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FOREST ENGINEERING LTD & ANOR v. SANUSI (2022)

FOREST ENGINEERING LTD & ANOR v. SANUSI

(2022)LCN/16685(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Monday, November 21, 2022

CA/K/104/2019

Before Our Lordships:

Ita George Mbaba Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Between

1. FOREST ENGINEERING LIMITED 2. NAJIB ELIYASU KHOURY APPELANT(S)

And

ALHAJI GARBA SANUSI (Trading Under The Name And Style Of Alhaji Garba Sanusi & Sons) RESPONDENT(S)

 

RATIO

WHETHER OR NOT GROUNDS OF APPEAL MUST ARISE FROM THE DECISION OF THE COURT APPEALED AGAINST

The law is well settled that grounds of appeal can only arise from the decision appealed against: Adelekan v. Ecu-Line NV (2006) LPELR-113 (SC) p.15; Asalu v. Dakan & 6 Ors (2006) LPELR-573 (SC) p.9. See more particularly Co-operative & Commerce Bank Plc & Anor v. Jonah Dan Okoro Ekperi (2007) 3 NWLR (Pt. 1022) 493; (2007) 1 S.C. (Pt.11) 130; (2007) LPELR-876 (SC) p.16 -17 where it was said by Onnoghen, JSC, (later CJN) that:
“It is settled law that for grounds of appeal to be valid and competent, they must be related to the decision being appealed against and should constitute a challenge to the ratio of the decision appealed on appeal. It is still good law that where a ground of appeal as formulated does not arise from the judgment and purports to raise and attack an issue not decided by the judgment appealed against as is evident in the instant appeal, the same become incompetent and liable to be struck out.”
In Mercantile Bank of Nigeria Limited v. Linus Nwobodo (2005) LPELR-1860 (SC) p.8 this obvious point was again re-emphasized by Pats-Acholonu, J.S.C., with His Lordship saying that:
“It is always an elementary law that grounds of appeal must of necessity arise from the judgment, ruling or decision or any pronouncement of the Court below. When a ground has not the remotest connection with what the Court below decided and which agitated the mind of the appellant to seek for a review and overturn the decision, but he misconceived what he ought to complain against and confused himself by setting up a case not in existence, the Appellate Court would naturally throw away the incompetent appeal.”
PER UGO, J.C.A.

WHETHER OR NOT A DEFENDANT CAN APPLY TO THE COURT TO SET ASIDE A JUDGMENT WHERE THE COURT ENTERS JUDGMENT FOR A PLAINTIFF IN A SUIT PLACED ON THE UNDEFENDED LIST, OR FILED FOR SUMMARY JUDGEMENT

We have held several times that where a Court enter judgment for a plaintiff in a suit, placed on the undefended list, or filed for summary judgment, the defendant, if not satisfied (especially if he was not in Court) can apply to the same Court to set aside the said judgment, or appeal against the said decision to the Court of Appeal. But where he chose to seek the setting aside of the decision, and failed, he can either appeal against the order refusing to set aside the summary judgment or appeal against the earlier decision (summary judgment). He cannot appeal against both. See the case of Onwuka & Ors Vs Onwuka (2019) LPELR-48819 CA, where we held:
“Of course, at the point of failure to get the said judgment set aside by the Appeal Court, that judgment remains good and binding, beyond the reach of the trial Court or the appellate Court to entertain any complaint on, or to further review it as both the trial Court and appellate Court become functus officio, in the matter. In the case of Nwaigwe & Ors Vs Anyanwu (2016) LPELR – 40613 CA, it was held that a party who is dissatisfied with a default judgment can either apply to the trial Court to set it aside or appeal against it to the Appeal Court. He cannot do both, simultaneously. We said: Appellant, who had sought the order of the trial Court, to set aside a default judgment, is not barred from appealing against the default judgment, if the application to the trial Court to set aside the said judgment fails. And at that point, the Appellant can elect to appeal against the decision refusing to set aside the default judgment, or against the original decision i.e. the default judgment. What, I think, the Appellant cannot do is to take the two appeals at the same time or separately, as the same objective would be expected. See also Ehighibe vs Ehighibe (2016) LPELR – 40047 (CA); Ministry & Ors Vs Udenwa & Ors (2018) LPELR-45755 (CA); Idiata vs Ejeko (2005) 11 NWLR (Pt.936) 517.
PER MBABA, J.C.A.

BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This Appeal is against the decision of the Kano State High Court of 29th July 2016, delivered by Abdullahi M. Bayero J. (as he then was) entering judgment on the Undefended List for Respondent as plaintiff against the two appellants as defendants. The amount for which judgment was entered was N79,699,000.00 (Seventy-Nine Million and Six Hundred and Ninety-Nine Thousand Naira) and represented balance of the payment for the supply of 6300 bags of cement to the 1st defendant valued at N12,510,000 (Twelve Million, Five Hundred and Ten Thousand Naira only), and the supply of 8000 cubic metres of stone base to the 1st defendant valued at N26,000,000.00 (Twenty-Six Million Naira), together with interest as agreed by the parties, which amount has remained unpaid despite repeated demands by the respondent. Respondent also sought payment of 5% interest on the said amount per month from the 5th day of March 2016 to the date of judgment and thereafter interest at 10% until the judgment sum is liquidated.

​Appellants, it is most important to point out, never filed any process in the trial High Court of Kano State to contest the application, as is expected of them by the Rules of that Court if they were opposed to it. On the contrary, they were even represented by their counsel in one Mr. Saidu T/Wada on the 29th July 2016 who, when Respondent’s application for summary judgment of his claim under the Undefended List came up for hearing before Bayero J. of the Kano State High Court, on 29/7/2016, informed the Court in the most unmistakable terms that appellants had no defence to the action.

It was on that basis, Bayero J. granted Respondent’s application and entered summary judgment for him on the Undefended List against appellants. For ease of reference, I hereby reproduce what transpired before the lower Court on the 29th July 2016 when the judgment now appealed against was entered:
29-7-2016
Mr. S.J. Gani, Mr. Haliru Yakubu, for plaintiff.
Mr. Saidu T/Wada for defendants.
Mr. Gani: We have an application for summary judgment. we are ready to move it.
Mr. Saidu: We have no defence to the claim.
Court: Pursuant to Order 11 Rule 5(2) of the Rules of the Court 2014 judgment is hereby entered in favour of the Plaintiff and against the defendants jointly and severally in the sum of N79,699,000.00 being the balance of payment for the supply of 6,300 bags of cement.
Mr. S.J. Gani: We apply for costs of N130,000.
Mr. Saidu: We oppose the application for cost.
Court: N130,000 cost awarded.
SGD.
Hon. Judge
29/7/206
(Emphasis mine)

Appellants, having later applied unsuccessfully to set aside that judgment, have brought this appeal against this summary judgment of 29/7/2016 even as they also have another appeal on exactly the same grounds against the decision of the lower Court of 14/3/2017 refusing their application for setting aside of the judgment. Curiously, appellants only succeeded in raising in this appeal issues which were only raised by them and decided by the lower Court in their application for setting aside. They complained in their six grounds of appeal, as contained in their Amended Notice of Appeal of 4/3/19 but deemed properly filed on 5/3/19, as follows:
GROUND ONE
The trial Court erred in law when it found as a fact that the 2nd appellant acted for the 1st appellant and still found him jointly and severally liable for the alleged act or omission of the latter.
PARTICULARS
1. The trial Court found as a fact that the 2nd appellant allegedly acted for the 1st appellant in respect of the transaction between the respondent and the 1st appellant.
2. The 2nd appellant was disclosed agent of a known principal.
3. The Court however erred when that it held in view of 2nd appellant’s signing certain exhibits on behalf of the 1st appellant, he was jointly and severally liable with the 1st appellant.
GROUND TWO
The lower Court erred in law when it held that the suit was competent when there was no valid statement on oath accompanying the writ of summons in compliance with the High Court Rules, 2014.
PARTICULARS
1. The respondent tiled an English translated version of his statement on oath.
2. The vernacular version of the statement on oath did not accompany the statement of claim in compliance with the dictates of the law.
3. The trial Court also misconstrued the purport and extent of the rule in MARKUS NATINA GUNDIRI & ANOR VS. REAR ADMIRAL M.H. NYAKO & 6 ORS (2014) 2 NHLR, PART 1391, PG. 211 when it sought to distinguish between validity of writ of summons and procedure for summary judgment under Order 11 of the Kano State High Court Rules,2014.
GROUND THREE
The trial Court erred in law when it failed or refused to set aside its judgment given on the 29th July, 2016 for want of jurisdiction.
Particulars
1. The judgment of the 29th July, 2016 was predicated on a flawed writ of summons.
2. The writ of summons filed by the respondent was not accompanied by a valid statement on oath in line with the Kano State High Court Rules, 2014.
3. The Rules of Court preclude such originating processes which are not supported by valid supporting processes to be incompetent notwithstanding that it was accepted for filing by the Registrar.
4. The Supreme Court in Markus Natina Gundiri & Anor Vs. Rear Admiral M.H. Nyako & 6 Ors (2014) 2 NWLR, (Pt. 1391) p. 211 has also taken it beyond Contestation that such invalid Statement on Oath is not cognizable in law as such void.
5. It is further settled that such invalid statement on oath is not Cognizable in law, void and thus ousts the jurisdiction of the Court to entertain the suit ab initio.

