Nigeria Merchant Bank Plc V. Aiyedun Investment Limited (1997)

LawGlobal-Hub Lead Judgment Report

AYOOLA, J.C.A.

This is an appeal from the decision of the Lagos High Court (Alabi, J.) giving judgment for the plaintiff in the sum of N4,426,075.00, being as to N1,000,000 refund of money deposited with the defendant by the plaintiff and, as to the balance, interest on the said sum.

The defendant who is the appellant in this appeal is referred to as the ‘defendant’, while the respondent who was the plaintiff at the trial is referred to as the ‘plaintiff in this judgment. This appeal is limited to the award of the sum of N3,426,075 as special damages. The main complaints of the defendant on this appeal are that there were no averments in the pleadings in support of the claim for interest as special damages; and that in any event the plaintiff did not establish its claim for special damages as required by law nor had it established a claim for interest and the quantum of such claim.

The background facts as found by the learned trial judge, were as follows. The plaintiff and one Alfredo Enterprises Limited entered into a joint venture agreement pursuant to which the plaintiff deposited the sum of one million naira into a deposit account with the defendant. The plaintiff and Alfredo Enterprises Ltd (‘Alfredo’) entered into an agreement whereby it was agreed between them that the defendant should ‘hold a lien and exercise the right of set off on our deposit account with Nigeria Merchant Bank … for as long as the company remains indebted to the Bank ….’ The defendant claimed to have exercised the right to set off One Million Naira plus the interest accruing thereon up to 23rd April 1992 on the plaintiff’s deposit account to the loan account of Alfredo. The learned judge found that there was no basis or justification for the defendant to exercise the right of set-off over the deposit of One Million Naira which the plaintiff kept with it, and that the plaintiff was entitled to a refund of that sum. Against that finding there bas been no appeal. As earlier said, this appeal concerns the award of interest.

On the question of interest, the judge was of the opinion that: ‘The fact that the plaintiff is entitled to interest is not in doubt.’ He buttressed this opinion by reference to paragraph 16 of the statement of defence wherein the defendant averred that it transferred the principal sum plus interest up to 23rd April 1992 from the plaintiff s deposit account to the loan account of Alfredo. The obvious inference from that averment is that the plaintiff’ deposit had been attracting interest. The judge relied on the uncontroverted evidence of the plaintiff’s expert witness to fix the rate and quantum of interest.

At the forefront of the argument of counsel for the plaintiff on this appeal is the pleading question. Plaintiff’s counsel submitted that the evidence which was adduced to establish the claim for special damages or interest related to facts which were not pleaded and therefore went to no issue. The plaintiff pleaded in regard to the deposit account which was the basis of his case thus in paragraph 9 of the statement of claim:

“The plaintiff on or about the 29th day of November 1986 deposited a sum of N1, 000,000 (One million Naira) in its name with the defendant, this deposit account in the plaintiff’s name being intended to establish the good faith of the plaintiff.”

Part of the plaintiff’s case on this appeal is that the plaintiff’s pleadings did not justify the admission of evidence of the defendant’s liability to pay interest on the deposit account. It was submitted that the plaintiff should have pleaded the agreement of the parties as regards interest and the terms of such agreement. It has not been denied that there was ample evidence from which it could reasonably be inferred that the deposit account did attract interest.

The letter (Exh. P5) dated 13th October, 1989 written by the defendant to the plaintiff concerning interest on the deposit is one such piece of evidence. However, the defendant now says that that and other pieces of evidence going to liability to pay interest on the deposit and quantum of such go to no issue. The question is: was the defendant right in that contention? Part of the answer, I believe, is to be found in general banking law, If the averment that a deposit account implied a liability to pay interest thereon, the fact that the pleadings did not go further expressly to plead an agreement as to interest would not matter. Where there was a particular agreement as to interest, the party who relies on that agreement should plead it. I do not think that was the position in the present case. I think the point had been well made by this court (Kaduna Division) in the case of Angyu v. Malami (1992) 9 N.W.L.R. (Part 264) 242 at pages 254-255 as follows per Uthman Mohammed, J.C.A. (as he then was) as follows:

“I believe that it has gained notoriety which requires no proof that the advantage that a customer gains by opening a deposit account is that the banker pays interest on sums paid into such account See Chitty on Contracts. Specific Contract, 24th Edition, para. 2586, at page 246. I do not agree that the existence of a deposit account does not per se, involve payment of interest. It is plain without saying so that it does.”

In my view, the averment that the defendant did open a deposit account in the name of the plaintiff implies an obligation to pay the plaintiff interest on the sums in the account. That implication is confirmed by the conduct of the defendant in writing the letter which had been referred to as exhibit P.5 informing the plaintiff of the rates of interest operating from time to time, and in transferring not only the principal sum of N1, 000,000 but also the interests accruing thereon to offset the alleged indebtedness on the account of Alfredo, as pleaded in para. 16 of the statement of defence. I think it is really too late in the day for the defendant now to contend that the evidence as to liability of the defendant to pay interest on the deposit account went to no issue. This is because, the plaintiff is having averred that the account was a deposit account went on to claim interest thereon. If the defendant had wanted to contest the question of its liability to pay interest, it would have denied that liability by its pleadings. I may well observe, in passing, that were it to do so, it would have been had put to explain paragraph 16 of its statement of defence and the letter Exh. P.5. It must be said that the rule that evidence of facts not pleaded goes to no issue is not a technical rule but one that is founded on justice and the principles of fair hearing. Where, therefore, on the totality of the pleadings, the court can come to the conclusion that the defendant knew what the plaintiff was claiming and the facts on which he based his claim, it cannot be said that the demands of fair hearing had not been met merely because the plaintiff had failed to couch his pleadings in a particular manner. The averment in this case that there was a deposit account followed by a claim for interest thereon is sufficient to put the question of liability to pay such interest in issue. I come to the conclusion that the evidence in regard to the question of interest was in conformity with the pleadings.

