Mohammed Ibrahim V. Traclease Ltd & Anor (2007)
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ADZIRA GANA MSHELIA, J.C.A.
This is an appeal by the Plaintiff/Appellant against the judgment of Adebiyi J. sitting at the Lagos Judicial Division of the High Court delivered on the 29th day of April, 2004.
The appellant was the plaintiff in the lower court while the respondents were the defendants/counter-claimants. Appellant claimed against the defendant as per his statement of claim at page 5 of the record of appeal as follows:-
(i). The sum of N1,355,000.00 as special damages.
(ii). The sum of N200,000.00 as general damages.
Defendant on the other hand filed defence and counter-claimed as follows:-
“WHEREUPON the defendants counter-claim the sum of N703,000.00 being money had and received by the plaintiff with interest at 21% till final payment of the said sum.”
I find it necessary to briefly highlight the events that too place before the trial court. The suit was initially struck out on for want of prosecution. On 2nd December 2002 the trial court granted defendants/respondents’ application re-listing the suit earlier struck out on 19/03/01. On 20th January, 2003 the defendants/respondents’ application for extension of time within which to enter appearance and file defence and counter-claim was granted. After series of adjournments at the instance of plaintiff/appellant trial commenced on 30th October 2003. The defendant/respondents only witness gave evidence in chief in absence of the appellant who failed to appear in court though served. The matter was adjourned for adoption of written address.
When the written address of defendants/respondents was served on the plaintiff/appellant’s counsel, it was then plaintiff/appellant filed motion for change of counsel and same was granted. The appellant’s counsel made oral application on same date 10th December 2003 for time to apply for certified True Copy of the courts proceedings and it was refused by the court. On 5/1/04
Plaintiff/Appellant prayed for an order granting him leave to counter-claim and call fresh evidence in defence of the counterclaim.
The application was refused. Both counsel then filed written addresses. The learned trial judge on the 29th of April, 2004 entered judgment in favour of the respondent.
The appellant being dissatisfied with the decision has now appealed to this court. Appellant filed his Notice of Appeal which contained five grounds of appeal. The grounds of appeal without particulars are as follows:-
GROUNDS OF APPEAL
I. Error-in-law- The learned trial judge erred in law when it declare itself “Functus Officio” in respect of the ruling of 10th December 2003.
- Error-in-law- The learned trial judge erred in law when he refuse to consider the affidavit evidence before it or even make pronouncement on same.
- Error-in-law-The court should exercise her discretion in such a way as to ensure that substantial justice is done in the matter having regard to the circumstances of the case.
- Error-in-law-The evidence arc not sufficient to warrant judgment been entered for the respondent.
- Error-in-law- The learned trial judge erred in law when he failed to accord the defendant fair hearing before entering judgment on 29th day of April 2004.
In compliance with order 6 of the Court of Appeal Rules both appellant’s and respondent’s counsel exchanged briefs of argument. Appellant filed his brief on 14/07/06. While respondent filed brief on 12/12/06 and same deemed filed and served on 18/01/07.
From the five grounds of appeal appellant distilled three issues for determination in this appeal. The issues are:-
I. Whether it does not amount to the sin or negligence of counsel been visited on the litigant.
- Whether the court can declare itself “Functus Officio” in respect of an issue upon which the court had not given a ruling or judgment.
- Whether having regard to all the circumstances of the case, the court ought not to have exercise its discretion in such a way as to ensure that the appellant is given fair hearing before entering judgment.
The respondents also formulated two issues for determination.
The issues are:-
(I). Was the plaintiff/appellant who did not tile any defence to the counter-claim entitled to call fresh evidence in its favour after the counter-claimants had closed their case?
(2). Did the plaintiff/appellant and his counsel diligently prosecute his case when neither of them made, any effort to know the position of the case between 9/8/1999 when the action was filed and 10/12/2003 when written addresses were adopted?
Hearing of the appeal was fixed against 10/05/07. On that date appellant’s counsel did not appear though he was in court on the last adjourned date. Appellant’s appeal was deemed argued in accordance with Order 6 Rule 9(5) of the Court of Appeal Rules.
Respondents’ counsel Mr. Otokchina adopted respondent’s brief of argument.
Before I consider the merit of this appeal I think it is necessary to first determine the competency of the brief of argument filed by the appellant. Although respondent did not raise any objection, the court has a duty to ensure compliance with rules of court. I cannot therefore gloss over such a fundamental defect.
It is trite law that issues are formulated or distilled from grounds of appeal. See Oje vs. Babalola (1991) 4 NWLR (Pt. 185) 267. It is upon the issues therefore that the appeal is argued.
In the instant ease appellant’s counsel formulated issues in compliance with Order 6 Rule 3(1) of the Court of Appeal Rules
2002.
Order 6 rule 3(1) provides as follows:-
“(I). The brief, which may be settled by counsel, shall contain an addresses for service and shall contain what are in the appellant’s view, the issues arising in the appeal as well as amended or additional grounds of appeal.” (Underlining mine).
The emphasis is on the issues arising in the appeal and which give rise to reasons for a brief writing. The content of a brief is on issues and not on either grounds of appeal or some other subjects different and unrelated to the issues therein.
I have however, observed that appellant’s counsel after formulating the issues abandoned same and went ahead to argue the appeal on the grounds of appeal. The Supreme Court in Ojibah Vs Ojibah (1991) 5 NWLR (Pt. 191)296 at 316 made it clear that to argue one’s appeal on grounds of appeal rather than on issues formulated for the appeal is a case of non-compliance with the rules and one which makes the task of the court much more difficult. Similarly, in the case of Acme Builders Ltd vs. K.SW.B (1999) 2 NWLR (Pt. 590) 288 at 304 the apex court reiterated its position on the issue of counsel arguing grounds of appeal and had this to say:-
“Several cases had hitherto been decided by this court for the guidance of counsel to the effect that arguments on a brief should be canvassed on the basis of the issues and not grounds of appeal failing which the brief should be struck out and appeal dismissed for non-compliance with the rules ———-.”
Further still in the case of Ezemba Vs Ibenema (Trading under the name and style solde Engineering Works) Nigeria and Anor (2004) FWLR 1786 their lordships of the apex court refused to consider argument in support of grounds of appeal instead of issues and struck out the argument. See also N.N.B Plc Vs lnonikhe (2002) 5 NWLR (Pt. 760) 204 at 288. Where no argument is canvassed in respect of any issue, it is trite that the issue raised and the ground of appeal to which it relates are deemed to be abandoned and not pursued. See Shell Petroleum Development Company Nigeria Limited vs. Tiebo Vs II (1996) 4 NWLR (Pt. 445) 627.
In the instant case since appellant’s counsel argued the grounds of appeal instead of the three issues formulated the effect is that both the grounds of appeal and issues distilled there from are deemed abandoned and it is taken that no argument has been canvassed in this appeal by the appellant. It is trite that success of an appeal must come as a result of sound arguments based upon issues formulated from competent grounds of appeal. In other words any argument not based on issues formulated renders the brief of argument invalid. The consequent effect is that the brief is incompetent and accordingly struck out. In the absence of any brief therefore, there is nothing upon which the appeal can be sustained. The appeal having been abandoned is accordingly dismissed for want of prosecution.
The decision of the learned trial judge is affirmed. With costs following events, I would award same at N10,000.00 in favour of the respondent against the appellant.
Other Citations: (2007)LCN/2498(CA)
