JOZEBSON INDUSTRIES CO (APPELLANT)
v.
R. LAUWERS IMPORT-EXPORT (RESPONDENT)
(1988) All N.L.R. 310
Division: Supreme Court of Nigeria
Date of Judgment: July, 1, 1988
Case Number: (S.C. 188/1986)
Before: Nnamani, Uwais, Kawu, Belgore, Agbaje, JJ.S.C.
The appellant brought an action on the undefended list against the respondent in the High Court, Onitsha in which it claimed N1,176,382.54. The respondent filed a notice of intention to defend.
On the return date, the trial Court entered judgment in view of the admission of the claim to the extent of N904,644.39. After that the respondent applied by a motion for an order of Instalmental payment which was granted on expressed terms. An application for leave to appeal against the ruling was filed by the respondent although it was struck out because parties and their Counsel were absent when it was called. Later still, there was an application by the respondent for the variation of the order of the instalmental payment which was granted and there were appearances of both sides for the purpose of resolving interest payable on the amount claimed which had been reserved by the Court.
Between 20/3/84 and 23/9/86 the respondent paid N432,851.05 in part settlement of the judgement debt pursuant to the order of instalmental payment. There was yet another application for leave to appeal by the respondent against a ruling refusing an application to discharge a writ of execution issued against it which the Court of Appeal granted.
Then on 8/7/86 the respondent applied to Court of Appeal for enlargement of time within which to appeal against the judgment of 25/3/84 and other reliefs. The respondent alleged that his former Counsel did not advise him that he had a right of appeal and that, that judgement was nullity because the plaintiff had no capacity to sue.
The Court of Appeal granted the reliefs to the respondent holding that a prima-facie case had been made out on the ground of jurisdiction and fundamental irregularity and that it was satisfied that the reason for delay in appealing within time had been made out without stating why it so held. It is against this decision, the appellant appealed to the Supreme Court.
HELD:-
(1) A ground of appeal which incorporates the particulars is good even when the particulars are not contained under a separate heading in as much as they have incorporated in the grounds of Appeal reasons for saying that the errors of law alleged have been committed.
(2) The judgment in question in this appeal is not on its face expressed to be a consent judgment. The highest one can say about the judgement is that the defendant in the case admitted liability to the sum of N904,644.39 in the claim against it and because of this admission judgment was entered against the defendant in that sum. In effect, the defendant submitted to judgment in the sum stated.
(3) Having held as I have just done that the judgement in question is not a consent judgment, it follows that there is no basis for holding that the judgment is caught by the provisions of section 220 sub-section 2(c) of the Constitution of the Federal Republic of Nigeria, 1979. It follows therefore that there was no need in my judgment for the defendant to ask for an extension of time within which to ask for leave to appeal against the judgment. I therefore hold that the application before the lower court for an extension of time within which to appeal without an application for extension of time within which to apply for leave to appeal was properly before that Court.
(4) I am at a loss to find anything in the affidavit in support of the application for an extension of time within which to appeal or in the facts and circumstances leading up to the application for the extension of time within which to appeal anything entitling the defendant to the indulgence he was asking for. In short I cannot possibly hold that the affidavit in support of the application set forth good and substantial reasons for failure by the defendant to appeal within the prescribed period.
(5) It is trite to say that a resolution of the point whether grounds of appeal prima-facie show good cause why an appeal should be heard must necessarily involve a consideration of the grounds of appeal in relation to at least the judgment sought to be appealed against.
(6) It is clear beyond a peradventure that the judgment in respect of which the application for the extension of time within which to appeal was made was given against the defendant not because the claim was in an undefended list and the defendant was not let in to defend it but because the defendant admitted liability in the sum in which judgment was given against it i.e. N904,644.39. So even if there were irregularities in the course taken by the Plaintiff in putting the case on the undefended list those irregularities ceased to be of any moment once the defendant appeared in Court and admitted liability and judgment was given on that admission.
(7) Any grounds of appeal complaining about irregularities in this case having regard to its being on the undefended list will be of no significance at all and cannot be said to have shown prima-facie good cause why an appeal against the judgment should be heard.
