AHMED ALI KAHTAN V. MUZAKH ENGINEERING CO. LTD
(2010)LCN/3935(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 7th day of July, 2010
CA/J/84/2002
RATIO
GROUNDS OF APPEAL: WHETHER THE PARTIES ARE BOUND BY THEIR GROUNDS OF APPEAL AND CANNOT BE HEARD ARGUING GROUNDS WHICH ARE NOT RELATED TO THE DECISION APPEALED AGAINST
Like pleadings, parties are bound by their grounds of appeal and cannot be heard arguing grounds which are not related to the decision appealed against – Saraki Vs. Kotoye 1992 9 NWLR Part 264 156. To raise them in this appeal, the appellant must first obtain the leave of this court. Akintaro Vs. Eegungbohun 2007 9 NWLR (part 1038) 103 and Elugbe Vs. Omokhale 2004 18 NWLR (Part 905) 319. PER ZAINAB A. BULKACHUWA. J.C.A.
ISSUES FOR DETERMINATION: WHETHER AN APPELLANT CAN RAISE ON APPEAL A QUESTION NOT RAISED, TRIED AND CONSIDERED IN THE COURT BELOW
It is the law, that an appellant will not be allowed to raise on appeal a question which were not raised, tried and considered in the court below, and it is clear that no further evidence can be adduced which will affect the decision. See Bankole Vs. Pelu. 1991 8 NWLR (Part 211) 523; Okonkwo Vs. Ogbogu 1996 5 NWLR (Part 449) 420; Koya Vs. U.B.A. Ltd. 1997 1 NWLR (Part 481) 251; Owie Vs. Ighiwi 2005 5 NWLR (part 917) 184. PER ZAINAB A. BULKACHUWA. J.C.A.
Justices
ZAINAB A. BULKACHUWA Justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
Between
AHMED ALI KAHTAN Appellant(s)
AND
MUZAKH ENGINEERING CO. LTD Respondent(s)
ZAINAB A. BULKACHUWA. J.C.A.(Delivering the Leading Judgment): By a writ of summons filed before the High Court of Justice Borno State on the 18th day of May, 2000 coram Zannah J., (as he then was) the respondent as plaintiff claimed the following reliefs;
‘Whereof the plaintiff claims against the defendant the following reliefs;
(a) Specific performance for the payment to the plaintiff, the total sum of N13,478,531.78k (Thirteen Million, four hundred and seventy eight thousand five hundred and thirty one naira, seventy eight kobo), as agreed in the contract dated 15th September. 1998.
(b) 21% interest annually, thereon from the 30th of July. 1998 till judgment.
(c) 10% interest monthly from judgment till it is fully liquidated.
(d) N5.000.000.00 being general damages.
The defendant entered appearance on the 25th September, 2000 and parties after exchange of pleadings joined issued and the matter went into trial. The plaintiff testified, called two other witnesses and tendered four exhibits. Two witnesses testified for the defence. Counsels addressed court and in a considered judgment delivered on the 16th January. 2002 judgment was entered for the plaintiff for specific performance as claimed, 10% interest on the Judgment debt from date of Judgment till liquidation of same, N10.000 general damages and N2.000 as costs.
The defendant being dissatisfied with the judgment of the trial court filed an appeal on the 11/4/3002 on three grounds of 7/4/2003 filed two additional grounds of appeal. Parties filed and exchanged their respective briefs.
The appellant in his brief of argument deemed filed on the 7/4/2003 identified these issues;
(1) Whether it can be said that the appellant was a party to the agreement the specific performance of which the learned trial judge has ordered against it.
(2) Whether it can be said that exhibit PL1 was properly admitted in evidence by the learned trial judge.
(3) Whether in the face of the memorandum and articles of association of the appellant, exhibit PL1 cannot be said to be ultra vires and unenforceable.
(4) Whether it is proper exercise of his discretion for the learned trial judge to have granted a decree of specific performance, special and general damages ion one claim.
(5) Whether the claim of N1 Million reimbursement expenses was sufficiently proved before same was granted.
The respondent in his brief deemed filed on 7/6/2004 raised a preliminary objection and argued on same and in the alternative raised these issues should the preliminary objection be overruled;
(1) Whether the trial court rightly held that there was a binding agreement between the parties engaging the respondent to secure a contract for the appellant with PTF.
(2) Whether the trial court rightly admitted exhibit ‘PL1’ in evidence.
