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TV GOTEL v. SALIM KABEER GWANGWAZO (2019)

TV GOTEL v. SALIM KABEER GWANGWAZO

(2019)LCN/13493(CA)

In The Court of Appeal of Nigeria

On Thursday, the 13th day of June, 2019

CA/YL/123/2017

 

JUSTICES

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria

Between

TV GOTEL Appellant(s)

AND

SALIM KABEER GWANGWAZO Respondent(s)

RATIO

WHETHER OR NOT A GROUND OF APPEAL MUST ARISE FROM THE JUDGEMENT COMPLAINED AGAINST

An appeal is not a remedy provided to an aggrieved party to rake up matters that did not arise in the judgment. A ground of appeal must fall within the narrow compass of the judgment complained of or to matters raised at the trial and dealt with in the judgment or matters raised but upon which the trial Court made no pronouncement. See The Registered Trustee of All Christian World Missionary Out Reach International V. Aladejebi (2011) LPELR ? 5023 CAP 11 and Saraki & Anor V. Kotoye (1992) LPELR ? 3016 SC. PER ABIRIYI, J.C.A.

JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment) :This appeal is against the judgment delivered on 6th June, 2017 in the High Court of Adamawa State holden at Yola.

At the High Court (the Court below), the Respondent was the plaintiff and the Appellant was defendant/counterclaimant.
The claim of the Respondent against the Appellant was for:
1.Payment of Twenty Nine Million, One Hundred Thousand Naira (N29,100,000) only being the accrued sum of Appellant?s indebtedness to the Respondent.
2. Two million naira (N2,000,000) general damages for breach of contract agreement.
3. 4% interest on the principal sum and accrued interest from 17th November, 2015 until judgment.
4. 10% interest per annum on the sum of N29,100,000 from the date of judgment until final settlement of the judgment sum.
5.Cost of litigation assessed at N500,000.

The Appellant counterclaimed against the Respondent for:
a)An order directing the Respondent to pay the Appellant (2,785,000) being the sum for the films that were not suitable for transmission and films yet to be supplied by the Respondent.

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?b)Fivemillion naira general damages for breach of contract.
c)Costs of the suit.

The case of the Respondent as plaintiff was that he agreed with the Appellant for him to supply Hausa movies and musicals to the Appellant upon payment of 70% advance of the cost of the items to be supplied and 30% upon delivery of the movies and musicals. That he delivered the movies and musicals within four weeks as agreed but the Appellant failed to pay the remaining 30% of the agreed contract sum. After several demands, the Appellant paid him N1 million out of a balance of N2.1 million.

Although both parties agreed that the movies and musicals would be aired for only one year by the Appellant, the Appellant continued to air them long after the one year agreed upon which brought the total indebtedness to N29.1 million.

That he replaced the tapes complained of by the Appellant.

?In its defence and proof of counterclaim, the Appellant?s witnesses stated that the Respondent supplied only 159 copies of Hausa movies instead of 182 copies and 63 copies of Hausa musicals all recycled used DV Tapes instead of New DV Tapes. That out of the 159 movies supplied by

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the Respondent, 85 copies were found unfit for transmission while 71 copies were found suitable for transmission. The Respondent further supplied some Hausa movies on two hard drives (HDD) instead of the DV Tapes as stipulated in the agreement. One of the hard drives (HDD) was found to be empty while the other hard drive (HDD) did not contain up to 20 Hausa movies out of which only ten of the Hausa movies were found fit for transmission.

That the Hausa movies that were not suitable for transmission and the Hausa movies that were yet to be supplied by the Respondent amounted to N2,785,000.

After considering the evidence adduced by both parties and addresses of their counsel, the Court below entered judgment in favour of the Respondent and ordered the Appellant to pay a balance of N1.1 million of the contract sum to the Respondent as well as N5 million general damages.

The Appellant appealed to this Court by an original notice of appeal dated 12th June, 2017 and filed 19th June, 2017. The notice of appeal was amended by an order of this Court made on 16th January, 2019. The amended notice of appeal dated 28th January, 2019 was filed on 29th

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January, 2019. It contains three grounds of appeal.

From the three grounds of appeal, the Appellant presented the following three issues for determination in an amended Appellant?s brief of argument amended by order of this Court made on 16th January, 2019 which is dated 25th January, 2019 and filed on 29th January, 2019:
?1. Whether or not the trial Court have (sic) competence to adjudicate between the parties when the name of the Appellant does not disclose whether the Appellant is a legal personality.
2. Whether haven(sic) failed by the Defendant to formulate issue for determination in his counterclaim, the trial court was right to deems (sic) the counterclaim been abandoned.
3. Whether or not lack of evaluation of evidence and proceeding by the trial Court will lead to miscarriage of justice.?
The Respondent did not file any brief of argument.

