VESA FOODS AGENCIES LIMITED & ANOR v. ACCESS BANK PLC
(2014)LCN/6803(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 29th day of January, 2014
CA/L/384/09
RATIO
WHETHER A DOCUMENT SIGNED BY A FIRM OF LEGAL PRACTIZIONERS IS INCOMPETENT IN LAW
the law is fairly settled on a long chain of judicial decisions that, document signed by a firm of legal practitioners as against a legal practitioner who is competent to sign such document, is incompetent in law; See: OKAFOR vs. NWEKE (2007) 10 NWLR PART 1043 521 AT 531, AND NNB PLC V. DENCLAG LTD (2003) 4 NWLR (PART 916) 54 AT 573. Per TIJJANI ABUBAKAR, J.C.A.
JUSTICES
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
Between
1. VESA FOODS AGENCIES LTD
2. MRS. VERO IGBE – Appellant(s)
AND
ACCESS BANK PLC
(SUBSTITUTED FOR INTERCONTINENTAL BANK PLC PURSUANT TO ORDER OF COURT DATED 05/11/2013) – Respondent(s)
TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading Judgment): The first Appellant herein, is a trading company and customer of the Respondent, with account No. 110770001. In the normal course of business, first Appellant applied for and obtained overdraft facilities to finance the importation into Nigeria of frozen fish.
By the terms of the offer, the first Appellant would provide 20% of the value of the letters of credit, while the Respondent would provide 80% that second Appellant would execute personal guarantee to repay the facility granted to the first Appellant on demand. That the Respondent would also have lien on the imported stock, Triana Limited was therefore appointed as warehousing agent with specific instructions to release the stock to first Appellant upon receiving warrant to release from the Respondent.
First Appellant said the Respondent started selling the stock directly to members of the public and failed to make payments into its account.
The Respondent as Plaintiff before the lower court said, the Appellants/Defendants failed to repay their debt and therefore took out writ against the Appellants/Defendants dated 26th October 1998; The plaintiff Respondent therefore claimed as follows against the Appellants/Defendants before the lower court as per, Respondent/Plaintiffs amended statement of claim dated 19th February 2001.
a. The sum of N235, 100,240.82 being the amount owed as at 8/10/98 by the 1st Defendant on account of the various aforesaid banking facilities granted to the 1st Defendant by the Plaintiff, and which were personally guaranteed by the 2nd Defendant
b. Interest on the aforesaid sum of N235, 100,240.82 from 8/10/98 at the rate of 30% per annum until the date of Judgment and thereafter at the rate of 25% per annum until Judgment is fully satisfied.
c. A declaration that, the deposit of the title deeds of the two properties named hereinafter by the Defendants with the Plaintiffs as security for the aforesaid banking facilities has created an enforceable mortgage in favour of the plaintiff in respect of the following properties.
i. Plot 12, Block 22, Lekki Phase 7 Eti-Osa Local Government Area Lagos State, which is registered as No. 47/47/91D and dated 18/1/91 in the Lands Registry in the office at Ikeja.
ii. Parcel of Land situate at 24 Oregun Road, Olusasun Village Ojota, Lagos, covered by deed of assignment registered as No. 2/2/1932 in the Lands Registry in the Office at Ikeja.
d. A declaration that the Plaintiff is entitled to sell the two aforesaid properties in order to realize or recover the Defendants debts which arose out of the aforesaid banking facilities which were granted to the 1st Defendant by the Plaintiff.
e. An order granting leave to the Plaintiff to sell immediately the two properties mentioned above in order to enforce the above mentioned securities and to realise the amount plus all accrued interest thereon to be owed to the Plaintiff by the Defendants as claimed above.
On the 5th day of March 2008, the Defendant filed 5th Further Amended Statement of Defence and Counter Claimed against the Plaintiff/Respondent as follows:-
(a) N800, 961,518,60 special damages for breach of contract.
(b) USD593, 011,20 special damages for negligent mishandling and unlawful interference with 1st Defendants account.
(c) N250 million general damages for breach of contract and negligent mishandling and unlawful interference with 1st Defendants account
(d) The sum of N141, 736,487,10 being the sum representing the fish worth of the 1st Defendant 20% contribution in the L/c’s which the claimant failed or refused to deliver to the 1st Defendant upon arrival.
(e) An order of closure and reconciliation of the 1st Defendants Account No. 110-770,002, and for payment of any amount found due and payable to the 1st Defendant.
At the conclusion of trial, before Hon. Justice G. M. Onyeabo, the court Plaintiff/Respondent in paragraphs 28 (a) and (b) of Plaintiffs Amended Statement of Claim, The court also awarded N10,000,000 in favour of Defendants/counter claimants claim in item vi of the counter claim.
The Defendants/counter claimants became aggrieved and therefore filed Amended Notice of Appeal on 2nd February 2012.
The Appellants filed Further Amended Notice of Appeal on 8th November 2012, following an order of this court made on 5th November 2012, Appellants further amended notice of appeal, is reproduced less particulars as follows:-
1. The learned trial Judge erred in law when he held:
“I accordingly find for the claimant in the sum of N235, 100,240,80, plus accrued interest thereon at the rate of 24% per annum as claimed and 10% per annum from today until the Judgment sum is fully paid.”
And thereby occasioned a miscarriage of justice.
2. The learned trial Judge erred in law and acted without jurisdiction when he held as follows:-
“The personal guarantee of the 2nd Defendant given in compliance with one of the requirements of Exhibit A1 – A5 is produced as Exhibit A8. DW2 did not challenge or deny … Thus, I hold, that the 2nd Defendant is jointly liable for the outstanding as claimed.”
