Legalpedia Citation: (2023-06) Legalpedia 30443 (CA)

In the Court of Appeal

KANO JUDICIAL DIVISION

Fri Mar 17, 2023

Suit Number: CA/KN/209/2020

CORAM

Usman Alhaji Musale JCA

Ita George Mbaba JCA

PARTIES

HARRIS TRAVEL AGENCY LIMITED

APPELLANTS

ORS v. LEADWAY ASSURANCE COMPANY LIMITED

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONTRACT, INSURANCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

At the trial Court (Kano State High Court), the Plaintiff (now Respondent) had claimed the sum of N29,117,531.18k (Twenty-Nine Million, One Hundred and Seventeen Thousand, Five Hundred and Thirty One Naira Eighty-One Kobo) being money due and payable to the Plaintiff by the Defendants on a default insurance protection programmed with International Air Transport Association (IATA) in which the Plaintiff insured the 1st Defendant and the 2nd and 3rd Defendants stood as guarantor and surety to the 1st Defendant to pay to the Plaintiff any unpaid sum of the 1st Defendant which IATA may call on the Plaintiff to pay. They also claimed other sums along with this.

The Defendants did not file notice of intention to defend the suit, but filed notice of preliminary objection on the ground that the writ was not filed in accordance with the current Rules of Court, 2014. The trial court entered judgment for the Plaintiff (Respondent).

The appellant was aggrieved by the decision hence the instant appeal.

HELD

Appeal dismissed

ISSUES

Ø  Whether the learned trial Judge was right, in the light of the facts presented by the Respondent and the Appellants before the Court, in their respective affidavit evidence to have granted the reliefs 1, 2 and 3 claimed by the Respondent, in spite of whether it was under the 1988 Kano State High Court Civil Procedures Rules or 2014 Kano State Civil High Courts Procedure Rules, that the matter is taken or not

RATIONES DECIDENDI

GROUNDS OF APPEAL – WHERE AN APPELLANT HAS FAILED TO TIE HIS ISSUES TO THE GROUNDS OF APPEAL

It is correct to say that Appellants’ Counsel did not tie any of the 3 issues to any of the 3 Grounds of the Appeal. That was a grave error, as Appellant is required to formally relate its issue for determination of appeal to the grounds of appeal, formally. But that failure or error does not, automatically, spell doom for the appeal, as it were, as the Appellate Court is expected to do extra work and read through the briefs, the grounds of appeal and records, to identify whether the issue(s) in fact, derive from the ground(s) of the appeal, and the same are founded on the judgment appealed against. See the case of Ukwuoma Vs Okafor (2016) LPELR – 41505 (CA):

“Of course, where Appellant’s Counsel fails to relate the issue(s) for the determination of the appeal to the ground(s) of appeal, he simply places more burden on the appellate Court, to read through the whole gamut of his Notice of Appeal, the grounds of appeal and the brief of arguments, particularly the issues distilled, to see which issue derived from which ground of appeal, thus, doing the work of marrying the issue(s) to the ground(s) for the Appellant’s Counsel. It would take a lot of patience and sacrifice to do that, and that is, where the interest of justice so demands, to avoid visiting the misfeasance of Counsel on his client. In the case of Agodi vs. Anyanwu (Supra), this Court opted to look at the grounds of appeal, identify which one gave birth to or properly related to the issue which the Appellant had donated for the determination of the Appeal, in the interest of justice.”

See also Ibechukwu Vs FBN (Merchant Bank) Ltd (2021) LPELR – 56228 CA:

“Counsel have always been admonished to marry the issues raised for determination to the ground or grounds of appeal. See Akpan v. FRN (2011) LPELR-3956(CA), Yussuf v. Ilori (2007) LPELR-5137(CA), Ukwuoma v. Okafor (2016) LPELR-41505(CA), Daisi v IGP (2019) LPELR-47897(CA). This paints a clear picture of the appeal and obviates the need for the respondent and the Court to examine the grounds of appeal vis-a-vis the issues raised for determination in order to ascertain the competence or otherwise of the issues and ascertain whether any ground of appeal has been abandoned. If this admonition had been adhered to by learned Counsel for the Appellant, there would have been no need for this head of the objection. That said, the point must be made that the Court of Appeal Rules, 2016, under which this appeal was argued, did not prescribe that issues for determination must be tied to the grounds in briefs of parties, on pain of a sanction. However, where an appellant has failed to tie his issues to the grounds of appeal, as is the convention or practice, the attitude of the appellate Courts appears to be one of liberality. The Court would resound the caution but still go on to examine the issues against the grounds, the caveat being that the grounds must be competent. A competent issue must be based on and relate to competent ground(s) of appeal. See Bikay Engineering Ltd v Governor, Ondo State & Ors (2010) LPELR-3877(CA). Therefore, while failure to adhere strictly to the practice may not be penalized under the 2016 Rules, the Court is bound to ensure that the issues formulated for determination of an appeal are in fact related to or arise from the grounds of appeal.” Per OTISI, JCA. – Per I. G. Mbaba, JCA