However, the liability to pay interest would not imply that accrued interest could be claimed as special damages, nor would the averment, whether express or implied, as to the defendant’s liability to pay interest determine the circumstances in which interest could be claimed as damages. In so far as the liability to pay interest is founded on contract, any interest accruing on the deposit account up to the date of the breach by the bank to pay the money due on the deposit account when demanded or due according to the agreement of the parties, should strictly be claimed not as damages but as money due on the contract. The question of damages would arise as a result of any loss, suffered by the customer by reason of the breach.

The failure of the Bank to pay the money due on the deposit account on demand by the plaintiff was a breach of contract: (See President of India v. La Pintada Campania Navigacion S.A. (1985) A.C. 104, 127.) Such breach would justify a claim for compensation. It would not really matter if the compensation claimed is described as interest or as damages, as long as the compensatory nature of the award for loss suffered as a result of withholding money to which the plaintiff is entitled is borne in mind.

In the House of Lords case of Riches v. Westminster Bank Limited (1947) A.C. 390 at p. 400 Lord Wright said:

“… in my opinion … the essence of interest is that it is a payment which becomes due because the creditor has not had his money at the due date. It may be regarded as representing the profit he might have made if he had had the use of the money, or conversely the loss he suffered because he had not that use. The general idea is that he is entitled to compensation for the deprivation. From that point of view it would seem immaterial whether the money was due to him under a contract express or implied or a statute or whether the money was due for any other reason in law. In either case the money was due to him and was withheld from him by the debtor after the time that the payment should have been made, in breach of his legal rights, and interest was a compensation, whether the compensation was liquidated under an agreement or statute … The essential quality of the claim for compensation is the same and the compensation is described as interest. For reasons that go back far in history the distinction between interest proper as it had been called, that is interest due under a contract, statute or the like, and interest by way of damages, that is, not due under an agreement express or implied has since been recognized in England whether in the ecclesiastical or common law courts.”

In Webster v. British Empire Mutual Life Assurance Co. (1880) 15 Ch. 169, 174 James L.J. said:

“…anything in the nature of interest can only be given, in my view, as damages for the wrongful detention of money which ought to have been paid.”

Notwithstanding that an award of damages in the nature of interest can be given for wrongful detention of money which ought to have been paid, it is nevertheless useful to bear in mind the distinction between contractual interest which is interest agreed as consideration for the creditor conferring upon the debtor (the Bank) the right to use the money lodged in the deposit account, and operative during the contractual period, and other claim in the nature of interest for which the agreement as to interest in respect of the contractual period can no longer be used as basis.

In the present case, the contractual period terminated when the plaintiff by its solicitors wrote to the defendant on 25th July, 1992 making a demand “for the payment of the sum of N1, 847,329.24 … which represents total amount accruing to our clients deposit account with your organisation till date.” (emphasis mine).

That letter was exh. P. 9 at the trial. Any claim resulting from the failure of the defendant to pay the sum demanded and rightly accruing to the plaintiff on the deposit account can only be for compensation for unlawful deprivation of the money. If the amount claimed as compensation is described as interest it could not be interest proper calculated at the contractual rate but damages in the nature of interest, which by its compensatory nature and depending on the circumstances may be equal to the contractual rate or may exceed it or be below it. In this case, the plaintiff’s statement of claim had been silent as to any loss suffered by it by reason of the unlawful deprivation of the money due to it between the date on which Exh. P9 was written and that in which the action was commenced. Although in the relief, claims for interest were set out as’ special damages and the rates included, there were no averments in support of the claim for interest as special damages. The plaintiff should have averred that by reason of its being unlawfully deprived of the money to which it was entitled it had suffered loss that the particular loss was within the contemplation of the parties and the quantum thereof.

In my view there is no reason to belabour the issues raised by the parties in this appeal. I am in agreement with the defendant that the award of special damages was erroneous both because such claim was not properly pleaded and because exhibit P.22 relied on as establishing the quantum of such damages was; first, without factual basis in relation to any loss suffered by the plaintiff; secondly, because the figures mentioned therein is at variance with what the parties agreed to be accrued liability of the defendants up to the determination of the deposit agreement; and, thirdly, if loss suffered was to be on the basis of deprivation of money, the money the plaintiff has been deprived of was N1, 847,329.24 and the date of the withholding of the money in breach of contract was when a demand for its payment was made on 25th July, 1992. The loss suffered by the plaintiff as a result of the deprivation which could be compensated for in damages could only be assessed as from that date. The long and short of it is that the document Exh. P22 relied on by the judge should not have been relied on. Even if the question of special damages had properly arisen the report Exh. P22 is patently defective to be reliable evidence of the plaintiff’s loss. It seems unrelated to the cause of action as it erroneously varied the contractual rate during the currency of the contract and did not advert to the amount which the plaintiff had demanded from the defendant the refusal to pay which was the basis of the claim for special damages.

The learned judge had embraced the report Exh. P22 and used it uncritically in assessing damages. He was in error in so doing. He was also in error in his view that because the ‘plaintiff did not indicate an agreement to a variation of the contractual rate of interest that amounted to a rescission of the agreed rate of interest. The proper views, I think, are that the original rate of interest continued until it is varied by mutual agreement or until the contractual period ended. In this case, on the evidence, the parties are in agreement as to what was due to the plaintiff at the time when the contract came to an end pursuant to the demand by the plaintiff of the payment of the money due on its deposit account. There is no doubt that the plaintiff is entitled to that amount which consisted of principal sum and an accrued interest. Even though he claimed these as special damages, I think one should not insist on a preference for claiming it as money due on the contract. I would give judgment for what the parties have on the evidence agreed that was the money the plaintiff should have been paid in performance of the contract and which had been wrongfully withheld.

Entitlement to special, rather than general damages that is to say, compensation for loss for the unlawful deprivation of that money specially quantifiable and beyond what is the natural consequence of the deprivation of the money has not been pleaded or proved.

Before I part with this appeal, it is pertinent to advert to one pleading question raised in this appeal in regard to the consequence of a party pleading that he would rely on certain unspecified documents at the trial.

