JUDGMENTS OF THE NIGERIAN COURTS OF JUSTICE
Restoring Nigeria's Law to Nigeria's People - One by One
1. SPECIALTY LINK LIMITED
ITA G. MBABA, J.C.A. (Delivering the Leading Judgment):
This is an
appeal against the judgment of Kaduna State High Court,
in Suit No. KDH/KAD/185/99, delivered on 13/6/2003
by Hon. Justice J. Abiriyi (as he then was),
wherein his Lordship entered judgment for the Plaintiff
(now 1st Respondent) and awarded 8% interest on
the original sum of N21,750,000.00 loaned to the
1st Defendant (now Appellant) and guaranteed by the 2nd
Defendant from 6/4/98 to the date of full liquidation.
The trial court had dismissed the claim for special and
general damages, sought by the 1st Respondent.
Appellant was granted extension of time/leave by this court, on 19/4/04, to file this appeal and it did so as per pages 266 to 267 of the Records of Appeal, disclosing 3 grounds of appeal, as follows:
Trial Judge erred in law when he assumed jurisdiction
to entertain this suit when the court lacked the
jurisdiction to entertain same.
PARTICULARS OF ERROR
(a) The contract, the subject matter of the action, was entered into in Uyo, Akwa Ibom State.
Defendants in the suit are resident in Uyo, Akwa Ibom
(c) The performance and/or object of the contract was in Uyo, Akwa Ibom State.
Trial Judge erred in Law in awarding the claim of
interest to the plaintiff as there was no basis for
interest in the loan agreement.
PARTICULARS OF ERROR:
(a) The loan granted by the plaintiff to the 1st Defendant was clearly agreed to be interest fee.
(b) The supposed oral agreement, by the 2nd Defendant to pay 8% interest on the loan is invalid as the 2nd Defendant, not being a principal party to the loan agreement, cannot agree to any interest without the principal party.
(c) An oral agreement cannot alter a written agreement.
Learned Trial Judge erred in law by calling on the
Plaintiff to address the Court on the same day the
Defendants were foreclosed, from cross examining PW2 and
thereby denied defendants fair hearing.
PARTICULARS OF ERROR:
(a) On the day the Defendants were foreclosed from cross examining the PW2, the Defendants were not given any opportunity to put in their defence.
was no adjournment for the Defendant to put in their
(c) The Defendants were not given any opportunity to prove their counter claim."
Appellant filed its brief on 21/12/2004 and distilled 3 issues for determination, as follows:
(1) Whether the entire proceedings and judgment of the lower court is not a nullity as the said court lacked jurisdiction to have entertained the matter (Ground 1).
(2) Whether the entire proceedings and judgment of the lower court is not vitiated by the fact that the Appellant was denied its right of fair hearing (Ground 3).
(3) Whether there was any basis in law for the award of 8% interest on the original loan of N21,750.000.00 from 6/4/98 to the date the loan was fully repaid, when same was never claimed by the 1st Respondent. (Ground 2)"
Respondents filed their brief on 13/1/06, with the leave
of court and raised a preliminary objection to the
appeal in the Respondent's brief (pages 2 to 6 thereof).
On the main appeal, 1st Respondent argued same on the
"(1) Whether the Trial Court lacked the jurisdiction to entertain the plaintiffs' claim (Ground 1)
(2) Whether the Appellant was denied fair hearing in the entire proceedings leading to the judgment of the court (Ground 3)
(3) Whether a subsequent oral agreement is admissible to vary or supplement the terms of a written agreement. (Ground 2)"
a reply brief on 22/9/06 to contest the preliminary
The Defendants, who were represented by the Attorney General of Akwa Ibom State, filed a notice of intention to defend the suit and admitted owing the balance of the loan, that is, N4,750,000.00, disputing the remaining claim representing interest. Judgment was entered for the Plaintiff in the said sum of N4.75, while the rest of the claim was transferred to the general cause list for hearing and determination, on pleadings.
