LEO MELOS PHARMACEUTICAL INDUSTRIES LTD & ANOR v. UNIONS HOMES SAVINGS & LOANS LTD
(2010)LCN/3614(CA)
(2010) LPELR-4431(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 10th day of March, 2010
CA/L/392/2006
RATIO
APPEAL: EFFECT OF A GROUND OF APPEAL WHICH NO ISSUE IS RAISED FROM
It is trite that for a ground of appeal to be relevant an issue must be raised from it. Where no issue is raised or predicated upon it is deemed abandoned and liable to be stuck out. See Ibiyemi v. FBN Plc 1996 at 305 paragraphs G-H; Akibu & ors v. Aduntan & ors (2000) 13 NWLR (Pt. 685) 446, (2000) 7 SCNJ 189; Sparkling Breweries Ltd & ors v. Union Bank of Nigeria Ltd (2001) 15 NWLR (Pt. 737) 539, (2001) 7 SCNJ 321; Iweka v. SCOA Nigeria Ltd (2000) 7 NWLR (Pt. 664) 325. PER PAUL ADAMU GALINJE, J.C.A.
LEGISLATION: PURPOSE OF PROMULGATION OF LAW
The purpose of promulgation of law, whether substantive or procedural is to enhance the quality of decisions and to promote efficient and speedy disposal of matters that are awaiting actions. Procedural law can only enhance speedy disposal of matters pending before the Court and not to destroy or kill such matters. Any law that does not provide for the transition of actions that are pending cannot be by any stretch of imagination a good law. PER PAUL ADAMU GALINJE, J.C.A.
LIMITATION LAW: EFFECT OF FAILURE TO FILE A PROCESS WITHIN THE PRESCRIBED TIME
In Nwankwo v. Abazie (2003) NWLR (Pt.834) 381 at 412 paragraphs D-4, this Court, per Obadina JCA had this say:-
The position of the law is that where a process is to be filed within a specific time prescribed by law, and the process is filed outside the prescribed time, that process is incompetent. A Prayer to the Court asking the Court to deem the incompetent process as duly and properly filed cannot cure the defect in filing the process out of time unless there is a substantive prayer for extension of time within which to file the process.In that case, the lower Court made an order on the 26th of April, 1996 that the statement of defence filed on 11th of February, 1994 be amended within 14 days of the order. The amended statement of defence was not filed until the 9th of July, 1996 about two months after the expiration of the date prescribed by the order of Court. There was no application to extend the time and the time was not extended before and after the amended statement of defence was filed. The said amended statement of defence was held to be incompetent and of no effect. Indeed it was as if no amendment has ever been made. See Nalsa & Team Associates v. NNPC (1991) 8 NWLR (Pt. 212) 652 at 670 where Karibi-Wyte, JSC,stated the law as follows:-
In my opinion, which is founded on the facts in support of the application and the specific prayers sought in the motion, the application, with the omission for the prayer seeking extension of time within which to appeal is fundamentally defective. Time within which to appeal is by Section 25 (2) of the Court of Appeal Act 1976 fixed at 14 days from the date of the interlocutory decision. Section 25 (4) gives power to the Court to extend such time in appropriate cases. This jurisdiction can only be invoked where there has been a substantive prayer to that effect in a motion on notice. In absence of such prayer, a prayer in a motion asking the Court to deem an invalid notice of appeal as duly filed cannot be a substitute after the expiration of time to appeal. PER PAUL ADAMU GALINJE, J.C.A.
JUSTICE
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
IBRAHIM M. MUSA SAULAWA Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
LEO MELOS PHARMACEUTICAL INDUSTRIES LTD & ANORAppellant(s)
AND
UNIONS HOMES SAVINGS & LOANS LTDRespondent(s)
PAUL ADAMU GALINJE, J.C.A.(Delivering the Leading Judgment): By an undated writ of summons, the Respondent herein who was the Plaintiff at the Lagos State High Court claimed against the Appellants jointly and severally the following reliefs:-
(a) The sum of N13,198,251.12 being the sum outstanding on the banking facility granted to the 1st Defendant as at 3rd December, 2003 and guaranteed by the 2nd Defendant which the Defendants have refused to pay despite repeated demands.
(b) Interest on the said sum at 27% per annum from 31st December, 2003 until payment.
(c) Cost of this suit.
This writ of summons was followed by a motion ex-parte filed on the 30th January, 2004 in which the Respondent applied that the suit be placed on the undefended list. On the 1st of March, 2004, the lower Court granted the motion ex-parte wherewith the following orders were made:-
That leave be and same is hereby granted to the Plaintiff/Applicant to issue a writ of summons as against the Defendants.