The plaintiff contended that such averment made the contents of such document part of the pleadings. In this case, the plaintiff in para. 30 of the statement of claim pleaded thus:

”The plaintiff at the trial will rely on all letters and documents between the parties pertaining to this suit.”

Although the principle is established that “if an agreement in writing is referred to in a pleading, it becomes part of the pleading and it is open to the Court to give the agreement its true legal effect; irrespective of the terms used in the pleading to indicate such effect”, that proposition of law should not be used to cover such averment as shown above which lacks specificity. Besides, a report, such as Exhibit P. 22 in this case, prepared by a witness for the plaintiff and tendered at the trial by the witness, cannot be described as ‘documents between the parties pertaining to the suit. At the appropriate time and when the occasion arises the true ambit of the proposition of law in such cases such as Banque Genevoise v. Spetsai Ltd. (1962) 2 SCNLR 310; (1962) 1 All N.L.R. 570 ought to be defined.

It is also expedient to state that had the plaintiff appealed from the decision denying him general damages he may have had a strong chance on this appeal of being awarded general damages. However, it will not be right for this court suo motu to consider the question of award of general damages which have not been in issue on this appeal.

Be that as it may, for the reasons which I have given in this judgment, I would allow the appeal to the extent only that the judgment of the court below will be varied.

I would set aside the judgment of the High Court entered in favour of the plaintiff in the sum of N4, 426,075.00 and in substitution therefore enter judgment for the plaintiff in the sum of N1, 847,329.24. The award of costs to the plaintiff in the Court below should stand. The defendants are entitled to costs of the Appeal which I assess as N3, 000.

Other Citations: (1997)LCN/0305(CA)

Sudan Airways Company Limited V. Surajo Mohammed Abdullahi (1997)

LawGlobal-Hub Lead Judgment Report

MUHAMMAD, J.C.A.

By a writ of summons taken from High Court No.8 of Kano State, holden at Kano, the respondent (as plaintiff) claimed from the appellant (as defendant) the sum of N300,000.00 (Three hundred thousand naira only) being cost of Kola nut consigned to the appellant for delivery at Khartoum. This consignment was never delivered at Khartoum to the respondent as agreed upon by the parties.

The genesis of the whole case as is clear from the printed record placed before this court is that the appellant is an Airline Company engaged in the freight of goods and passengers to several countries of the world including Nigeria, having its Regional Office at Post Office Road, Kano. The respondent is a Business man resident in Kano and who carries out Business both locally and internationally. On 2/3/94, the respondent purchased an Air Ticket for Kano to Khartoum, Khartoum to Jedda, Jedda to Khartoum and finally Khartoum to Kano. The Air Ticket cost him N18, 360.00. He had some luggage, mainly Kolanuts which he was to board along with and for which he had to pay to the appellant the sum of N7, 560.00 excess luggage charges. He was told that he would collect his luggage on arrival at Khartoum Airport. On arrival at Khartoum Airport on 2/3/94, respondent could not trace his luggage. He laid his complaint in this respect to the appellant’s Office in Khartoum. The Office issued him with property irregularity Report (P.I.R.) on same date. Thereafter, frantic efforts to trace the respondent’s luggage proved abortive which led to the respondent’s spending 6 days in Danah Hotel in Khartoum costing him N10, 000.00. On his return to Nigeria on 11/3/94, respondent made a report to the appellant’s regional office in Kano. Still, the luggage were no where to be traced. Hence, the commencement of the action.

A memorandum of appearance was filed by the appellant but did not file a statement of defence. On the 5th of July, 1994 the respondent testified in his own behalf. Thereafter, Judgment in the sum of N201, 861.00 (Two hundred and one thousand, eight hundred and sixty one naira only) was entered in favour of the respondent. It is against this judgment that the appellant appealed to this court. Three Grounds of Appeal were originally set out in the Notice of appeal. By leave of this court granted on 23/04/96, the appellant filed an Amended Notice of Appeal which now contained six grounds.

Before commencement of hearing the appeal, parties filed and exchanged briefs of argument. Hearing commenced on 08/10/97. Learned counsel for the appellant adopted and relied on his brief of argument. Learned counsel for the respondent too, adopted and relied on his brief. The appellant formulated the following issues for determination by this court:

“(a) Whether as at 1994 which was when the Learned Trial Judge entertained the respondent’s claim and gave Judgment in favour of the respondent, he had the jurisdiction to determine issues arising from a contract of carriage of goods and passengers by air.

(b) Whether it was right for the Learned Trial Court to award special damages for the respondent when the same was neither specially pleaded nor specifically proved.

(c) Whether the Learned Trial Court was right in applying the ordinary principles of English Law of contract when the parties to the transaction had mutually elected which law to govern their transaction.

(d) Whether the Lower Court was right in refusing to set aside the Judgment obtained by the respondent in the appellant’s absence when an application disclosing the reasons for the appellant’s absence and praying the court to set aside the Judgment was brought and duly argued before the Lower Court.”

The respondent on his part adopted all the issues formulated by the appellant.

