ALPHONSUS ORIEBOSI v. ANDY SAM INVESTMENT COMPANY LIMITED
(2014)LCN/7310(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 24th day of June, 2014
CA/K/320/2007
RATIO
APPEAL: ISSUES FOR DETERMINATION; WHETHER ISSUES FORMULATED FOR DETERMINATION MUST ARISE FROM THE GROUNDS OF APPEAL
It is trite law that issues formulated for determination must arise from the grounds of appeal filed. See; Ndoko Vs Obiano (1997) 5 NWLR (Pt.503) Pg. 42 at 47. per. ABDU ABOKI, J.C.A.
APPEAL: FRESH ISSUES; WHETHER FRESH ISSUES CANNOT BE RAISED IN AN APPEAL WITHOUT OBTAINING LEAVE OF THE COURT
Fresh points or issues cannot be raised for the first time at the Court of appeal which were not canvassed at the lower Court unless with the leave of the appellate Court. If no leave is obtained to canvass them on appeal, the grounds and the issues upon which the fresh points are based for the first time on appeal are incompetent and are liable to be struck out. See; NDIC Vs S.B.N Plc (2003) 1 NWLR (Pt.801) Pg.311 at 395-396. Owie Vs Ighiwi (2005) 5 NWLR (Pt.917) at 224. per. ABDU ABOKI, J.C.A.
COMPANY LAW: LEGAL PERSONALITY; WHETHER WHERE A DIRECTOR ENTERS INTO A CONTRACT IN THE NAME OF OR PURPORTING TO BIND THE COMPANY, IT IS THE COMPANY WHICH IS LIABLE ON IT AND NOT THE DIRECTOR
The law is that a company is in law a person distinct from its promoters or directors. However, a director of a company is in the eyes of the law, an agent of the company for which he acts and the general principle of the law of principal and agent would apply. Where a Director enters into a contract in the name of or purporting to bind the company, it is the company which is liable on it and not the director. See; Okolo Vs U.B.N Ltd (2004) 3 NWLR (Pt.859) Pg. 87 at 119 – 120.
Also by virtue of section 65 of the Companies and Allied Matters Act 1990, any act of a managing director while carrying on in usual way the business of the company shall be treated as the act of the company itself. See; Hoston Nig. Ltd Vs A.C.B Plc (2002) 12 NWLR (Pt.782) Pg.623 at 644 – 645. The Chairman or Director of Limited Liability Company is an agent of the company. See; Essang Vs Aureole Plast. Ltd (supra) at 182. An agent acting on behalf of a known and disclosed principle incurs no liability. This is because the act of the agent is the act of the principle. The situation is as if it was the principal that did what the agent did or omitted to do what the agent omitted to do. The common law rule is expressed in the latin maxim “qui facit per alium facit per se ipsam facere vindetur” Which means; He who does an act through another is deemed in law to do it himself. See; Essang Vs Aureole Plast. Ltd (2002) 17 NWLR (Pt.795) Pg.155 at 181. per. ABDU ABOKI, J.C.A.
EVIDENCE: UNCHALLENGED AND UNCONTROVERTED EVIDENCE; WHETHER THE TRIAL COURT TO ACT ON AN EVIDENCE THAT IS UNCHALLENGED AND UNCONTROVERTED
Where evidence adduced in support of the plaintiff’s claim is unchallenged and uncontroverted as in the instance case, the trial Court ought to act on it. See; Trade Bank Plc Vs Chami (2003) 13 NWLR (Pt. 386) Pg.158 at 220. per. ABDU ABOKI, J.C.A.
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
Between
ALPHONSUS ORIEBOSI Appellant(s)
AND
ANDY SAM INVESTMENT CO. LIMITED Respondent(s)
ABDU ABOKI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Kano State High Court of Justice delivered on the 28th September, 2006 by Tani Y. Hassan J. in suit No. K/623/2004, as well as the ruling delivered on the 2nd November, 2006.
The Respondent was the Plaintiff at the lower Court while the Appellant was the 2nd Defendant.
By writ of summons dated 15/10/2004, the Respondent claims jointly and severally against the defendants the following:
1. The sum of 2,178,400.00 (Two million one hundred and seventy eight thousand, four hundred naira) being the outstanding balance of the value of the goods supplied on credit by the plaintiff to the 1st defendant and for which payment the 2nd defendant guaranteed.