2. That this suit be placed under the undefended list.
3. And that the writ of summons be marked accordingly.
The procedure adopted for the initiation of the writ of summons and the motion for the case to be set down for hearing were in accordance with Order 60 of the then High Court of Lagos State (Civil Procedure) Rules 1994.
The Appellants entered appearance and filed an affidavit of intention to defend the suit. Thereafter the High Court of Lagos State (Civil Procedure) Rules 2004 came into effect and the Respondent filed a statement of claim and front loaded all the materials for the hearing of the suit in accordance with the new rules and also filed a motion for judgment against the Appellants under Order 11 of the new rules. The statement of claim and the motion on notice for judgment were served on the Appellants on the 19th of September, 2005. The Appellants failed to file a defence or counter affidavit to the motion for judgment.
Under the new rules, the Appellants had 42 days to file a statement of defence. This they failed to do despite the fact that they were served with the Respondent’s processes. The Appellants also did not have before the Court an application for extension of time to react to the processes filed by the Respondent as at 8th March, 2006 when the application for judgment by the Respondent was moved and granted. The judgment that was delivered on the 8th of March, 2006 is in accordance with the application for judgment. The appeal herein is against that judgment.
The Appellants notice of appeal which is dated 16th March, 2006 and filed the same date contains six grounds of appeal, which I hereunder reproduce without their particulars as follows:-
1. The learned trial Judge erred in law in assuming jurisdiction over a writ that was commenced and marked under Order 60 of the old High Court of Lagos State (civil procedure) Rules 1994 when the said Order was nonexistence, extinct and deliberately omitted by the new High Court of Lagos State (Civil Procedure) Rules 2004.
2. The learned trial Judge erroneously assumed jurisdiction over a statement of claim and summons for judgment both dated 16/9/05 filed pursuant to Order 11 of the new High Court of Lagos State (Civil Procedure) Rules 2004 when the writ of summons had already been marked and processes filed and trial ordered to continue under the old High Court of Lagos State (Civil Procedure) Rules 1994.
3. The learned trial Judge erred in law by denying the Defendants their constitutional right of fair hearing in refusing an application of Defence counsel for short adjournment in order to the application to regularize the statement of defence counter affidavit and written address that were already filed.
4. The learned trial Judge erred in law by basing his decision on Exhibit G and did not consider the defence raised in both the Defendants statement of Defence and counter affidavit that Exhibit was obtained by fraud.
5. The learned trial Judge did not consider the analysis of payments made in satisfaction of principal exhibited both in the statement of defence and the counter affidavit dated 7/3/06.
6. The decision is against the weight of evidence.
Parties filed and exchanged briefs of argument. At the hearing of the appeal on the 21st of January, 2010, the Appellants’ counsel did not put up appearance and the Appellants’ brief of argument was identified by Mr. Olapade, learned counsel for the Respondent and same was deemed argued, since parties were duly served with hearing notice. At paragraph 3.01 the Appellants identified two issues for the determination of this appeal. These issues are hereunder reproduced as follows:
a. Whether an action commenced under Order 60 of the defunct High Court of Lagos State (Civil Procedure) Rules 1994 can be continued under Order 11 of the new High Court of Lagos State (Civil Procedure) Rules 2004.
(b) Whether the Defendants were denied fair hearing by the refusal of the lower Court to adjourn to enable the defence counsel to regularize the statement of Defence and counter affidavit already filed.
At page 3 of the Respondent’s brief, the Respondent merely adopted the two issues formulated by the Appellants.
Reading through the issues formulated by the Appellants it is plain that the first issue has been distilled from grounds 1 and 2, while the 2nd issue is formulated from ground 3. No issues were distilled from grounds 4, 5 and 6. These grounds complain about the assessment of the evidence before the lower Court and ascription of probative value to those pieces of evidence.
It is trite that for a ground of appeal to be relevant an issue must be raised from it. Where no issue is raised or predicated upon it is deemed abandoned and liable to be stuck out. See Ibiyemi v. FBN Plc 1996 at 305 paragraphs G-H; Akibu & ors v. Aduntan & ors (2000) 13 NWLR (Pt. 685) 446, (2000) 7 SCNJ 189; Sparkling Breweries Ltd & ors v. Union Bank of Nigeria Ltd (2001) 15 NWLR (Pt. 737) 539, (2001) 7 SCNJ 321; Iweka v. SCOA Nigeria Ltd (2000) 7 NWLR (Pt. 664) 325.
For the reason I have set out above, I hereby strike out grounds 4, 5 and 6.