In his argument on the first issue learned counsel for the appellant made copious submission particularly quoting and relying on the provisions of sections 7(1) (L); 7(2), 7(5) of Decree 60 of 1991 otherwise known as Federal High Court (Amendment) Decree, 1991. He also cited and relied on section 230(1) (K) of Decree 107, otherwise known as “Constitution (Suspension and Modification) Decree 1993.” The main argument of learned counsel for the appellant in all the above provisions is that although section 236 of the Constitution of the Federation 1979 conferred unlimited jurisdiction upon the High Court of a State, the section and indeed the Constitution have undergone some modifications by Decrees such as Decrees No. 60 of 1991 and 107 of 1993. The provisions cited in these two Decrees, he argued further, have the cumulative effect of limiting the hitherto unlimited jurisdiction enjoyed by the State High Court Section 7(5) of Decree No. 60 in particular expressly limited the jurisdiction of the State High Court in respect of all the matters mentioned under section 7(1) thereof which include any civil cause or matter arising from carriage of goods and passengers by air. The court now conferred with jurisdiction on such matters is the Federal High Court. Learned counsel cited a plethora of cases in support of his submission which include among others Adeyemi v. Opeyori (1976) 9-10 SC 31; Babale v. Abdulkadir (1993) 3 NWLR (Pt. 281) 253; A.G. of the Federation v. Sode (1990) 1 NWLR (Pt.128) 500; State v. Onagoruwa (1992) 2 NWLR (Pt 221) 33. Learned counsel for the appellant submitted finally that the Lower Court lacked Jurisdiction to entertain the respondent’s claim before it and its Judgment and other proceedings on same are a nullity and should be set aside. He urged this court to direct the respondent to pay back to the appellant the 1/3 of the Judgment sum paid by the appellant to the respondent as ordered by the lower court or, in the alternative an order for a rehearing of the case on its merit.

Learned counsel for the respondent made frantic effort to debunk the submission made by the appellant. In his view, the provisions of Decree 60 of 1991; 107 of 1993 and the 1979 Constitution were more in favour of the respondent. The resume of his argument is that as at the time the lower court delivered its Judgment it had jurisdiction to try the subject matter of the action.

However, in another breath, learned counsel for the respondent conceded, after having quoted extensively from the provisions of the above enactments that: “The afore quoted provisions of the law expressly ousts (sic) the jurisdiction of the State High Courts from entertaining matters relating to carriage of goods and passengers by air” (p.3 Para. 3.3 of respondent’s brief). Learned counsel for the respondent made further submission, however, that the provisions of Decree 60 of 1991 were further amended by section 230(1) (K) of Decree 107 of 1993 by expressly omitting the phrase “Carriage of passengers and Goods by Air,” and that in his view, it is a settled principle of law that “express mention of one thing is an exclusion of all others”. He buttressed this submission by citing the Supreme Court case of Udo & Ors v. Orthopaedic Hospitals Management Board and Anor. (1993) 7 NWLR (Pt. 304) 139; (1993) 7 SCNJ 436 at 443. He also called in aid the provision of section 6(1) of Decree 107 of 1993. Learned counsel concluded his argument that the Federal High Courts do no more have exclusive jurisdiction over matters relating to carriage of passengers and goods by air as section 7(1) (L) of Decree 60 of 1991 has been modified by section 230 (1) (K) of Decree 107 of 1993, not to include any more matters relating to carriage of passengers and goods by air. Thus, the lower court had jurisdiction by virtue of section 236 of the 1979 Constitution of the Federation. He accordingly urged this court to dismiss the appeal on this issue.

Now, having carefully considered the nature of the action on appeal and the general conceptualization of the whole case by both parties, I find it necessary at this stage of the appeal to state that by looking at the prevailing law, it will not serve any purpose to go into the merit of the appeal. This is because issue No.1 is most fundamental and must be resolved at once. It is this issue that determines whether the remaining issues formulated by the parties can be considered or not.

It is agreed within the legal circle that jurisdiction is the spinal cord of a court of law. Any decision taken by a court without jurisdiction is no decision at all and is subject to being nullified on appeal see: Madukolu v. Nkemdilim (1962) 2 SCNLR 341.

The practice in the recent past was that the High Court of a State by virtue of general powers conferred upon it by section 236 of the Constitution of the Federation 1979, enjoyed exclusive monopoly of jurisdiction on almost all first instance cases. The recent amendments introduced by some Decrees, such as No. 60 of 1991, No. 107 of 1993, have brought a lot of weight to bear on the state High Court’s jurisdiction. For instance, the Federal High Court (Amendment) Decree, 1991 (Decree No. 60 of 1991) which came into force on the 26th day of August, 1993, States in section 7 as follows:-

“7(1) The court shall to the exclusion of any other court have original jurisdiction to try civil causes and matters connected with or pertaining to-

(L) aviation, safety of air craft and carriage of passengers and goods by air and meteorology”

Decree No. 107 of 1993, which came into effect on the 17th day of November, 1993, amended section 230(1) (K) of the 1979 constitution. The section reads:

“230(1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly or Decree. The Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters arising from-

(a)…

(k) aviation and safety of aircraft.”

(Italics for emphasis)

Thus, the provisions of sections 7(1) (L) of Decree 60 of 1991 and 230(1) (k) of the 1979 Constitution of the Federation as amended, clear as they are, leave no one in doubt that the only court having exclusive jurisdiction on aviation matters including carriage of goods and passengers is the Federal High Court. See Ali v. CBN (1997) 4 NWLR (Pt. 498) 192; Egypt Air v. Abdullahi (1997) 1 NWLR (Pt.528) 179, Appeal No. CA/K/273/95 of and May, 1997 (Court of Appeal, Kaduna Division). I therefore find it difficult to reason with learned counsel for the respondent’s submission that section 230 1 (K) of Decree 107 and the provisions of section 7 of Decree 60 of 1991 have ousted the jurisdiction of the Federal High Court on matters relating to carriage of passengers and goods by air. In fact the reverse is the case. I am not in agreement also with the learned counsel’s submission that the rule of interpretation adopted by the Supreme Court in the case of Udoh and Ors. v. Orthopaedic Hospitals Management Board and anor. (1993) 7 NWLR (Pt. 304) 139 (1993) 7 SCNJ 436 at 443, is the same rule that will govern the appeal on hand. The two cases are quite distinguishable. In my view the basic principle of interpretation of statutes such as the ones referred to in this appeal by learned counsel for the respective parties is that the golden or literal rule of interpretation whereby words used in the statutes are given their ordinary and plain meaning, is resorted to by the courts.