The Plaintiff (Respondent) filed pleading and claimed N8,084,193.00 as special and general damages for breach of contract and 8% interest from 31/12/98 up to the date of judgment and thereafter at the rate of 10%,until full liquidation of the judgment debt. The Defendants refused and neglected to file their defence and to attend court on the date fixed in the presence of both counsel for the hearing of the case. That was on 28/6/99, and so the Plaintiff asked for judgment in default of the pleadings, pursuant to Order 26 Rule 2 (1) of the Kaduna State High Court (Civil Procedure) Rules 1987, and the Court entered judgment accordingly.
Appellant and the 2nd Defendant, thereafter sought an order of the trial court to set aside the judgment, but the trial court noted that the affidavit in support was based on falsehood, but all the same granted the application in the best interest of justice and set aside the judgment on 28/6/99. The Defendants thereafter filed their defence and a Counter-claim.
The Plaintiff thereafter led evidence in proof of its case and the case progressed until 12/3/2003 when the case was adjourned to 6/5/2003 for Cross-examination of PW2, defence and possibly, address.
On the 6/5/2003,
the parties were absent but the plaintiff was
represented by Counsel, Mr. Nwosu, who asked for
another date, saying, he was informed by the Court
Registrar, that the Defence Counsel called earlier to
say he was bereaved. The case was adjourned to 9/6/2003
and on that date the defendants and their Counsel were
absent and the Plaintiff's Counsel expressed
disappointment and asked the court to discharge the PW2,
who had been recalled for cross-examination, and for
closure of the defence case and for address.
There was allegation that the Defence Counsel had been notified of the date of adjournment (9/6/03). The court therefore granted the application of the Plaintiff, discharged the PW2 from Cross examination, closed the case of the defence and allowed the Plaintiff's Counsel to address it. See pages 246 - 251 of the Records of Appeal. The court then adjourned the case for judgment, which was delivered on 13/6/03, when it entered judgment for the Plaintiff, in part, that is in respect it called;
"8% interest agreed between the parties as a result of the breach of the agreement between them from the 6th of April, 1998 until the date it fully paid the original sum of N21.75, it lent to the 1st Defendant and guaranteed by the 2nd defendant. The 8% shall be calculated for that period only." See page 259 of the Records.
The 1st Respondent had raised objection to this appeal in its Brief of argument. We have always said that a valid objection to the hearing of appeal has to be filed in court, apart from being raised, at least 3 days, before the hearing of the appeal to give the Appellant due notice. That emphasis is, however, stressed in the 2011 Court of Appeal Rules - Order 10 Rule 1.
See the case of Ayoade v. Spring Bank Plc (2014) 4 NWLR (Pt. 1396) 93 at 116:
"By virtue of Order 10 Rule 1, Court of Appeal Rules, 2011, a Respondent raising preliminary objection on appeal must, first of all, file a notice of preliminary objection, before canvassing argument on it in his brief of argument, (Moyosore v. Gov. Kwara State (2012) 5 NWLR (Pt. 1293) 242; Esoho v. Asuquo (2007) ALL FWLR (Pt. 359) Bayero v. Mainasara & Sons Ltd (2006) 8 NWLR (Pt. 982) 391 referred to)."
The reason for this is that, where the objection is raised in the Respondent's brief, there is no way of proving that the preliminary objection had been 'filed' as required by law, and it is the filing fees that breathe life onto a court process, where fees are required for filing. Garba v. Ummuani (2013) 12 WRN 76.
The issues for determination of preliminary objection are:
"(1) Whether the Appellant's appeal which has not been entered in the Court of Appeal is competent.
grounds 2 and 3 of the grounds of appeal being mixed
law and facts are competent grounds, when no prior
leave of court was sought and obtained before raising
and arguing the grounds.
(3) Whether issue No. 3 as formulated and argued by the Appellant was derivable from ground 2 of the appeal as contended by Appellant, or from any of the grounds of appeal."