3. The learned trial Judge erred in law, when he held:
“The defendants pleading reproduced above has not denied that, the claimant was financially exposed on its behalf to the tune of N566, 945,948.64. This fact is clearly admitted by that pleading. The onus of proof on the claimant therefore shifts, and it becomes the duty of the Defendant to establish that the said indebtedness has been liquidated………..
That being so, the necessity for the claimant to produce statement of account and or any other documentary evidence to prove the indebtedness is obviated, I hold therefore, that the indebtedness of the Defendant to the claimant is established.”
4. The learned trial Judge erred in law, when he held:
“Although an assertion of payment was made by the Defendant, same has not been proved by credible evidence as to discharge the burden placed on it by its own admission…”
And thereby occasioned a miscarriage of justice.
5. The learned trial Judge erred in law, when he held:
“of the 622 tellers comprising Exhibits D – D2 382 are said to contain the features that make them valid shown under category 1 with a total value of N164, 457,045,00.
This therefore is the amount shown to have been paid back by the Defendants of the sum admitted by it, to have been made available by virtue of the exhibit A1 – A5, I so hold.’
6. The learned trial Judge erred in law by awarding only the sum of N10 million to the 1st Appellant in respect of item vi of the counter claim.
7. The learned trial Judge erred in law and acted without jurisdiction when in the Judgment of the court he referred to, considered and relied upon the document titled “3 Amended Reply” dated the 13th day of June 2006, which was signed by F. O. Fagbohungbe & Co., a firm of legal practitioners contrary to the provisions of order 15 Rule 2 of the High Court of Lagos State (Civil Procedure) Rules 2004.
8. The learned trial Judge erred in law when he held:
“Apart from the counter claim in respect of N10m in respect of the item vi of the counter-claim (for the Port-Harcourt sales) all the other heard of counter claim must fail for lack of evidence and I so hold.”
9. The Judgment is against the weight of evidence.
On the 5th day of March 2013, The Respondent filed amended notice of Cross Appeal containing two grounds, the grounds are also reproduced less their particulars as follows:-
GROUND I
The court below erred when it refused the three claims made in paragraphs 28 (c) (i) (ii) (d) and (e) of the Cross Appellants amended statement of claim dated 19th February 2001.
GROUND II
The court below erred when it held that, the equitable mortgage that had been created in favour of the Cross Appellant in respect of the two properties involved in this action had been vitiated by fraud occasioned in respect of the deed of legal mortgage of the said properties.
Learned counsel Olatunde Adejuyigbe for the Appellants, settled Appellants brief of argument filed on 8th November 2012, Learned Senior counsel Fagbohungbe SAN settled Respondents/Cross Appellants brief filed on 14th March 2013.
Mr. Adejuyigbe filed Appellants reply on 22nd May 2013; and Cross Respondents brief on 2nd April 2013; Senior Counsel Fagbohungbe filed Cross Appellants reply on 21st May 2013.
The following briefs are therefore relevant in the determination of this appeal.
1. Amended Appellants brief filed on 8/11/12 settled
2. Respondents/Cross Appellants brief of argument filed 14/3/13 settled by Fagbohungbe SAN.
3. Reply brief of argument filed on 22nd May 2013, filed by Olatunde Adejuyigbe.
4. Cross Respondents brief of argument filed on 2/4/13 by Olatunde Adejuyigbe.
5. Cross Appellants reply brief filed on 21/5/2013 by Fagbohungbe SAN.
Learned Senior counsel Fagbohungbe filed application pursuant to order 4 rule 11 and order 7 rule 1 of the Court of Appeal rules praying on behalf of the Respondent for the following:-
1. An order setting aside the order of this court made on 1st February 2012 granting leave to the Appellants to raise fresh issues in this appeal as contained in prayer 1 of the Appellants application dated and filed on 4th May 2011.
2. An order striking out grounds 2, 7, and 9 of the Appellants Further Amended Notice of Appeal dated and filed on 8th November 2012.
3. Such further order or orders as the court may deem fit to make in the circumstance.
It is necessary to mention at this point that, on 31st October 2013 when this appeal was heard, prayer number one on the motion paper seeking to set aside the order of this court was struck out, having been withdrawn by the Applicant. Respondent therefore pursued prayers 2 and 3, Arguments submitted in support of prayer number one were also struck out.
Respondent/Applicant gave the following grounds for the application.
1. The order made by this Honourable Court granting leave to Appellants to raise and argue the grounds of appeal Amended Notice of Appeal dated and filed on 8th November 2012 is a nullity and liable to be set aside in that:
a. On 1st February 2012, when the Appellants application dated and filed on 4th May 2011 came up for hearing, the Respondent informed the Honourable Court that a counter affidavit was filed by the Respondent in opposing to the said application.
b. The Appellants application dated and filed on 4th May 2011 was granted by the Court on 1st February 2011 without actually hearing the Respondent on the points of objection to the Appellants application.
c. None of the issues stated in grounds 2 and 7 as contained in paragraphs 3.2 and 3.7 of the Further Amended Notice of Appeal arose between the parties at the lower court for consideration and determination by the learned trial Judge.
d. The said grounds of appeal and the fresh issues raised and argued therefrom did not form part of the decision of the lower court appealed against by the Appellants.
e. The fresh issues raised in paragraphs 3.2 and 3.7 of the further amended notice of appeal do not involve substantial points of law.
f. The fresh issues raised by the Appellants in paragraphs 3.2 and 3.7 of the further amended notice of appeal will require further evidence from the parties before the court can determine same.
g. The facts and evidence relating to the fresh issues raised by the Appellant in paragraphs 3.2 and 3.7 of the Further Amended Notice of Appeal will require further evidence from the Respondent.
h. The Appellants had the opportunity to raise the fresh issues in paragraphs 3.2 and 3.7 of the Further Amended Notice of Appeal but refused and or neglected to do so.
i. The Respondent would have adduced satisfactory explanations to rebut the fresh points raised by the Appellants in the Further Amended Notice of Appeal if the Appellant s had raised the said issues at the lower court
j. The requisite factors upon which the fresh issues raised and argued by the Appellants in paragraphs 3.2 and 3.7 of the Further Amended Notice of Appeal can be provided were totally lacking at the time the Appellant application dated and filed on 4th May 2011 was granted by the court.
k. The procedure adopted in granting prayer 1 of the Appellants application dated and filed on 4th May 2011, was such as to deprive the order of court of the character of a proper adjudication.