Awolowo v. Shagari (1979) 6-9 S.C. 51 at 90-92; Aqua Ltd v. Ondo State Sports Council (1988)4 NWLR (Pt. 91) 622 at 641-642; Fasokin v. Fasakin (1994) 4 NWLR (Pt 340) 597 at 617. I therefore hold that section 230 of the 1979 Constitution of the Federation as amended by Decree No. 107 of 1993 in its ordinary meaning does not deprive the Federal High Court from exercising jurisdiction in matters specified therein. Further, there is nothing in section 230 of the 1979 Constitution (as amended) which suggests that both the Federal High Court and the High Court of a State have concurrent jurisdiction to entertain matters specified in that section. If anything, the amendment to section 230 of the 1979 Constitution (as amended) which suggests that both the Federal High Court and the High Court of a State have concurrent jurisdiction to entertain matters specified in that section. If anything, the amendment to section 230 of the 1979 Constitution brought by Decree 107, has completely divested a State High Court of its exclusive jurisdiction it hitherto enjoyed. Section 7(1) (L) quoted supra is very clear on this point. The two sections enhance the jurisdiction of the Federal High Court.

In conclusion, since the claim of the respondent at the lower court related to carriage of goods and passengers by air, the lower court certainly had no jurisdiction as at the time it entertained the matter. The best course opened to the lower court was to transfer the matter to the Federal High Court, Kano. See section 7(6) (b) of Decree 60 of 1991. But as the lower court did not comply with this provision, I have no alternative to declare the whole proceeding including the Judgment of the lower court a nullity. It is trite law that any step taken on a matter by a court that lacks jurisdiction thereon is a complete nullity. See: Kalio v. Kalio (1975) 2 S.C. 15; Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Odofin v. Agu (1992) 3 NWLR (Pt. 229) 350 at 364. Accordingly, I declare the Judgment delivered by the lower court on the 6th day of July, 1994 and all the proceedings relating to the suit before it, a nullity and are hereby set aside. This appeal therefore succeeds and is hereby allowed on this issue alone. Having regard to the above conclusion, I do not consider it necessary to delve into the remaining issues which touch on the merit of the case. Accordingly the case is hereby transferred to the Federal High Court, Kano for a fresh hearing. Parties to bear own costs.

Other Citations: (1997)LCN/0304(CA)

Emmanuel Mmaju & Ors. V. Osita Dinma Egbuchunam (1997)

LawGlobal-Hub Lead Judgment Report

EJIWUNMI, J.C.A.

This appeal is against the refusal of the lower Court to make an order of interlocutory order of injunction in their favour. Before the Onitsha High Court within the Onitsha Division of the Anambra State High Court, the plaintiffs commenced this action in Suit No. 0/172/85 against the defendant. The plaintiffs by their writ of Summons are claiming declaratory reliefs for the Customary Right of Occupancy in respect of Mmaju land lying, situate and being at Ogidi Ana Etiti Ogidi, N1,000,000 (One million Naira) being general damages for trespass, perpetual injunction.

The plaintiffs thereafter filed a motion on notice dated 23rd March, 1995 for an interlocutory order of injunction restraining the defendant/respondent, his servants, agents, privies and workers from further committing acts of trespass on their land described above in Suit No. 0/172/95. But before that motion could be heard the plaintiffs moved the court by an exparte motion dated 30th March 1995, obtaining an interim order of injunction against the defendant on the 31st March 1995. Following that order, the earlier motion on Notice for an order of Interlocutory injunction was heard by the learned trial Judge, Amaizu J. Having heard the addresses of learned counsel appearing for the parties, delivered a considered ruling, wherein the earlier order of interim injunction made in favour of the plaintiffs was discharged. The order of interlocutory injunction sought for by application made in that regard was refused.

Being dissatisfied with that order of the lower court, the plaintiffs have appealed to this Court. Pursuant thereto, three grounds of appeal were filed. In accordance with the Rules of this court the parties filed and exchanged Briefs of Arguments. At the hearing before us, learned counsel who appeared for the parties, namely, S.O.P. Okeke Esq., for the plaintiffs now appellants, and Chief O. Ugolo, for defendant, now respondent, adopted their respective briefs. Before then, the learned counsel to the respondent had filed a notice of preliminary objection. The ground of his objection being that the 2nd & 3rd grounds of appeal are incompetent and should be struck out. The learned counsel to the appellants readily agreed with the grounds of objection raised. He therefore conceded that they are incompetent.

The Court then struck out the 2nd and 3rd grounds of the appeal. The argument canvassed in their favour was also struck out from the appellants’ brier. The argument advanced in respect of them in the respondent’s brief was similarly struck out.

The resulting effect of the preliminary objection is that the appellants are left with only one issue for the determination of their appeal. It is whether the lower court acted correctly in not considering the factors necessary for granting or refusing an interlocutory injunction before it refused the application of the appellants. The learned counsel to the appellants for that purpose referred to several of the leading authorities dealing with the principles that should guide a court when considering whether to grant or not to grant an Order of interlocutory injunction. Those authorities would be considered as deemed fit later.

The other submission made for the appellants is that the learned trial Judge failed to give due consideration to the facts deposed to in the affidavit filed in support of their application. For that reason their case that the land in dispute being family land cannot be properly sold without the consent of the head of their family, of which the 1st appellant is. Furthermore their denial that they had not sold the land in the circumstances claimed by the respondent. Furthermore, those who claimed to have sold the land to the respondent did not possess such rights. Indeed, they contend that if their reply to the counter-affidavit filed by one Ifeanyi Mmaju had been properly considered, the claim set up by the said Ifeanyi Mmaju would have been seen as false.

The respondent, by his learned counsel contends that the order of interlocutory injunction was properly refused by the lower court. He therefore urges that the order be not reversed.

It is convenient at this point to re-state, what are now settled as the guiding principles that a court should bear in mind in the consideration of an application for interlocutory injunction.

(1) The plaintiff must show an existence of a right which needs to be protected in the interim and the court should be satisfied that there is a real question to be tried in the substantive case.

(2) The court then considers whether if the plaintiff were to succeed at the trial in establishing his right to a permanent injunction he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the defendant’s continuing to do what was sought to be enjoined between the time of the application and the time of the trial.

