BICHI INVESTMENT NIGERI LIMITED & ORS v. JGB VENTURES & ANOR (2016)

BICHI INVESTMENT NIGERI LIMITED & ORS v. JGB VENTURES & ANOR

(2016)LCN/8487(CA)

In The Court of Appeal of Nigeria

On Friday, the 15th day of April, 2016

CA/K/160/11

RATIO

APPEAL: EFFECT OF A DECISION OF COURT NOT APPEALED AGAINST
The law is that where there is no appeal against a decision of the Court, that decision is inviolate. See Compagnie Generale De Geophysique (Nig) Ltd v. Aminu (2015) 7 NWLR (Pt. 1459) Page 577 at 594 Para A-B per Rhodes-Vivour, JSC; Oleksandr v. Lonestar Drilling Co. Ltd (2015) 8 NWLR (Pt. 1464) Page 337 at 371 para A-B per Kekere-Ekun, JSC. PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
APPEAL: EFFECT OF ISSUES RAISED ON APPEAL NOT DERIVED FROM THE JUDGMENT OF THE LOWER COURT
The law is that an issue which was not raised, argued and pronounced upon by a trial Court cannot be validly raised as a ground of appeal or as an issue for determination before the Appellate Court. Such an issue or argument is not competent and goes to no issue. See Compagnie Generale De Geophysique (Nig.) Ltd v. Aminu (2015) 7 NWLR (Pt. 1459 page 577 at 591 para G per Rhodes-Vivour JSC; Idufueko v. Pfizer Products Ltd (2014) 12 NWLR (Pt. 1420) Page 96 at 122 para A per Galadima, JSC. PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
JUDGMENT: CONSENT JUDGMENT; GROUNDS FOR SETTING ASIDE A CONSENT JUDGMENT
It was held in Vulcan Gases Ltd. v. G. F. Ind. A.G. (2001) 9 NWLR (Pt. 719) page 610 at 649 Para D, per Iguh, JSC that “a consent judgment or order is as effective in law in respect of all the matters which are therein settled as any other judgment or order arrived at after the matters are fully fought out to the end.”
As further held by the said jurist, at Page 644 Para F-G “It is long settled that a consent judgment or order made by a court to give effect to the compromise of a legal claim by the parties may be set aside, not only on the ground of fraud, but for any other reason which would afford a good ground for setting aside the agreement on which the judgment or order is based, e.g. on the ground of a common mistake, fraudulent misrepresentation or misconception.”
In Race Auto Supply Company Limited & Ors v. Alhaja Faosat Akib (2006) 13 NWLR (Pt. 997) page 333 at 359-360 Para H-A, the Supreme Court, per Ogbuagu, JSC held that “a consent judgment constitutes a final judgment of the Court and it is only appealable with the leave of the Court.” PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
ACTION: POWERS OF A COUNSEL IN RELATION TO HIS CLIENT
It settled law that the amplitude of the authority of a Counsel acting on behalf of a client includes the power to concede or consent to a compromise, settlement on behalf of his client or to the entry of verdict against his client in a matter, and where it is not shown that the authority of the Counsel was expressly limited and did not include the power to make such a concession, the client is bound by it and cannot canvass against it Vulcan Gases Ltd v. Gesellschaft Fur Industries A.G. (2001) 9 NWLR (Pt. 719) 610, Afegbai v. Attorney-General, Edo State (2001) 14 NWLR (Pt. 733) 425, Amori v. Iyanda (2008) All FWLR (Pt. 416) 1864. PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

JUSTICES

IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria

Between

1. BICHI INVESTMENT (NIG.) LTD.
2. MBM CONCEPTS (NIG.) LTD.
3. HON. MAHUD BALA BICHI Appellant(s)

AND

1. JGB VENTURES
2. CHIEF (DR.) FRANK A. ONOTU Respondent(s)

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): The Respondents in this appeal, as Plaintiffs before the lower Court, by their Statement of Claim dated 25th August 2009, sought against the Appellants, a refund of N3,038,781.00 (Three Million, Eight Thousand, Seven Hundred and Eighty One Naira) being the advance payment made to the Appellants, representing 12% of the failed contract sum for the rural electrification of some towns in Kano State. This was followed by a Motion for Summary Judgment. In response to these processes, the Appellants, as Defendants, entered appearance, filed a Statement of Defence and also a Notice of Preliminary Objection. The lower Court, in a considered ruling delivered by Zailani J (as he then was), dismissed the Preliminary Objection as lacking in merit. At the hearing of the Motion for Summary Judgment, the Appellant indicated no opposition thereto, in consequence of which judgment was entered in favour of the Respondents as prayed. Dissatisfied, the Appellants filed a Notice of Appeal on 22/3/2011 against the judgment of the said Court delivered on the 7th March 2011.