Mr. Chinwuko, learned counsel who settled the Appellants’ brief of argument in his argument on issue one submitted that the lower Court was wrong when it continued to hear the case that was filed under the extinct High Court of Lagos State (Civil Procedure) Rules 1994 even after the coming into force of the Lagos State (Civil Procedure) Rules 2004. According to the learned counsel, by the time the statement of claim and the motion for judgment were filed, the old rules (Order 60) had ceased to exist and the writ of summons filed under it ceased to exist along with it.
Finally, learned counsel urged this Court to hold that any matter commenced under Order 60 of the old rules also died along side the rules and cannot be resurrected under Order 11 of the new rules.
In response, Mr. Olopade who settled the Respondent’s brief of argument referred this Court to Order 1 rule 1 (1) of the Lagos State (Civil Procedure) Rules 2004 which is a transitory provision and contended that the lower Court was not wrong when it continued with this case that was initiated under the repealed Lagos State (Civil Procedure) Rule 1994.
Order 1 Rule 1 (1) of the High Court of Lagos State (Civil Procedure) Rules of 2004 provides as follows:-
These Rules shall apply to all proceedings including all part-heard causes and matters in respect of steps to be further taken in such causes and matters.
This provision has clearly provided for the salvation of all matters pending before the Lagos State High Court including the instant case. So it is not right to contend that those cases filed under the repealed rules automatically die with them. Although the old rules, were repealed by the new rules, all pending actions were preserved and protected by Order 1 rule 1 (1) of the Lagos High Court (Civil Procedure) Rules 2004. The purpose of promulgation of law, whether substantive or procedural is to enhance the quality of decisions and to promote efficient and speedy disposal of matters that are awaiting actions. Procedural law can only enhance speedy disposal of matters pending before the Court and not to destroy or kill such matters. Any law that does not provide for the transition of actions that are pending cannot be by any stretch of imagination a good law. I have not seen any defect on the face of either the writ of summons that was filed by the Respondent at the lower Court or the statement of claim that would have made the processes invalid. From the 4th of March, 2004 when Lagos State (Civil Procedure) Rules 2004 came into being, all processes filed in Court in support of pending matters must conform with the new rules. That is why the Respondent had to file a statement of claim and front loaded all the materials for the determination of the suit. This procedure is proper and so I hold. For this is consistent with Order 3 rule 2 which provides that all civil proceedings commenced by writ of summons shall be accompanied by a statement of claim, a list of witnesses to be called at the trial, written statement on oath of the witnesses and copies of every document to be relied on at the trial.
For all I have said here, this issue is resolved in favour of the Respondent and the grounds of appeal from which it is formulated are hereby dismissed.
The 2nd issue is whether the Defendants (Appellants herein) were denied fair hearing by the refusal of the lower Court to adjourn to enable the defence counsel regularize the statement of defence and counter affidavit already filed. Mr. Chinwuko, learned counsel for the Appellants submitted on these issues that the lower Court did not comply with Section 36 (1) of the 1999 Constitution. His reasons for this submission are:-
1. That the Appellants’defence was not considered at all.
2. That the statement of defence was suppressed as the Registrar did not file same in the case file.
3. That the application for adjournment to regularize the defence and counter affidavit was refused because the trial Court was in a hurry to pass judgment.
Finally learned counsel urged this Court to allow the appeal, set aside the judgment of the lower Court and strike out the substantive suit on the ground that the lower Court lacked jurisdiction and there was no semblance of fair hearing at the Court below.
For the Respondent, it was argued that the lower Court did not act in breach of Section 36 (1) of the 1999 Constitution. It was further argued that fair hearing is not one way traffic and that both parties before the lower Court, were entitled to fair hearing.
In a further argument, Olopade Esq. of counsel for the Respondent submitted that the Appellant were given sufficient time as provided under the rules of the lower Court to put their case before the lower Court, but they failed to do so as such they cannot be heard to complain that they were not given fair hearing. In aid, learned counsel cited:
Newswatch Comm. Ltd v. Atta (2006) 12 NWLR (Pt.993) 144; International Polymera Systems Ltd v. Mr. Robert Glover & Anr. (2002) 7 NWLR (Pt.765) 137 and Petroleum Special Trust Fund v. Intergrated Facility Management Service Ltd (2002) 16 NWLR (Pt.794) 603-604.
Finally, learned counsel urged this Court to dismiss the appeal.