GROUND FOUR
The trial Court erred in law when it refused or failed to set aside its judgment of 29th July, 2016 when the motion upon which the judgment was had and granted was not moved by the respondent at trial thereby granting an unmoved application.
Particulars
1. The suit at the lower Court was commenced under the Summary Judgment procedure of the Kano State High Court Rules, 2014.
2. Besides filing the writ of summons and accompanying processes, the rules require that the applicant files an application for summary judgment.
3. On the day when judgment was supposedly entered in favour of the respondent, learned counsel for the respondent failed to move his application for summary judgment.
4. Despite this omission in paragraph (3) above, the learned trial Judge still went ahead to grant the prayers contained thereon the application.
5. It is settled law that a Court of law lacks the requisite vires to grant what is not expressly prayed for by a litigant.
6. The appellant by way of an application dated 4th August, 2016 challenged the purported judgment of the lower Court to no avail.
7. The trial Court refused that said application to set aside the beleaguered judgment relying on the supposition that Order 11 of the Kano State High Court Rules, 2014 enjoins it to allow such application for summary judgment notwithstanding that same was not moved.
GROUND SIX
The trial erred in law when it held the respondent’s claim disclosed a cause action against the 2nd appellant when all the latter did was to act for and on behalf of 1st appellant, a disclose principal.
Particulars
1. The 1st appellant and the respondent had a contractual agreement between themselves inter se.
2. The 2nd appellant was neither a guarantor nor a surety for the 1st Appellant.
3. The 2nd appellant was not in any way part of the formal contract between the 1st appellant and the respondent.
4. The 2nd appellant, at all time material to the contract between the 1st appellant and respondent acted for and on behalf of the 1st appellant, a body corporate and disclosed principal to the knowledge and agreement of the respondent.
5. It is trite law that agents of a disclosed principal bear no liability for the default or omission of his principal.

6. It is also settled law that there can be no cause of action disclosed against an agent of a disclosed principal subject to certain exceptions.

7. The trial Court therefore erred where it held that the mere signing of certain documents by the 2nd appellant for and on behalf of his principal makes him a necessary party in the suit ab initio.

The law is well settled that grounds of appeal can only arise from the decision appealed against: Adelekan v. Ecu-Line NV (2006) LPELR-113 (SC) p.15; Asalu v. Dakan & 6 Ors (2006) LPELR-573 (SC) p.9. See more particularly Co-operative & Commerce Bank Plc & Anor v. Jonah Dan Okoro Ekperi (2007) 3 NWLR (Pt. 1022) 493; (2007) 1 S.C. (Pt.11) 130; (2007) LPELR-876 (SC) p.16 -17 where it was said by Onnoghen, JSC, (later CJN) that:
“It is settled law that for grounds of appeal to be valid and competent, they must be related to the decision being appealed against and should constitute a challenge to the ratio of the decision appealed on appeal. It is still good law that where a ground of appeal as formulated does not arise from the judgment and purports to raise and attack an issue not decided by the judgment appealed against as is evident in the instant appeal, the same become incompetent and liable to be struck out.”
In Mercantile Bank of Nigeria Limited v. Linus Nwobodo (2005) LPELR-1860 (SC) p.8 this obvious point was again re-emphasized by Pats-Acholonu, J.S.C., with His Lordship saying that:
“It is always an elementary law that grounds of appeal must of necessity arise from the judgment, ruling or decision or any pronouncement of the Court below. When a ground has not the remotest connection with what the Court below decided and which agitated the mind of the appellant to seek for a review and overturn the decision, but he misconceived what he ought to complain against and confused himself by setting up a case not in existence, the Appellate Court would naturally throw away the incompetent appeal.”