Briefs of Argument were filed and exchanged. In the Appellants Brief of Arguments, settled by Anarya’a Aishatu Fali and filed on 9/12/14 but deemed properly filed on 9/3/15 pursuant to an application for extension of time, the following were stated by counsel to be the issues for determination:
1) The learned trial Judge erred in law when he delivered ruling in favour of the Respondents in a suit that is patently statute barred.
2) The learned trial Judge erred in law when he delivered ruling in favour of the Respondents on the basis of incompetent process.
3) The decision of the lower Court is against the weight of evidence.

The Respondents’ counsel, Chief J. A. Ajayi, in the Respondents’ Brief of Arguments dated 7/07/15 and filed on 13/7/15, formulated the following issues for determination:
1) Whether having regards to the issues raised and addressed before the lower trial Court, to which rulings were delivered this Hon. Court can be called upon to re-open same argument without leave, on the absence of appeal on the interlocutory decision of the lower Court on same.
2) Having regards to the Plaintiffs respondents’ claim

before the lower trial Court, whether cause of action arose when the money for the procurement of the contract was paid in 2003 or when it became impossible, to found for the application of Kaduna State Limitation Law 1991.
3) Whether this Hon. Court can be persuaded to set aside or over rule consent Judgment in a monetary case, conceded to by the Appellants in the absence of any fraud, perversion of Justice or misrepresentation of facts before the Court.

As pointed out by the Respondents’ Counsel in oral address, while adopting Respondents’ Brief of Arguments, the “issues for determination” raised by the Appellants’ Counsel are largely a repetition of the grounds of appeal. Issues for determination, however, must be framed from the grounds of appeal and cannot be a repetition of those grounds.

I shall accordingly adopt the issues for determination raised by the Respondents, albeit rephrased, namely:
1. Whether the Appellants can be heard to complain against the ruling of the lower Court delivered on the 8/2/11 when no appeal was filed against the same.
2. Whether the lower Court erred in law in entering judgment in favour of the

Respondents.

The Appellants’ Counsel complained in her “issues” 1 and 2 against the Ruling of the Court delivered on 8/2/11 consequent upon the Appellants’ Notice of Preliminary Objection. She argued that the Respondents’ claims at the trial Court were statute barred, contrary to Section 18 of the Limitation Law of Kaduna State 1999 and decided authorities. The lower Court was therefore in error to have, in its Ruling, decided otherwise, as the Respondents by reason of the statute bar were left with an empty cause of action. She cited Faroly Establishment v. NNPC (2011) 5 NWLR (Pt. 1241) page 461; Liverpool and London Steamship Protection and Indemnity Association Ltd v. M/T Tuma and 2 Ors (2011) 15 NWLR Port 1271 Page 619.

She submitted, in addition, that the Respondents, contrary to Order 15(1) and (3) of the Kaduna State High Court (Civil Procedure) Rules 2007, filed a Written Address in opposition to the Preliminary Objection eight weeks instead of 7 days after service on them of the Preliminary Objection, without the leave of Court first having been sought and obtained.
?
In response, the Respondents’ Counsel submits that, contrary to Section

24 (2)(a) of the Court of Appeal Act 2010 the Appellants failed to appeal against the interlocutory decision of the Court within the 14 days stipulated. They also failed to seek the leave of this Court to appeal, contrary to Section 2 of the said Act. Furthermore, raising the issue of time lapse in the filing of the Respondents’ written address, not being an issue canvassed before the lower Court, cannot be brought up in this Court without the leave of the Court. He cited the cases of Fadare v. A.G. Oyo State (1982) 4 SC Page 1 and Koya v. UBA Ltd (1997) 1 NWLR (Pt. 481) page 251.