On the 1st issue, the Respondent alleged that Appellant in this appeal merely copied the appeal No. CA/K/425/2014, assigned to a sister appeal filed by the 2nd Respondent in this appeal; that whereas the Appellant and the said 2nd Respondent were defendants at the Court below, and each of them filed Notice of Appeal against the judgment of the Trial Court, only the appeal by the 2nd Respondent was entered in this court.
bothering to go over the whole arguments of the parties
on this, I think it is the 1st Respondent that is
confused as to which appeal we are hearing. The Records
of Appeal in this matter bears the Number CA/K/16/2006
and it was transmitted to this court on 29/11/04.
There are two Notices of appeal one filed by the 2nd
Respondent herein (Akwa Ibom State Government) and the
other by Appellant, on pages 260 to 265 and 266 to 267,
respectively. The Briefs of the parties in this appeal
carry the Appeal Number CA/K/16/2006 (written by
hand, after crossing the printed No. CA/K/425/04). The
1st Respondent's motion for extension of time to file
its Respondent's Brief had also Crossed Appeal No. CA/K/425/M/04
in favour of Appeal No. CA/K/16/06.
There is also evidence that the Appellant obtained the order of extension of time by this Court to file the Appeal; that was on 19/4/04. I think, whatever question that may disturb the 1st Respondent on the administrative handling of the two appeals and the assignment of numbers to them cannot be directed at or blamed on the Appellants, as that remains a problem of the Registry of this Court, which, I believe had been resolved, and the parties are not confused that this appeal (No. CA/K/16/06) was originated by the Appellant. This above, however, shows why parties, who fought a case together at the trial court should always stay together on appeal, rather than duplicate their efforts and costs in filing separate appeals over the same issue.
On the 2nd Issue, it is obvious that learned Counsel for the 1st Respondent has greatly misconstrued the law. We have held, several times, that any appeal raised against a final judgment of the High Court, sitting at first instance, is appealable, as of right, without any need to seek and obtain the leave of the High Court or of this court, whether the grounds of appeal are of facts or of mixed facts and law or of law alone. That is the purport of Section 241(1)(a) of the 1999 Constitution, as amended. See also the case of Garba v. Ummuani (2013) 12 WRN 76; Kwazo v. Railway property Co. Ltd: CA/K/41/06 delivered on 13/5/14.
Issue 3, (which I have earlier reproduced), not being
derivable from ground 2 or any ground of the appeal, I
think the 1st Respondent's observation on the
relationship between the Issue 3 and ground 2 of the
appeal is wrong. The ground 2 of appeal was that the
learned trial judge erred in law in awarding the claim
of interest to the Plaintiff as there was no basis for
interest in the loan agreement. The 3rd issue for
determination, which is whether there was any basis in
law for the award of 8% interest on the original loan of
N21,750,000.00, is proper and in order, in my
I hold that the
preliminary objection was therefore misconceived, and I
dismiss it, as the grounds of appeal and issues
distilled from them are properly in place.
that "All suits for specific performance, or upon the breach of any contract shall be commenced and determined in the judicial division in which such contract ought to have been performed, or in which the defendant resides or carries on business."
Counsel urged us
to hold that the entire trial and decisions amounted to
a nullity as the court wrongly assumed jurisdiction,
which it lacked. He relied on some decided authorities
including NDIC v. CBN (2002) 3 SC at 8; Thompson v.
University of Calabar (2004) ALL FWLR (Pt. 209) 1148
Counsel submitted that upon proper service by DHL, the Appellant was represented in court on 12/03/03 and he brought application to recall the PW2 for cross examination, which was granted. The matter was, thereafter, adjourned to 6/5/03 for the Cross examination, defence and possible address; that on the said 6/5/03, the Appellant's counsel was absent because he was bereaved and the court then adjourned the matter to 9/6/03 for defence with an order that Appellant be served. (Page 246 of the Records).
submitted that the order of 9/6/03, that Appellant be
served notice of the new date was not carried out by the
Registry of the court, but that the trial court relied
on the mere ipse dixit of the 1st Respondent's
Counsel and its Registrar, that the date had been
communicated to Appellant's Counsel, to discharge the
PW2, deny the Appellant the right of defence, took
address of the Plaintiff and adjourned the case for
judgment on 13/6/03, with an order that the Appellant be
served with the hearing notice (pages 246 - 251 of the
Counsel further noted that Appellant had a counter claim at the lower court but the court said nothing about it while closing the defence of the Appellant, ordering address by the 1st Respondent on 9/6/03 and reading its judgment on 13/6/03; that the judgment therefore failed to address all the issues, placed before the court and was invalid.
