GATEWAY PAPER PRODUCTS NIG. LTD. & ANOR V. INTERCONTINENTAL BANK PLC. (2011)

GATEWAY PAPER PRODUCTS NIG. LTD. & ANOR V. INTERCONTINENTAL BANK PLC.

(2011)LCN/4971(CA)

In The Court of Appeal of Nigeria

On Thursday, the 8th day of December, 2011

CA/I/151/08

RATIO

GROUNDS OF APPEAL/ ISSUES FOR DERTERMINATION: WHETHER GROUNDS OF APPEAL AND ISSUES DISTILLED THEREFROM FOR DETERMINATION MUST RELATE TO THE JUDGMENT OR DECISION OF THE LOWER COURT APPEALED AGAINST

It is trite that Grounds of Appeal and issues distilled therefrom for determination must relate to the judgment or decision of the lower court appealed against otherwise they go to no issue, are incompetent and liable to be struck out. See GLOBE FISHING IND. LTD. V. COKER (1990) 7 NWLR (PART 162) 265; ONIYIDO V. AJEMBA (1991) 4 NWLR (PART 184) 203. PER STANLEY SHENKO ALAGOA, J.C.A., OFR

GROUND OF APPEAL: POSITION OF THE LAW WHERE APPELLANT FAILS TO FRAME AN ISSUE FROM ANY GROUNDS OF APPEAL FILED

JUSTICES

STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria

OFR Justice of The Court of Appeal of Nigeria

ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria

MODUPE FASANMI Justice of The Court of Appeal of Nigeria

Between

1. GATEWAY PAPER PRODUCTS NIG. LTD.
2. GATEWAY PORTLAND CEMENT LTD. Appellant(s)

AND

INTERCONTINENTAL BANK PLC. Respondent(s)