1. This Honourable court was not competent to grant prayer 1 of the Appellants/Cross Respondents application dated and filed on 4th May 2011.
2. On 1st February 2012, this Honourable Court specifically stated inter alia as follows:-
“The Respondent has an opportunity to file preliminary objection against the new grounds of appeal, or file a motion on grounds of law to have them struck out for being incompetent.”
3. Grounds 2 and 7 of the Appellants grounds were filed out of time and without the prior leave of court.
4. No issue was formulated from ground 9 of the Appellants grounds of appeal.
The application is supported by 18 paragraph affidavit sworn to by Anyalewa Onoja, legal practitioner in F. O. Fagbohungbe & Co.
In paragraphs 4, 8, 12 and 14 of the affidavit in support, the Respondent Applicant said, the Appellants filed application dated 4th May 2011, praying for leave to raise and argue the grounds of appeal set out in paragraphs 3.2 and 3.7 of the proposed Amended Notice of Appeal, Exhibit D, as fresh issues, Respondent said, the court on 1st February 2012 while ruling on Appellants application of 4th May 2011, said the Respondent had the opportunity to file preliminary objection against the new grounds of appeal or file motion on grounds of law to have them struck out for being incompetent.
The Respondent said at paragraph 12, that Appellant did not seek for leave to file grounds 2 and 7 of the grounds of appeal as contained in paragraphs 3.2 and 3.7 of the Further Amended Notice of Appeal dated 8/11/2012 out of time, at paragraph 14, the Respondent said, no issue was formulated from ground 9 of the Appellants grounds of appeal as contained in paragraphs 3.9 of the Further Amended Notice of Appeal.
The Respondent exhibited the counter affidavit sworn to by the Respondent exhibit “FOF 1” and ruling of this court exhibit “FOF 2.”
Learned Senior counsel Fagbohungbe submitted argument in support of the motion, he objected to the competence of grounds 2 and 7 of Appellants further amended notice of appeal, contending that the grounds were filed out of time and without leave of court, he therefore urged this court to strike out grounds 2 and 7 and issues 1 and 2 formulated therefrom.
Learned Senior counsel referred to Section 25 (2) of the Court of Appeal Act and said a party desirous of appealing against a final decision of the High Court must file the grounds of appeal within 3 months from the date of Judgment, he said in the instant appeal, Judgment was delivered on 31st October 2008, he said, Appellant filed initial notice of appeal against the judgment of the lower court on 7th November 2008, but grounds 2 and 7 were not part of Appellants original grounds of appeal, counsel said grounds 2 and 7 were improperly incorporated into both the Amended Notice of Appeal dated 2nd February 2012 and Further Amended Notice of Appeal dated 8th November 2012.
Learned Senior Counsel Fagbohungbe said, on 4th May 2011, Appellants applied to amend their Notice of Appeal dated 7th November 2008, and “raise and argue fresh issues from grounds of appeal contained in paragraphs 3.2 and 3.7 of the Amended Notice of Appeal as fresh issues in the appeal”; Learned counsel said, at that material time, the Appellants did not seek for or obtain the leave of this court to either file the grounds of appeal contained in paragraphs 3.2 and 3.7 of the Amended Notice of Appeal as additional grounds of appeal, or apply to file the said additional grounds of appeal out of time. Learned counsel said, at the time grounds 2 and 7 were incorporated into the Amended Notice of Appeal dated 2nd February 2012, and Further Amended Notice of Appeal dated 8th November 2012, three months had already elapsed from 31st October 2008 when the Judgment of the lower court appealed against was delivered.
Mr. Fagbohungbe said the Appellant cannot validly incorporate grounds 2 and 7 of the grounds of appeal as additional grounds by merely amending the Notice of Appeal without specifically, seeking for and obtaining the prior leave of this court to file the said additional grounds of appeal. Learned counsel said leave granted on 1st February 2012 to the Appellants to amend the Notice of Appeal and raise additional issues arising from grounds 2 and 7 does not amount to leave to file the said grounds as additional grounds of appeal or leave to file those grounds of appeal out of time.
Learned counsel relied on EHINLAWO V. OKE (2008) ALL FWLR (PART 442) 1007. FAGUNWA V. ADIBI (2004) 17 NWLR (PART 903) and the decision of this court in DAKINGARI V. WARD & GREEN (2001) 5 NWLR PART 707 718 AT 730 – 731, Mr. Fagbohungbe said Appellants merely sought to amend their Notice of Appeal dated 7th November 2008 and raise fresh issues arising from grounds 2 and 7 after incorporating the said grounds in the amended Notice without specific order granting leave to file additional grounds; Learned Senior counsel said this court lacks jurisdiction to entertain the grounds because they were not initiated following due process, he relied on MADUKOLU V. NKEMDILIM (1962) NSCC 374. He urged this court to strike out the grounds and issues 1 and 2 formulated therefrom and the argument canvassed, he relied on PUNCH (NIG) LTD V. JUMSUM NIG. LTD (2011) 12 NWLR PART 1260.