On Issue 3,
Appellant reproduced the paragraph 25 of the 1st
Respondent's pleading at the lower court as stated on
pages 21 - 23 of the Records:
"Whereupon the Plaintiff claims against the defendants jointly and severally the sum of N8,084,193.00 as special and general damages for breach of contract and 8% interest from 31st day of December, 1998 up to the date of judgment and thereafter at the rate of 10% until judgment sum is fully liquidated."
submitted that parties are bound by their pleading and
any evidence adduced contrary to the pleadings goes to
no issue; that it is not open for the court to make a
case for any party different from what is placed before
it by the parties; that though the court can award less
than what is claimed by the parties, it cannot award
more then what a party claims, or what is not claimed.
"From the nature of the agreement between the parties which was a friendly loan and the subsequent oral agreement between them that 8% interest be paid as a result of the breach from the date of the breach and to mitigate (sic) loss to the Plaintiff. I am reluctant to award general damages... The claim of the Plaintiff succeeds in part. The Plaintiff shall be paid by the Defendants jointly and severally the 8% interest agreed between the parties as a result of the breach of agreement between them from the 6th of April 1998 until the date it fully paid the original sum of N21,750,000.00 it lent to 1st Defendant and guaranteed by the 2nd Defendant. The 8% shall be calculated for that period only." (Page 259 of the Records)
Counsel submitted that having refused to award the main claim of the Appellant for N8,084,193.00 as special and general damages, the court should have dismissed the suit; that the 8% interest on the original loan of N21,750,000, from 31/12/98 to date of payment was never before the Trial Court; that decision was not only strange but also bizarre.
Counsel further submitted that the evidence relied on for the award was not legally admissible as the loan agreement was covered by a written agreement (Exhibit 1), whereas the alleged agreement to pay 8% interest was said to be oral, land made by 2nd defendant (guarantor); that Exhibit 1 had clearly stated that the loan was interest free! He submitted that oral evidence cannot be admitted to alter, vary or defeat a written agreement.
The 1st Respondent's Counsel, S. M. Nwosu Esq.; on issue one, submitted that the trial court had jurisdiction to entertain the case, because 1st Respondent had pleaded that the loan agreement was entered into in Kaduna and that the loan was advanced to Appellant at Kaduna by means of bank draft, through it bankers in Kaduna. See paragraphs 5 and 12 of the statement of claim (page 21 of the Records). Counsel referred us to paragraph 2 of Appellant's statement of defence, where they stated: "Defendants admit paragraph 5 but add that the request was for N21.75m friendly and interest free loan"; he said that the Appellant also admitted receiving the friendly loan granted as per the Plaintiff's averment in paragraph 12 of the statement of claim, that the payment was made to them in Kaduna through Plaintiff's bankers in Kaduna.
I do not think it is necessary to be-labour further arguments on this issue, i.e., whether or not the trial court had jurisdiction to entertain the suit. Even if the Appellant were to have effectively denied that the loan transaction was partly negotiated in Kaduna and also paid in Kaduna through 1st Respondent's bankers in Kaduna, the mere fact that the Appellant submitted to the jurisdiction of the trial court, filed notice of intention to defend the suit, offered to liquidate the original loan by paying the balance of N4.75m and paid the same; applied for the rest of the matter to be sent to the general cause list, for determination and even filed a counter claim in the case, shows that Appellant had accepted and submitted to the jurisdiction of that court and even sought its protection. It cannot therefore complain on appeal.
believe, when it comes to territorial jurisdiction of
a court, a party who willingly submits to the
jurisdiction of a court and takes part in the trial of
his case, cannot turn round, on appeal, to question
the powers of the court to hear his case, as long as
the court was seized with power over the subject
matter of the claim.