(8) An issue not raised or properly raised before the court is not a subject-matter for adjudication in the High Court. As the defendant did not raise any issue relating to capacity of the Plaintiff to sue before the trial court, the court had no duty to decide on it and an appeal court cannot do anything about it either.
(9) It is trite to say that non-compliance with rules of Court will not necessarily result in the judgment given in the case being set aside and it is also clear that once a step is taken in the proceedings by the party complaining about the breach of the rules of court he is said to have waived the breach.
Appeal allowed.
B.O. Anyaduba for the Appellant.
F.M. Obianyo for the Appellant.
Cases referred to:-
(1) Adejumo v. Governor of Lagos State (1970) 1 N.L.R. 1983
(2) Akinyede v. Appraiser (1971) 1 ALL N.L.R 161
(3) Alhaji Salati v. Alhaji Shehu (1986) 1 NWLR 198
(4) Aseimo v. Amos (1975) 25 C. 57
(5) Attorney-General of Bendel State v. Attorney General of the Federation and 22 Others (1982) 3 N.C.L.R. (Vol 3) 1
(6) Bowayi v. Adediwura (1976) 6 S.C. 143
(7) Boyle v. Sacker (1888) 39 Ch. Division 249 C.A.
(8) Chandless-Chandless v. Nicholson (1942) 2 K.B. 321
(9) Chief Kwame Asante v. Chief Kwame Taiwa (1949) WACA or 149 W.N. 40
(10) Doherty v. Doherty (1964) 1 All N.L.R. 279
(11) Demuren v. Asuni (1967) 1 All N.L.R. 94
(12) Eboh v. Akpotu (1968) 1 All N.L.R. 220
(13) Evans v. Bartlam (1937) A C 130
(14) Finding v. Finding (1939) 2 All E. R. 173
(15) Hakido Kpema v. The State (1986) 1 N.W.L.R. Part 17 page 396
(16) Joab Ezomo v. George Oyakhire (1985) 2 S.C. 260
(17) Johnson v. Aderemi 13 W.A.C.A 297
(18) Joseph Manstrup Din v. Attorney-General of the Federation (1986) 1 NWLR 471
(19) Kitchen Equipment Ltd. v. Staines Catering Group Int. No FCA/1/17/82 decided on 28/2/83 unreported.
(20) Kudero v. Alaka 1 F.S.C. 86
(21) Lewis and Peat (N.R.I.) Ltd, v. A.E. Akhimien (1976) 7 S.C. 157
(22) Mustapha v. Governor of Lagos State (1987) 2 N.W.L.R. 537
(23) Niger Construction Ltd. v Okugbemi (1987) 4 N.W.L.R. 287 at Part 67
(24) N.W.R.D. v. Jaiyesimi (1963) (1 All N.L.R.215)
(25) Ojogbue v. Nnubia (1972) 6 S.C. 227
(26) Saka Atuyeye and others v. Emmanuel O. Ashamu (1987) 1 N.W.L.R Part 149 page 267
(27) Silken Consult (Nig) Ltd. v. Ukey (1981) 1 S.C. 6
(28) Solanke v. Ajibola (1968) 1 All N.L.R. 46
(29) Sonuga v. Anadein (1967) 1 All N.L.R. 91
(30) Tozier v. Hawkins (1885) 15 Q. B. D. 650
(31) Ukpe Ibodo & others v. Igusasi Enarofa and others (1980) 5-7 S.C.42
(32) University of Lagos v. Olaniyan (1985) 1 N.W.L.R. 156
(33) University of Lagos and 1 or v. M. I. Aigoro (1985) 1 N.W.L.R.143
(34) Western National Bank v. Perez. (1891) 1 Q. B. 304
(35) Williams v. Hope Rising Voluntary Funds Society (1982) 1-2 S.C 145
(36) Williams v. Williams (1987) 2 N.W.L.R. 66
(37) Word v. James (1966) 1 Q. B. 273
Statutes referred to:-
(1) Constitution of the Federal Republic of Nigeria 1979.
(2) Court of Appeal Rules 1981 as amended by the Court of Appeal Amendment Rules 1984.
(3) High Court Rules Cap. 61 Laws of Eastern Nigeria Applicable to Anambra State.