Learned Senior Counsel for the Respondent also said grounds 2 and 7 cannot qualify as fresh issues because, the lower court did not pronounce on the issues at the lower court that for a ground of appeal to be competent, it must relate to the decision appealed against in respect of an issue between the parties at the lower court, he relied on IKWEKI V. EBELE (2005) 11 NWLR (PART 936) 397 AT 424, SARAKI V. KOTOYE (1992) 9 NWLR PART 264 156 AT 184, MBN PLC V. NWOBODO (2005) 14 NWLR (PART 945) 379 AT 387 AND ATOYEBI V. GOVT OF OYO STATE (1994) 5 NWLR (PART 344) 290. Learned counsel therefore said, before a fresh issue can be properly raised by a party, on appeal, such issue must be related to a controversy between the parties at the lower court; Mr. Fagbohungbe urged this court to strike out the two grounds.
With regards to ground 9 of the Further Amended Notice of Appeal; counsel said the Appellant formulated no issue from ground 9, and same must therefore be deemed as abandoned by the Appellant. Learned counsel said, it is settled that a ground of appeal from which no issue is formulated is deemed abandoned, and therefore liable to be struck out. He referred the court to WAEC V. ADEYANJU (2008) 7 SCM 172. He therefore urged that ground 9 be struck out.
Learned counsel said, for a party to be allowed to raise and argue fresh issues on appeal, the new issues must involve substantial procedural or substantive points of law; which must be allowed to prevent miscarriage of justice, he relied on EZE V. A. G. RIVERS STATE (2001) 18 NWLR PART 746 524, AND OWNERS OF M. V. GONGOLA HOPE V. S.C NIG. LTD (2007) 15 NWLR (PART 1056) 189.
Learned counsel listed the points to consider before a party is allowed to raise and argue fresh issues on appeal. Counsel said the fresh issues raised from grounds 2 and 7 of the further amended Notice of Appeal, relate to failure to serve demand notice on the 2nd Appellant as guarantor to the second Appellant before joining her as a party at the lower court, and that, the 3rd amended reply filed by the Respondent at the lower court was incompetent, and the court did not properly exercise its jurisdiction in considering and relying on same.
Learned Senior Counsel said, what the Appellants seek to do on appeal is to change the case of the parties fought at the lower court by introducing new elements in the case, counsel said this court must not allow so doing he relied on ADEOSUN V. EKITI STATE & 5 ORS (2012) 1 S. C. Learned counsel said, there will be substantial miscarriage of justice if this court allows the Appellants to raise and argue the fresh issues arising from grounds 2 and 7 of the grounds of appeal for the first time in this court.
Chief Fagbohungbe urged this court to hold that, Appellants case is not a proper case where the court ought to have granted leave to raise and argue the fresh issues contained in grounds 2 and 7 of the Appellant ground of appeal, he urged that grounds 2, 7 and 9 be struck out.
Learned counsel for the Appellants Olatunde Adejuyigbe filed Appellants reply wherein he addressed the issues raised by the Respondent; the said reply was filed on 22nd May 2013.
Learned counsel for the Appellants/Respondents said the court of appeal cannot entertain Respondents/Applicants application because this court is functus officio; he relied on AMAH V. NWANKWO (2007) 12 NWLR PART 1049, 552 AT 572, AND USMAN V. UMARU (1992) 7 NWLR PART 254. Learned counsel said the court of appeal granted the Appellants leave to amend their grounds of appeal, the same court cannot sit on appeal over its decision, Respondents application challenging the competence of the grounds of appeal is therefore incompetent, counsel said Respondents remedy lies in an appeal to the Supreme Court.
Mr. Adejuyigbe said, Respondents contended that, Appellants merely sought for leave to amend their Notice of Appeal and raise fresh issues arising from grounds 3.2 and 3.7 respectively without specific order for leave to file additional grounds of appeal.
Learned counsel for the Appellants said the Appellants sought for and obtained the leave of this court to amend the Notice of Appeal dated the 7th day of November 2008, and the Grounds of Appeal contained therein, by substituting same with the Notice and Grounds of Appeal shown on the Further Amended Notice of Appeal, counsel said Respondents submission that Appellants failed to seek for leave is without basis, he relied on AWOTE V. OWODUNNI (1986) 5 NWLR (PART 46) 941 he said amendment connotes alteration, addition or subtraction he also relied on FBN PLC V. ISOKWA (2000) 13 NWLR (PART 685) 521 AT 536, and said, where an Appellant intends to file additional grounds of appeal, an application to amend the Notice of Appeal will be sufficient, he further relied on ALAWIYE V. OGUNSANYA (2013) 5 NWLR (PART 1348) 570 AND AMAH V. NWANKWO, and said grounds 3.2 and 3.7 of the Further Amended Notice of Appeal filed pursuant to the orders made by this court on Appellants application dated 4 May 2011 are competent, learned counsel finally urged this court to dismiss the application.
The above represents the submissions of learned counsel for the parties in this appeal on Respondents motion filed on 14/3/13.
Mr. Adejuyigbe challenged the competence of Respondents motion on the ground that this court lacks jurisdiction to entertain same because this court having heard and granted application dated 14th May 2011 on the merit cannot again sit over its decision, in other words the court is functus officio.
It is necessary to clear this point before resolving this application.
This court on 1/2/2012 while considering Appellants motion filed on 4th May 2011 to raise and argue fresh issues, said Respondent had opportunity to file preliminary objection against the new grounds of appeal or file a motion on grounds of law to have them struck out for being incompetent.
From the ruling of this court, certainly Respondent has the opportunity to file this application, this is clearly found in the ruling of this court delivered on 1/12/12 I think this submission is misconceived. A court is said to be functus officio in respect of a matter, if the court has fulfilled or accomplished its function in respect of that matter, and lacks potency to review, re-open or re-visit the matter, See: FBN V. TSA INDUSTRIES LTD (2010) 15 NWLR (PART 1216) 247 SC. In this case certainly the Respondent is right in approaching this court, the application is therefore competent.