(3) If damages in the measure recoverable at law would be adequate remedy and the defendant would be in a financial position to pay them, no interlocutory injunction should normally be granted however strong the plaintiff’s claim may appear to be at that stage.

(4) If otherwise damages would not provide an adequate remedy for the plaintiff in the event of his succeeding at the trial, the court should then consider whether in case the defendant were to succeed at the trial in establishing his right to do that which was sought to be enjoined, he would be adequately compensated under the plaintiff’s undertaking as to damages for the loss he would have sustained by being prevented from doing so between the time of the application and the time of the trial.

(5) If damages would be an adequate remedy and the plaintiff would be in a financial position to pay, there would be no reason in this regard to refuse an interlocutory injunction.

(6) It has long been established that where any doubt exists as to the plaintiffs right or if his right is not disputed but its violation is denied, in determining whether an interlocutory injunction should be granted the court takes into consideration the balance of convenience to the parties and the nature of the injury which the defendant, on the other hand, would suffer if the injunction was granted and he should ultimately turn out to be right, and that which the plaintiff, on the other hand, might sustain if the injunction was refused and he should ultimately turn out to be right. See Sweat v. Shaw (1839)8 LJ Ch 216 at 218; Ladunni v. Kukoyi & Ors (1972) 1 All NLR 133 at 136 (Part 1) per Coker JSC.

(7) A further point to be made is that the extent to which the disadvantages to each party would be incapable of being compensated in damages in the event of his succeeding at the trial is always a significant factor in assessing where the balance of convenience lies. It is, however, where there is doubt in any event as to the adequacy of the respective remedies in damages available to either party or to both, that the question of balance of convenience arises: See American Cyanamid v. Ethicon Ltd (1975) I All ER 504 per Lord Diplock; Egbe v. Onogun (1972) 1 All NLR (Pt.1) 95 at 98; Obeya Memorial Hospital V. Attorney- General of the Federation & Anor (1987) 3 NWLR (Part 60) 325 at 338.

It is interesting to also note that as long ago as 1961, Madarikan J., (as he then was) had when sitting at the Akure High Court in Akinlose & Ors v. A.I.T. Limited and Ors (1961) WNLR 116 at 117 had stated succinctly the principles that ought to be applied in the resolution of the issue of balance of convenience, thus:-

“In deciding whether to grant an interlocutory injunction in this case, I ought to take into consideration the balance of convenience to the parties and the nature of the injury which the defendants, on the one hand, would suffer it the injunction was granted and the case is subsequently decided in their favour, and that which the plaintiffs, on the other hand, might sustain if the injunction was refused and they should ultimately obtain judgment in their favour.”

These principles formidable as they appear are not intended to deter, but to encourage the court to look critically and carefully at what, in most cases would be the conflicting claims of the parties in respect of an application for the order of interlocutory injunction. It follows therefore that before the order is made the court must be satisfied that the applicant has a triable issue, and that having regard to the principles enunciated above the justice of the case would be met by the order of injunction being made in favour of the plaintiff who applied for the order. Being an exercise of the discretionary power of the court, the court is called upon in addition to exercise that discretion judiciously and judicially.

Reverting to the case in hand, the question that the court had to resolve fell into a rather simple compass. The question being whether it is satisfied that the appellants, upon the affidavit evidence are entitled to the prayer for the order or interlocutory injunction. It is the case of the appellants that the land in dispute is part or a huge area of family land and that they are the only persons entitled to sell the land. That in that capacity no portion of the land in dispute had been sold by them to anyone including the respondent. The alleged sale of a portion of it to the respondent is denied as being family land, and which has not been partitioned from when they inherited it, no one can sell validly any portion of same. The respondent’s case obviously depends on the validity of the sale of the land to him, having regard to the affidavit evidence filed by him and the Deed of Conveyance allegedly conveying the portion of the appellant’s land sold to him.

The learned trial Judge had those facts before him, and it seems to me with due respect, that if the principles adumbrated above had been considered in the light of that evidence, his conclusion might have been different. It is my view therefore that the lower court ought to have made an order of interlocutory injunction in favour of the appellant). Bearing in mind also the contention of the respondents, I think also that the appellants should also be ordered to give an undertaking.

In the result, the ruling and orders of the lower Court are set aside. In its place, an order of interlocutory injunction is made against the respondent, his agents, privies and servants restraining them from entering the land in dispute until the determination of the substantive case. The appellants are hereby also ordered to enter into an undertaking in the sum of N 100,000.00. The appellant is awarded cost in the sum of N1, 000.00 only.

Other Citations: (1997)LCN/0303(CA)

Alhaji Shuaibu Mamman Dan Maifade V. Muhammadu Dan Ige & Ors (1997)

LawGlobal-Hub Lead Judgment Report

MUHAMMAD, J.C.A. 

This appeal is on the ruling of a Sokoto State High Court of Justice sitting as an appeal court on appeal No. SS/58A/84. On the 17th day of March, 1994 the appeal was called for hearing. The appellant was absent. It was indicated that the appellant was served with hearing notice. Accordingly, learned counsel for the respondent made an oral application that the appeal be struck out as the appellant was no longer interested in the appeal. The lower court granted the application and struck out the appeal. This appeal is as a result of that striking out order.

Brief facts on the appeal, from the record, show that the Upper Area Court No. II Sokoto (trial court) received a directive vide letter No. S/JACD/3/V1/173 of 24/2/84 from the Area Court Division, Sokoto, for a retrial of the case between the parties. The claim before the trial court was that the respondents as plaintiffs claimed against the appellant as defendant that they were entitled to the ownership of a plot of land which was in possession of the appellant. After taking evidence, judgment was entered in favour of the respondents. Dissatisfied, the appellant appealed to the High Court. The panel that entertained the appeal, F.C. Udoh and B. Abdullahi (JJ) took arguments from the parties on 8/1/87 and reserved judgment to the 12th day of January, 1977. On the said date, judgment could not be delivered due to the fact that the panel could not reconstitute. As a result, the appeal was again listed for hearing by another panel which was constituted by J.O. Omokri and A.I. Anka (JJ) who ordered, vide their ruling of 7/2/91, that the parties should wait for judgment as scheduled by the earlier panel. In essence the latter panel did not consider the appeal. The appeal was then re-scheduled to be taken up by another panel (3rd panel) constituting of F.C. Udoh and J. Mikailu (JJ). This was the last panel that struck out the appeal. The appellant then filed a motion on notice No. SS/H/83194 for relistment of the appeal.

