Nigerian Bottling Co. Plc. V. Mao and Tee Interbiz Ltd. & Anor. (2009)

LawGlobal-Hub Lead Judgment Report

CLARA BATA OGUNBIYI, J.C.A.

This is an appeal against the judgment of the High Court of Lagos Stated delivered on the 13th day of December, 1999 in favour of the plaintiffs/respondents for the sum of N1.942 million Naira for various jobs executed by the plaintiffs with the interest at the rate of 16% per annum from October 1998 until judgment is delivered and thereafter 21% per annum until judgment is liquidated. This appeal therefore is against a judgment in default of appearance and defence upon a motion filed by the plaintiffs/respondents dated 12th November, 1999 and at pages 14-17 of the record of appeal.

Briefly, the facts of the case and as deduced from the statement of claim were that between July and September 1998, the defendant/appellant contracted the plaintiffs/respondents to execute contracts of purchase, repair and servicing of various electric pumps which said contract amounted to N1.942 million Naira (page 3 of the record of appeal is evident). That service at all times of the process was effected on the defendant/appellant through its registered office at NBC HOUSE, BEHIND MAINLAND HOTEL, OYINGBO; page 9 of the records shows the address for service. The defendant/appellant was served with the process of court and after the period set down for appearance and filing of defence, the plaintiffs/respondents thereupon filed an application on the 12th day of November 1999 for an order entering judgment in their favour in default of appearance and statement of defence pursuant to the claims on the writ of summons. The application on notice was served on the defendant/appellant – pages 14-15 of the record are evident. On the 13th December, 1999 the lower court heard the motion and judgment was given in favour of the respondents since the appellant neither appeared nor was there a representation by any counsel. Judgment summons was filed on the 15th day of December 1999 (page 27 of the record refers) and execution levied on 21st December 1999. The appellant filed an application dated 22nd December, 1999 to set aside the judgment and stay further execution. The court stayed further execution by directing that the judgment sum and cost of N2,335,525 be paid by a Certified Bank Cheque in the name of the Chief Registrar, who was also directed to deposit the said cheque in an interest yielding account. (Pages 61-62 of the record is in reference.)

At page 170 of the record of appeal, the appellant filed a notice of appeal against the judgment on the 13th March, 2000. The appellant has also sought and obtained leave of this court to file and argue one additional ground of appeal dated and filed 5th May, 2004. The order was made 22nd April, 2004.

The appellant’s brief is also dated and filed 5th May, 2004 while the record of appeal was served on the appellant on the 2nd December, 2002. On the 20th January, 2009 when the appeal was called up for hearing Mr. A. A. Odunsi learned counsel for the appellant informed the court of an order made 22nd April, 2004 to argue one additional ground of appeal. Same was dated and filed 5th May, 2004. The learned counsel therefore adopted and relied on the appellants brief dated and filed 5th May, 2004.

It is pertinent to state that from the evidence on the additional ground of appeal, same was filed on the 5th May, 2004 at 12.25 p.m., whereas the brief of argument sought to be relied upon was also filed the same day but at 12.20 p.m. This clearly presupposes that the brief in question was filed five minutes before the additional ground of appeal was filed. The said brief cannot therefore incorporate and cover a ground which was filed thereafter. There is, in the circumstance, therefore no brief in respect of the additional ground of appeal in effect. Further more, there is also no evidence that the said brief was filed pursuant to an order of court extending the time within which to file same. Consequently, the brief filed two years and five months after service of the record of appeal on the appellant is certainly filed out of time. The effect is that there is therefore no brief of argument in support of the appeal sought to have been argued by the learned appellant’s counsel, Mr. A. A. Odunsi, on the 20th January, 2009.

Order 17 rule 2 of the rules of court relating to briefs of argument is very clear, apt and succinct. It states as follows:-

“2. The appellant shall within forty-five days of the receipt of the record of appeal from the court below file in the court a written brief, being a succinct statement of his argument in appeal.”

By the use of the word “shall” as stated in the rules supra, it presupposes that briefs are mandatory requirements by all parties for effective prosecution of an appeal. A further confirmation is again signified by the use of the word “shall” which is provided for in the same order 17 rule 4(2) regarding the respondent’s brief. In other words, there cannot be a respondent’s brief in the absence of any appellant’s brief filed and duly served. Order 17 rule 4(2) is therefore relevant and it states as follows:-

“4(2) the respondent’s brief shall answer all material points of substance contained in the appellant’s brief and contain all points raised therein which the respondent wishes to concede as well as reason why the appeal ought to be dismissed.”

Deducing from the foregoing provisions of the rules of court, the reliance also sought to be made by the learned respondents’ counsel, Mr. N. T. Mbanefor, on the purported respondents’ brief dated 31st August and filed on 9th September, 2004 but deemed properly filed and served on the 22nd November, 2004 is without any foundation. In other words, there cannot be any respondents’ brief as provided for under order 17 rule 4(1) and (2) of the rules of court in the absence of an appellant’s brief which forms the cardinal foundation of an appeal giving a bearing to the respondents’ brief. There is no evidence of any motion for leave sought and obtained following the transmission of records since 2nd December, 2002, for purpose of regularizing the brief filed outside the time allowed by the rules of court.

In the case of N.O.M. Ltd. v Dawa (1996) 8 NWLR (Pt.468) 601 this court at page 606 per Mohammed JCA had the following to say on purpose of brief of argument and the duty on a party seeking to rely on his argument in the lower court:

“…A brief of argument shall contain all the arguments a party wishes to raise in support of its case before the appeal court.

…The duty of this court in exercise of its jurisdiction is to resolve appeals based on the issues raised and argued in the briefs of argument filed by the parties in accordance with the rules of the court.”

It is trite law that the appellant has the onus of convincing an appellate court that his appeal has merit. There cannot certainly be a discharge of such a duty in the absence of a brief of argument substantiating the issues raised from the grounds of appeal. The case of S.P.D.C. (Nig.) Ltd. v Niger Optical Services Company (2004) 7 NWLR (Pt.872) 420 is relevant.

In the circumstance of this case, both the appellant’s and the respondents’ proposed briefs of arguments are of no moment and effect. Same are accordingly struck out. In consequence, the appeal at hand is unsupported by any brief of argument. The appeal cannot nakedly be sustained. It is therefore dismissed for want of prosecution.

The appellant is also condemned to costs of N30,000.00 to the respondents.

Other Citations: (2009)LCN/3204(CA)