2. 10% interest rate per annum beginning from date of judgment until final liquidation of the entire judgment debt.
3. Cost of this action including solicitors fee of N300,000. 00.
At the hearing of the matter, the 2nd defendant who had filed and served his statement of defence was represented, while the 1st defendant was not represented. Three witnesses testify for the plaintiff while the 2nd Defendant testifies in his defence and called one other witness.
At the end, judgment was entered in favor of the plaintiff against the defendant. The judgment reads inter alia as follows;
“From the evidence adduced before the Court the plaintiff has proved its claim jointly and severally against the defendants. Judgment is accordingly entered for the plaintiff against the defendants jointly and severally in the sum of N2,178,400.00 minus N200,000.00 paid at the police station being the outstanding balance of the value of goods supplied on credit by the plaintiff to the 1st defendant and which payment the 2nd defendant guaranteed.
The defendants shall pay the plaintiff 10% Court interest from the date of judgment until the judgment sum is liquidated. The defendants shall also pay the plaintiff N4,040.00 being the cost of filling this action”.
It is against the above judgment the Appellant’s notice of appeal dated 9/11/2006 was filed on 6/11/08 and it contained 3 grounds of appeal.
The Appellant in accordance with the rules of this Court filed his brief of argument dated 27/8/2007. The Respondent filed a notice of preliminary objection to the competence of the appeal and it was dated 22/12/2009. While the Appellant filed a reply to the Respondent’s preliminary objection. The Respondent however did not filed any brief of argument as an alternative to the preliminary objection in case his arguments on the preliminary objection failed.
The Appellant in his brief of argument abandon Ground No. 3 and distilled a lone issue for determination of the appeal from the remaining 2 grounds of appeal (i.e Grounds 1 & 2) as follows:
ISSUE FOR DETERMINATION
“Whether the judgment given by the Court below against the Appellant in favour of the Respondent Company can be supported having regard to the avermen9 of the Respondent company in its statement of claim vis-a-vis the evidence led in support thereof.”
In considering this appeal this Court will commence its deliberations by first considering the preliminary objection raised by the Respondent.
The Respondent’s preliminary objection attacked the competence of the Appellant’s appeal on the following grounds;
1. That this Court lacks jurisdiction to hear and determine this appeal.
2. That this suit is incompetent.
Learned Respondent’s counsel contended that the Appellant’s counsel at page 3 line 2.3 raised a single issue for the Court’s determination from the grounds 1 and 2 thus abandoning ground 3 of the notice of appeal. He submitted that the sole issue distilled by the Appellant encompasses ground 1 and 2 of the notice of appeal, and the incompetence of either ground 1 or 2 of appeal will mean that the entire appeal fail. He referred the Court to the case of; Ngige Vs Obi (2006) All FWLR (Pt.330) Pg.1041 at 1142.
Learned counsel submitted that ground 2 of the Appellant’s notice of appeal is incompetence as it is a fresh matter not raised at the lower Court, and being raised before this Court for the first time without leave. He referred the Court to the cases of;
Ogba Vs Onwuzo (2005) All FWLR (Pt 275) Pg.581 at 589-590.
Enang Vs Adu (1981) 11 – 12 SC.25.
Ezekude Vs Odugwu (2002) FWLR (Pt.121) 1927.
He argued that ground 2 raises both issues of fact and law, therefore leave of this Court is required otherwise it becomes an incompetent ground. He referred the Court to the case of; Ehinlanwo Vs Oke (2008) All FWLR (Pt.442) at 1007.
Learned counsel insisted that a careful perusal of the issues joined by the parties in their respective briefs and the judgment of the lower Court showed in no where the issue of PW1’s testimony being at variance with the plaintiff’s pleadings was raised and decided by the lower Court.
He argued that at page 60 paragraph 4 of the printed record the Appellant clearly accepted PW1’s testimony as having been given on behalf of the plaintiff (the company). He maintained that the Appellant having failed to make it an issue for the lower Court’s decision and that since no decision on the said issue was pronounced by the lower Court, this Court therefore lacked the jurisdiction to make a decision on the said issue. He referred the Court to the case of; Gods Little Tananery Vs Nwaigbo (2005) All FWLR (Pt.217) Pg.82 at 97.