STANLEY SHENKO ALAGOA, J.C.A., OFR (Delivering the leading Judgment): This is an appeal against the Judgment of Olateregun J. of the High Court of Justice Abeokuta, Ogun State in Suit No. FHC/AB/CS/3/2007 delivered on the 5th March 2007. In the said Suit the present Respondent as Plaintiff claimed against the Appellants as Defendants as follows –
1. The sum of N53, 499,436.12 being the outstanding balance due to the Plaintiff from the Defendants as at 30th June 2005 arising from the contract finance facility granted the 1st Defendant by the Plaintiff and guaranteed by the 2nd Defendant on the 9th January 2001.
2. Interest on the said sum of N53, 499,436.12 at the agreed rate of 22.5 per cent per annum from the 30th June 2005 until judgment and thereafter at the same rate until final liquidation.
Following an application ex-parte by the then Plaintiff (now Respondent) the case was placed under the undefended list and the 5th March 2007 was fixed by the trial High Court as the return date. On the said 5th March 2007 the case came up for hearing, the then Defendants (now Appellants) having on the 21st February 2007 been served with the court order and other processes. Learned Counsel for the then plaintiff informed the court that the then Defendants had failed to file a Notice of Intention to defend the action and requested that judgment be entered in favour of the plaintiff. Learned Counsel for the then Defendants requested the Court to be given time to seek leave to defend the action because the Defendants had a defence to the action. Counsel for the Defendants informed the Court that the delay in responding to the action was because the Managing Director of the Defendant Company was out of the country. The learned trial Judge having listened to both counsel, came to the conclusion that the Defendants had no defence to the action and entered judgment for the Plaintiff pursuant to Order 24 Rule 4 of the Federal High Court Civil Procedure Rules 2000. It is this judgment that is the subject matter of this appeal and in respect of which the aggrieved Defendants turned Appellants filed a Notice of Appeal.
The said Notice of Appeal contained at pages 54-55 of the Record of Appeal is dated the 6th March 2007 and was filed on the 7th March 2007. Following the grant of an order of Court to do so, the Appellants filed an Amended Notice of Appeal on the 20th November 2008 incorporating additional grounds of Appeal. The Amended Notice of Appeal is reproduced in its entirety below –
“AMENDED NOTICE OF APPEAL
TAKE NOTICE that the Appellant being dissatisfied with the decision of the Federal High Court, Abeokuta contained in the Judgment, of Hon. Justice C.M.A. Olatoregun dated 5th day of March, 2007 doth hereby appeal to the Court of Appeal upon the grounds set out in paragraph 3 and will at the hearing seek the reliefs set out in paragraph 4.
AND THE APPELLANTS state that the names and address of the parties affected by the appeal are those set out in paragraph 5.
2. Part of the Decision of the Lower Court complained of:
The Whole Decision
GROUNDS OF APPEAL
Ground One
The learned trial judge erred in law in giving judgment in favour of the Respondent without giving the Appellant a right of fair hearing in the determination of this suit pursuant to S. 36 of the Constitution of the Federal Republic of Nigeria 1999.
Particulars of Error
(a) Respondent commenced this suit by Motion Ex-parte entering the suit for hearing under the undefended list on 6/2/07.
(b) On 5th March, 2007 (return date) the Appellant and their Counsel were present before the Lower Court and requested for time within which to file all relevant processes including the Appellants’ statement of defence. The lower court refused.
(c) The Appellants have a strong defence to the suit, which the lower court did not allow the Appellants to canvass before the judgment was delivered.
Ground Two
The Learned Trial Judge erred in law to have entered judgment against the Appellants without satisfying himself that there was proper service of the originating processes on the Appellants.
Particulars of Error
(a) The Originating processes in this case was purportedly served on one Akintola A. A. who is neither a principal officer, director or secretary of the Appellants.
(b) The said Akintola A. A. deposed to an affidavit before the lower court to the effect that he lacks the capacity to receive court processes on behalf of the Appellants.
Ground Three
The Learned Trial Judge erred in law to have entered judgment against the Appellants without satisfying himself that the Originating processes were properly served on each of the Appellants.
Particulars of Error
(a) The Respondent’s Statement of Account exhibited to the writ of summons clearly shows that the address of the 1st Appellant is Km B, Abeokuta-Lagos Express Road, Abeokuta and not Km 9, Abeokuta-Lagos Express Road where the originating processes were served.
(b) The proof of service deposed to by the Bailiff of the lower court showed conclusively that the processes in this, case were served on Km 9, Abeokuta Lagos Expressway, Abeokuta.
Ground Four
The Learned Trial Judge erred in law to have assumed jurisdiction over this matter when the Respondent failed to fulfill the condition precedent to the institution and/or commencement of this suit.
Particulars of Error
(a) The motion ex-parte upon which the leave of the lower court was sought to issue the writ of summons and enter the suit under the “undefended list” was grossly incompetent.
(b) The said motion ex-parte was not signed by a legal practitioner known to law.
(c) “Ade Oyebanji & Co.” which issued and signed the motion ex-parte is not a legal practitioner contemplated under the Legal Practitioners Act.
(d) The subsequent orders predicated on the incompetent motion ex-parte are void in law.
4. RELIEFS SOUGHT FROM THE COURT OF APPEAL
(1) An order allowing this appeal.
(2) An order setting aside the judgment of the Federal High Court Abeokuta presided over by Hon. Justice C.M.A. Olatoregun on the 5th of March, 2007.
(3) An order striking out this suit for want of jurisdiction.
5. PERSONS DIRECTLY AFFECTED BY THE APPEAL
1. Gateway Paper Products Nig. Ltd.     c/o Their Solicitors
2. Gateway Portland Cement Ltd.     Chief Afe Babalola, SAN
& Co.
80, Fajuyi Road,
Ekotedo,
Ibadan.
3. Intercontinental Bank Plc.        c/o Its Solicitors,
Ade Oyebanji & Co.,
13 MarCarthy Street,
Onikan, Lagos.
Dated this 21st day of July, 2008.
(sgd.)
AKEEM OLANIYAN ESQ.
CHIEF AFE BABALOLA, SAN & CO.
(APPELLANTS’ COUNSEL)
NO. 80 FAJUYI ROAD,
EKOTEDO, IBADAN,
OYO STATE.”
From the Amended Notice of Appeal the Appellants distilled in paragraph 3.00 at page 4 of their Brief of Argument dated the 26th February 2009, filed on the 27th February 2009 but deemed properly filed and served on the Respondents on the 7th May 2009 following the grant by this Court of an application for enlargement of time to file the Appellants’ brief of Argument out of time and to deem the Appellants’ brief already filed and served as properly filed and served on the Respondent, the following issues for the determination of this Court –
ISSUE ONE – whether the proceedings of the lower court in this suit can stand the absence of proper and valid service of the originating processes thereof on the Appellants (as Defendants), (Grounds 1, 2 and 3)
ISSUE TWO whether the lower court had jurisdiction to grant the Respondent relief contained in an incurably incompetent motion. (Ground 5).
The Respondent for their part distilled the following two issues for the determination by this Court. The Issues are –
ISSUE ONE whether or not there was proper service of the originating processes on the Appellants (Grounds 1 and 2 of the Additional Grounds of Appeal).
ISSUE TWO whether or not the lower court had jurisdiction to enter judgment against the Appellants (Ground 3 of the Additional Grounds of Appeal).
These issues are contained in paragraphs 3.1 and 3.2 at page 3 of the Respondent’s Brief of Argument dated the 7th May 2009 and filed same day.
On the 19th October 2011 this appeal came up for hearing. Appellants’ Counsel O. O. Ogungbade, with him O. F. Awomolo (Miss) adopted and relied on the Appellants’ Brief of Argument earlier referred to, as well as the Appellants’ Reply Brief of Argument dated the 19th May 2009 and filed same day and urged this Court to allow the Appeal. Respondents’ Counsel E. A. Oyebanji adopted the Respondents’ Brief of Argument dated 7th May 2009 and filed same day and urged this Court to dismiss the appeal.
The Amended Notice of Appeal makes it abundantly clear that it is the judgment of Olateregun J. delivered on the 5th March 2007 that is being appealed against. For a fuller understanding of the discourse that is about to be gone into, it is very necessary to reproduce the entire proceedings of the 5th March 2007 leading up to the judgment and the judgment itself from pages 52-53 of the Record of Appeal
“IN THE FEDERAL HIGH COURT OF NIGERIA HOLDEN AT ABEOKUTA, OGUN STATE ON MONDAY THE 5TH DAY OF MARCH, 2007 BEFORE THE HONOURABLE JUSTICE C.M.A. OLATOREGUN JUDGE