A.G.O. Agbaje, J.S.C. The plaintiffs, R. Lauwers Import-Export, sued the defendant company Jozebson Industrial Co. Ltd., in the High Court of Justice of Anambra State in the Onitsha Judicial Division in 1984 for the sum of N1,176,382.54 being the amount due from the defendant to the plaintiff on various bills of exchange. The claim by the plaintiff against the defendant was clearly headed `Claim on the Undefended List." Pursuant to this claim a civil summons with suit No. 0/123/84 between the plaintiff and the Defendant was issued in the Onitsha High Court registry on 16th March 1984. The summons was marked on the top of it "Undefended List" and the return date of the summons was 20th March. 1984. The claim of the plaintiff which as I have just said was headed "claim on the undefended List" was attached to the summons. The summons with its annexure was served on the Defendant who on 17th March 1984 filed in the Onitsha High Court registry a notice of intention to defend the plaintiff's suit.
The suit was called in court on the return date, 20th March, 1984. And in view of the issues arising for determination in this appeal I have to reproduce in full the record of the proceedings of that day. It is as follows:-
"R. LAUWERS IMPORT & EXPORT PLAINTIFF
JOZEBSON INDUSTRIES DEFENDANT
Parties present.
Mr Anyaduba B. for Plaintiff.
Mr Okwudili for Defendant.
Court: In view of the admissions of claim to the extent of N904,644.39 subject to proper conversion (sic) rate; there will be judgment for the sum of N904,644.39 subject to proper conversion (sic) rate: Both Counsel have agreed for an adjournment to 29/5/84 to report back on the interest rate. Costs of this action is assessed and fixed at N2,500.00.
(SGD) F.O. NWOKEDI JUDGE 20/3/84"
So it transpired that on 20/3/84 judgment was entered by Nwokedi J., for the plaintiff on the admission of liability by the defendant in the sum of N904,644.39 plus costs assessed at N2,500.00.
The scenarios which emerged after this judgment were as follows in chronological order:-
(i) By an application dated 30th April, 1984 the defendant by his counsel. H.G.O, Okwudili Esq. moved the Onitsha High Court for an order of that court that the judgment debt be liquidated by instalments. The application was heard on 29th May 1984. The court gave its ruling on it on the same day in the following terms:-
(1) Defendant/Applicant is to make a down payment of N250,000.00 and thereafter from 1st July to pay N30,000.00 monthly until the whole debt is paid off. Failing which the plaintiff/respondent will be left to fall back to his legal remedies."
(ii) There was an application in June 1984 by the defendant in the Onitsha High Court for leave to appeal against the ruling on the application for an order instalmental payments. The application was struck out on June 15, 1984 for non-appearance of parties or their counsel.
(iii) There was an application again by the defendant for an order of court varying the order for instalmental payments of 29/5/84. The application was heard and determined as follows on 5/7/84:-
"Court: Having heard application for Defendant to vary the earlier order by this Court for the company to pay N250,000.00 and N30,000.00 monthly until the debt is liquidated and after considering the arguments of both sides especially the present economic hardship in the country the court decided to vary its order by ordering Defendant to make a down payment of N70,000.00 and thereafter N20,000.00 monthly until the debt is finally paid off."
(iv) There were appearances in court for the determination of the issue of the proper interest rate, to which the judgment of 20/3/84 was subject, on 10/12/84, 21/3/85 and 21/5/85. It does not appear from the record of proceedings in this appeal how the issue was resolved. Nothing turns on this issue in this appeal. So I need not dwell any more on this aspect of the matter.
(v) During the period between 20/3/84 and 23/9/86, the defendant paid to the plaintiff a sum of N432,851.05 in liquidation of the judgment debt pursuant to the order for instalment payments thereof.
(vi) Subsequently, upon default by the defendant in making further instalmental payments, the plaintiff caused execution to be levied for the balance of the judgment debt. Whereupon the defendant applied to the Onitsha High Court for the writ of execution to be discharged. Ruling on the application on 28/4/86, Awogu J., as he then was, refused it.
(vii) Pursuant to an application by the defendant, the Court of Appeal, Enugu Division granted the defendant leave to appeal against the ruling of Awogu J. (as he then was) of 28/4/86 and a stay of execution of the judgment in suit No.O/23/84, the judgment debt to which the application before Awogu J. related.
