E. B. Ukiri V. Geco-prakla (Nig.) Ltd (2010)
LAWGLOBAL HUB Lead Judgment Report
DAHIRU MUSDAPHER, J.S.C.
The appellant who appears in person, is a legal practitioner and was retained according to the terms of their agreement, by the respondent company to handle its legal matters. The relationship continued for some time but later misunderstanding arose. Matters came to a head when on 20/7/1994, the respondent wrote to the appellant terminating the retainership agreement and tendered the sum of N490,000.00 being what it considered it owed the appellant as outstanding professional fees. The appellant disagreed with the figure and on the 22/5/1995, applied for a Writ of Summons from the High Court of Rivers State under the “undefended list” procedure and claimed what according to him, was the outstanding remaining professional fees owed to him by the respondent. The matter was placed on the “undefended list”. The matter suffered two adjournments and was on 14/7/1995, fixed for hearing on 28/9/1995. Meanwhile on the 27/9/1995 the respondent caused to be filed on its behalf, a Motion on Notice praying for the following prayers:-
“1. An order setting aside the purported service on the defendant/applicant of the Writ of Summons xxxxx
- An order extending the time within which the defendant/applicant should file its Memorandum of Appearance.
- An order deeming the Memorandum of Appearance annexed to the affidavit in support of this Motion and marked as Exhibit “F 1″ as properly filed and served xxxxx.
- An order extending the time within which the defendant/applicant should file its Notice of Intention to Defend this suit.
- An order deeming the Notice of Intention to defend the suit, annexed to the affidavit in support of this Motion and marked as Exhibit’ F 2″ as properly filed and served, xxxxx”.
On the 31/1/1996, the learned trial judge ruled on the application and refused it. He entered judgment in favour of the plaintiff on the undefended list. The defendant felt aggrieved and appealed to the Court of Appeal Port Harcourt Division.
The registrar of the trial court on the 22/2/1996 imposed the conditions of appeal to be perfected by the defendant within 30 days from that date. It appeared that the conditions were not met by the defendant and after some protracted applications, the Court of Appeal on the 8th of February 1998 dismissed the defendant’s appeal for failure to comply with the conditions of the appeal as provided by order 3 rule 20 of the Court of Appeal Rules. On the 19/2/1998 the defendant filed on application in the Court of Appeal praying among other prayers the restoration of the dismissed appeal. It was claimed that the defendant had no notice of conditions of appeal imposed by the registrar on the 22/2/1996. The plaintiff objected to the application and filed not only a counter-affidavit but also a Notice of Preliminary Objection. The preliminary objection filed on the 27/2/1998 was in these terms:-
a. That the application is incompetent, an abuse of the process of the Court.
b. The Honourable Court lacks the jurisdiction to entertain and grant the applicant’s motion.
And the grounds of the preliminary objection are as foilows:-
(i) There is no pending appeal capable of being restored by this Honourable Court.
(ii) xxxxx.”
Arguments were heard for and against the defendant’s application to restore the dismissed appeal and in its Ruling delivered the 8/2/1999.
The Court of Appeal held:-
xxxxx
“I shall quickly dispose of the preliminary objection by saying that if there were pending an appeal, then the application for the restoration of the appeal will be meaningless. But the truth of the matter lies in the provision of the Rules Order 3 rule 20 (4) of Court of Appeal Rules. It provides, inter alias, that “An appellant whose appeal has been dismissed under this rule may apply by Notice of Motion that his appeal be restored.” And “Any such application may be made to the Court and the Court may xxxxx.”
Based on the above Rules, it is my respectful view that the preliminary objection lacks merits. It is accordingly Dismissed.”
The Court of Appeal proceeded to consider the issue of whether the defendant or its solicitor were aware of the conditions of appeal imposed by the registrar and at the end of the day ruled in favour of the defendant and restored the appeal.
It was after the restoration of the appeal that the registrar of the trial court issued a certificate of compliance with the conditions of the appeal on the 15/9/1999.
