground of appeal goes to no issue see: Okpala v. Ibeme (1989) 2 NWLR (Pt. 102) 208 per Nnamani JSC.

 

However, issue 2, in the appellants brief, which is issue 3 in the respondents brief which asks whether there was a binding agreement/contract between the appellant and the respondent capable of being enforced by the respondent is pivotal in this appeal, and it is necessary to treat the said issue, particularly as the respondent also formulated it. The simple answer to the question is there was a binding agreement between the appellant and the respondent to supply to the respondent certain materials in liquidation of the debt that appellant, was indebted to the respondent. Exhibits 21, 22 and 23 at the hearing shows the sequence of the transaction which culminated in the agreement between the appellant and respondent. There is therefore an offer and acceptance which was being performed by both parties until the appellant realized that its obligation to the respondent is unlawful. I will answer the issue by resolving it in the respondent’s favour.

 

In issue one and three in the appellant’s brief, starting with appellants issue one is the following:

 

“Whether having regards to the evidence before the lower court, the respondent is entitled to judgment.”

 

This question goes into the whole facts of the situation before the court on 12th March, 1997. The day was the date when the appellant prayed by a letter for adjournment of the suit for hearing of the respondent’s claim before the court inevitably came in here, it is convenient to consider it together with issue one and issue three of the appellants brief. It reads:

 

“Whether the appellant was given a fair hearing having regards to the proceedings of 12th March, 1997.”

 

A convenient point to start is the recital of the plaintiff/respondent’s claim, for a sum of money quoted in US dollars. The sum is stated in a very elaborate and detailed form on the plaintiff’s claim served on the defendant/appellant. The day for hearing was fixed. The defendant’s counsel sought adjournment on more than one occasion, he was obliged. On the second request for adjournment of the case fixed for hearing, the defendant’s counsel wrote seeking an adjournment, and suggested one of three days, of a series in March, 1997. The court took the last of the days suggested by the court. The date was 12th March, 1997. When defendant’s counsel did not appear in court, when the case was called for hearing, the court stood down the case till 11am that day in the hope that the defendant would appeal, or send another excuse, none was sent. The court below proceeded with the hearing of the suit by taking evidence from the plaintiff. As it was, the plaintiff called only one witness. The one witness testified, and tendered twenty four exhibits, before the plaintiff closed its case on 12th March, 1993. The evidence tendered was unchallenged and uncontradicted. See: (I) Omoregbe v. Lawani (1980) 3-4 S.C 108, (II) Adeyemi v. Bamidele (1968) 1 All NLR 31 (III) Ajibade v. Mayowa (1978), 9-10 S.C.1 (IV) Ikuomola v. Oniwaya (1990) 4 NWLR (Pt. 146) 617 (V) Union Bank of Nig. Ltd. v. G.C. Ogboli (1995) 2 NWLR (Pt. 380) 647 at 669. In all the authorities cited above, the apex court in this country have held that an unchallenged and uncontradicted evidence tendered In the Court must be accepted and given full effect. In answer therefore to the appellant’s issue one, whether having regards to the evidence before the court below, the respondent was entitled to judgment. I answer in the positive against the appellant. The respondent is entitled to judgment on the evidence before the court on 12th March, 1997, and the court had no alternative but to rule and award judgment in favour of the plaintiff now respondent. Though hearing in the suit was concluded on 15th March, 1997, judgment in the claims was adjourned to 5th June, 1997 when it was delivered. Can it be said that an opportunity for intervention and for further hearing was not given to the appellant? It is convenient here to consider the appellants question as to whether he was given fair hearing as regards the proceedings of 12th March, 1997. The simple answer is yes, the appellant was given a fair hearing on 12th March, 1997 and also on days fixed for hearing before 12th March, 1997, when the appellant’s counsel applied for a secured (sic) adjournment and thereby delayed the hearing of the case. After the judgment, between March, 12th and June 5th 1997, the appellant was given ample opportunity to be heard but he did nothing to appear or aid his further appearance in court before the judgment was delivered. The appellant was granted fair hearing and the opportunity for more which the appellant failed to utilize. It is idle to submit that the failure to appear in court on the adjourned day for hearing is that of the counsel for the appellant. By its inactivity in the suit, the appellant has shown that it is negligent or worse indolent. Equity does not aid either. I see no substance in the appeal, it should, and it is hereby dismissed.

 

The judgment of the court below is affirmed. I abide by the order for costs made in the lead judgment.

 

Cases referred to in the judgment

A.P v. Owodunni (1991) 8 NWLR (Pt. 210) 391

Adedeji v. N.B.N Ltd. (1989) 1 NWLR (Pt. 96) 212.

Adekoya v. Pan Electric Ltd. (1974) UILR 56.

Adeyemi v. Bamidele (1968) 1 All NLR 31.

Ajibade v. Mayowa (1978) 9-10 S.C.1.