(3) Whether the trial court rightly held that the agreement between the parties is enforceable and rightly held the appellant liable.
(4) Whether the trial court rightly awarded general damages in addition to what the respondent was entitled under the agreement.
(5) Whether the trial court rightly entered judgment in favour of the respondent for N1,000,000.00 as reimbursement expenses in view of the agreement between the parties, the pleadings and evidence adduced.
It is noteworthy that all three of the original grounds as reproduced hereunder;
GROUNDS OF APPEAL
(1) The learned trial judge erred in law in ordering specific performance of the agreement between the appellant and the respondent for the payment of the sum of N12,478,531.78k being 13% of the total contract sum when the appellant was neither a party to the agreement nor authorized same.
PARTICULARS OF ERROR
(a) The appellant is a limited liability company duly incorporated under the Companies and Allied Matters Act Cap 59 Laws of the Federation 1990.
(b) The agreement contents of which the learned trial court judge ordered specific performance in favour of the respondent was entered into by the respondent personally and the chairman Board of Directors of the appellant who is neither a management staff of the appellant company nor the managing director of the company who is vested with the day to day running of the company.
(c) There is no evidence adduced in the course of trial in the matter to the effect that the Board of Directors or the Managing Director of the appellant company knew about the agreement either before or after it was made nor is there any evidence that the Board of Directors of the appellant duly authorized the chairman to enter into the agreement with the respondent or ratified at any stage the action of the chairman so as to make the agreement binding on the appellant.
(2)The learned trial judge erred in law when he admitted exhibit “PL.1” in evidence.
PARTICULARS OF ERROR
(a) Exhibit PL.1 is the agreement allegedly entered into between the appellant and the respondent the breach of which contents gave rise to the suit.
(b) The agreement which was signed by the Chairman of the appellant’s Board of director’s does not contain the common seal of the company nor was same countersigned by any director, secretary or any authorized officer of the appellant as required by law,
(c) The agreement having not contained the common seal of the appellant nor countersigned by any other authorized person of the appellant should not have been pleaded and a fortiori admitted in evidence.
(d) Consequently, the finding therefore that exhibit PL.1 is binding on the appellant has no legal basis because exhibit PL.1 being an inadmissible document cannot lend itself to that purpose.
(e) Exhibit PL.1 was made effective the 15th day of September, 1998 while the contract between the petroleum Trust Fund (P.T.F.) and the appellant came into being on the 30th of July, 1998 which means that the agreement was made with retrospective effect.
(3) The learned trial judge erred in law in ordering specific performance of the agreement between the appellant and the respondent when the said agreement is ultra vires and void being beyond and outside the objects of the appellant and powers of the Chairman Board of directors of the appellant.
PARTICULARS OF ERROR
(a) The objects of the appellant as a duly incorporated company are well spelt out in its Memorandum of Association. The act of securing contracts using commission agents is not one of the objects of the appellant.
(b) The Chairman Board of Directors of the appellant not being the managing director of the appellant lacks the powers to unilaterally commit the appellant to any agreement with the respondent.
(c) The respondent having acted as the managing director of the appellant as revealed by exhibits PL.2 and PL.3 knew or ought to know the objects of the company (appellant) and the limits of the powers of its officers.
(4) The decision is against the weight of evidence.
4. RELIEF SOUGHT FROM THE COURT OF APPEAL
To set aside the judgments of the lower court dated the 23rd of January, 2002 and enter Judgment in favour of the appeal.
Are all based on the argument that the appellant is a limited liability liability company duly incorporated under the Companies and Allied Matters Act, Cap 59 laws of the Federation 1990, as such the chairman of the appellant company lacks the competence to enter into any agreement the subject matter of this appeal, without the endorsement of the managing director and the Board of Directors of the appellant’s company.
The appellant’s brief as shown earlier was deemed filed on the 7/4/2003 and the respondent’s brief was deemed filed on the original grounds of appeal as well as the additional grounds of appeal. All the three grounds in the original notice of appeal are based on fresh issues not covered by the appellant’s/defendant’s pleadings and evidence adduced before the lower court. Like pleadings, parties are bound by their grounds of appeal and cannot be heard arguing grounds which are not related to the decision appealed against – Saraki Vs. Kotoye 1992 9 NWLR Part 264 156. To raise them in this appeal, the appellant must first obtain the leave of this court. Akintaro Vs. Eegungbohun 2007 9 NWLR (part 1038) 103 and Elugbe Vs. Omokhale 2004 18 NWLR (Part 905) 319. He brought an application filed on the 7/5/2005 to raise and argue new issues of law as contained in grounds 1. 2 and 3 of the Notice of Appeal dated ad filed on 11/4/2002. and for a deeming order on the said grounds. This application was struck out by this court on the 8/6/2006.