In the case of Mobil Producing Un-ltd v. Lagos State Environmental Protection Agency (2002) LPELR 1887 (sc), it was said that;
of jurisdiction, as held by this court ... is that
nothing shall be intended to be out of the
jurisdiction of a superior court but that which
specifically appears to be so. That an irregularity in
the exercise of jurisdiction should not be confused
with a total lack of jurisdiction which takes
cognizance of the general meaning of the word
'jurisdiction' as "the authority which a court has to
decide matters that are litigated before it, or take
cognizance of matters presented in a formal way for
its decision" (per Ayoola, JSC). His Lordship further
"Where competence is presumed, because there is nothing on the face of the proceedings which reveals jurisdictional incompetence of the court, it is for party, who alleges the courts incompetence to raise the issue either in his statement of defence in the proceedings, commenced by writ, or by affidavit, in cases commenced by originating summons. A judgment given in proceedings which appear ex-facie regular is valid"
The law, however, is that parties cannot, by consent confer jurisdiction on a court, where it has none. But where it has, as per the subject matter in litigation, pursuant to the case of the Plaintiff, "the court, cannot by the precipitated action of the defendant, lose that jurisdiction, simply because the defendant wants it so. After all, it is settled law that, it is the Plaintiff's claim in a matter that determines the jurisdiction of the court." See ADEPOJU v. INEC (2012) 21 WRN 38 holding 2; Akinpolarin v. Akinnola (1994) 3 NWLR (Pt. 335) 659.
The Respondent had pleaded in paragraph 5 of their pleading that, "Sometime in 1997, the chairman and Managing Director of the 1st Defendant approached the Plaintiff in Kaduna... "In paragraph 12, the Plaintiff also alleged, "The Plaintiff through its Bankers in Kaduna and by means of drafts advanced the friendly loan to the Defendants."
These averments were duly admitted by the Appellant in paragraph 2, when it said "Defendants admit paragraph 5 but add that the request was for a N21.75m, friendly loan and interest free loan". Appellant was completely silent on paragraph 12 and that amounts to admission of same. No wonder the Appellant did not raise any issue about territorial jurisdiction at the trial court, but rather filed a counter-claim, seeking a declaration that the Defendants were not indebted to the Plaintiff and an order for the Plaintiff, to return the title deeds of the 1st Defendant's warehouses in Calabar and Ogoja, and for N5m as general damages for breach of contract.
I think the issue one therefore, came as an after - thought, and the Appellant lacked the vires to raise it in this court (even under the guise of jurisdiction), as the same was never raised at the court below, and no leave was sought by Appellant to raise it, as a fresh issue. See Ikedigwe v. Fai (2012) 10 NWLR (Pt. 1308) 375; Udo v. RTBC and S (2013) 14 NWLR (Pt. 1375) 488; University of Ilorin v. Olawepo (2012) 52 WRN 42
See also the case of Rivers State Govt. v. Specialist Konsult 2005 MJSC 19 AT 43 (OR (2005 LPELR-2950(SC), where the supreme court held:
(a) Where the contract was made;
(b) Where the contract ought to have been performed; or
(c) Where the defendant or one of the defendants resides
(a) Where the contract ought to have been performed; or
(b) Where the defendant resides; or
(c) Where the defendant carries on business."
Per Niki Tobi.
