Albia Trading Gmbh & Anor V. Madunka International Limited & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA G. MBABA J.C.A. (Delivering the Leading Judgment)

Appellants (as Plaintiffs at the Court below) sued the Respondents (then Defendants) in suit No. KDH/KAD/445/2004 at the Kaduna High Court and the suit was placed on the undefended list for hearing and determination. It was a claim for US $231,782.00 (equivalent of N31,114,415.68) and 313,177.00 Euro (equivalent of N51,613,573.93) totaling N82,727,989.61 (Eighty Two Million, Seven Hundred and Twenty Seven Thousand, Nine Hundred and Eighty Nine Naira, Sixty One Kobo), outstanding on the Respondents’ statement of account with the Appellants as indebtedness to the Appellants. Appellants further claimed 10.5% interest on the Dollar Account and 9.5% interest on the Euro Account, per annum from 31/3/2004 until judgment and at 10%, from the date of judgment until liquidation.

The suit was later transferred to the general cause list, whereupon the parties filed their pleadings, with the Respondent counter-claiming, and a reply thereto by Appellants. The trial proceeded and the Appellants called three witnesses and tendered 24 exhibits. The Respondents called 2 witnesses and tendered one exhibit. The trial was concluded on 22/2/2006 and the trial judge, A.S. ABIRIYI J (as he then was), in a considered decision, dismissed the claim of the Appellants and granted the counter-claim, in part.

This appeal is against part of that decision, which said that Appellants did not prove their claim.

Appellants’ Notice of appeal was filed on 4/5/2006, as per pages 167 – 171 of the Records of Appeal, deemed duly compiled and transmitted to this Court on 12/2/13. Appellant also relied on a supplementary Records of Appeal. The Notice of Appeal disclosed three grounds of appeal.

Appellants filed their Brief of argument on 25/2/13 and distilled three issues for determination, namely:

“1. Whether the issue of “LENDING TRANSACTION” was an issue before the trial court

2. Whether interest was not properly charged and proved by the Appellants in the transaction between the parties
3. Whether from the totality of the evidence the Appellants did not prove their case and not entitled to judgment.

The Respondents filed their brief on 5/3/13 and adopted issues 2 and 3 as distilled by the Appellant, but modified issue one to read:

“Whether the evidence, both oral and documentary, that was led in this suit by the appellants show a lending transaction so as to make same an issue before the learned trial court?”

When the case was heard on 23/10/13 the Parties adopted their briefs and urged us, accordingly.

Arguing the appeal, Counsel for the Appellants, E.C. Aneme Esq, who settled the brief, on issue 1, submitted that the learned trial court was wrong to raise, suo motu, and make out a case for the parties, when it said that on the face of the documents a lending and borrowing transaction was disclosed, having earlier held that “no leading transaction was pleaded and no such evidence was led in this court”. He submitted that the duty of a court is to adjudicate on issues presented by the parties and not to go on its own voyage of discovery. He relied on the case of EKPETO VS. WANOGHO [2005] ALL FWLR [PT. 245] 1191; TINUOYE VS. AFOLAYAN [2005] ALL FWLR [PT. 265] 1157 at 1165; GATAH NIG. LTD. VS. ABU [2005] ALL FWLR [PT.278] 1186 at 1213; OKERE VS. AMADI [2005] ALL FWLR [PT. 269] 1925 at 1934.

Counsel further submitted that it is not proper for a judge to embark on examination of documents tendered as exhibits to discover new facts not proved by evidence; that the discovery of the trial judge that the business was a lending transaction between the parties, because of the words LENDER and BORROWER on exhibits 1 – 12, was therefore erroneous. He relied on WEST AFRICAN BREWERIES VS. SAVANNAH VENTURES LTD. [2002] FWLR [PT. 112] 53 at 72, and added that where a Court raises an issue/observation suo motu, it is incumbent on it to call on the parties to address it on the same, before reaching a decision; that failure to hear the parties on the issue amounts to a breach of fair hearing OBESSA VS. FRN [2005] ALL FWLR [PT. 282] 2010 at 2030 – 2031; LEAD MERCHANT BANK LTD. VS. PETROLEUM (SPECIAL] TRUST FUND [2005] ALL FWLR [PT. 270] 2082 at 2087 – 2088; ARAHA VS. EJEAGWU [2001] FWLR [PT. 36] 830 at 848

Alternatively, Counsel submitted that even if the Court was right to raise the issue suo motu (which he did out concede), that it was not correct to say that the transaction between the parties was a lending business; that the fact that the acceptance letters annexed to Exhibits 1-12 mentioned the words “LENDER” and “BORROWER” did not, ipso facto, render the entire transaction a lending business.

He submitted that in construing the purport of a document, regard should be had to the entire document, to ascertain the intention of the parties/makers; that the parties had stated that they were engaged in international business: PW1 had stated that in the course of the business they prepared statements of accounts to the Respondents for confirmation of the Respondents’ indebtedness to them; that for the trial judge to simply pick the words “LENDER AND BORROWER” on the acceptance letters and conclude that it was a lending transactions ran contrary to the principles of interpreting/construing statutes/documents.