Ajibade v. Pedro (1992) 5 NWLR (Pt. 241) 257

Akuchie v. Nwamadi (1992) 8 NWLR (Pt. 258) 214.

Amao v. Civil Service Commission (1992) 7 NWLR (Pt. 252) 214

Anie v. Uzorka (1993) 8 NWLR (Pt. 309) 1.

Atuyeye v. Ashamu (1987) 1 NWLR (Pt. 49) 267; (1987) SCNJ 72

B.P. (West Africa) Ltd. v. Nigeria Maritime Services Limited (1962) 1 All NLR 605

Bereyin v. Gbogbo (1989) 1 NWLR (Pt. 97) 372.

Doherty v. Doherty (1964) 1 All NLR 299; (1964) NMLR 144.

Ebokam v. Ekwenibe (1999) 10 NWLR (Pt. 622) 242.

Effiong v. State (1998) 8 NWLR (Pt. 562) 362.

Egbe v. Alhaji (1990) 1 NWLR (Pt. 128) 546.

Emeghara v. Health Management Board Imo State (1987) 2 NWLR (Pt. 56) 330.

F.B.N Plc v. May Medical Clinic (1996) 9 NWLR (Pt. 471) 204.

Geosource Nig. Ltd. v. Biragbara (1997) 5 NWLR (Pt. 506) 607.

Gov. Benue State v. NCC (1997) 3 NWLR (Pt. 495) 610.

Honika Sawmills Limited v. Hoff (1994) 2 NWLR (Pt. 376) 326.

Idika v. Erisi (1988) 2 NWLR (Pt. 78) 563.

Ikuomola v. Oniwaya (1990) 4 NWLR (Pt. 146) 617.

Iroegbu v. Okwordu (1990) 6 NWLR (Pt. 159) 643

John v. Blakk (1988) 4 NWLR (Pt. 90) 539

Jov v. Dom (1999) 9 NWLR (Pt. 620) 538

Lawal v. Dawodu (1972) 1 All NLR (Pt. 2) 270; (1972) All NLR 707.

Madagwa v. State (1988) 5 NWLR (Pt. 92) 60.

Makin Ltd. v. London & North Eastern Railway Co. (1941) 1 K.B 467.

Moulkarim v. Agbaje (1982) 11 S.C 122.

Nal Merchant Bank Ltd. v. Macauly (1986) 5 NWLR (Pt. 40) 216

Nishizawa v. Jethwani (2001) 8 WRN 153;(1984) 12 S.C 234.

Nta v. Anigbo (1972) 2 ECSLR 306; (1972) 5 S.C 156; (1972) 1 All NLR (Pt. 2) 74.

Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718.

Obioha v. Duru (1994) 10 SCNJ 48, (1994) 8 NWLR (Pt. 365) 631.

Odubeko v. Fowler (1993) 7 NWLR (Pt. 308) 637.

Odutola v. Kayode (1994) 2 NWLR (Pt. 324) 1.

Okezie v. Queen (1963) 1 All NLR 1.

Okoye v. Nigeria Construction and Furniture Co. Ltd (1991) 6 NWLR (Pt. 199) 501.

Okpala v. Ibeme (1989) 2 NWLR (Pt. 102) 208.

Olatunji v. Alaba (1998) 8 NWLR (Pt. 563) 569.

Omojaine v. Eguegu (1996) 1 NWLR (Pt. 424) 341.

Omoregbe v. Lawani (1980) 3-4 S.C 108.

Oshatoba v. Olujitan (2000) 5 NWLR (Pt. 655) 159.

Owena Bank Nig. Plc. v. Nigerian Stock Exchange (1997) 8 NWLR (Pt. 515) 1.

Quastell Production Limited v. Bassey (1992) 5 NWLR (Pt. 239) 67.

Shobogun v. Sanni (1974) 1 All NLR (Pt. 2) 311, (1974) 11 S.C 32.

Skenconsult Nig. Ltd. v. Ukey (2001) 49 WRN 63; (1981) 1 S.C 6.

Tukur v. Govt. Taraba State (1997) 6 SCNJ 81; (1997) 6 NWLR (Pt. 510) 549.

U.B.A Nig. Ltd. v. Edet (1993) 4 NWLR (Pt. 287) 288.

U.B.N v. Ogboh (1995) 2 NWLR (Pt. 380) 647.

Unilag v. Aigoro (1985) 1 NWLR (Pt. 1) 143.

Vandervels Trust v. Vandervelis Trustees Ltd. (1974) 3 LLR 205.

Statutes referred to in the judgment

Constitution of the Federal Republic of Nigeria, 1999, Ss. 213(1)(2)(a) & 241.

Constitution of the Federal Republic of Nigeria, 1979, Ss. 213(1)(2)(3) & 220(2).

Court of Appeal Act, 1976, s. 25.

Rules of court referred to in the judgment

Court of Appeal Rules, Or. 3 rr. 2(2)(4) & 15.

Kano State High Court (Civil Procedure) Rules, 1988 Or. 37 rr. 2 & 4.