Learned counsel urged the Court to strikeout ground 2 for being incompetent because it encompasses a mixture of facts and law that require prior leave of Court and for also being an issue raised for the first time before this Court without prior leave. He maintained that the consequence of striking out the said ground 2 will be that the entire appeal collapses, since the said ground was married with ground 1 to raise the single issue for this appeal, this Court cannot begin to separate the good ground from the incompetent one. He urged the Court to apply the principle in the case of; Ngige Vs Obi (supra) and to dismiss this appeal.
In his reply, counsel to the Appellant submitted that the Appellant’s complaint in respect of the said ground 2 challenged the failure of the trial Court to evaluate the evidence led before it, and that it is akin to an omnibus ground of appeal No. 1, which the Appellant said no leave of the lower Court or this Court need to be first sought and obtained before it can be validly filed.
He submitted further that it is trite law that a ground of appeal challenging the failure of the trial Court to evaluate evidence is a valid and competent ground of appeal. He referred the Court to the case of; Independent National Electoral Commission Vs Usman Abubakar & Another (2008) All FWLR (Pt 442) 1163 at 1175.
Learned counsel maintained that there is in fact no difference between ground 1 and ground 2 being challenged by the Respondent. He referred the Court to the cases of;
Bakare Vs The State (1987) 1 NWLR (Pt.52) 579.
Anyaoke & Ors Vs Dr. Adi & Ors (1986) 3 NWLR (Pt.31) 731 at 742.
Hagemeyer Nig. Ltd Vs Chukwu (1993) 5 NWLR (Pt.294) at 471 – 472.
Ebay Vs Irek (1990) 7 NWLR (Pt.160) 83 at 91.
He argued that ground 2, is contending that the evidence given by the respondent as PW1 at the lower court is at variance with the facts pleaded the statement of claim and also there was no evidence before the trial Court to justify the judgment given in favour of the Respondent. He submitted that such ground of appeal (i.e ground 2) cannot be impeached on the ground that it was raised for the first time and no leave of Court was sought for and obtained. He insisted that the ground is a valid and competent ground of appeal.
Learned counsel contended that there is an exhibition of commonsense and the necessity to avoid multiplicity in formulation of issues by the Appellant when he formulated a lone issue from ground 1 and 2 which challenged the evaluation of evidence by the Court below.
He argued that an appellate Court cannot conclude that a ground of appeal is ground of law or fact or mixed fact and law merely because the Appellant did or call it so. The appeal Court has a duty to examine such grounds with the particulars supplied to arrive at the conclusion. He referred the Court to the cases of;
Ifediorah Vs Ume (1988) 2 NWLR (Pt.74) at 5.
Ojemien Vs Momodu II (1983) 3 SC. 173 at 207.
He submitted that a ground of appeal alleging error in law and a misdirection is not ipso facto an incompetent ground of appeal. He referred the Court to the case of; Garuba Vs Kwara Investment Co. Ltd (2005) All FWLR (Pt.252) 469 at 483. He maintained that by virtue of section 241(1)(a) of the CFRN 1999 as amended, an Appellant can file an appeal against a final judgment of either the federal high Court or high Court of a state sitting as a Court of first instance as of right irrespective of whether or not the ground of appeal is of fact or law or mixed law and fact. He maintained that, leave of Court is not a necessity before ground 2 can be validly filed. He referred the Court to the case of; Aqua Ltd vs Ondo State Sports Council (1988) 4 NWLR (Pt.91) 622 at 645.
Learned counsel submitted that the objection of the Respondent is a mere technicality designed to prevent this Court from hearing this appeal on the merit. He referred the Court to the case; Independent National Electoral Commission Vs Usman Abubakar & Anor (Supra).
He urged the Court to dismiss the preliminary objection and determine the Appellant’s appeal without regard to technicality.
It is trite law that issues formulated for determination must arise from the grounds of appeal filed. See; Ndoko Vs Obiano (1997) 5 NWLR (Pt.503) Pg. 42 at 47. In the instance case it is clear from the Appellant’s brief that the sole issue distilled for determination arose from ground 1 and 2.
I have carefully perused the argument of the parties on the preliminary objection, their grievance centred on whether ground 2 in the Appellant’s notice of appeal contained fresh issue not raised and decided by the lower Court, hence, leave of Court is required before such ground of appeal can be raised.