The Ruling of the Court complained of by the Appellants was delivered on 8/2/2011 and was consequent upon a Notice of Preliminary Objection, dated 26/4/2010 filed by the Appellants, seeking the following:
“NOTICE OF PRELIMINARY OBJECTION
TAKE NOTICE that at the Hearing of this suit, the Defendants/Applicants will by Preliminary Objection urge this Honourable Court to dismiss the entire Suit on the following grounds:
1. The Plaintiff/Respondent Suit is statute-barred.
2. Lack of proper service on 1st and 2nd Defendants/Applicants.
3. The

Plaintiff/Respondent has no cause of action against the Defendants/Applicants.
4. This Honourable Court lacks jurisdiction to entertain this suit.
SUCH FURTHER NOTICE(S) as this Honourable Court may deem fit to make in the circumstances.
TAKE FURTHER NOTICE that at the hearing of this application, Counsel for the Defendants/Applicants shall rely on the Written Address accompanying Notice of Preliminary Objection.”

Following a consideration of the submissions of Counsel, contained in their written addresses filed, the lower Court, in a considered ruling dismissed the Preliminary Objection filed by the Appellants as lacking in merit, holding that the suit was not caught by the Limitation Act.

I note, however, that the Notice of Appeal filed by the Appellants is not in respect of this Ruling. The Notice of Appeal, filed on 22/3/11 states as follows:
“Take Notice that the Appellants being dissatisfied with the judgment of Zailani J. of the High Court of Justice Kaduna which was delivered on 7/3/11 do hereby appeal to the Court of Appeal upon the grounds set out in Paragraph 3 and will at the hearing of the appeal seek the reliefs set

out in Paragraph 4.
PART OF THE DECISION OF THE LOWER COURT COMPLAINED OF GROUNDS OF APPEAL
GROUND ONE
The Learned Trial Judge erred in law when he delivered in favour of the Respondents in a Suit that is potently statute-barred.
PARTICULARS OF ERROR
a. The Respondents claim if for enforcement of a simple contract.
b. The Respondents cause of action according to the Writ of Summons and Paragraph 1 of Statement of Claim arose in 2003.
c. The Writ of Summons was filed in 2009.
GROUND TWO
The Learned Trial Judge erred in low when he entered Summary Judgment against the Appellants without considering Appellants Defence to the action.
PARTICULARS OF ERROR
a. The Appellants filed a Defence on the merits to the action as provided by the Rules of Court.
b. The Learned Trial Judge did not consider the Statement of Defence and Witness Deposition on oath before delivering judgment against the Appellants.
GROUND THREE
The Learned Trial Judge erred in law when he proceeded to hear the Respondents Motion for Summary Judgment when it was not the business of the day’s

proceedings.
PARTICULARS OF ERROR
a. The case was adjourned for Pre-Trial Conference (PTC)
b. The Trial Court proceeded with the Hearing of the Respondents Motion for summary judgment.
GROUND FOUR
The decision of the lower Court is against the weight of evidence.
3. RELIEFS BEING SOUGHT FROM THE COURT OF APPEAL.
(a) ORDER allowing the Appeal.”

From the foregoing, the complaint of the Appellants in their Notice of Appeal is against the judgment of the Court delivered on 7/3/11. There was no appeal against the Ruling of the Court delivered on 8/2/11.

While a party can include an appeal against a ruling in an interlocutory application, in a Notice of Appeal against the final judgment in a case, the appeal against such interlocutory matters must be filed, I hold, within 14 days as provided for in Section 24 (2)(a) of the Court of Appeal Act. If the 14 days period has elapsed, however, leave of this Court must be sought and obtained before such matters are incorporated in the final Notice of Appeal, otherwise the ground of appeal will be struck out. Where they are not so incorporated in the Notice of Appeal the Court

will refuse to allow a ground of appeal on such interlocutory matter. See Kakih v. PDP (2014) 15 NWLR (Pt. 1430) Page 374 at 407 Para B-F per Galadima, JSC; Owoniboys Technical Services Ltd v. U.B.N. Ltd (2003) 15 NWLR (Pt. 844) Page 545 at 592-593; Abiola v. Olawoye (2006) 13 NWLR (Pt. 996) Page 1 per Galinje, JCA

In the instant case, there was no appeal against the Ruling of the Court delivered on 8/2/11 neither was leave sought by the Appellants to appeal against the Ruling out of time. The consequence is that the 1st ground of appeal complaining about the judgment delivered in favour of the Appellant when the suit was statute barred is incompetent and is accordingly struck out.