This motion was refused on the 17th day of March, 1994. The appellant then filed his appeal to this court. He filed a Notice of Appeal containing two grounds.

In compliance with the rules of court the appellant filed his brief of argument. The respondents did not file any brief. In the appellant’s brief, learned counsel for the appellant formulated the following issues for the determination of this court;

1. “Whether the ruling of the High Court, in its appellate jurisdiction, striking out the appeal for non attendance of the appellant in court can be sustained having regard to the fact that the same High Court had heard arguments from both parties and had reserved judgment thereto.
2. Whether in the surrounding circumstances of this case, the High Court was right to hold that” on several occasions the case was mentioned and listed for hearing but on each occasion appellant had refused to show up”, having regard to the fact that the case had been adjourned by the court itself, since judgment had earlier on been reserved.”

This appeal was heard by this court on the 19th day of March, 1997. Learned counsel for the appellant adopted and relied on his brief. He had nothing more to add and urged the court to allow the appeal. The respondents were not in court and were not represented. No brief was filed by the respondents. I shall therefore treat this appeal on the issues formulated by the appellant as relating to the grounds of appeal.

Arguing the issues in his brief, learned counsel for the appellant submitted that striking out an appeal is a matter within the exclusive discretion of the court which must be exercised judicially and judiciously. Learned counsel submitted that in view of the attitude of the different panels of the lower court that acted in one way or the other on the appeal before the lower court, it was a blatant negation of the principle of substantial justice when the court struck out the appeal based on a misconceived application by the respondents. He submitted further that interest of justice required that the parties ought to have been afforded reasonable opportunity to have their rights determined on the merit. He likened the situation of his appeal as that of a party who filed a brief at the Court of Appeal but did not turn up to argue the appeal and by rules of court the Court of Appeal cannot strike out or dismiss the appeal merely on his non appearance. Learned counsel argued further that the lower court decided the application to strike out appellant’s appeal on a ground not relied upon by the respondents and without evidence. It was his submission also having argued the appeal and date for judgment having been fixed there ought to be proper service of hearing notice on the appellant where the court was to re-hear the appeal as the reserved judgment could not be delivered. There was no such proof of service of the hearing notice on the appellant. Further, it was the court’s duty to afford parties an opportunity to address it on the desirability and propriety of striking out order at the stage it did. This, according to learned counsel, is one of the rare instance where the appeal court shall interfere with the exercise of discretion of a trial court. Learned counsel cited a number of authorities in support of his submission including inter alia; Tom v. Ameh (1992) 7 NWLR (Pt.217) 306; Adeka & Anor v. M.A. Vattia (1987) 1 NWLR (Pt.48) 134; Onifade v. Olayiwola (1990) 7 NWLR (Pt. 161) 130; Ajakaiye v. Adedeji (1990) 7 NWLR (Pt.161) 192; Odutola v. Kayode (1994) 2 SCNJ 21 3 KLR 1; (1994) 2 NWLR (Pt.324) 1.This appeal, from the facts made available before this court had its own chequered history. It had its own vicissitudes. I have earlier on setout the historical antecedent of the appeal. It was unfortunate that none of the three different panels constituted by the lower court at different times was able to determine the matter on appeal before the lower court. Be that as it may, there was no judgment on the appeal as same was struck out by the third and last panel of the lower court that sat to hear the appeal. I think there is need to make some clarification in considering the first issue on a judgment reserved but not delivered. The practice in our courts the first issue on a judgment reserved but not delivered. The practice in our courts is that after evidence from the respective parties and counsel’s addresses where desirable, were taken by a trial court or where arguments are taken in elucidation of grounds of appeal or issues formulated for consideration by an appeal court, the matter is reserved for judgment. Where judgment/ruling is delivered within the statutory period, then that is the end of the matter in that court. Where no judgment was forth coming, then the matter may be relisted for a fresh hearing. In the process of re-hearing, the hearing court can make such orders that are within the inherent powers of the court including an order of dismissal or striking out of a case depending on the circumstance of each case.

What happened at the court below was that on the 17th day of March, 1994, appeal No. SS/58A/84 was scheduled for hearing before the lower court. The appellant was absent. It was shown on record that he was served. Accordingly, learned counsel for the respondents made an oral application for the striking out of the appeal. The lower court granted the application and struck out the appeal. On the 26th day of July, 1994, learned counsel for the appellant moved the lower court on an application for relisting the struck out appeal. The lower court refused to grant an order for relisting the appeal. Appellant then appealed to this court.

Now relisting of a struck out matter by a court is, as rightly observed by learned counsel for the appellant, purely discretionary. I think it is in my view, akin to asking the court for an extension of time to file an appeal or, pursue any other legal right whose stipulated time has expired. In such a situation, and depending on the law and procedure applicable, the applicant has to satisfy the court that he honestly deserves an indulgence from the court.

After having considered the facts deposed to in the affidavit in support of the motion to relist and the counter-affidavit filed by the respondents, the learned trial Judge made the following observation;

“However it is clear the ruling of this court of 11th March, 1994 was based on the absence of the applicants or several occasion (sic) before that date. The applicant have (sic) not justified earlier occasion of the absence.