On the submission by learned senior counsel for the Respondent, that Appellant failed to obtain leave of this court to file additional grounds. That Appellants merely applied to amend their notice of Appeal and raise fresh issues.
This court on 1st February 2012 while granting Appellants application said:
“We have read the processes and the counter affidavit; The averments in the counter affidavit do not suffice to convince us, that the Appellant cannot amend the Notice of appeal to incorporate fresh issues on appeal. The Respondent has an opportunity to file preliminary objection against the new grounds of appeal or file a motion on grounds of law to have them struck out for being incompetent.
In circumstances prayers 1, 2 and 3 are hereby granted, leave is granted to the applicant to amend the notice of appeal in terms of Exh. D attached to the application time is enlarged for the brief. Appellants brief must be filed within 14 days from today.”
Again, it is clear from the above reproduced portion of the ruling delivered on 1/12/2012 that Appellants applied for and obtained leave of this court to amend their notice of Appeal. The law is fairly settled on seemingly endless authorities that, once an appeal is competent, the existing grounds of appeal may be amended by alteration, addition, or subtraction from the original grounds of appeal filed, See: COKER V. UBA PLC (1997) 2 NWLR (PART 490) 641 AT 670.
Respondent’s argument that Appellant did not obtain leave to file additional grounds of appeal is therefore misconceived. I hold that Appellants properly applied for and obtained leave to amend their notice of appeal.
I think the only area that requires proper consideration in this application is whether the grounds of appeal challenged by the Respondent are competent or not.
It is clear from the records that Appellant formulated no issues from ground 9, Appellant formulated four issues for determination, issue one formulated from ground 7, issue two formulated from ground 2, issue three formulated from grounds 1, 3, 4 and 5 and issue four formulated from grounds 6 and 8 of the Notice of Appeal; it is clear to me that Appellant crafted no issue from ground 9 of the notice of appeal.
The law is settled, that issues for determination in an appeal must be crafted from grounds of appeal, certainly where no issue is formulated from ground of appeal, that ground of appeal has no role to play in the determination of the appeal, and if the ground has no role, it must be struck out. In OLAWEFO V. SEC CA/L/257/08 my learned brother Nwodo, JCA (of Blessed memory) said:
“Parties argue issues formulated for determination not grounds of appeal, where there is no issue for determination formulated from a particular ground of appeal, that ground is deemed abandoned and will be struck out. See: BHOJSONS PLC V. DANIEL KALIO (2006) 5 NWLR (PART 973) 330 SC. BAYERO V. MAINARA & SONS LTD 2006 8 NWLR (PART 982) C. A”.
I agree with learned senior counsel for the Respondent that Appellants having failed to distill issue for determination from ground 9 of the Further Amended Notice of Appeal are deemed to have abandoned the said ground, it is therefore accordingly struck out.
The next point to consider is, whether the issues crafted by the Appellant from grounds 2 and 7 of the Further Amended Notice of Appeal qualify as fresh issues.
Learned senior counsel Fagbohungbe said the grounds are incompetent as the complaints contained therein did not arise from the Judgment of the lower; that for a ground of appeal to be competent it must relate to the decision of the court appealed against; Learned Senior counsel for the Respondent specifically said, the learned trial fudge did not consider or pronounce on issues relating to whether or not a notice of demand was served on the 2nd Appellant before she was joined in the suit or not, and that the learned trial judge did not consider or pronounce on issues relating to whether or not the 3rd amended reply filed by the Respondent at the lower court was competent.
Learned counsel Adejuyigbe for the Appellant said from the pleadings and Exhibit A8, the 2nd Appellant was shown as guarantor for the debt owed by the 1st Appellant, counsel said failure of the Respondent to make demand as stated in Exhibit A8 is a fundamental defect to the jurisdiction of the court, counsel said jurisdictional issues could be raised at anytime.
Learned counsel for the Appellants said the duty of court to do substantial justice has limits, he said duty to do substantial justice cannot be applied to salvage the 3rd Amended reply filed by the Respondent which is manifestly incompetent.
To resolve this issue let me re-examine the issues distilled from grounds 2 and 7 and determine whether they qualify as fresh issues worthy of consideration or not.
The issues are:
i. “Whether it was right and proper for the learned trial Judge to have considered and relied on the 3rd AMENDED REPLY dated 13th day of June 2006 signed by F. O. Fagbohungbe & Co, as part of the pleading in the said in view of the provisions of order 15 Rule 2 of the High Court of Lagos State (Civil procedure) Rules 2004 (Ground 7 of the Notice of Appeal).
ii. Whether the learned trial Judge was right in entering Judgment against the 2nd Appellant based on her personal guarantee (Exh. A8) when there was no evidence before the court, that a native of demand was served on the 2nd Appellant before the action was instituted. (Ground 2 of Notice of Appeal).”
The above are the fresh issues raised and argued on appeal by the Appellant, Appellant may be allowed to raise and argue fresh issues on appeal subject to some conditions, where the fresh issues sought to be raised and argued require fresh or additional evidence to be adduced, such fresh point will certainly not be allowed, but where the fresh point involves substantial issues of law substantive or procedural and additional evidence may not be required, such fresh point may be allowed. See: HINTERLAND INVESTMENT LTD V. FIXITY INVESTMENT LTD (2007) ALL FWLR (PART 355) 487 AT 501.
“An appellant will not be allowed to raise on appeal a fresh issue or question which was not raised or tried, or considered by the trial court particularly where to raise a fresh point will require fresh or additional evidence to be adduced, where however, such a fresh point or question involves substantial points of law substantive or procedural and it is plain, that no further evidence needs to be adduced which will affect the question to be raised, and the point taken to prevent miscarriage of justice….”