It is obvious
that the Plaintiff pleaded that the loan transaction was
made in Kaduna and paid by Plaintiffs banker (through
bank draft) in Kaduna. I believe the repayment of the
loan was also expected in Kaduna, though the Defendants
resided in Uyo, Akwa Ibom State, and carried on their
On Issue 2, the
Respondent submitted that Appellant was not denied fair
hearing as the Records of appeal shows that both the
Appellant and its counsel were in court on 12/3/03, and
Appellant was represented by one Akpan E. Essien while
Eta Eta Esq.; was its Counsel, and the case was
adjourned, in their presence, to 6/5/03 for defence and
address; that on the said 6/5/03 Appellant, who was
fully aware of the case coming up on that date was
absent, though Appellant's Counsel called to say he was
bereaved and requested for adjournment, and he was
obliged and the case further adjourned to 9/6/03 for
defence and address.
notice is defined as a process of the court by which a
party to the proceedings is notified of the date the
case has been fixed in court, where he is not otherwise
aware of such a 'date.' He also relied on Murli
Nirdiandani Tiptop Industries Ltd v. Babatunde
Pinheiro (2001) FWLR 1307 which also placed
reliance on Akin Folonuso v. Shaloub (supra). He also
relied on Blacks Law Dictionary on the meaning of
submitted that by the authorities above, the
communication of the adjournment date made by the court
registrar through telephone was as good as a written
hearing notice, especially as the adjournment was also
sought by telephone; that Appellant's Counsel had
knowledge of the hearing date of 9/6/03 and so the trial
court was entitled to proceed with the case. Counsel
further said that affidavit of service or certificate of
service is not the only or exclusive means of the court
satisfying itself that there is proof of service, or
that a party has knowledge of hearing date. He relied on
A.G. Anambra State v. Okeke (2012) 5 SC NK 318 at 329,
and said that in our present age and time when
technology has become so advanced and means of
communication has improved progressively, communication
by telephone is as good as a written communication.
I think this
issue, is the key to the success or otherwise of this
appeal, as the crucial question is whether the learned
trial judge was right to enter the three important
decisions he made on 9/6/03, when the Appellant and its
Counsel were not in court. When the trial Court was told
by the 1st Respondent's Counsel that Appellant and its
Counsel were not in court for the business of the day,
which was to cross examine PW2, defend the case and
possibly take address, the court entertained the
Plaintiff's applications and granted the three:
(1) Discharged the PW2 (from cross examination)
(2) Closed the case of the Defendants, that is denied them opportunity to defend the case, and
(3) Allowed the Plaintiff's Counsel to address the court. See pages 246 to 251 of the Records.
normal procedure and processes usually followed in the
course of due trial, I think taking those three major
applications and granting them in one fell swoop smacked
of great haste, capable of much damage to the hallowed
principles of proper and fair hearing of all the parties
in the suit. Just as the Plaintiff is entitled to
adequate time to prepare and lead evidence to prove his
case, the Defendant is also entitled to equal and/or
sufficient time to produce and lead evidence to defend
his position in the case, and, certainly, under normal
situation, that cannot be accomplished in one day, as
the learned trial court appeared to have made up its
mind to force the Appellant to do in this case.
On 12/3/03, the
court had adjourned the case to 5/6/03 for cross
examination of PW2, defence and possibly, address, and
had ordered the PW2, recalled for that purpose. On that
date, 5/6/03, the parties were absent and 1st
Respondent's Counsel, understandably, was not happy, but
he prayed for adjournment, saying that the Registrar of
the Court had informed him that the Appellant's Counsel
was bereaved. The Court adjourned the case, with an
order that the Defendants be served (with the new date).
See (page 246 of the Records).
It can be appreciated that when on the return date, 9/6/03, the Defendants and their Counsel were still not in court, the Respondent's (Plaintiff) Counsel and even the court were disappointed and displeased, thereafter sentiment/emotion appeared to be allowed to dictate the course of events.
Counsel made his emotional address, reminding the court
of the many challenges the case earlier had and at a
point default judgment had to be entered and later
vacated, because of the way the defendants handled the
case; that there must be an end to litigation, the case
having commenced in 1999! He then urged the court to
discharge the PW2, since the Defendants were not there
to cross-examine him and the defence should be closed.
Every court should be wary of such emotive address as it is usually a cover for and a lure to judicial errors and absurdities, when a court acts on the spur of the moment or with emotive force to appease Counsel or vents its anger at the disappointing conduct of the defaulting party (who, unfortunately may not even be there to defend himself or action)!