After the restoration of the appeal, the parties filed briefs of argument in accordance with the rules of the Court of Appeal. The plaintiff once again raised preliminary objections as to competency of the defendant’s restored appeal. The objection was based on two main grounds, namely, (1) that the defendant failed to fulfill the conditions of appeal set for him by the registrar of the trial court within the time prescribed by the registrar and (2) that the appeal being an interlocutory one, and that the grounds of appeal must of necessity include grounds of mixed law and facts or facts, the defendant ought lo have first obtained leave before filing the appeal.
Now in its determination of the preliminary objection and the appeal, the Court of Appeal per IKONGBEH JCA (of blessed memory) staled in part:-
“It can be seen that it is the registrar who is expressly given the power by rules 10 and 11 to give direction as the period of time within which the appellant shall fulfill the conditions as to the payment of deposit for the record and the entering of a bond. Such power is not given to the court. xxxxx
On the second ground the respondent has contended that the appeal is in substance an interlocutory one, xxxxx the order made by the judge completely settled the dispute between the parties. There was in my view, nothing interlocutory about it. It brought the particular proceedings to the final close.
xxxxx the appellant did not therefore require leave to file its appeal. xxxxx.”
Thus the preliminary objections raised by the plaintiff were rejected by the Court of Appeal. In the consideration of substantive appeal, the court allowed the appeal of the defendant and set aside the decisions of the trial court including the judgment entered in favour of the plaintiff, in its place it granted the prayers of the defendant in relation to the leave to defend the action and remitted the case back to the trial court for trial con the merits in the normal manner by filing of pleadings.
The plaintiff hereinafter referred to as the appellant (and the defendant, the respondent) felt unhappy with the decision of the Court of Appeal has now appealed to this court. The respondent also felt unhappy with some aspects of the decision has also cross appealed to this court. I shall deal with the appeal first, before considering the cross-appeal. In his brief for the appellant, the appellant has identified and submitted two issues arising for the determination of the appeal. The issues are:-
i. Whether or not the registrar had the power to extend the time within which the respondent could comply with the conditions of the appeal.
ii Whether or not the respondent’s appeal was competent and whether or not the fundamental defect in the respondent’s appeal affected the jurisdiction of the court.”
For the respondents two issues for the determination of the appellant’s appeal were also identified and submitted. The issues are:-
- Whether having not canvassed any arguments on grounds of appeal Nos. (iii), (iv) (v) and (vi) the appellant is deemed to have abandoned those grounds of appeal.
(2) Whether having regard to the circumstances of this case, the Certificate of Compliance with the condition of appeal, that court rightly overruled the first ground of preliminary objection.”
Now, the Notice of appeal filed in this appeal contains six grounds of appeal, see pages 192 – 195 of the printed record. There is no doubt that from the two issues for determination filed by the appellant, the appellant only canvassed his arguments in this appeal on grounds 1 and 2 and that no issues are raised or arguments offered in respect of grounds of appeal 3-6. I take it that grounds of appeal Nos. 3 – 6 are abandoned and are therefore liable to be struck out. It is now elementary law which requires no citation of any authority, that in an appeal where no argument is offered in support of a ground of appeal, the ground of appeal is deemed abandoned and should be struck out. I accordingly strike out grounds of appeal 3 – 6 in the instant appeal. The appeal is thus merely concerned with the competence of the appeal before the Court of Appeal as raised by the appellant herein as the respondent on the question of the competency of the respondent’s appeal before the Court of Appeal in his preliminary objections referred to above.
Now in his brief for the respondent, the respondent’s first issue for determination reproduced above, could not be properly described as an issue arising for the determination of an appeal as provided by the rules of this court. A proper issue for the determination of an appeal must arise from a complaint as contained in a ground or grounds of appeal against a decision appealed from. It is wrong for the respondent to do as he duly when he merely wanted to argue that the grounds should be struck out, for the failure of the appellant to raise issues for determination and offer arguments on them. Having regard to the fact that I have struck out the grounds I say no more.