It is trite law that an issue is said to be new or fresh if it was not canvassed or ventilated at the trial Court and decided upon before it is raised in the Court of appeal. Where such new or fresh issue is to be raised, leave of the Court must be first be sought and obtained. Where that is not done, such fresh issue or point ought to be discountenance and struck out. See; Peter Vs Okoye (2002) FWLR (Pt.110) Pg. 1864.
A ground of appeal as formulated and all the particulars thereto are to be read and construed together in order to ascertained the Appellant’s complaint against the lower Court. See; Odukwe Vs Achebe (2008) 1 NWLR (Pt.1067) Pg.40 at 53.
It will be pertinent for me here to reproduce the two grounds and their particulars for ease of reference; they are adumbrated as follows:
Ground One
The decision of the Court below is unreasonable, unwarranted and cannot be supported having regard to the weight of evidence adduced at the trial.
Ground Two
The Court below erred in law when it gave judgment against the Appellant (the 2nd defendant) in favour of the Respondent (then plaintiff) in the amount claimed despite the fact that no evidence whatsoever was given by the Respondent in support of the material facts pleaded by the said Respondent in its statement of claim.
Particulars
a. Whereas by paragraph 5 and 6 of the statement of claim the Respondent averred that the Appellant requested that goods be supplied by the Respondent to one Emeka Oriebosi on credit basis on the guarantee of the Appellant made to the Respondent to pay for such supplies if default is made by Emeka Oriebosi to pay for same after two week of delivery, yet the evidence of PW1 and PW2 before the Court below is to the effect that the alleged guarantee was made by the Appellant in favour of Samuel Ude (PW1) as opposed to the Respondent (Andy Sam Investment company limited)
b. Whereas by paragraph 7, 11(a), 11(b) and 11(c) of the Respondent’s statement of claim the said Respondent (Andy Sam Investment Company Limited) pleaded that the debt in issue is being owed it by the Appellant and one Emeka Oriebosi and prayed the Court for recovery of same in its favour, yet the evidence of PW1 before the said Court is to the effect that the debt in issue is being owed PW1 (One Samuel Ude) who prayed the Court below for an order directing payment of same to him by the defendants in the case plus 10% interest and the cost of the action.
c. Even though the said Samuel Ude (PW1) claimed to be the managing director of the Respondent, yet in law, each has separate and distinct legal personalities.
d. Whereas the said Samuel Ude was not a party to suit No. K/623/2004 which was tried by the Court below.
Now can it be said that ground 2 above contained fresh point or issues before this Court? I have carefully examined the record of this appeal and it is very clear that these issues; (1) That PW1’s testimonies are at variance with the plaintiff’s pleading (2) That Samuel Ude (PW1) the Managing Director of the plaintiff (3) That the plaintiff in law are separate and distinct legal personalities, and (4) That PW1 was not a party to suit No. K/623/2004 tried by the Court below, were all not addressed by counsel and decided by the trial Court. Therefore they are fresh points or issues before this Court.
The argument of the learned Appellant’s counsel in his brief that there is no difference between ground 1 and ground 2 is not convincing. When an Appellant complains that a judgment is against the weight of evidence, all it means is that when the evidence adduced by him is balanced against that adduced by the Respondent, the judgment given in favour of the Respondent is against the weight which had been given to the totality of the evidence before the Court. See; Akwuaka Vs Iyam (2008) 2 NWLR (Pt.1072) Pg. 454 at 468.In the instance case the 2nd ground in the Appellant notice of appeal is wider than ground 1 thereof. Hence they are different.
Fresh points or issues cannot be raised for the first time at the Court of appeal which were not canvassed at the lower Court unless with the leave of the appellate Court. If no leave is obtained to canvass them on
appeal, the grounds and the issues upon which the fresh points are based for the first time on appeal are incompetent and are liable to be struck out. See; NDIC Vs S.B.N Plc (2003) 1 NWLR (Pt.801) Pg.311 at 395-396. Owie Vs Ighiwi (2005) 5 NWLR (Pt.917) at 224.
In the instance case, ground 2 is not one of jurisdiction and from its particulars; it involves issues of mixed facts and law, which may require further evidence to be adduced by parties and no leave was obtained from this Court to canvass them, therefore, the ground and the issues or points upon which the ground 2 is based are incompetent and are hereby struck out.