(viii) Thereafter by an application dated 8th July, 1986 the defendant moved the Court of Appeal, Enugu Division for the following reliefs:-
"(1) To enlarge the time within which to appeal against the judgment of Hon. Mr Justice F.O. Nwokedi of the Onitsha High Court in the above suit dated 20/3/84.
(2) (i) To dispense with settlement of records and regard the documents containing records of proceedings herein exhibited containing the claim marked under undefended list, notice of intention to defend, judgment and applications and orders for instalmental payment as sufficient for purpose of this appeal as no oral evidence or any document was taken or tendered.
(ii) To regard the Notice and Grounds of Appeal exhibited herein with this application as being proper Notice of Appeal and deemed as properly filed and served on the plaintiff/respondent subject to payment of proper fees.
(iii) For STAY OF further Execution of the judgment debt or any further payments of any instalments of the said judgment debt as ordered to be paid, till the determination of the Appeal."
The reasons for the delay in appealing within the period prescribed by law are contained in the following paragraph of the affidavit in support of the application.
Para. 20. That I do not know anything about Court processes and procedure, and I relied entirely on my solicitor, N.C.O.
Okwudili Esq., for my defence and guidance.
Para. 28. That our former Counsel, N.C.O. Okwudili Esq., did not tell me or advise me, and I did not know, not being a lawyer, that we could appeal against the judgment.
Para. 33. That our failure to appeal within time was due to no fault of ours, but due to either inadvertence or an error on the part of our former solicitor in not appealing or advising us to appeal against the judgment."
The proposed grounds of appeal are as follows, without their particulars:-
GROUNDS OF APPEAL ERROR IN LAW:
The learned trial Judge erred in law in entertaining the action when he had no jurisdiction and/or lacked jurisdiction to entertain the suit as constituted, when there was no plaintiff before him, and the purported plaintiff, had no capacity to sue, or be sued thus making the whole trial and judgment a nullity.
2. ERROR IN LAW:
The learned trial Judge erred in law in assuming jurisdiction to adjudicate in a proceeding that has not been instituted in a proper manner, or in a proceeding, instituted in breach of the rules of Court or provisions of statute.
3. ERROR IN LAW:
The learned trial Judge erred in law in entertaining the action giving judgment their (sic) on when there was neither any claim nor statement of claim before the court known to law."
(ix) The application was heard and determined by the Court of Appeal, Enugu Division, Coram Aseme, Olatawura and Aikawa JJ.C.A. on 23/9/80. The lead ruling was read by Aseme, J.C.A. in which Olatawura and Aikawa JJ.C.A. concurred. In his short ruling Aseme, J.C.A. in granting the application before the Court of Appeal held as follows:-
"In view of these, time is hereby extended up to Monday 29th September 1986, for applicant to appeal. Exhibit H, Notice and Grounds of Appeal are deemed to have been properly filed. With regard to the prayers of WAIVER of the settlement of record of Appeal this Court grants this prayer and the documents exhibited in this motion and deemed to be the record for the purpose of this appeal. If Mr Anyaduba wishes to file further papers necessary for the appeal he is at liberty to file them within two weeks. The filing of Brief is hereby dispensed with in order to facilitate the hearing of the Appeal. The prayer for Stay of Execution is hereby granted. The appeal is fixed for mention on 4th November, 1986."
It is against the ruling of the Court of Appeal of 23/9/86 that the plaintiff has now appealed to this Court on the following grounds of appeal:-
"(1) ERROR IN LAW:
The Court of Appeal erred in law and did not direct itself in granting the prayer of the Defendant Applicant/Respondent for leave to Appeal out of time without adverting its mind properly to the provisions of Order 3, rule 4(2) Court of Appeal Rules 1981 as amended by the Court of Appeal (Amendment) Rules 1984 which provided:-
"Every application for an enlargement of time in which to appeal shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period and by grounds of appeal which prima facie show good cause why the appeal should be heard"
(2) ERROR IN LAW:
The learned trial Justices of the Court of Appeal allowed Respondents' Counsel to argue extensively the NOTICE AND GROUNDS OF APPEAL exhibited and thus got themselves carried away by the effusions therein contained.