As mentioned above, the Court of Appeal proceeded to hear the appeal of the respondent on the merits and at the end of the day allowed the appeal, it set aside the decision of the trial court, including the judgment and remitted the matter to the High Court and there to be tried by another judge in the normal manner.
Now as mentioned above, the appellant has again raised two issues for the determination of the present appeal namely, (1) whether the registrar of the trial court had the power to extend time within which the respondent could comply with the conditions of the appeal and (2) whether or not the respondent’s appeal was competent and whether or not the fundamental defect in the respondent’s appeal affected the jurisdiction of the court below. The issues were argued together by the appellants.
It is submitted that the registrar of the trial court gave the respondent 30 days from 22/2/1996 to comply with the conditions of appeal. It is further submitted that the respondent’s motion for extension of time to comply with the condition of appeal was dismissed by the Court of Appeal on 18/11/1999, however, the registrar after a period of 3 years and when the 30 days allowed by him elapsed, purportedly extended the time. The Court of Appeal acted in error when it ruled that the registrar of the court had the power to extend time when the court itself had dismissed the application to extend the time. It is submitted that, the registrar had no power to extend the time under the law, it is only the court that had the power to” extend the time. Learned counsel referred to the case of OKOLO AND ANOR. VS. UNION BANK OF NIGERIA LTD. (2004) 3 NWLR (Pt.859) 87.
It is submitted further that once the appellant contends and alleges non-compliance with the conditions of the appeal under rule 20(3), the Court of Appeal ought to have dismissed the appeal vide SCOA VS. BOURDEX LTD (1987) 4 NWLR (Pt. 293) 255. The incompetence of the appeal robbed the Court of Appeal of the jurisdiction to entertain the appeal.
Now, it should be recalled that on the application of the appellant herein, the Court of Appeal on 8/2/1998 dismissed the appeal of the respondent for failure of the respondent as the appellant to comply and fulfill the conditions of appeal imposed by the registrar. It was on the later application of the respondent that the appeal was restored by the Court of Appeal on the 8/2/1999. While opposing the application to restore appeal, the appellant raised the same issues on the competency of the application; when the respondent had failed to comply with the conditions of the appeal. The appellant also made the same arguments both in Court of Appeal at the hearing of the appeal and also in this court. But in the respondent’s application in which the appeal was restored, the Court of Appeal made far reaching decisions on the issue of the failure of the respondent’s to fulfill the conditions of appeal. The appellant did not deem it necessary to appeal against the decision. Part of the decision of the Court of Appeal of 8/2/1999 reads:-
“Now, the question is, what are the reasons for, or the cause shown by the applicants for the restoration The gist of their reasons is this; the notice for the Settlement of the Record of Appeal and the Summons to appear to fulfill the conditions of appeal were not served on the applicants or through their solicitors.
The respondent filed an affidavit to the contrary, i.e that the solicitors to the applicants were duly served with the processes. xxxxx
And indeed that contention is the bedrock of the arguments for and against the application to restore the appeal. Erring on side of caution, having said above, it is my view that the appeal be restored, then it pends before the court below and in the registrar’s court. Thereat, the applicants may then satisfy or fulfill the conditions of appeal, if they be served with notice or if they have notice of them. xxxxx.
As mentioned above, there was no appeal against the decision of Court of Appeal made on the 8/2/1999 restoring the already dismissed appeal and in which it was held that the respondent had no notice of time given to comply with the conditions of appeal. There was no evidence either way whether the respondent’s were given fresh time or not within which to comply with the conditions of appeal after the restoration of the appeal. The appellant had failed to show what happened after the appeal was restored in February, 1999.
But, looking at the records, the objection of the appellant that the respondent failed to perfect the conditions of the appeal in that court was not discernable from the Record of Appeal. Rather, it is manifest that pursuant to his powers under rule 13(1) (b) of Order 3 of the Rules of the Court of Appeal, the registrar issued, together with the Record of Appeal, a certificate of fulfillment of the appeal conditions. And in my view, the Certificate of the registrar is the conclusive proof of the perfection of the conditions within the time prescribed by the registrar.