It is clear from the two fresh issues raised by the Appellant, that the first issue relates substantially to point of law, while issue II requires, additional evidence, for the above reasons therefore issue I nominated from ground 7 of the further amended ground of appeal is hereby held to be competent, while issue 2 crafted from ground two which in my view requires additional evidence is incompetent.
Respondent’s application dated 14th March 2013 therefore succeeds in part, Grounds 2 and 9 of the further Amended Notice of Appeal filed on 8th November 2012, and Appellants issue number II and arguments canvassed on same are hereby struck out.
For the avoidance of doubt Appellants ground 7 of the Further Amended Notice of Appeal filed on 8th November 2012 is hereby held to be competent.
DETERMINATION OF SUBSTANTIVE APPEAL
Having held the view that grounds 2 and 9 are incompetent and having struck out Appellants issue two for determination, Appellant now has three issues for determination to be considered in resolving this appeal, the issues are reproduced as follows:-
i. Whether it was right and proper for the learned trial Judge to have considered and relied on the Sra AMENDED REPLY, dated the 13th day of June 2006 signed by Fagbohungbe & CO, as part of the pleadings in the suit in view of the provisions of order 15 Rule 2 of the High Court of Lagos (Civil Procedure) Rules 2004 (Ground 7 of the Notice of Appeal).
ii. Whether on the state of the pleadings and totality of legal evidence adduced by the parties, the learned trial Judge came to a right decision when he granted the reliefs claimed by the Respondent in paragraphs 28 (a) and (b) of the Amended Statement of Claim (Grounds 1, 3, 4 and 5 of the Notice of Appeal)
iii. Whether the learned trial Judge came to a correct decision, when he awarded the sum of N10 million to the Appellant in respect of items 3 (vi) of the counter claim, and dismissed all the other heads of the counter claim (Ground 6 and 8 of the Notice of Appeal).
Learned counsel for the Appellant while making submission on issue one referred to Order 15 Rule 2, of the High Court of Lagos Civil Procedure Rules 2004, which provides that pleadings shall be filed by a legal practitioner or by the party, if he sues or defends in person he said, 3rd Amended Reply and defence to counter claim dated the 13th day of June 2006 which was filed by the Respondent was signed by F. O. Fagbohungbe & Co, a law firm counsel said, the process was not signed by a legal practitioner as required by the provisions of order 15 Rule 2 of the High Court of Lagos (Civil Procedure) Rules 2004 counsel relied on OKAFOR V. NWEKE (2007) 10 NWLR 1043 521 AT 531, NNB PLC V. DENCLAC LTD (2005) 4 NWLR (PART 916) 549 AT 573, MOHAMMED VS. M. E. & CO LTD (2010) 2 NWLR (PART 1179) 473 AT 504 AND SLB CONSORTIUM LTD V. NNPC (2011) 9 NWLR (PART 1252) 317.
Learned counsel Adejuyigbe said, the 3rd Amended Reply and Defence to counter-claim signed by Fagbohungbe & Co. is incompetent, invalid, incurably defective, null and void. Counsel said the learned trial judge was in grave error when he relied on same, the learned trial judge ought to have struck out the 3rd Amended Reply.
Learned counsel said, it is not permissible for the court to attempt to separate the evidence adduced on behalf of the Respondent with a view to separating those that may have been predicated on valid pleadings from those based on invalid pleadings, counsel said, the net effect of this is that, the Respondent cannot show which portion of the case presented is valid and which is not, counsel said same consideration applies to the defence to Appellants counter claim; Learned counsel said, the decision of the learned trial judge granting the reliefs sought by the Respondent and substantially dismissing Appellants counter claim cannot stand in the circumstance, learned counsel therefore urged this court to resolve this issue in favour of the Appellants and strike out 3rd Amended Reply and Defence to counter claim dated 13th June 2006.
Learned senior counsel Fagbohungbe SAN in his response on behalf of the Respondent said at the lower court, the Respondent filed 3rd Amended Reply dated 13th June 2006 which, counsel said also contained the Respondents 2nd Amended Defence to Appellants Further Amended Counter Claim, the processes are at page 241 to 252 of the Record of Appeal. Chief Fagbohungbe said Appellants main grouse in respect of 3rd Respondents Amended Reply is that the Reply is incompetent because it was not signed by a legal practitioner, counsel further submitted that Appellant relied on order 15 rule 2 of the High Court of Lagos Civil procedure Rules 2004 which provides that pleadings must be signed by a legal practitioner or by a party if he sues or defends the action in person.
Learned senior counsel for the Respondent said in spite of this provision, he would urge this court to discountenance the submissions by Mr. Adejuyigbe, he said the learned trial fudge ought not to have considered or relied on the Respondents Reply, Mr. Fagbohungbe gave reasons.
That the Appellants have waived their right to complain, he said it is on record that Appellants did not challenge the competence of the said 3rd Amended Reply filed by the Respondent at the lower court, that Appellant never challenged the competence of the Reply before the lower court, or raised any objection to the jurisdiction of the court to consider or rely on the same process. Learned counsel said both the suit and the counter claim were fought on the said 3rd Amended Reply without any prejudice and miscarriage of justice to the Appellants.
Learned counsel again submitted that the default highlighted in respect of Respondents Reply by the Appellant may at best be treated as an irregularity under the High Court of Lagos Civil Procedure Rules 2004, he said objection to set aside the 3rd Amended Reply on the basis of perceived irregularity may be allowed if the objection is raised timeously within a reasonable time, he relied on Order 5 Rule 1 (2) and 2 (1) of the High Court of Lagos Civil Procedure Rules 2004. Learned senior counsel said the objection raised by the Appellants to Respondents 3rd Amended Reply is a technical objection which is not allowed under the High Court of Lagos Civil Procedure Rules 2004, counsel specifically referred to Order 15 Rule 15 of the High Court of Lagos State (Civil Procedure) Rules 2004, which provide that, no technical objection shall be raised to any pleadings on grounds of any alleged want of form.