The law is that where there is no appeal against a decision of the Court, that decision is inviolate. See Compagnie Generale De Geophysique (Nig) Ltd v. Aminu (2015) 7 NWLR (Pt. 1459) Page 577 at 594 Para A-B per Rhodes-Vivour, JSC; Oleksandr v. Lonestar Drilling Co. Ltd (2015) 8 NWLR (Pt. 1464) Page 337 at 371 para A-B per Kekere-Ekun, JSC.

?The Appellants, I accordingly hold, cannot thus be heard to complain against the ruling of the lower Court delivered on 8/2/11

when no appeal was filed against the same. The decision of the lower Court is thus inviolate and cannot be challenged.

With regard to the complaint of the Appellants on the failure of the Respondents to file their written address in opposition to the Notice of Preliminary Objection within the 7 days stipulated, the Appellant, not having sought leave of this Court to raise this issue, the same not having been canvassed in the lower Court, cannot, I hold, be heard on this issue. The law is that an issue which was not raised, argued and pronounced upon by a trial Court cannot be validly raised as a ground of appeal or as an issue for determination before the Appellate Court. Such an issue or argument is not competent and goes to no issue. See Compagnie Generale De Geophysique (Nig.) Ltd v. Aminu (2015) 7 NWLR (Pt. 1459 page 577 at 591 para G per Rhodes-Vivour JSC; Idufueko v. Pfizer Products Ltd (2014) 12 NWLR (Pt. 1420) Page 96 at 122 para A per Galadima, JSC.

I accordingly resolve the 1st issue for determination against the Appellant and in favour of the Respondents.

The 2nd issue for determination is:
Whether the lower Court erred in law in

entering judgment in favour of the Respondents.

Learned Counsel to the Appellants, in a three line submission on this issue, submitted that “considering the processes and the affidavit evidence before the Court, the learned trial Judge erred when he entered judgment in favour of the Respondents”.

Learned Counsel to the Respondents contends, however, that the Appellants consented to the judgment. In addition, the Kaduna State High Court (Civil Procedure) Rules 2007 made provision for summary judgment when there is no substantial defence on the merits. Judgment under the summary judgment procedure cannot ordinarily be set aside in the absence of fraudulent misrepresentation, he argued.

The Motion of the Respondents before the lower Court for Summary Judgment, dated 26th August 2009, is as follows:
“IN A MATTER OF THE APPLICATION FOR SUMMARY JUDGMENT PURSUANT TO ORDER 11 OF THE HIGH COURT CIVIL PROCEDURE RULES 2007 AND THE INHERENT POWERS OF THE HON. COURT
TAKE NOTICE that the Honourable Court will be moved on the 7th day of March 2009, at the hour of 9 o’clock in the forenoon or shortly thereafter, as counsel on behalf of the

Applicant, pray the Court for:
1. An order granting Applicant summary judgment against the Defendants in the sum of N3,038,781.00 (Three million, eight thousand, seven hundred and eighty one naira) being money advanced to the Defendants, for the procurement of a sub-contract from the Defendants as contained in the statement of claim and Exhibits thereat attached.
2. An order granting summary judgment and awarding general damages in the additional sum of N1,000,000.00 (One million naira) for breach of the contract, the case of filling the suit, legal charges and ancillary expenses incurred by the plaintiff, resulting from the said breach from year 2003 to date.
3. And for such further order(s) the Honourable Court may consider expedient to make in the circumstance of this case.”