In the instance appeal the sole issue for determination was distilled from ground 1 and ground 2 which was struck out being incompetent. It is trite law that where an issue for determination is distilled from both competent and incompetent grounds of appeal, it is not the duty of the Court to separate the arguments in respect of the competent ground from arguments in respect of the incompetent ground. The said issue would be incompetent in its entirety. See; Christaben Group Ltd Vs Oni (2008) 11 NWLR (Pt.1097) Pg.84 at 108.
Therefore, the sole issue formulated for the determination of this appeal distilled from ground 1 and incompetent ground 2 is incompetent and is hereby struck out.
The notice of preliminary objection filed by the Respondent succeeds and it is hereby up held.
Having determined the preliminary objection, I will also consider the appeal on the merit, in case I may be wrong in my opinion on the preliminary objection.
SOLE ISSUE FOR DETERMINATION
“Whether the judgment given by the Court below against the Appellant in favour of the Respondent Company can be supported having regard to the averments of the Respondent company in its statement of claim vis-a-vis the evidence led in support thereof.”
Learned counsel contended that from the writ of summons and statement of claim filed by the Respondent at the lower Court the only connection of the Appellant with the alleged debt of N2,178,400.00 being owed the Respondent’s company by Emeka Oriebosi (1st defendant at the lower Court) was the alleged guarantee made by the Appellant to liquidate any debt incurred by the said Emeka Oriebosi in the course of his business transaction with the said Respondent company. He referred the Court to paragraph 5 and 6 at pages 7 and 8 of the printed record.
He argued that from the facts pleaded in paragraphs 5 and 6 of the Respondent’s statement of claim, it is quite clear that the goods in question belongs to the Respondent company and that the alleged guarantee made by the 2nd defendant (now Appellant) to pay any debt incurred by the 1st defendant (Emeka Oriebosi) was made in favour of the said Respondent company.
Learned counsel contended that the evidence led by the Respondent company in proof of the averments in paragraph 5 and 6 of its statement of claim can be distilled from the evidence of PW1 at page 13 lines 22-24 and on page 14 lines 1 – 17 of the printed record. Again there is also the evidence of PW2 on page 26 lines 1-13 of the printed record. He submitted that the totality of the testimony of PW1 and PW2 is that the goods in questions belongs to PW1 (Samuel Ude) the managing director of the Respondent company and in whose favour the said guarantee to pay the debt incurred by Emeka Oriebosi was made by the Appellant.
He maintained that in paragraph 7, 11(a), 11(b) and 11(c) of the Respondent’s company statement of claim at page 8 of the printed record, the said Respondent company pleaded that the debt in issue is being owed it by the Appellant and Emeka Oriebosi jointly, and he prayed the trial Court for the recovery of same in its favour, yet the evidence of PW1 before the trial Court at page 15 lines 20-22 of the printed record is to the effect that the debt in issue is being owed PW1 (Samuel Ude) personally who therefore prayed the Court below to order the defendants in the suit to pay him same in addition to 10 o/o interest thereon and cost of the action.
Learned counsel argued that there is no evidence to support the material facts pleaded in the statement of claim of the Respondent company to the effect that the Appellant is indebted to the Respondent company in the sum of N2,178,400.00 arising from the guarantee made by the Appellant in favour of the Respondent company to liquidate any debt incurred by Emeka Oriebosi in the course of the business transactions between the Respondent company and Emeka Oriebosi.
Learned counsel submitted that it is settled law that failure of a party to give evidence in support of the facts pleaded amounts to mere averments not supported with evidence. He referred the Court to the case of FCDA Vs NAIBI 1990 3 NWLR Pt.138 270 at 281. He maintained that parties are bound by their pleadings and any evidence given at variance with the pleaded facts goes to no issue and is to be disregarded by the Court. He referred the Court to the case of; Overseas Construction Ltd Vs Creek Enterprises Ltd (1985) 3 NWLR (Pt.13) at 407.
Learned counsel contended that PW1 (Samuel Ude) is the managing director of the Respondent company and he is not a party to the proceedings. He maintained that there is distinction between a registered company and its directors and members. He referred the Court to the cases of;
Union Bank of Nigeria Ltd vs Penny-mart Ltd 1992 5 NWLR Pt 24 Pg.228 at 237.
NDIC Vs Vibelko Nigeria Ltd 2006 All FWLR Pt.336 Pg. 386 at 399.
