DEEN-MAK CONSTRUCTION COMPANY LTD. V. BISHOP SAMUEL ABIOLA (2000)

Background

The respondent, Bishop Samuel Abiola, was the owner of a four-bedroom bungalow in Ilorin which had been let to the appellant, Deen-Mak Construction Company Ltd. The tenancy included certain fixtures and movable items, notably a large bed and mattress and a Lister generating set. After the respondent sold the bungalow, excluding those items, the appellant remained in possession as tenant of the purchaser. The respondent subsequently commenced proceedings to recover the fixtures and generating set.

An earlier court order directed the appellant to surrender the items. Upon inventory, it was discovered that the generating set had been vandalised beyond repair, while the bed and mattress could not be found. The respondent therefore commenced a further action claiming N953,884.75, representing their alleged market value. In the alternative, he sought an order compelling the appellant to supply equivalent items in serviceable condition.

When personal service could not be effected, the High Court authorised substituted service by pasting the originating processes on the appellant’s business premises. The appellant did not enter appearance or file a defence. The High Court consequently entered default judgment for the respondent in the sum claimed. Following execution proceedings, the appellant filed applications seeking, among other reliefs, an extension of time, an order setting aside the default judgment, the discharge of the writ of attachment, and permission to enter appearance and file a defence. The High Court dismissed the applications.

The appellant then filed two notices of appeal. The first appeal challenged the ruling dismissing the application to set aside the default judgment. The second appeal, filed with leave, challenged the original default judgment itself. Although the appeals arose from the same suit and were supported by the same record, they related to two distinct decisions delivered on different dates. The appellant filed one brief of argument addressing both appeals.

Issues

1. Whether it was proper for the appellant to file one brief covering the two separate appeals.
2. If filing one brief was improper, what order the Court of Appeal should make.

Ratio Decidendi

The Court of Appeal held that an appeal lies from a judicial “decision,” and that a decision includes a judgment, decree, order or other determination of a court. Since the appellant had challenged two separate decisions of the High Court, there were two separate appeals, notwithstanding that both decisions arose from the same suit and were contained in the same record.

Order 6 rules 6 and 7 of the Court of Appeal Rules regulated the filing of briefs. The relevant exception permitting arguments relating to another appellate proceeding to be incorporated in a brief without leave applied to a respondent’s arguments concerning a cross-appeal or a respondent’s notice. It did not authorise an appellant to combine arguments relating to two independent appeals arising from two different decisions.

Accordingly, an appellant who wishes to present arguments in one brief in respect of separate appeals must obtain the prior leave of the court or secure an appropriate consolidation order. In the absence of such leave or order, the composite brief is incompetent.

Court Findings

The respondent’s preliminary objection was upheld. The court distinguished National Bank of Nigeria Ltd. v. P. B. Olatunde, where the relevant proceedings involved one decision, an appeal and a cross-appeal. That authority did not justify the appellant’s procedure because the present case involved two different High Court decisions: the original default judgment and the later ruling refusing to set it aside.

The court also relied on the principles stated in Iwuchukwu v. Nwizu and Enigwe v. Akaigwe, which supported the requirement that separate appeals should be separately presented unless the court orders otherwise. The fact that the appeals arose from the same litigation, involved substantially similar facts, or used the same record did not remove their separate procedural identities.

The Court therefore concluded that the appellant ought to have filed two separate briefs, one for each appeal. Because the single brief was filed without the required leave, it was struck out. The appeals themselves were also struck out, meaning that the court did not proceed to determine the substantive complaints concerning substituted service, the regularity of the default judgment, or the refusal to set it aside.

Conclusion

The preliminary objection succeeded. The appellant’s joint brief was incompetent, and both appeals were struck out. The respondent was awarded costs assessed at N2,000.00. Onnoghen and Okunola JJ.C.A. concurred with the leading judgment and the consequential orders.

Significance

The decision emphasises the procedural independence of appeals arising from separate judgments, rulings or orders. Common factual circumstances and a shared record do not, by themselves, permit an appellant to combine two appeals in one brief. Counsel must identify the decision being challenged in each appeal and comply with the applicable briefing requirements. Where consolidation or leave is necessary, it should be sought before filing the brief. Failure to do so may result not merely in the rejection of the brief but in the striking out of the affected appeals, thereby preventing consideration of the substantive merits.