By Order 15 Rule 1 (2) of the High Court of Lagos State (Civil Procedure) Rules (2004), the Appellants had 42 days from the date of service of the statement of claim and the motion for judgment to file their statement of defence. The statement of claim and the motion for judgment both dated and filed on the 16th September, 2005 were served on the Appellants on the 19th September, 2005. The Appellants failed and/or neglected to file a statement of defence until on the 7th of March, 2006 when they filed a statement of defence and a counter affidavit in opposition to the motion for judgment dated 16th September, 2005. These processes were filed over five months from the date the statement of claim and motion for judgment were served on the Appellants. Appellants knew they were out of time and did nothing to regularize their papers. What then was the status of the papers filed by the Appellants at the lower Court? In Nwankwo v. Abazie (2003) NWLR (Pt.834) 381 at 412 paragraphs D-4, this Court, per Obadina JCA had this say:-
The position of the law is that where a process is to be filed within a specific time prescribed by law, and the process is filed outside the prescribed time, that process is incompetent. A Prayer to the Court asking the Court to deem the incompetent process as duly and properly filed cannot cure the defect in filing the process out of time unless there is a substantive prayer for extension of time within which to file the process.In that case, the lower Court made an order on the 26th of April, 1996 that the statement of defence filed on 11th of February, 1994 be amended within 14 days of the order. The amended statement of defence was not filed until the 9th of July, 1996 about two months after the expiration of the date prescribed by the order of Court. There was no application to extend the time and the time was not extended before and after the amended statement of defence was filed. The said amended statement of defence was held to be incompetent and of no effect. Indeed it was as if no amendment has ever been made. See Nalsa & Team Associates v. NNPC (1991) 8 NWLR (Pt. 212) 652 at 670 where Karibi-Wyte, JSC,stated the law as follows:-
In my opinion, which is founded on the facts in support of the application and the specific prayers sought in the motion, the application, with the omission for the prayer seeking extension of time within which to appeal is fundamentally defective. Time within which to appeal is by Section 25 (2) of the Court of Appeal Act 1976 fixed at 14 days from the date of the interlocutory decision. Section 25 (4) gives power to the Court to extend such time in appropriate cases. This jurisdiction can only be invoked where there has been a substantive prayer to that effect in a motion on notice. In absence of such prayer, a prayer in a motion asking the Court to deem an invalid notice of appeal as duly filed cannot be a substitute after the expiration of time to appeal.
In the instant appeal, the statement of defence and the counter affidavit which were filed by the Appellants on the 7th of March, 2006 were incompetent and invalid and in absence of an application for extension of time to file these processes, they were as if they were never filed. The learned trial Judge was therefore perfectly right when he failed to recognize their existence. Since there was no statement of defence the only option left was for the trial Judge to enter judgment for the Respondent and this is precisely what the trial Judge did. I agree with the learned counsel for the Respondent that the learned trial Judge would have been said to have deprived the Appellants fair hearing if the Appellants had filed their processes within the time stipulated by the rules of Court or if the learned trial Judge had proceeded to deliver judgment for the Respondent before the expiration of the 42 days within which the statement of defence was to be filed. Once the rules of Court provide for the doing of anything within a prescribed period, failure to perform the act during the period so prescribed deprived a party in default that right. The right becomes subordinate to the discretion of the Court. Such discretion can only be exercised judiciously and judicially on sufficient materials before the Court.
In the instant appeal there was nothing standing against the motion for judgment before the trial Court. The judgment delivered by the lower Court therefore was not an infringement of the Appellant’s right to fair hearing.
For all I have said therefore, I resolve the 2nd issue also in favour of the Respondent and the only ground from which it is formulated is hereby dismissed.
Having resolved the two issues formulated by the Appellants in favour of the Respondent, this appeal is without merit and it is accordingly dismissed.
The Respondent is entitled to the cost of this appeal which I assess at N30,000:00 against the Appellants.
IBRAHIM M. M. SAULAWA, J.C.A.: I was privileged to have had a preview of the draft of the lead judgment prepared and just delivered by my learned brother Galinje, J.C.A. Having read before now the submissions of the learned counsel, contained in the respective briefs of argument thereof vis-a-vis the record of appeal as a whole, I cannot but concur with the reasoning and conclusion reached in the lead judgment to the effect that the appeal is unmeritorious.
Hence, I adopt the reasoning and conclusion reached in the lead judgment as mine, and accordingly dismiss the appeal. The judgment of the Lagos State High Court, delivered on 8th March, 2006, by the Hon. Justice A. Olateru-Olagbegi, J. is hereby affirmed.
I abide by the consequential order of cost of N30,000:00 awarded in favour of the Respondent.
REGINA OBIAGELI NWODO, J.C.A.: I have had the advantage of reading in advance the Judgment just delivered by my learned brother Galinje J.C.A. in this appeal. I agree entirely with the reasons contained therein and the conclusion arrived thereat, that this appeal is devoid of merit. I dismiss the appeal and abide by the order as to cost.
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Appearances
No appearance for the Appellants.For Appellant
AND
Mr. M. N. O. Olopade, Esq.For Respondent