SUIT NO: FHC/AB/CS/3/2007

BETWEEN:
INTERCONTINENTAL BANK PLC – PLAINTIFF

AND

1. GATEWAY PAPER PRODUCTS LTD – DEFENDANTS
2. GATEWAY PORTLAND CEMENT LTD

Parties absent.
Olujumobi Orioye for the Plaintiff
Prince P. A. Adesemowo for the Defendants

ORIOYE:
I served the Defendants on the 21st of February, 2007 by virtue of the authority of Ben Thomas Hotel V. Sebi Furniture (1989) 5 NWLR (Pt 123) 523 at 529 f-h the business of the Court on the return date is to see if the Defendant has filed notice of intention to defend and an affidavit showing defence on the merit. If no notice is filed, the Court has no option but to enter judgment.

ADESEMOWO:
My appeal is that we be given time to seek leave to defend this action because we have a defence to the action. I rely on the pursuant to Order 23 rule 3 which enjoined the Court to extend time within which to seek leave to defend the parties are in Court and represented. The delay in responding to this action is because the Managing Director is out of the Country. We urge the Court to consider our submission and defend the action.

ORIOYE:
There is no formal application before the court even if the Managing Director is out of the Country. I refer to the case of Winlyn V. NACB Consultancy and Finance Company Ltd (2000) 8 NWLR (Pt 670) 594 at 602.

COURT:
I have listened to both Counsels and I have taken into consideration the reasoning in the two cases cited by Orioye namely Ben Thomas Hotel V. Sebi Furniture (Supra) and Winlyn V. NACB Consultancy and Finance Company Ltd (Supra) with the fact that there is no application before me asking for an extension of time to comply with the provision by Order 24 rule 3 (1).
I have therefore come to the conclusion that the Defendants have no defence to this action.
I therefore hereby in compliance with order 24 Rule 4 of the Federal High court civil Procedure Rule 2000 enters judgment for the Plaintiff in the sum claimed.
Signed
Judge
5/3/2007”
It will be seen from the proceedings of Court of the 5th March 2007 leading up to the Court’s judgment on that day that service of the Court processes, whether originating processes or other processes, was never in issue and the learned trial Judge never made any pronouncement on service in his judgment. It will also be seen that reference was never made by the learned trial Judge on the competence or not of any motion in his judgment of the 5th March 2007. What was in issue was the failure of the Appellants to file a Notice of intention to defend the suit despite service of the Court’s order and other processes on the Appellants. Learned counsel for the Respondent had drawn the attention of the court to the fact that the Appellants/had failed to file a Notice of Intention to defend the suit and had requested that judgment be entered in favour of the Respondent. In response learned counsel for the Appellants pleaded to be allowed to be let in to defend as the Appellants had a defence. He said the reason why the Appellants had not filed a Notice of intention to defend the suit was because the Managing Director of the Appellants travelled. At that point Counsel for the Respondent said there was no motion before the Court to that effect. The learned trial Judge after listening, to both counsel concluded that the Appellants had no defence to the Suit and accordingly entered judgment for the Respondent. It is trite that Grounds of Appeal and issues distilled therefrom for determination must relate to the judgment or decision of the lower court appealed against otherwise they go to no issue, are incompetent and liable to be struck out. See GLOBE FISHING IND. LTD. V. COKER (1990) 7 NWLR (PART 162) 265; ONIYIDO V. AJEMBA (1991) 4 NWLR (PART 184) 203.