Learned senior counsel said, the court must discountenance Appellants objection, since it was not raised within a reasonable time. Counsel relied on ETIM V. ORJI (2010) 12 NWLR (PART 1207) 108 AT PAGE 150 TO 151, AND SHELL PETROLEUM DEV. CO. NIG. LTD V. EDAMKUE & ORS (2009) 14 NWLR (PART 1160) 1 AT 27, Learned Senior counsel said if a counsel or party treats a document, procedure, or matter as admissible or regular, such a party cannot be heard or be at liberty to object or complain later or before an appellate court. Learned counsel said Appellants having waived their right to complain cannot contend that Respondents 3rd Amended Reply is incompetent. He urged this court to so hold.
Chief Fagbohungbe also urged this court to hold that the lower court was right in relying on respondents 3rd Amended Reply at the time it did and that the decision in OKAFOR V. NWEKE (2007) 10 NWLR (PART 1043) 521 and other authorities relied on by the Appellants in support of the contention that 3rd Respondents Amended Reply is incompetent are not applicable in the instant appeal. Learned senior counsel relied on THE EXECUTORS OF THE ESTATE OF GENERAL SANI ABACHA (DECEASED) V. EKE-SPIFF & ORS (2009) 2-3 S.C PART II 93 and said, each case is determined on its own peculiar facts; he said apart from the fact that the objection in the cases relied on by the Appellants were not predicated on the provisions of the High Court of Lagos State (Civil Procedure) Rules 2004 no further steps were taken by the parties objecting after becoming aware of the procedural irregularity. Chief Fagbohungbe said there was waiver or submission to the jurisdiction of the court to entertain the suit.
The second reason given by learned senior counsel is that, the Respondent will be seriously prejudiced, that serious miscarriage of justice and prejudice would be suffered by the Respondent if the 3rd Amended Reply is struck out, that if the 3rd Respondents Amended Reply is struck out, the respondent will not have defence to the Appellants counter claim, and will be denied the constitutional right to fair hearing as held in MICHAEL OKAROH V. STATE (1988) 3 NWLR PART 81, 214 AT PAGE 220, that court must see to it, that justice is never defeated by technical rules of procedure, that rules of court must be seen to be subservient hand-maid to justice, not as omnipotent masters at war with justice.
Learned senior counsel therefore urged this court to avert miscarriage of justice as done in OGUNDELE v. AGIRI (2009) 18 NWLR (PART 1173) 219.
Chief Fagbohungbe urged this court to tread the line of the Supreme Court as in Agiri (supra) and overrule the objection by the Appellant to Respondents 3rd Amended Reply.
Learned senior counsel said, the competence of 3rd respondents Reply was not part of the issues raised by the parties before the lower court and eventually considered by the learned trial fudge in the Judgment appealed against, he said this issue is irrelevant to the determination of the appeal; he relied on ADEOSUN V. GOVERNOR OF EKITI STATE & 5 ORS (2012) 1 S.C (PART 1) 180 AT PAGE 215.
Counsel said, while it may be the law, that a party can invite the court at any stage of the proceedings to determine the validity of any legal document that would be used in the course of the proceedings, the invitation would be only proper if the legal validity of the said document is put in issue in the pleading of the parties before the court. He said validity of Respondents 3rd Amended Reply was never in issue before the lower court.
Finally on this issue, learned senior counsel said the learned trial judge was right in exercising jurisdiction to consider and rely on the 3rd Amended Reply filed by the respondent at the lower court. He urged the court to resolve this issue in favour of the Respondent and dismiss the appeal with substantial cost.
In resolving this issue, it is necessary to state that, the Appellant raised and argued this issue with the leave of this court, and the process which is the subject of controversy under this issue is the 3rd Amended Reply of the Plaintiff Respondent filed on 13/6/06.
Order 15 Rule 2 of the High Court of Lagos Civil Procedure Rules 2004 provides as follows:-
“2. Every pleading shall contain a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved and shall when necessary be divided into paragraphs numbered consecutively. Dates sums and numbers shall be expressed in figures. Pleadings shall be signed by a legal practitioner or by the party if he sues or defends in person”.
The 3rd Amended Reply filed on 13/6/06 is a reply to Defendants/Appellants 3rd Further Amended Statement of Defence and Respondents 2nd Amended Defence to Further Amended Counter Claim.
At page 6 of Appellants brief of argument, learned counsel Adejuyigbe said:
It is our humble submission that the 3rd Amended Reply and Defence to counter claim which was signed by F. O. Fagbohungbe & Co is incompetent invalid incurably defective and null and void. The learned trial judge therefore fell into grave error in considering and relying on the 3rd Amended Reply as part of the pleadings or relying on the 3rd Amended Reply as part of the pleadings in the suit. The learned trial Judge ought to have struck out the 3rd Amended Reply.
To the extent that the Respondents case in support of its claims and the defence to the counter claim were predicated on the manifestly defective processes, they were not apposite for consideration…
The net effect is that the Respondent cannot show which portion of the court process is valid and which is not. The same consideration applies to the defence to Appellants counter claim.”
Learned senior counsel Fagbohungbe said Appellants having failed to raise this issue timeously were deemed to have waived their right, that consideration of Appellants argument would result in serious prejudice to the Respondent, at page 24 of the Respondents Cross Appellants Brief counsel said:-
“…It is worthy of note that, the implication of striking out the Respondents 3rd Amended Reply would be that the
Respondent will not have a defence to the Appellants counter claim, and will be denied the constitutional right fair hearing…..”