The facts contained in the Respondents’ affidavit in support of the Motion for Summary Judgment, in summary, are that the Appellants were awarded a contract by the Federal Ministry of Power, for the electrification of Mailikawa Sarari and Maikawa Gari, both in Kano State. The contract was sub-contracted to them for the contract sum of N28,136,864 (Twenty Eight

Million One Hundred and Thirty-Six Thousand Eight Hundred and Sixty-Four Naira). The Respondents paid 12% down payment of N3,038,781 to the Appellants in the name of the 1st Appellant, a subsidiary of the 2nd Appellant. However, it was discovered that another company had “encroached” on the contract. Representations by the 3rd Appellant to the Ministry of Power proved abortive. The Respondents thus seek a refund of their deposit paid.
?
The Appellants, in their statement of Defence filed, while admitting the contract and the down payment of 12% made by the Respondents, alleged the same to be the consideration for the re-award of the contract to them. They contend that, following the discovery that the Kano State Government had engaged another contractor to execute the contract, the 3rd Appellant at the Respondents’ behest, approached the Ministry of Power, who thence substituted another contract in the Tsanyawa, LGA of Kano State. It was when the Respondents discovered that the contract was without mobilization fees that they abandoned the project, seeking a return of the bank Guarantee earlier secured. They denied the entitlement of the Respondents to a

refund of any money paid to them.

The lower Court, following a dismissal of the Preliminary Objection adjourned the case for pre-trial Conference. On the scheduled date, the following transpired in Court:
’07-03-2011
Parties absent.
Chief J. A. Ajayi for the plaintiff.
Enatto Z. for the defendant.
CHIEF – We erroneously asked for pre-trial conference. However we have on application for summary trial filed with the writ of summons dated 26/08/2009. We move in terms of the motion for the summary trial.
ENATTO – We have no objection to the motion for summary judgment.
COURT – Having conceded to judgment and in view of the averments available in this application, I do hereby order the application as prayer. Consequently, judgment is entered for the plaintiffs and against the defendants as per the 1st and 2nd prayers of the application.
Signed Hon. Judge
07/03
12-04-2011
Parties absent.
Abdulmutallab Umar for the appellant.”
Underline mine.

?From the foregoing, the Appellants, it is clear, conceded to the summary judgment entered against them. Having consented to Judgment, it does not lie in

the mouth of the Appellants, I hold, to contend that the lower Court erred in law in entering judgment in favour of the Respondents.

It was held in Vulcan Gases Ltd. v. G. F. Ind. A.G. (2001) 9 NWLR (Pt. 719) page 610 at 649 Para D, per Iguh, JSC that “a consent judgment or order is as effective in law in respect of all the matters which are therein settled as any other judgment or order arrived at after the matters are fully fought out to the end.”
As further held by the said jurist, at Page 644 Para F-G “It is long settled that a consent judgment or order made by a court to give effect to the compromise of a legal claim by the parties may be set aside, not only on the ground of fraud, but for any other reason which would afford a good ground for setting aside the agreement on which the judgment or order is based, e.g. on the ground of a common mistake, fraudulent misrepresentation or misconception.”
In Race Auto Supply Company Limited & Ors v. Alhaja Faosat Akib (2006) 13 NWLR (Pt. 997) page 333 at 359-360 Para H-A, the Supreme Court, per Ogbuagu, JSC held that “a consent judgment constitutes a final judgment of the Court and it is only

appealable with the leave of the Court.”

Section 241(2)(b) of the 1999 Constitution, as amended provides:
“Nothing in this section shall confer any right of appeal-
a. from a decision of the Federal High Court or any High Court granting unconditional leave to defend an action;
b. from an order absolute for the dissolution or nullity of marriage in favour of any party who, having had time and opportunity to appeal from the decree nisi on which the order was founded, has not appealed from that decree nisi; and
c. without the leave of the Federal High Court or a High Court or of the Court of Appeal, from a decision of the Federal High Court or High Court made with the consent of the parties or as to costs only.”
Underlining Mine

There being no leave sought by the Appellants to appeal against the Consent Judgment delivered by the lower Court, the appeal of the Appellants, for all the reasons given above in this Judgment, cannot be sustained, I hold. The Judgment of the lower Court is thus inviolate, valid and subsisting. I again resolve the 2nd issue for determination against the Appellants.
?
Having resolved the two issues

for determination against the Appellants, this appeal, I hold, lacks merit and is accordingly dismissed. The judgment of the lower Court delivered on 7/3/11 is affirmed. Each party shall bear its own costs.