Where Appellant fails to frame an issue from any grounds of appeal filed and the ground is not related to any issue for determination, the ground of appeal is deemed abandoned by the Appellant and liable to be struck out. There is a plethora of case law on this subject matter. See EHOLOR v. OSAYANDE (1992) 6 NWLR (PART 249) 524; MANAGEMENT ENTERPRISES LTD. V. OTUSANYA (1987) 2 NWLR (PART 55) 179; ONITADE V. OLAYIWOLA (1990) 7 NWLR (PART 161) 130; MOMODU V. MOMOH (1991) NWLR (PART 169) 608; OKEKE V. ORUH (1999) 6 NWLR (PART 606) 175; IBRAHIM V. MOHAMMED (2003) 6 NWLR (PART 817) 615. There is the need to state emphatically and categorically that whatever else transpired after the judgment of the Court on the 5th March 2007 such as the Motion on Notice dated the 7th March 2007 seeking inter alia for leave of Court to set aside the judgment delivered on the 5th March 2007 is outside the purview of the present appeal. The Amended Notice of Appeal refers specifically to appeal against the judgment delivered on the 5th March 2007.
Issue 1 in paragraph 3.00 at page 4 of the Appellants’ Brief of Argument is said to have been distilled from Grounds 1, 2 and 3 of the Amended Notice of Appeal. That issue does not flow from the decision of the High Court and is liable to be struck out and is accordingly struck out.
Issue 2 in paragraph 3.00 at page 4 of the Appellants’ Brief of Argument is said in the Brief as having been distilled from Ground 5 of the Amended Notice of Appeal. There is no ground 5 in the Amended Notice of Appeal and since an issue must be distilled from a live ground of Appeal to be a valid issue and since an issue cannot be distilled from a non-existent ground of appeal, the said ground 5 and Issue 2 are incompetent and liable to be struck out and are hereby struck out.
The Appeal therefore fails and is dismissed and the judgment of the High court in Suit No. FHC/AB/CS/3/07 is hereby affirmed. Parties are to bear their own costs.

ADZIRA GANA MSHELIA, J.C.A.: I had the advantage of reading in advance, the judgment just delivered by my learned brother, ALAGOA, J.C.A. OFR. I entirely agree with his reasoning and conclusion that the appeal in devoid of merit and should be dismissed. It is trite that a ground of appeal against a decision must not only relate to the decision but should further be a challenge to its ratio-decidendi. Karibi-Whyte J.S.C. in Saraki v. Kotoye (1992) 3 N.S.C.C.
331 stated this rule thus:
“It is well established proposition of law in respect of which there can hardly be a departure, that the grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio decidendi.”
See also cases of CCB v. Nwokocha (1998) 9 NWLR (pt. 564) 98. Att. Gen. Oyo State v. Faintkes Hotel Ltd (1998) 5 NWLR (pt. 92) 1 and Egbe v. Alhaji (1990) 1 NWLR (pt.128) 546.
In the instant case grounds 1, 2 and 3 do not relate to the decision of the lower court and so also are the issues distilled there from. They are in competent and are hereby struck out.
For this reason and the fuller reasons contained in the judgment of my learned brother, ALAGOA J.C.A. OFR, I also dismiss the appeal and affirm the decision of the lower court delivered on 5th March 2007. I also abide by the order of costs.

MODUPE FASANMI, J.C.A.: I have read before now the judgment just delivered by my learned brother S. S. ALAGOA J.C.A (OFR) with which I agree.
For the same reasons contained therein which respectfully adopt as mine, I too find the appeal devoid of merit and it is accordingly dismissed. The judgment of the High Court of Justice
Abeokuta Ogun State is suit No. FHC/AB/CS/3/07 is hereby affirmed. I abide by the consequential order made as to costs.

Appearances

O. O. Ogungbade with O. F. Awomolo (Miss)For Appellant

AND

E. A. OyebanjiFor Respondent