Appellant?s counsel argued issue 1 separately and issues 2 and 3 together.

?On issue 1, learned counsel for the Appellant submitted that the name of the Appellant as reflected in the writ of summons is not a person known to law. Consequently, the Court did

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not have the competence to adjudicate between the parties. That the name of the Appellant as disclosed in the writ does not disclose that the Appellant is a legal person and that being a limited liability company registered under the Companies and Allied Matters Act must end with word ?LIMITED.?

It was submitted that the Appellant is an incorporated company registered under part A of the Companies and Allied Matters Act and it can only sue and be sued under its corporate name. The Court was referred to Ataguba V. Gura (2005) 126 LRCN 982 at 985.

It was submitted that a Court cannot engage in adjudication when the proper parties are not before it. The Court was referred to Lagos State Traffic Management Authority And Ors V. Esezobo (2015) AELR 7338 CA.

Suing a non-juristic person, it was submitted, renders whatever proceedings conducted a nullity.
As I pointed earlier, issues 2 and 3 were argued together.

It was submitted that the Appellant proved its counterclaim but the Court below at page 194 lines 1 to 4 of the record of proceedings stated thus:
?It is rather strange that the Defendant did not formulate any

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issue for determination in his counterclaim I will restrain myself from drawing a conclusion that he is not interested in his counterclaim.?

Issue for determination, it was further submitted, is only fundamental on appeal where an appellant must raise an issue for determination on each ground of appeal which is not so in a trial Court.

The Court was referred to Olaiya V. State (2010) All FWLR (Pt. 514) 3. The Court was referred to the evidence adduced by the Appellant at the trial and it was submitted that the Court below improperly treated the counterclaim as having been abandoned at page 198 ? 199 of the record.

The Court below, it was submitted, misconceived the facts when it held that the Appellant was not denying the basic facts in the Respondent?s pleading. The Court was referred to page 196 lines 12 and 13 of the record of proceedings. The Court below, it was argued, only relied on paragraphs 4.2 of plaintiff?s written address. The Court was referred to page 195 line 20 to page 196 of the record.

?It was submitted that cases are not decided on addresses in the trial Court but on credible evidence and no amount

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of brilliance in a final speech can make up a case when there is no evidence to prove and establish or disprove and demolish points in issue. The Court was referred to Ndu V. The State (1990) 7 NWLR (Pt. 164) 550.

The Court below, it was argued, did not rule on proceedings of 16th May, 2016 challenging the competency of a motion filed by the Respondent dated 20/04/2016. The Court was referred to page 138 to 140 of the record of proceedings where the matter was adjourned for ruling but that the ruling was never delivered. It was submitted that the Court below erred when it held that the first motion dated 20/04/2016 was withdrawn and struck out on 6th October, 2016. The Court was referred to the proceedings of 16/1/2016 at page 177 to 178 of the record. It was further contended that the ruling challenging the competency of the motion dated 20/04/16 was never delivered.

Learned counsel for the Appellant, submitted that the Court below erred when it allowed the Appellant who was Defendant to first file address even though it was the Respondent as plaintiff who led evidence last.

?It was submitted that the Appellant would be prejudiced by the

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Respondent being allowed to lead evidence after the close of the cases of both parties without seeking leave to do so. The Court was referred to Emirates Airline V. Ngonadi (2013) AELR 2690.

An appeal is not a remedy provided to an aggrieved party to rake up matters that did not arise in the judgment. A ground of appeal must fall within the narrow compass of the judgment complained of or to matters raised at the trial and dealt with in the judgment or matters raised but upon which the trial Court made no pronouncement. See The Registered Trustee of All Christian World Missionary Out Reach International V. Aladejebi (2011) LPELR ? 5023 CAP 11 and Saraki & Anor V. Kotoye (1992) LPELR ? 3016 SC. Ground One of the grounds of Appeal and Issue 1 distilled therefrom reproduced immediately hereunder read as follows:
?GROUND ONE
The trial Judge erred in law when it adjudicate on a party that have no legal personality to sue or be sued.
PARTICULARS OF ERRORS
1.That the name of the Appellant in this suit does not disclose that Appellant is a legal personality.
2.That the Appellant lacked the capacity to sue or be

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sued.?
ISSUE 1
?Whether or not the trial Court have(sic) competence to adjudicate between the parties when the name of the Appellant does not disclose whether the Appellant is a legal personality?
From the arguments on issue 1, it is nowhere indicated where the issue of whether or not the Appellant is a person known to law was raised. The matter was not dealt with in the judgment either.
Therefore, ground 1 of the grounds of appeal and issue 1 distilled therefrom are hereby struck out for being incompetent.