IBRAHIM SHATA BDLIYA, J.C.A.: I had the advantage of reading the draft of the lead judgment which my noble lord, Oludotun Adebola Adefope-Okojie, J.C.A. just delivered. I am in full agreement with the reasonings and conclusions contained therein. I have nothing useful to contribute to the erudite judgment, other than to adopt the reasonings and conclusions as mine, and to dismiss the appeal for lacking in merit.

I abide with the order made on costs.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the draft of the leading judgment delivered by my learned brother, Oludotun Adebola Adefope-Okojie, JCA. His Lordship has ably considered and resolved the issues in contention in the appeal. I agree that there is no merit in this appeal.

?The Respondent’s claim was for a liquidated money demand in the sum of N3,038,781.00. The parties exchanged

pleadings and the Respondent filed a motion for summary judgment. The Appellant filed a notice of preliminary objection and one of grounds of the objection was that the action was statute barred. The lower Court took arguments on the notice of preliminary objection and it dismissed same in a considered Ruling delivered on the 8th of February, 2011. The Appellant did not appeal against the Ruling. On the 7th of March 2011, Counsel the Respondent moved the motion for summary judgment and the Counsel to the Appellant conceded the motion. Consequently, the lower Court entered judgment thus:
“Having conceded to judgment and in view of the averments available in this application, I do hereby order the application as prayed. Consequently, judgment is entered for the plaintiffs and against the defendants as per the 1st and 2nd prayers of the application.”

The Appellants were dissatisfied with the judgment and their Counsel filed a notice of appeal dated the 22nd of March, 2011 against it and it contained four grounds of appeal. The first ground of appeal read thus:
“The learned Trial Judge erred in law when he delivered judgment in favour of the

Respondents in a suit that is patently statute barred.”

Counsel to the Appellants distilled his first issue for determination in the appeal from this ground of appeal. The first question that arises in this appeal is whether the ground of appeal and the issue for determination were proper suited for this appeal. Now, it is settled law that the only known and legitimate way or method of laying a complaint before a Higher Court or tribunal, to show grievances of an aggrieved party against a decision taken by an inferior court or tribunal, is by filing a notice of appeal which contains the grounds of appeal against that decision. The notice of appeal is the ‘spinal cord’ of an appeal. It is the foundation upon which an appeal is based. It is the originating process which sets the ball rolling for the proper, valid and lawful commencement of an appeal. It contains what the subject matter of the appeal is – Aderibigbe v. Abidoye (2009) 10 NWLR (Pt. 1150) 592, Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421, Dingyadi v. Independent National Electoral Commission (No. 1) (2010) 18 NWLR (Pt. 1224) 1.
?This present appeal was commenced by the notice of appeal of the

Appellants dated and filed on the 22nd of March, 2011. This notice of appeal is the foundation upon which the jurisdiction of this Court to entertain this appeal is predicated ? Uwazurike v. Attorney-General of the Federation (2007) 8 NWLR (Pt. 1035) 1, Odunze v. Nwosu (2007) 13 NWLR (Pt. 1050) 1 and First Bank of Nigeria Plc v. Maiwada (2013) 5 NWLR (Pt. 1348) 444. And the notice of appeal, just like pleadings, is binding on the parties – Federal Airport Authority of Nigeria v. Greenstone Ltd (2009) 10 NWLR (Pt. 1150) 624. It is also settled law that an appeal is an invitation to a higher court to review the decision of a lower Court in order to find out whether, on proper consideration of the facts placed before it and the applicable law, the lower Court arrived at the right decision – Oba v. Egberongbe (1999) 8 NWLR (Pt. 685) 485, Nigerian Navy v. Labinjo (2012) 17 NWLR (Pt. 1328) 56, Ombugadu v. Congress for Progressive Change (2013) 3 NWLR (Pt. 1340) 31.