He submitted that whereas the Respondent company has averred in its statement of claim before the Court below that the Appellant (2nd defendant) made a guarantee in its favour to pay for the debt incurred against it by Emeka Oriebosi, the evidence on the record from the testimony of PW1 and PW2 is to the effect that the said guarantee was made in favour of PW1 (Samuel Ude).
Learned counsel maintained that the facts pleaded by the Respondent company in its statement of claim before the Court below is that the goods in issue which were supplied to Emeka Oriebosi belongs to it, yet the evidence of PW1 and PW2 shows that the goods belongs to PW1 (Samuel Ude). Also, while the Respondent company claim before the Court below that the defendants jointly were owing it the sum of N2,178,400.00 and prayed the Court for recovery of same in its favour in addition to the interest charges and cost of litigation, the evidence of PW1 (Samuel Ude) shows that the debt is being owed him personally and prays the trial Court for recovery of same in his favour.
He submitted that the Court below was wrong in law to have awarded judgment against the Appellant as claimed despite the fact that there was no iota of evidence to support the facts pleaded against the Appellant in the Respondent Company’s statement of claim. He maintained that the Court below ought to have dismissed the claim of the Respondent Company against the Appellant in view of the fact that the said Respondent Company failed to prove its case by evidence against the Appellant. He referred the Court to the case of; Efetiroroje vs Okpalefe II (1991) 5 NWLR (Pt.193) Pg.517 at 533.
He urged the Court to uphold the appeal and dismiss the said claim of the Respondent Company against the Appellant accordingly.
The contention of the learned Appellant’s counsel is that the Respondent has not adduced any evidence to support the facts pleaded against the Appellant in its statement of claim. Now can it be said so? I do not think so.
I have carefully examined the record of this appeal; there is no doubt that PW1 is the Managing Director of the Respondent Company. The law is that a company is in law a person distinct from its promoters or directors. However, a director of a company is in the eyes of the law, an agent of the company for which he acts and the general principle of the law of principal and agent would apply. Where a Director enters into a contract in the name of or purporting to bind the company, it is the company which is liable on it and not the director. See; Okolo Vs U.B.N Ltd (2004) 3 NWLR (Pt.859) Pg. 87 at 119 – 120.
Also by virtue of section 65 of the Companies and Allied Matters Act 1990, any act of a managing director while carrying on in usual way the business of the company shall be treated as the act of the company itself. See; Hoston Nig. Ltd Vs A.C.B Plc (2002) 12 NWLR (Pt.782) Pg.623 at 644 – 645.
The Chairman or Director of Limited Liability Company is an agent of the company. See; Essang Vs Aureole Plast. Ltd (supra) at 182.
An agent acting on behalf of a known and disclosed principle incurs no liability. This is because the act of the agent is the act of the principle. The situation is as if it was the principal that did what the agent did or omitted to do what the agent omitted to do. The common law rule is expressed in the latin maxim “qui facit per alium facit per se ipsam facere vindetur” Which means; He who does an act through another is deemed in law to do it himself. See; Essang Vs Aureole Plast. Ltd (2002) 17 NWLR (Pt.795) Pg.155 at 181.
I have gone through the evidence of PW1 at page 13 to 16 of the printed record and that of PW2 at page at pages 26 of the printed record. I am inclining not to agree with the Appellant that there is no evidence supporting the Respondent’s case at the lower Court. PW1 in his testimony stated clearly that on 21/6/04 he (PW1) gave the 1st Defendant (Emeka Oriebosi) goods worth N2,245,000.000 (which the Appellant guaranteed to pay in case the 1st defendant fails) and he was issued invoice Receipt No. 07629 of the Respondent company on 2/6/2004 in the said sum of N2,245,000.00 the said invoice was admitted by the trial Court as Exhibit A without any objection by the appellant. Also PW2, testified that the Appellant agreed with PW1 to pay the price of the goods if the 1st defendant fails. It is my opinion that all acts done by PW1 as Managing Director of the Respondent Company with the appellant he did it as agent of the Respondent.
Also, there is nowhere in paragraph 7 of the Respondent’s statement of claim, where the Respondent company pleaded that the debt in issue is being owed it by the Appellant and Emeka Oriebosi jointly. Paragraph 11 of the respondent’s statement of claim only contains claims jointly and severally against the 1st and 2nd defendants.