A WRONG LAW – AN ACTION INITIATED UNDER A WRONG LAW IS NOT RUINED BY THAT FORM

In my opinion, Appellants have not produced any credible evidence to defeat that holding by the trial Court. The claim that the case was brought under the old High Court Civil Procedure Rules of 1988, (not the later Rules of 2014), does not sound legally acceptable, as the law remains, that once a remedy is available, it does not matter that it was sought under a wrong law. See the case of Barr. Moses Ediru Vs FRSC & Ors (2015) LPELR – 24790 CA:

“It is trite law that an action is never vitiated, because it is commenced through a wrong law or provision of a law or rules of Courts, see Falobi v. Falobi (1976) NSCC, Vol. 10, 576. Famfa Oil Ltd. v. A-G, Fed. (2003) 18 NWLR (Pt. 852) 453, Nagogo v. C.P.C. (2013) 2 NWLR (Pt. 1339) 488, Udo v. R.T.B.C. & S. (2013) 14 NWLR (Pt. 1375) 488. It flows that an action initiated under a wrong law is not ruined by that form, a fortiori an action commenced under a wrong provision in the same rules of Court.” Per OGBUINYA, JCA

See also Iwuji Vs Ugorji (2015) LPELR – 24354 (CA):

“The law needs no restatement that a Court will not turn its back against a party in litigation, merely because, he has proceeded to seek for a remedy or determination of an issue or matter under a wrong law or rules of the relevant Court. The Court concerned will not hesitate to grant in favour of such a Litigant the relief sought under the appropriate and relevant law or rules if he/she is able to establish or proof his or her right to the relief he or she is seeking. See the case of MIKE OMHENKE OBOMHENSE VS. RICHARD ERHAHON (1993) 7 NWLR (PART 303) 22 at 40 F -G per KARIBI -WHYTE, JSC who said: “I agree that the principle is now well established that where a relief or remedy claimed under a wrong law is supported by facts establishing the remedy, the claim will not be denied merely because of the wrong law relied upon. See FALOBI VS. FALOBI (1976) NMLR 169. This principle is founded on justice and common sense. But in order to benefit from the principle the facts relied upon must support the correct Law to be applied. This is the critical issue in the application before us.” In any event, a Court is enjoined to take Notice of all Laws including Rules of Court relevant for the just determination of any matter before it. Permit me to recall the succinct words of my Noble Lord, NNAEMEKA AGU, JSC., in the case of LT. COL. MRS. R.A. F. FINNIH VS. J. O. IMADE (1992) NWLR (PART 219) 571 at 532 to 533 A -B where his Lordship said: “Every Judge in Nigeria has sworn to do justice according to law. The laws to be applied by a Court in all cases are not limited to only those authorities, statutory judicial, which have been cited for the Court’s consideration by counsel on both sides. Rather they include those laws which the Court can judicially notice as well as those relevant to the issues before the Court which the Court can from its own research find out. If Judges do otherwise they will be deciding contrary to laws which they have sworn to uphold.”

In Chisco International Ltd Vs Prime Marketing Association Ltd & Ors (2015) LPELR – 24506 (CA):

“Let me first and foremost state that the form of commencement of an action does not make it incompetent. What is important is the question of justice of the case. See Federal Government of Nigeria v. Zebra Energy Ltd (2002) 18 NWLR (Pt. 798) pg. 162, Famfa Oil Ltd v. A.G.F. (2003) 19 NWLR (Pt. 852) pg. 453, Dapialong v. Lalong (2007) 5 NWLR (Pt. 1026) pg. 199.” Per NDUKWE-ANYANWU, JCA

See also for Chevron Nig. Ltd Vs Nwuche & Ors (2014) LPELR – 24291 (CA):

“This is because of the settled position of the law that a Court will not turn its back against a party in litigation merely because he has proceeded to seek for determination of an issue or matter under a wrong law. The Court will decree in favour of such a litigant relief under the relevant and appropriate law if he/she is able to prove or establish his or her right to the relief he or she is seeking. I call in aid the case of MIKE OMHENKE OBOMHENSE v. RICHARD ERHAHON (1993) 7 NWLR (PART 303) 22 AT 40 F-G where KARIBI-WHYTE, JSC relying on the earlier decision of Supreme Court in FALOBI v. FALOBI said: “I agree that the principle is now well established thAAat where a relief or remedy claimed under a wrong law is supported by facts establishing the remedy, the claim will not be denied merely because of the wrong law relied upon. See FALOBI v. FALOBI (1976) NMLR 169. This principle is founded on justice and common sense. But in order to benefit from the principle the facts relied upon must support the correct law to be applied. This is the critical issue in the application before us.” Per IGE, JCA. – Per I. G. Mbaba, JCA

CASES CITED

STATUTES REFERRED TO

1. Kano State High Court Civil Procedure Rules, 2014
2. Kano State High Court Civil Procedure Rules, 1988
3. Court of Appeal Rules, 2016

CLICK HERE TO READ FULL JUDGMENT