(3) ERROR IN LAW:
The learned Justices of the Court of Appeal erred in law in making the following Orders:
"4. That waiver of settlement of Records of Appeal is granted and the documents Exhibited in this motion are deemed to be the Records for the purposes of this appeal. 5. That if Mr Anyaduba wishes to file further papers necessary for the appeal, he is at liberty to file them within two weeks;
(4) ERROR IN LAW:
The Court of Appeal was wrong in law to have entertained the Respondents application for extension of time to appeal out of time when the whole of the documents filed in the Court of Appeal were photocopies of documents and not certified true copies properly obtained from the Registrar of the High Court, Onitsha.
(5) ERROR IN LAW AND NON-DIRECTION:
The Learned Justices of Appeal erred in law in granting a Stay of Execution of the Judgment debt and did not direct their minds to the fact that the Defendant/Applicant/Respondent had substantially complied with the judgment by paying over N400,000 to the Appellants.
(6) ERROR IN LAW AND NON-DIRECTION:
The learned Justices of the Court of Appeal erred and failed to direct themselves properly in law in granting an Order for Stay of Execution of the Judgment of High Court, Onitsha dated 20/3/84 in respect of which Judgment of the same Court of Appeal had made previous Orders for instalmental payment, extension of time within which to liquidate the Judgment debt and suspension of the Writ of Execution without first discharging those previous orders."
On 11th May, 1987 the plaintiff sought and obtained leave of this honourable court to argue seven additional grounds of appeal some of them raising questions of mixed law and fact. It would not have been necessary for me to re-produce these grounds of appeal had the defendant not in his brief of argument raised any objection to this Court entertaining them. Since the objection has been raised I must therefore resolve it and in doing so I have to set down the additional grounds of appeal alongside the objection to it. The additional grounds of appeal are as follows:-
"GROUND 1
ERROR IN LAW:
The learned Justices of the Court of Appeal erred in law in granting the Respondent extension of time within which to appeal continue without adverting its minds properly to the provisions or Order 3, rule 4(2) of the Court of Appeal Rules 1981 which provides that "Every application for enlargement of time in which to appeal shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be..."
GROUND 2
ERROR IN LAW:
The learned Justices of the Court of Appeal erred in law in granting the Respondent an Order for extension of time to appeal when there was no application by the Respondents for extension of time within which to apply for leave to appeal.
GROUND 3
The learned Justices of the Court of Appeal acted in breach of section 220(2)(c) of the Constitution of the Federal Republic of Nigeria 1979 which enacts as follows:-
220(2) (c) "Nothing in this section shall confer any right of appeal without the leave of a High Court or of the Federal Court Appeal, from a decision of the High Court made with the consent of the parties..."
GROUND 4
ERROR IN LAW:
The learned Justices of the Court of Appeal erred in law when they stated in the Ruling/Order/Judgment thus:
"With regard to prayers for waiver for the settlement of records of Appeal, this Court grants this and the documents exhibited in this action and deemed to be the record for the purpose of this appeal. If Mr Anyaduba wishes to file further papers necessary for the appeal, he is at liberty to file them within two weeks."
GROUND 5
ERROR IN LAW:
The Court of Appeal acted in breach of fundamental principles of AUDI ALTERAM PARTEM Mr F. M. Obianyo, of Counsel to the Respondents was allowed to argue his motion for over one hour. When it came to the turn of Mr B.O. Anyaduba, of Counsel for the Appellants to reply, Mr B.O. Anyaduba had hardly started when the presiding Judge, the Honourable Mr A.I. Aseme shouted him down and restricted him to 2 sentences.
As there was no brief filed the reply of the Appellants is not reflected.
The Appellants will at the hearing of the Appeal seek the leave of the Supreme Court for their Counsel to argue the points, not raised in the Court below as a result of denial of audience.
GROUND 7
ERROR IN LAW:
The learned Justices of the Court of Appeal erred in law in entertaining Respondents. Application based on Exhibit `J' described by Respondents as the proceedings in High Court Onitsha when the said record did not emanate and was not transmitted from the Registry of the High Court Onitsha to the Court of Appeal, Enugu, and when at a close look, the said Exhibit `J' are not the certified true copy of the proceedings in the H