The principles cited in the cases of FCDA Vs Naibi (Supra) and Overseas Construction Ltd Vs Creek Enterprises Ltd (supra), by the learned counsel to the appellant are not applicable to the instance case. The era of technicality is past, pro-activity and functionality is now the order of the day in adjudication. The law in fact develops better when interpreted in terms of its utility rather than the hard and dry lifeless letter of technicality.
Where evidence adduced in support of the plaintiff’s claim is unchallenged and uncontroverted as in the instance case, the trial Court ought to act on it. See; Trade Bank Plc Vs Chami (2003) 13 NWLR (Pt. 386) Pg.158 at 220.
This lone issue is resolved in favour of the Respondent.
Therefore, this appeal lacks merit and it is accordingly dismissed. The decision of the lower Court is hereby affirmed.
There is no order as to cost.
ITA GEORGE MBABA, J.C.A.: I agree with the reasoning and conclusions of my brother Abdu Aboki JCA, that the appeal lacks merit and should be dismissed.
I too dismiss the appeal and abide by the consequential orders in the lead judgment.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Abdu Aboki, JCA. His Lordship has considered and resolved the issues in contention in this appeal. I agree with the conclusion that there is no merit in this appeal, but differ on the resolution of the notice of preliminary objection of the Respondent to the appeal.
The Respondent filed a notice of preliminary objection to the appeal and which preliminary objection was argued by Counsel to the Respondent before the hearing of the substantive appeal. The gravamen of the preliminary objection was that the appeal was incompetent and that this Court lacked jurisdiction to entertain same on the ground that the grounds of appeal of the Appellant were incompetent grounds. It was the contention of Counsel to the Respondent that matter raised in the second ground of appeal was a fresh one that was not canvassed before the lower Court and was being raised for the first time and that leave of this Court was not obtained before the Appellant raised same and it was thus incompetent and he referred to the cases of Ogba Vs Onwuzo (2005) All FWLR (Pt.275) 581 and Enang Vs Adu (1981) 11 -12 SC 25. Counsel stated that the issue of whether the testimony of the first plaintiff witness was at variance with his pleadings was not raised or argued at any point in the trial Court and the trial Court did not pronounce on it.
Counsel stated further that the said second ground of appeal raised both issues of fact and law and that leave of Court was also required to raise it, otherwise it was incompetent and he referred to the case of Ehinlawo Vs Oke (2008) All FWLR (Pt 442) 1007. Counsel stated that the second ground of appeal was liable to be struck out and the effect of this was that since the Appellant formulated a sole issue for determination from the two grounds of appeal, the issue becomes incompetent as an issue for determination cannot be formulated from a competent ground of appeal and an incompetent ground of appeal together. Counsel urged this Court to uphold the preliminary objection and strike out the appeal.
In response, Counsel to the Appellant stated that the second ground of appeal challenged the failure of the trial Court to evaluate the evidence led before it and that such a ground of appeal is a complaint against what a trial Court ought to do but refused to do and that such a ground of appeal was a valid and competent ground of appeal and he referred to the case of Independent National Electoral Commission Vs Usman Abubakar (2008) All FWLR (Pt 442) 1163. Counsel stated that the contention in the second ground of appeal was that the evidence given by the first plaintiff witness was at variance with the facts pleaded and as such there was no evidence before the trial Court to justify the judgment entered in favour of the Respondent and that such ground of appeal cannot be impeached on the ground that it was being raised for the first time and no leave of Court was necessary to raise it.
Counsel stated further that by virtue of section 241(1)(a) of the 1999 Constitution an appellant can file an appeal against a first judgment of the Federal High Court or High Court sitting as a Court of first instance, as in the present case, as of right, irrespective of whether the ground of appeal is of fact or law or mixed law and fact and that no leave was required to file any such ground of appeal and he referred to the case Aqua Ltd vs Ondo State Sports Council (1988) 4 NWLR (Pt 91) 622. Counsel urged this Court to dismiss the notice of preliminary objection.
The preliminary objection of the Appellant was predicated on two grounds – (i) that the second ground of appeal raised a fresh matter without leave of Court; and (ii) that the second ground of appeal was on mixed law and fact and that leave was required to raise it. The second ground of appeal read thus:
The Court below erred in law when it gave judgment against the Appellant (second defendant) in favour of the Respondent (then plaintiff) in the amount claimed despite the fact that no evidence whatsoever was given by the Respondent in support of the material facts pleaded by the said Respondent in its statement of claim.