The Court of Appeal found as a fact that the respondent had perfected the conditions of appeal and was issued with a certificate to that end together with the records of appeal by the registrar. By virtue of Section 114 and 150 of the Evidence Act, there is a presumption of law that the certificate of registrar is regular, valid and genuine and the burden of proof is on the appellant which is a heavy one, and which in this case, has not been disproved. Indeed there is no evidence on record to impugn the confirmation by registrar that the respondent had duly complied with the conditions of appeal as ruled in the application restoring the appeal on the 8/2/1999. It was a decision of the Court of Appeal for which there was no appeal.
It is settled law that the courts are enjoined in the adjudication of disputes between the parties to do substantial justice and not to have an undue regard to technicalities. This court in the case of UNITED BANK FOR AFRICA LTD. VS. DIKE NWORA 1978 11 – 12 SC 1 at 6 – 7 held that a Statement of Defence filed out of time and in contravention of the rules of court was not a void document and remains “a valid document until set aside”. FATAYI WILLIAMS JSC (as he then was) staled in that case:-
“xxxxxx if a defence has been put in, though irregularly, the court will not disregard it, but will see whether it set up grounds of defence which, if proved, will be material and if so, will deal with the case in such manner that justice can be done.”
Similarly, in this case where the respondent complied with the conditions of appeal and even if out of time is of no moment. See also NOFIU SURAKATU VS. NIGERIA HOUSING SOCIETY LIMITED (1981) 4 SC 26. Where it was held that, the court has a duty to do substantial justice between the parties hence it would not allow any irregularity which does not affect the real justice of the matter to affect an otherwise just decision. This case has overruled the earlier decisions in ADESINA MOSES VS. OGUNLABI (1975) 4 SC 81, and ADDIS ABABA VS. ADEYEMI 1976 12 SC 51 which voided appeals for failure to execute bonds.
In my view, the complaints of the appellant are misconceived. The finding of the Court of Appeal that the respondent perfected the conditions of appeal out of time or that the registrar had the power to extend the time within which to perfect the conditions of appeal imposed by him not withstanding. In my view, the issues do not arise having regard to the unequivocal statement of the registrar at the beginning of the Record of Appeal and the fact that the appellant failed to adduce any evidence to contrary. Significantly, the ruling of the Court of Appeal made on 8/2/1999 restoring the appeal at least of necessity extended the time to comply with the conditions of appeal. Having regard to the facts of this case, I do not think it is necessary to discuss the issue whether the registrar has the right or not to extend time to comply with the conditions of appeal. I accordingly find no merit in the appeal and I accordingly dismiss it.
The Cross-appeal, is only to do with failure of the court below to consider and determine all the issues “raised and argued by the parties” while considering the preliminary objection raised by the appellant. The cross-appellant in paragraph 4.02 of the cross-appellant’s brief stated:-
“4. 02″ Although the Court of Appeal considered, determined and dismissed the preliminary objection raised by the cross-respondent, that court failed to consider and decide all the issues argued by the cross-appellant in paragraphs 1.01 – 1.03 of its Reply brief. The issues questioned the competences of the Preliminary Objection.”
But the Court of Appeal had granted all the reliefs sought by respondent/cross appellant see page 110 of the printed record. In other word, the cross-appellant won his appeal completely before the lower court. The question whether the lower court had discussed all the issues raised while discussing the preliminary objection raised by the cross-respondent is in my view “of no consquence. The cross-appeal therefore under the circumstances serves no useful purpose, and I decline to discuss it any further.
In the end I dismiss both the appeal and the cross-appeal. I affirm the decision of the court below in that the judgment of the trial court is set aside The respondent/cross-appellant’s alternative prayers 2, 3, 4 and 5 in the application filed by it on 27/9/1995 is granted. The matter is remitted back to the High Court of Rivers State and thereat to be decided in the normal manner by another judge. I make no order as to costs.
SC.141/2003