What the learned
trial court should have done, at that juncture, would
have been to find out whether the Notice it ordered to
be served on the Defendants on 5/6/03 had been served,
and if done, verify the proof thereof.
"As at the last
adjournment after the adjournment counsel to defendant
from Akwa Ibom (sic) to confirm whether his matter was
heard and adjourned because he told me he was bereaved.
I confirmed that the matter was adjourned to 9/6/03 at
11.00 am for defence or address."
Of course that was not a proof of compliance with the order that "Defendants be served," neither was it the needed proof of service. Meanwhile, on 15/1/03 the Plaintiff had obtained order (ex-parte) to serve the Defendants with the notice(s) of hearing by substituted means that is, by DHL Courier Service and that should have been the expected way of proving the service of the notice of service on the Appellants!
We have stated, several times that the best way to establish service of process of court, is by recourse or reference to the affidavit of service filed by the bailiff of court, or certificate of service, filed by the service/courier authority. See the case of Afribank Nig. Plc v. Yelwa (2011) 12 NWLR (Pt. 1261) 287 ratios 1 and 2; Zaria Local Govt. Council v. Kwastan CA/K/151/09, an unreported decision of this court, delivered on 17/1/2014.
I had earlier
stated that the trial court took too many important
decisions on the same date (9/6/03) he discharged the
PW2 from cross examination. Even if it was very material
for the court to waive the requirement of proper service
of the Appellant with the notice of hearing on 9/6/03
and thereby discharge the PW2 (whom there was no
evidence he was in court) to punish the Defendants for
their dereliction, there was no imminent reason to close
the case of the Defendants at the same time and proceed
to take address from the Plaintiff. The case should have
been adjourned for the Defendants to open their defence,
and hearing notice should have been served on them, to
come to court for that purpose.
Appellant had a right to be heard.
In the case of CEEKAY Traders Ltd v. General Motors Co. Ltd (1992) 2 NWLR (Pt. 222) 132 at 148, the Supreme Court said:
"In this case it is clear on the Record that the Appellant's Counsel was never called upon by the learned trial judge to proceed with his case after the refusal of his application for adjournment, and in my view, failure to do so on the part of the trial court has occasioned a miscarriage of justice... it is not enough to assume that in the circumstances of a particular case, even if Counsel was called upon to proceed, he would not be in a position to do so ... It is only right and proper that before a party's claim in a court is dismissed, the party should be given opportunity of being heard..."
In the case of
Alh. Muhammed Alikeo Mohammed v. Adebodun
Sheriff Kazeen & Anor: CA/K/317/2010, an unreported
decision of this court delivered on 14/2/14, where the
learned trial judge refused to adjourn a case to enable
the party produce original copies of a document, (which
photo copies were rejected by the court), and rather
queried: "what purpose will adjournment serve at this
stage?" this court held that:
"That was clear and undisguised demonstration of bias against the Appellant."
See also Guaranty
Bank Plc v. Fadco Industries (Nig) Ltd (2013)
I think the situation in this case, raised more concern, in that the Defendants and their Counsel were not even in court to hear and contest the issues raised against them, which led to the three decisions of the trial court, taken in quick succession, against them, having not been put on notice of the case coming up on that date! As earlier stated, if the trial court had any strong reason to accede to the application to discharge the PW2, believing that the Defendants were served with notice of hearing and they failed to come to cross examine the PW2, the Plaintiffs, on being granted the application to discharge the PW2, ought to have applied to close their case and the matter adjourned for defence, and hearing notice issued to the Defendants. Therefore the haste and speed with which the learned trial court proceeded to close the defence's case, and took address from the Plaintiff (which should have started with the Defendants) on the same date and at the same time of hearing, left much to be desired and was capable of implying that the court was on a mission to deny the Defendants a chance to be heard.
I think that breached the cardinal rule of adjudication, which requires the other party to also be heard, or all sides to be heard, fairly. See Section 36(1) of the 1999 Constitution, as amended and the case of Oyekanmi v. NEPA (2000) LPELR-2873(SC); General Electric Co. v. Akande (2012) ALL FWLR (Pt. 637) 1474; Amadi v. INEC (2012) ALL FWLR (Pt. 627) 1415; Military Gov, of Lagos State v. Adeyiga (2012) ALL FWLR (Pt. 616) 396.