Particulars
a. Whereas by paragraphs 5 and 6 of the statement of claim the Respondent averred that the Appellant requested that goods be supplied by the Respondent to one Emeka Oriebosi on credit basis on the guarantee of the Appellant made to the Respondent to pay for such supplied if default is made by Emeka Oriebosi to lay for same after two weeks of delivery, let the evidence of PW1 and PW2 before the Court below is to the effect that the alleged guarantee was made by the Appellant in favour of Samuel Ude (PW1) as opposed to the Respondent (Andy Sam Investment Company Ltd).
b. Whereas by paragraph 7, 11(a), 11(b) and 11(c) of the Respondent’s statement of claim the said Respondent (Andy Sam Investment Company Ltd) pleaded that the debt in issue is being owed it by the Appellant and one Emeka Oriebosi and prayed the Court for recovery of same in its favour, yet the evidence of PW1 before the said Court is to the effect that the debt in issue is being owed PW1 (Samuel Ude) who prayed the Court below for an order directing the payment of same to him by the defendants in the case plus 10% interest and cost of the action.
c. Even though the said Samuel Ude (PW1) claimed to be the Managing Director of the Respondent, yet in law, each has separate and distinct personalities.
d. Whereas the said Samuel Ude was not a party to the suit No K/623/2004 which was tried by the Court below.
It must be sated that this ground of appeal is very badly crafted, but reading it shows that it complained about the use made by the lower Court of the evidence led by the Respondent through its witnesses and that the evidence did not constitute admissible that should have been relied on as it was not pleaded. This is a complaint that is largely against the evaluation of the evidence carried out by the lower Court. The law is that a ground of appeal complaining against evaluation of evidence or the wrongful admission or rejection of evidence by a trial Court is part of the main trial and can be raised against the final judgment -Oguma Associated Co (Nig) Ltd Vs International Bank for West Africa Ltd (1988) NWLR (Pt 73) 658, Onwe Vs Oke (2001) 3 NWLR (Pt 700) 406, Shell Petroleum Development Co. (Nig) Ltd Vs Olanrewaju (2002) 16 NWLR (Pt.792) 55. It cannot thus be treated as a fresh issue in an appeal against a final decision. It is a competent ground of appeal. The first ground of the preliminary objection was thus no well founded.
The second ground of the preliminary objection shows a lack of proper understanding of the provisions of section 241(1) and 242(1) of the Constitution of the Federal Republic of Nigeria 1999 by Counsel to the Respondent. Section 241(1) states, in part, that an appeal shall be as of right from the final decision of the High Court or the Federal High Court and where the appeal is on grounds of law alone while section 242(1) states that appeal from the decisions of the High Court or of the Federal High Court to the Court of Appeal in all other instances, apart from those provided for in section 241(1), shall be with the leave of Court. These provisions have been severally interpreted by the Courts to mean that leave to appeal is required where the appeal is against an interlocutory decision of the High Court and the grounds of appeal are either on mixed law and facts or on facts alone, and that no leave to appeal is required where the appeal is against an interlocutory decision of the High Court and it is on grounds of law alone or where the appeal is against a final decision of the High Court irrespective of whether the grounds of appeal are on mixed law and facts or facts alone – Globestar Engineering Company (Nig) Ltd Vs Malle Holdings Ltd (1999) 10 NWLR (Pt 622) 271, Ahamefule Vs Imperial Medical Center (2005) 5 NWLR (Pt 917) 51, NIC Vs Acean Insurance Co Ltd (2007) 6 NWLR (Pt 1031) 589, Kalagbor Vs General Oil Ltd (2008) All FWLR (Pt 418) 303. The present appeal is against a final decision of the High Court of Kano State and as such leave to appeal was not required to appeal on ground of mixed law and facts.
The notice of preliminary objection was totally misconceived and I hereby dismiss same.
On the merits of the substantive appeal, I agree with the lead judgment that the appeal lacks merit. I too dismiss the appeal and affirm the judgment of the lower Court.
Appearances
S.E. King Esq.For Appellant
AND
M.N. Duru Esq. with J.A Ogedah Esq.For Respondent