The appellant yet filed a similar application on the 26/1/2006, this application was moved and granted on the 17/2/2010.
The appellant, is thus granted leave to raise and argue new issues as contained in his original grounds of appeal on the 17/2/2010, in effect after the appellant already had an appellant’s brief a process deemed filed vide order of court of 7/4/2003. The respondent’s brief a reply to the appellant’s brief was deemed filed on the 7/6/2004. These are the briefs adopted and argued upon by the respective counsels to the forties on the 14/4/2010 when the appeal was heard. There was no application by the appellant to update the appellant’s brief in line with the order of appeal.
Court of 17/2/2010 granting leave to the appellant to argue and raise new issues in the appeal with regards to the original grounds of appeal.
As it stands now the appellant’s and the respondent’s briefs were filed when there was no leave of the court for the appellant to raise and argue new issues based on the three original grounds of appeal. The appeal argued on the two briefs will be determined solely on the arguments contained therein without recourse to the order of court of 17/2/2010.
As earlier shown the respondent in his brief of argument raised a preliminary objection on the foiling grounds;
(1) The points raised in the grounds of appeal were never canvassed before the trial nor decided upon by the trial court.
(2) Leave of court was never obtained to raise the new points.
It is the respondent’s submission that an appeal is a continuation of the case before the trial court. That grounds 1, 2 and 3 of the original grounds of appeal are on issues or points never raised or decided upon by the trial court, that they offend the provisions of the rules of this court and thus incompetent – Oredoyin Vs. Arowolo 1989 4 NWLR (Part 114) 172; Incar Nig. Plc Vs. Bolex Enterprises 2001 5 SCNJ 460; Adenuga Vs. Odumeru 2003 4 SCNJ 1.
The respondent further submits that the new points as raised in the said ground cannot now be determined by this court without denying the respondent fair hearing and without occasioning miscarriage of justice, as the respondent has lost the opportunity of adducing evidence to meet the new issues. That it is too late to allow the appellant to raise new issues, that the appellant must be bound by its case before the trial court. See Oredoyin Vs. Arowolo (supra); Eze Vs. Attorney-General Rivers State 2001 12 SCNJ 35.
The appellant had not deemed it necessary to file a reply brief to at least answer to the respondent’s argument in the preliminary objection. The only presumption being his concern to the arguments on the preliminary objection.
There being nothing against the respondent’s submission on the preliminary objection. I uphold it in its entirety.
From the grounds of appeal as filed, new issues which were never raised or decided upon by the trial court were raised in the grounds of appeal.
It is the law, that an appellant will not be allowed to raise on appeal a question which were not raised, tried and considered in the court below, and it is clear that no further evidence can be adduced which will affect the decision. See Bankole Vs. Pelu. 1991 8 NWLR (Part 211) 523; Okonkwo Vs. Ogbogu 1996 5 NWLR (Part 449) 420; Koya Vs. U.B.A. Ltd. 1997 1 NWLR (Part 481) 251; Owie Vs. Ighiwi 2005 5 NWLR (part 917) 184.
In the instant case even though leave was sought and obtained, the appellant’s brief which pre-dates the leave will be of no help to the appellant as the brief was filed before leave was sought and obtained, and the appellant argued his appeal on the said brief of argument.
The grounds of appeal as contained in the Notice and Grounds of Appeal filed or the 11/4/2002 are hereby found incompetent being not based on the pleadings, evidence of parties and the decision of the lower court.
There being no original grounds of appeal, the appeal cannot be sustained on the additional grounds of appeal. It is similarly struck out. There being no grounds of appeal, this appeal is incompetent, it is accordingly struck out.
I make no orders as to costs.
UZO NDUKWE-ANYANWU, J.C.A: I agree.
ABUBAKAR DATTI YAHAYA, J.C.A.: I have had the advantage of reading in advance, the judgment of my learned brother BULKACHUWA J.C.A. just delivered. I agree with his reasoning and the conclusions reached. The appeal is incompetent and it is struck out.
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Appearances
A. J. Igoche Esq.,For Appellant
AND
O.N. Omovie Esq.,For Respondent