I resolve this issue in favour of the Appellant.
On the issue 3, where the learned trial court pronounced interest of 8% to be paid on the original loan of N21,750,000.00, from 6th April, 1998 until the date it was fully paid, after refusing to grant the special and general damages claimed, I think this was a grave error by the learned trial judge. To start with, the original loan of N21,750,000.00 was no longer an issue before the court, the said loan having been liquidated by the Appellant, N17,000,000 before the suit and N4.75m, after it was filed (See, paragraphs 2-3 and 2-5 of the Respondent's brief). It was clear that the remaining case before the lower court (as per the writ of summons and statement of claim as well as statement of Defence/counter claim) were as follows:
By the Plaintiff:
"whereupon the Plaintiff claims against the defendants jointly and severally, the sum of N8,084,193.00 as special land general damages for breach of contract and 8% interest from the 31st day of December, 1998 up to the date of judgment, and thereafter at rate of 10% until judgment sum is fully liquidated"
(Page 22 of the Records)
By the Defendants:
"where upon the Defendants claim –
declaration that the Defendants are not indebted at all
to the Plaintiff
(ii) An order for the Plaintiff to return the title deeds to the 1st Defendants warehouses located at Calabar and Ogoja...
(iii) N5m (Five Million naira) being general damages for breach of contract." (page 80 of the Records )
The trial court
had held that the special and general damages claimed by
the Plaintiff had not been established. (See page 258 of
the Records) It also held that "From the nature of the
agreement between the parties ... (it) was a friendly
loan..." See page 259 of the Records. But, strangely,
after holding that the special and general damages by
Plaintiff were not established and that the original
loan agreement (N21,750,000.00) was a friendly loan, the
learned trial judge somersaulted and pronounced the
payment of 8% interest on the original loan to the 1st
Respondent from 6th April, 1998 (1st Respondent had
asked from 31st December, 1998) till date it fully paid
the same. (page 259 of the Records).
Of course, from the claim of the Respondent, if any interest of 8% (or at all) existed in the case, it could only have been tied to the claim of N8,084,193.00, raised by 1st the Respondent and the same can only be calculated on that claim, on the same being granted by the court. By ordering that the said claim of N8,084,193.00 was not established by the Respondent, that, of course, marked the terminal of the case and the order to make should have been that of dismissal of the case.
The trial court was therefore making a case, different from that of the Plaintiff's, when it made order for the payment of 8% interest on the original loan, based or, what the court called, oral agreement reached subsequently between the parties. The law is that the trial court lacks the vires to make such order and to make a case for any party before it, different from what the party claimed Aboyeji v. Lateju (2012) ALL FWLR (Pt. 648) 961; Ayoade v. Spring Bank PLC (2014) 4 NWLR (Pt. 1396) 93.
There could be
no way of determining the alleged interest of 8% from
the original loan of N21,750.000.00 from 6th April 1998,
since the same had been paid by installments and no
dates were led to establish the times of the
instalmental payments, and what was due after each
the haste with which the Learned Trial court handled the
case, it forgot or failed to say anything about thee
Appellants' Counter-Claim in its judgment of 13/6/2003.
Appellant did not, however appeal against this error and
so raised no issue on it. We cannot therefore make any
pronouncement on that other than that the appeal is
allowed. Parties shall bear their respective costs.
ABDU ABOKI, J.C.A.:
I have had the privilege of reading in advance the draft judgment of my learned brother, ITA G. MBABA, J.C.A., and I entirely agree with the reasoning and conclusion reached therein. I abide by the consequential orders as to costs made in the lead judgment.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.:
I have had the privilege of reading before now the lead judgment delivered by my learned brother, Ita Mbaba, JCA. His Lordship has ably considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide the conclusions reached therein. I have nothing more to add.
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