​Accordingly, this appeal brought against the very brief four-line uncontested summary judgment of the lower Court of 29/7/2016 earlier reproduced yet complains only about findings and decisions made by the same Court in its later ruling of 14th March 2017 on appellant’s application to set aside that same judgment – which decision is the subject of another appeal before this Court in Appeal No CA/K/104/2019 – is hereby struck out.
Respondent is entitled to costs of N300,000.00 against the appellants.

ITA GEORGE MBABA, J.C.A.: I agree with the lead judgment just delivered by my learned brother, B. M. Ugo, JCA, that the appeal is devoid of merit.

I think it was wrong for the appellant to embark on this appeal, and pursue it, with Appeal No. CA/K/104/2019; which was against the decision of the trial Court to set aside the summary judgment in the same suit No. K/177/2016, whereof the trial Court had entered judgment for the respondent, upon the appellant filing no Notice of intention to defend and actually saying they had no defence to the suit.

​We have held several times that where a Court enter judgment for a plaintiff in a suit, placed on the undefended list, or filed for summary judgment, the defendant, if not satisfied (especially if he was not in Court) can apply to the same Court to set aside the said judgment, or appeal against the said decision to the Court of Appeal. But where he chose to seek the setting aside of the decision, and failed, he can either appeal against the order refusing to set aside the summary judgment or appeal against the earlier decision (summary judgment). He cannot appeal against both. See the case of Onwuka & Ors Vs Onwuka (2019) LPELR-48819 CA, where we held:
“Of course, at the point of failure to get the said judgment set aside by the Appeal Court, that judgment remains good and binding, beyond the reach of the trial Court or the appellate Court to entertain any complaint on, or to further review it as both the trial Court and appellate Court become functus officio, in the matter. In the case of Nwaigwe & Ors Vs Anyanwu (2016) LPELR – 40613 CA, it was held that a party who is dissatisfied with a default judgment can either apply to the trial Court to set it aside or appeal against it to the Appeal Court. He cannot do both, simultaneously. We said: Appellant, who had sought the order of the trial Court, to set aside a default judgment, is not barred from appealing against the default judgment, if the application to the trial Court to set aside the said judgment fails. And at that point, the Appellant can elect to appeal against the decision refusing to set aside the default judgment, or against the original decision i.e. the default judgment. What, I think, the Appellant cannot do is to take the two appeals at the same time or separately, as the same objective would be expected. See also Ehighibe vs Ehighibe (2016) LPELR – 40047 (CA); Ministry & Ors Vs Udenwa & Ors (2018) LPELR-45755 (CA); Idiata vs Ejeko (2005) 11 NWLR (Pt.936) 517. The Respondent’s Counsel had argued that one who has sought the appellate Court to set aside a default judgment but failed, that is, his appeal against the refusal of the trial Court to set the default judgment also fails, the same cannot apply again to the Appeal Court for extension of time to appeal against the default judgment, as the decision dismissing the appeal against the refusal to set aside the judgment remains an issue estoppel and estopped the further step to appeal.”

I too strike out the appeal and abide by the consequential orders in the lead judgment.

ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft, the judgment delivered by my learned brother BOLOUKUROMO MOSES UGO, JCA and I am in complete agreement with the reasoning and conclusion reached that this appeal is struck out. I abide by all the consequential orders as contained in the lead judgment.

Appearances:

A.L. Yusuf, Esq. with him, Abdulafees D. Khalid, Esq. For Appellant(s)

S.J. Gani For Respondent(s)