On issues 2 and 3, learned counsel for the Appellant contended that the Court below did not deliver ruling on the proceedings of 16th May, 2016. That is far from the position. See page 145 of the record where the Court in its ruling on the proceedings of that day ruled inter alia as follows:
?Counsel to the Plaintiffs submits that a motion is deemed moved and adopted in the absence of any objection from the adverse party and claimed that there are authorities to that effect but failed to provide the authorities. Defence counsel argued that if the plaintiff?s counsel fails to provide the authorities

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that means the motion would be rejected. Having failed to provide the said authorities, I agree with the counsel to the defendant that the motion be rejected for failure to produce authorities to back up his argument of tendering an affidavit without moving the motion first. Objection upheld accordingly.?

Consequent upon the foregoing ruling, the Respondent then filed a similar application with the rejected (not struck out) motion. The second motion was dated and filed on 10th October, 2016. The motion dated and filed 10th October, 2016 was granted on 16th January, 2017. See page 178 of the record. It is clear from the foregoing therefore that there was no unfinished business in respect of the motion dated 20/4/2016 and filed 29/4/16 and the one dated and filed 10th October, 2016.

?The motion dated and filed 10th October, 2016 was for leave to file the reply to the statement of defence and counterclaim. The learned counsel for the Appellant did not object to the granting of the application before it was granted after both parties had closed their cases. Learned counsel who did not object to the application cannot now complain that the Respondent

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was allowed to adopt the further written statement on oath of the only witness for the Respondent since he was given the opportunity to cross examine the witness.

The other complaint by learned counsel for the Appellant that Respondent?s counsel was allowed to file his written address after the Appellant?s counsel when the Respondent was the last to adduce evidence is of no consequence.

?I agree with learned counsel for the Appellant that the Court below erred when it held that Appellant was not denying the basic facts in the pleadings. The Appellant pleaded and led evidence of under-supply of the Hausa movies and supply of used DV Tapes instead of New DV Tapes. Also that some Hausa movies were found unfit for transmission. But on the evidence of Dw1, the Respondent further supplied some movies. In his further written statement on oath the Respondent stated that he replaced the tapes complained of and they were accepted by the Appellant. And on 29th June, 2012, he was paid N1 million. The witness was not cross examined on his further written statement on oath. The Court below was therefore correct when it found that the Respondent was

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entitled to the N1.1 million owed him by the Appellant. As the Court below rightly found, the materials supplied by the Respondent could not be faulty as claimed by the Appellant since the Respondent was paid N1 million on 29th June, 2012 out of the outstanding sum of N2.1 million remaining on paid.

At page 194 of the record, the Court below said it was strange that the Appellant did not formulate any issue for determination on his counterclaim but that it would restrain itself from drawing the conclusion that the Appellant was not interested in the counterclaim. I do not see why the Appellant should complain about that remark since the Court below did not proceed to infer that the Appellant was not interested in the matter but proceeded instead to formulate the following issue for determination: ?Whether the defendant has proved his counterclaim for the sum of N2,785,000= and other damages to entitle him to judgment.?

Learned counsel for the Appellant contended that the counterclaim was established, but that the Court below treated it as abandoned. The Court below considered the counterclaim at length in the judgment. See page 198 to 202

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of the record.

The finding by the Court below that the counterclaim was abandoned was only one of several reasons why the Court found the counterclaim not proved.

I agree with the Court below that the counterclaim was not proved.
Issues 2 and 3 should therefore be resolved against the Appellant.

They are accordingly resolved against the Appellant; and the appeal is hereby dismissed.

Although the Respondent claimed two million naira general damages for breach of contract, he was awarded five million naira general damages. This was wrong. That award is therefore set aside. Instead the Respondent is awarded general damages of two million naira for breach of contract.

CHIDI NWAOMA UWA, J.C.A.: I read in advance the draft copy of the judgment delivered by my learned brother JAMES SHEHU ABIRIYI, JCA. I agree with his reasoning and conclusion arrived at in dismissing the appeal, I adopt same as mine in also dismissing the appeal.

?ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.

 

 

 

 

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Appearances:

J. J. Shalli, Esq.For Appellant(s)

For Respondent(s)

 

Appearances

J. J. Shalli, Esq.For Appellant

 

AND

For Respondent