The process in controversy 3rd Amended Reply at the concluding part of the process in paragraph 42 reads as follows:-
“…WHEREOF the claimant avers that, the Defendants counter claim is a misconceived mischievous and frivolous exercise in artful gold digging which ought to be dismissed with substantial cost.
Dated this 13th day of June 2006
F. O. Fagbohungbe & Co.
Claimants Counsel
Mamman Kontagora House
(4th Floor)
23rd Marina
Lagos.
It is very clear from the 3rd Amended Reply, that it was signed by F. O. Fagbohungbe & Co, contrary to the provisions of order 15 rule 2 of the High Court of Lagos Civil Procedure Rules 2004 and the law is fairly settled on a long chain of judicial decisions that, document signed by a firm of legal practitioners as against a legal practitioner who is competent to sign such document, is incompetent in law; See: OKAFOR vs. NWEKE (2007) 10 NWLR PART 1043 521 AT 531, AND NNB PLC V. DENCLAG LTD (2003) 4 NWLR (PART 916) 54 AT 573.
Learned senior counsel Fagbohungbe urged this court to treat the issue raised by the Appellants as a mere irregularity resulting from technicality. I am not in agreement with the learned senior counsel on this point, a process signed by a firm of legal practitioners instead of the legal practitioner who is qualified to practice law by virtue of his call to Nigerian Bar and enrolment on the roll of legal practitioners is beyond technicality, such omission is fundamental and strikes at the roots and tap roots of the document, the document is incompetent and cannot be redeemed under the guise of technicality or whatever name. It is proper for me to add that, the battle fought at the lower court between the parties was actually fought and won by the Respondent when the suit was already in “intensive care”; The 3rd Amended Reply is incurably defective and therefore incompetent, the contents cannot be relied on to sustain a Judgment, as it is settled that you cannot build something on nothing and expect it to stand, it will collapse like pack of cards. The 3rd Amended Reply is hereby struck out.
Having struck out the 3rd Amended Reply, I do not think it is proper to consider other issues submitted for determination, I am conscious of the decision in UZUDA V. EBIGAH (2009) 15 NWLR (PART 1163) 1 S.C; where intermediate court is required to consider all issues submitted to it for determination unless the issues are subsumed under other issues or the court frames its own issues, or the issues are mere hypothetical or academic issues; or where the Judgment is considered a nullity in which case necessity to consider other issues is clearly obviated as in the instant appeal.
This issue is therefore resolved in favour of the Appellant, and the 3rd Amended Reply filed by the Plaintiff/Respondent Cross Appellant is struck out.
Appellants appeal is meritorious and therefore succeeds, the Judgment of the lower court having been predicated on incompetent process is hereby set aside.
Learned counsel for the Appellants urged this court to allow Appellants counter claim decided by the lower court. This court cannot certainly allow the Appellants to take home their victory in the counter claim even though counter claim is an independent action, the rationale behind the decision in OKAFOR VS. NWEKE (supra) is relevant in taking this position by this court. The decision of the Supreme Court in Okafor is an expression of desire to inject quality and sanity in the legal practice before the courts. The decision is not designed to shut out a litigant. In OKAFOR (supra) ONNONGHEN JSC said:-
“……The effect of the ruling is not to shut out the Appellants, but to put the house of the legal profession in order by sending the necessary and right message to members that the urge to do substantial justice does not include illegality or encouragement of the attitude of “anything goes’ “…..
This court must tread the line of the Supreme Court, that the correct signal be sent to counsel to be alert in preparing their processes, or get such processes thrown out on grounds of incompetence without subjecting and visiting the sin of counsel on their innocent clients; A court does not in a matter where the fault is traceable to the counsel and not the litigant as in the instant appeal punish the litigant for a fault committed by counsel; See: IYALABANI & CO V. BANK OF BARODA (1995) 4 NWLR (PART 387) 20. I think the ultimate purpose of this decision is to send counsel back to the drawing board, moreso Learned counsel Adejuyigbe has already appreciated the complexities posed by the obvious mesh in the mixture of valid and invalid processes before the trial court; Order setting aside the decision is most appropriate in the circumstance.
On the whole therefore this appeal succeeds, 3rd Amended Reply filed by the Plaintiff/Respondent is struck out judgment of the lower court delivered on 31st day of October 2008 by Hon. Justice G. M. Onyeabo predicated on an invalid and incompetent process is hereby set aside.
Respondents Cross Appeal arising from the Judgment of the lower court is struck out.
Parties shall bear their respective costs.
SIDI DAUDA BAGE, J.C.A.: I have had the privilege of reading in draft the Judgment just delivered by my learned brother TIJJANI ABUBAKAR, JCA.
I agree with the reasoning and conclusion reached therein and have nothing extra to add.
This appeal succeeds. It is hereby allowed. The 3rd Amended Reply filed by the Plaintiff/Respondent is also struck out. The Judgment of the lower court delivered on 31st day of October 2008 by Hon. Justice G.M. Onyeabo predicated on an invalid and incompetent process, is hereby set aside.
Respondents cross – appeal arising from the judgment of the lower court is struck out. Parties shall bear their respective costs.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have had the opportunity of reading before now the judgment just delivered by my learned brother Tijjani Abubakar, JCA and I am also of the view that the appeal is meritorious and should be allowed. My learned brother covered the field in his reasoning and conclusion and I have nothing useful to add than to say that the appeal succeeds. The Judgment of the lower court delivered on 31-10-08 is hereby set aside.
I also strike out the Respondents cross appeal.
I equally abide by the consequential orders made in the lead judgment including that of costs.
Appearances
Mr. Adejuyigbe with R O. AbdullahiFor Appellant
AND
Chief Fagbohungbe SAN
With A. A. Adeniran with A. Onoja (Miss)For Respondent
