Alhaji Ahmed Ya’u V. City Security Limited (2002)

LawGlobal-Hub Lead Judgment Report

VICTOR AIMEPOMO OYELEYE OMAGE, J.C.A.

The two issues formulated in the brief dated 18/5/01 by the appellant who was the defendant in the court below are;

“Whether from the provisions of order 23 rule 3 & 4 of the Kano State High Court Civil Procedure rules 1988 the trial judge was right to have suo motu formulated three issues and called upon counsel to address him on them instead of delivering his ruling for judgment or transferring the matter to ordinary cause list after considering the affidavit before him and submissions of counsel.

Whether the judgment delivered by the learned trial judge on 31st day of July 2000 in chamber instead of the open court can be said to be valid.”

In the brief of the respondent filed on 18/10/01. He proferred reasons for what he described as the propriety of the action of the learned trial court. The trial judge formulated three issues on which he called on the two counsel for either side to address the court on, in a hearing under the undefended list procedure. The respondent counsel submitted that:

“Once the trial judge, has called upon the counsel to address him on the issues, the trial court is eligible indeed empowered to formulate issue in order to effectually deal with the issues in the trial.”

The respondent counsel cited the decision in Bank of the NORTH V. ALHAJI IDAISU OJOBA LTD & 2 ORS (1993) 4 NWLR pt. 289, p. 597. Where Achike now JSC, wrote when he was in the court of appeal as follows;

“A trial court can suo motu raise a point in the court of trial provided it invites all the parties to make their imput in respect thereof.”

The respondent also quoted, Okunola JCA in the same case above, the statement of Justice Okunola quoted viz;

“If in the interest of justice a technical point is raised suo motu by the court as in the instant case the proper course open to the court is to invite all counsel to the suit to address the court on the point.”

The respondent also submitted as follows, that even if he concedes that the procedure adopted by the trial judge is wrong or irregular in that the judge formulated issues and invited the parties counsel to address him on those issues as the appellant has consented to the and participated in the procedure which is merely wrong or irregular he cannot be heard to complain on appeal because the trial was against him. On the second issue formulated by the appellant the appellant in his reply brief agreed that the issue that the judgment was irregular which the trial court delivered in chambers. The appellant however asked the leave of court to withdraw the second issue. The appellant did this when it became clear to him upon reading the respondent brief which denied that the judgment of the court was delivered in chambers. Issue two is therefore struck out. There remains for resolutions in this appeal only issue one which on which I shall express my opinion presently. It is necessary now to relay the facts which caused the filing of the appeal. The printed record in this appeal shows that the appellant was by the judgment of the Kano State High Court coram Adamu Judge, a judgment debtor. The judgment of the court is for the sum of N1, 901680. 82 with interest and costs ordered.

The liability arose from the transaction of a short term credit facility of N2 million granted by the respondent of the appellant. The printed record shows when the time to pay accrued, the respondent demanded repayment of the money but the appellant defaulted but pleaded for time of 40 days of grace which the respondent allowed. The appellant did not deny owing the respondent, and as the appellant had written a letter to respondent dated 10th March, 1999, the respondent commenced proceedings against the appellant in the Kano State High Court for the recovery of the balance due of N1, 901,680.82. The proceedings were commenced under the undefended list procedure of order 23, of the Kano State Civil Procedure Rules and its rules of the Kano State Civil Procedure rules. With the leave of the court, the now respondent, then the plaintiff claim against the defendant now the appellant was placed on the undefended list suit. The defendant filed a notice of intention to defend. In the course of presentation of the affidavit evidence of the plaintiff and after stating the reasons why the Plaintiff was entitled to judgment and after the reply of the defendant, the learned trial ruled thus;

“Issues the court invites the parties to address on the following issues either today or on Friday so that ruling may be given on Monday 31/7/2000. Whether res judicata will not prevent the defendant from claiming the proper value of his share certificate? In early case of IJALE V. LEVANTIS (1965) 1 ALL NLR 176 at 180.

(2) The plea of res judicata applies except in special cases not only to facts in issues upon which the court is required by the parties to decide on but the very fact which relates to the fact in issue brought forward at the time.