Kano Textile Printers Ltd V. Gloede And Hoff (Nig) Ltd (2005)
LAWGLOBAL HUB Lead Judgment Report
D.O. EDOZIE, JSC
Apart from the objection to the competency of this appeal, the narrow and the only issue canvassed in the appeal relates to the fairness of the trial in the court of first instance being the Kano High Court in a case in which the Respondent as Plaintiff sued the Appellant therein Defendant claiming the sum of USD 341,759.79 being the balance of the price of goods supplied to the Defendant. In the alternative, the Plaintiff claimed against the Defendant as the drawer of several bills of exchange for the balance of the total sum due in the amount of USD 341,759.79 payable to the Plaintiff which bills were duly presented for payment and dishonoured to the acknowledgment of the Defendant.
Pleadings were duly filed, exchanged and amended and thereafter the trial commenced after several adjournments before it was eventually concluded and judgment delivered. As a complaint predicated on fair hearing has to do with the procedure at the trial, it is useful to give a resume of what transpired in the course of the proceedings leading to the judgment of the trial court as well set out in the judgment of the Court of Appeal, Kaduna Division, per leading judgment of Salami, J.C.A. in which in pages 206 – 207 he said:
“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 the 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 USD 341,769.79 United States of America Dollars or its equivalent at the current exchange rate approved by Central Bank of Nigeria plus 10% interest per annum with effect from 1st November, 1996 until full and total liquidation of the whole amount.’
Against the judgment of learned trial judge, the Defendant lodged an appeal to the Court of Appeal, Kaduna. The appeal which was based on several grounds including lack of fair hearing was dismissed and in relation to the issue on fair hearing, the Court of Appeal at pp 34 and 35 of the record reasoned thus:-
“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, in spite of that, waited on it. Or in the alternative the court should have looked for an (sic) served it personally……. 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 if 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.”
Dissatisfied with that judgment, the Appellant has lodged the instant appeal upon a notice of Appeal anchored on two grounds of appeal still complaining about lack of fair hearing at the trial court. Briefs, consisting of Appellant’s brief, Respondent’s brief and Appellant’s Reply brief were filed, exchanged and adopted by learned counsel for the parties at the hearing of the appeal. By a Notice of preliminary objection, the Plaintiff raised objection against the competency of the appeal on the ground that both the grounds of appeal thereof and the sole issue distilled therefrom are incompetent.
Arguments on the objection were developed in the Respondent’s brief and responded to in the Appellant’s Reply brief.
The main plank of the preliminary objection is that the grounds of appeal are at best of mixed law and facts and as they were filed without leave of court they are incompetent thereby rendering the issue distilled therefrom equally incompetent. It was contended that the said grounds of appeal and issue did not relate to judgment appealed against.
By section 233(3) of the Constitution of the Federal Republic of Nigeria 1999, an appeal from the decision of the Court of Appeal to this court on facts alone or mixed law and fact is subject to the leave of the court below or this court before it can be filed. A ground of appeal for which leave is required, if filed without such leave being obtained is incompetent; vide Ojemen v Momodu II (1983) 1 SCNLR 188 at 205; Maigoro v Garba (1999) 10 N.W.L.R. (Pt. 624) 555 at 568; Akwiwu Motors Ltd and Anor v Sangonuga (1984) 5 SC 184 at 188.
It is acknowledged that the division between a ground of law simpliciter and one of mixed law and fact is thin. As was decided by this court in the case of Nigerian National Supply Co. Ltd v Establishment Sima of Vaduz (1990) 7 N.W.L.R. (Pt. 164) 526 per Nnaemeka-Agu JSC, in the classification of a ground of appeal, it does not matter whether the appellant labelled it one of law, fact or mixed law and fact, what the court ought to do is to examine the particular ground together with its particulars if any as a whole: see Ogbechie v Onochie (1986) 2 N.W.L.R. (Pt.23) 484; Nwadike v Ibekwe (1987) 2 N.S.C.C. 1219 at 1232. Where the ground raises an issue of law based on accepted undisputed or admitted facts as found by the court below, it is a ground of law but where it is based on facts in dispute or unascertained, it is one of mixed law and fact. In the light of the foregoing principles, I have scrutinised the first ground of appeal together with its particulars. That ground of appeal alleged that the Court of Appeal erred in law when it held that the Appellant was given fair hearing or an opportunity to be heard notwithstanding that from the facts before the court, the case was never adjourned for defence. From the particulars subjoined to that ground, it seems to me that the issue of fair hearing raised in the first ground of appeal is based on undisputed or admitted facts and consequently the ground is one of law and therefore competent. The second ground of appeal is superfluous as it raises the same issue of fair hearing on grounds substantially the same as the first ground of appeal. It is accordingly struck out. The result is that the appeal is predicated on one valid ground of appeal. The appeal can be sustained on this solitary ground if a proper issue for determination is distilled therefrom. As reflected on page 3 of the Appellant’s brief, the issue formulated, by the Appellant is:-
“Whether the learned trial Judge was right when after the proceeding of 12/3/97 adjourned the matter for judgment when the defendant had not cross examined the Plaintiffs witness or presented its own case. Or in the alternative, whether from the circumstances of the case the defendant has been afforded a fair hearing?”
As rightly observed by learned counsel for the Respondent, the issue formulated by the Appellant is an attack against the judgment of the trial court and not a challenge of the judgment of the Court of Appeal appealed against. It is a cardinal principle in the practice of brief writing that for an issue identified for determination to be valid, it must derive from the grounds of appeal which in turn must relate to the decision of the court against which the appeal is lodged: See Bicon Agrochemicals (Nig) Ltd & 3 ors v Kudu Holdings Ltd & Anor (2000) 14 N.W.L.R. (Pt.691) 493 at 495, 496. A ground of appeal and/or issue for determination which does not derive from the judgment appealed against is incompetent. In the case of Bankole & ors v Pelu (1991) 8 N.W.L.R. (Pt.211) 523 at 537, this court, per Uche Omo in considering the validity of grounds of appeal and issue for determination commented thus:-
“Issue 3 comprises an argument and also poses a question not relevant to the grounds of appeal filed challenging findings of facts of the trial court (sic). What should be addressed are findings of fact of the Court of Appeal, even if they are merely confirmatory of the trial courts findings……. Respondent’s issue 7 refers to the judgment of the trial court. That is wrong. Issues 3, 5 and 7 are therefore also struck out.”
In the present appeal, the issue formulated relates to the findings of the judgment of the trial court instead of those of the Court of Appeal. It is therefore incompetent and accordingly struck out.
Since the appeal was argued on the sole incompetent issue for determination, the appeal is equally incompetent. The preliminary objection is therefore, sustained and the appeal is hereby struck out with 10,000 costs to the Respondent.
SC. 98/2002