Reading through the notice of appeal of the Appellant in this appeal, the subject matter of the appeal is the judgment of the High Court of Kaduna State in Suit No. KDH/KAD/769/2009 delivered

by Honorable Justice T. Zailani on the 7th of March, 2011. The brief of this Court in this appeal, therefore, is to find out whether on proper consideration of the facts placed before it, and the applicable law, the lower Court arrived at a correct decision in its said judgment of the 7th of March, 2011 the subject matter of the appeal. It is not within the brief of this Court in this appeal to review any other ruling or judgment of the lower Court outside the judgment delivered on the 7th of March, 2011, and this Court possesses no power or jurisdiction to set aside or nullify any other such ruling or judgment. This is because a Court of Appeal cannot set aside a judgment or ruling of a lower Court against which there is no notice and grounds of appeal legally filed before it – Anah v. Anah (2008) 9 NWLR (Pt. 1091) 75. In the absence of an appeal against a judgment, it remains inviolate for all time – Olawepo v. Security and Exchange Commission (2011) 16 NWLR (Pt. 272) 122, Emeka v. Okadigbo (2012) 18 NWLR (Pt. 1331) 55, Duru v. Federal Republic of Nigeria (2013) 6 NWLR (Pt. 1351) 441.

?Thus, it was incumbent that all the complaints on the appeal and the

issues for determination must be directed at the reasons for the judgment of the 7th of. March, 2011 appealed against. The law is that grounds of appeal must arise from the decision appealed against and the complaint must be against the ratio of the decision ? Federal Republic of Nigeria v. Mohammed (2014) 9 NWLR (Pt. 1413) 551, Ajayi v. Ajayi (2014) 15 NWLR (Pt. 1431) 588 and Okonkwo v. Okonkwo (2014) 17 NWLR (Pt. 1435) 18. It is also the law that issues for determination formulated in an appeal must flow from the judgment appealed against and it must attack the ratio of the judgment for it to be useful in an appeal – Acmel (Nig) Plc v. First Bank of Nigeria Plc (2014) 6 NWLR (Pt. 1402) 158, Tukur v. Interglobal Procurement Engineering Services Ltd (2014) 17 NWLR (Pt. 1437) 575.

The issue of statute bar was not raised or considered by the lower Court in the judgment of 7th of March, 2011, the subject matter of this appeal. It was considered and resolved by the lower Court in the Ruling delivered on the 8th of February, 2011. The Appellants did not appeal against that Ruling and they thus accepted the finding made therein by the lower Court that the

action of the Respondent was not statute barred as true and correct. The first ground of appeal of the Appellants in this appeal and the first issue for determination distilled therefrom were thus not properly suited for this appeal and they are liable to be struck out.

Counsel to the Appellants contended in this appeal that the lower Court erred in entering judgment on the motion for summary judgment without considering the processes and the affidavit evidence before the Court. It is not correct that the lower Court did not consider the affidavit evidence of the parties before entering judgment. The lower Court did consider the facts in the affidavit evidence and this is obvious from the opening statement of the lower Court in the judgment that “Having conceded to judgment and, in view of the averments available in this applicable”.
Additionally, it is obvious from the records of appeal that the Counsel to the Appellants conceded to the motion for summary judgment. It settled law that the amplitude of the authority of a Counsel acting on behalf of a client includes the power to concede or consent to a compromise, settlement on behalf of his client

or to the entry of verdict against his client in a matter, and where it is not shown that the authority of the Counsel was expressly limited and did not include the power to make such a concession, the client is bound by it and cannot canvass against it ? Vulcan Gases Ltd v. Gesellschaft Fur Industries A.G. (2001) 9 NWLR (Pt. 719) 610, Afegbai v. Attorney-General, Edo State (2001) 14 NWLR (Pt. 733) 425, Amori v. Iyanda (2008) All FWLR (Pt. 416) 1864. It was not the case of the Appellants in this appeal that their Counsel went beyond his instructions in conceding to the summary judgment sought by the Respondents before the lower Court. They cannot thus be heard to canvass against the judgment of the lower Court entered on the motion for summarily judgment of the Respondents.

It is for these reasons, and fuller exposition contained in the lead judgment, that I agree that this appeal is devoid of merit and I hereby dismiss the appeal. I affirm the judgment of the High Court of Kaduna State in Suit No. KDH/KAD/769/2009 delivered by Honorable Justice T. Zailani on the 7th of March, 2011. I abide the order on costs in the leading judgment.

Appearances

A. A. FaliFor Appellant

AND

Chief J. A. AjayiFor Respondent