The learned counsel for the applicant only states that he can not say the reasons being new in the case. I do feel that even the reason advanced for their absence on that day is not acceptable. The learned counsel should have written to the court (sic) informing the court of his inability to appear on that date. The applicant themselves court have some to count (sic) and inform the court that their counsel would not be able to come. Had that been done the court might have considered adjourning the matter to another date. The respondent could highly be prejudiced if an appeal matter filed in 1984 after been (sic) struck out amount ten years later (sic) for want of presentation is be relisted (sic) simply because the applicant says he is now ready to prosecute the matter on a counsel (sic) says I have justice (sic) been briefed not ready to prosecute the appeal.” These observation and holding of the learned trial Judge notwithstanding, it is my view that the appellant should have been afforded another opportunity to prosecute his appeal on its merit, moreso when it was the lower court that jeopardized the progress of the appeal to its finality. Paragraphs 3(i) – (vi) in my view, have furnished valid reasons why learned counsel for the applicant was late in going to the court The wish of the applicant to prosecute the appeal timeously has also been expressed. The paragraphs stale as follows:-

“3. That at about 4 pm on the 17th of March, 1994, Mr. Abdurahaman Adeyi told me and I verily believed him; the following facts:

(i) That on the 17th of March, 1994 he was to appear in the above named case before the Honourahle court.

(ii) That on that same day, he had another case going on in the High Court of Justice Bimin Kebbi.

(iii) That due to this conflict, he had to make arrangements to get another counsel, to hold his brief in the Bimin Kebbi case.

(iv) That by the time he concluded the arrangements and got to the Court the time was about 9.20 am and the case in question had been struck out for absence of appellant

(v) That his coming late to court was not intended to be a sign of disrespect to the court.

(vi) That the appellant/applicant is desirous of having the case re-listed as he is ready to prosecute same.”

In view of the above, I am inclined to allow this appeal. Accordingly, the appeal is hereby allowed. The ruling of the lower court refusing to relist appeal no SS/58A/84 delivered on 17/3/94 is hereby set aside. In its place the appeal is hereby relisted and remitted to the lower court for hearing on the merit. I make no order as to costs.

Other Citations: (1995)LCN/0302(CA)

Pius Nwosu V. Nze J.i. Nnajiuba (1997)

LawGlobal-Hub Lead Judgment Report

KATSINA-ALU, J.C.A. 

The plaintiff, Nze Joseph Ibe Nnajiuba sued the defendant, Pius Nwosu in the court below claiming the following reliefs:

1. A declaration by the Honourable Court that the Chieftaincy Stool of Amaokpara Autonomous Community is neither hereditary nor the exclusive preserve of the family of the defendant.
2. A declaration by the Honourable Court that the plaintiff having been duly chosen, selected, identified, installed and presented for recognition by the overwhelming majority of the people of Amaokpara Autonomous Community is entitled to be recognized by the Imo State Government as the Traditional Ruler (Eze) for Amaokpara Autonomous Community.
3. An order of the Honourable Court restraining the defendant by himself, his servants or agents from parading, masquerading, styling or holding himself out as the Eze-elect of Amaokpara Autonomous Community.
4. A declaration by the Honourable Court that any purported identification, selection and presentation of the defendant by his few friends and relatives to the Imo State Government through the Chairman of the Nkwerre Local Government for recognition as the Traditional Ruler of Amaokpara Autonomous Community is illegal, null and void same having been carried out in violation of the provisions of the Chieftaincy Constitution of Amaokpara Autonomous Community.
5. A declaration by the Honourable Court that the document titled “Chieftaincy Constitution: Autonomous Community Amaokpara Nkwerre L.G.A.” purportedly executed by Eze James Uzozie Nwosu, and J.O. Madueke and one Nze Ebo Ibegbulem for and on behalf of Amaokpara Autonomous Community and on which document the defendant has been relying for his claims to the Chieftaincy throne of Amaokpara is a cheap forgery manufactured by the members of the family of late Eze James Uzozie Nwosu for the purposes of perpetuating the Chieftaincy stool of Amaokpara in their family albeit fraudulently.”

The case proceeded to trial before Ezenagu, J. And on the 6th day of August, 1996 he entered judgment for the plaintiff and made the following consequential orders;

“1. An order declaring that the Chieftaincy Stool of Amaokpara Autonomous Community in Nkwerre Local Government Area of Imo Stale is neither hereditary nor the exclusive preserve of the family of the defendant.

2. An order declaring that the plaintiff – Nze Joseph Ibe Nnajiuba – having been duly selected, identified, appointed, installed and presented by an overwhelming majority of the people of Amaokpara Autonomous Community in Nkwerre Local Government Area of Imo State for recognition is entitled to be recognized by the Imo State Government as the Traditional Ruler (Eze) for Amaokpara Autonomous Community in Nkwerre Local Government Area of Imo State.
3. An order declaring that the purported selection, identification, appointment, installation, and presentation of the defendant – Mr Pius Nwosu to the Imo State Government for recognition as the Traditional Ruler of Amaokpara Autonomous Community in Nkwerre Local Government Area of Imo State is illegal, null and void ab initio.
4. An order restraining the defendant by himself, his servants or agents from parading, masquerading, styling or holding himself out as the Eze-Elect of Amaokpara Autonomous Community in Nkwerre Local Government Area of Imo State.”

Dissatisfied by the said judgment and the orders made therein the defendant appealed to this court upon a number of grounds. This appeal is pending. It has not yet been disposed of. The parties are yet to file their respective briefs of argument. In the meantime the defendant, who shall hereinafter be referred to as the applicant, filed a Motion on Notice dated 26/10/96 praying for an order of injunction in the following terms;

“Restraining the plaintiff/respondent by himself, his servants, agents, privies or associates from presenting himself and/or allowing himself to be presented to the Chairman, Nkwerre Local Government and/or The Military Administrator of Imo State for recognition and/or presentation of Certificate of Recognition and/or presentation of Staff of Office as the Traditional Ruler of Amaokpara Autonomous Community pending the determination of the appeal filed by the defendant/appellant/applicant.”

This motion was moved on 2/7/97. In moving the motion on behalf of the applicant, Mr. Egole pointed out that the motion was supported by an affidavit of 28 paragraphs and attached thereto are Exhibits A to G, a further affidavit of 14 paragraphs and a further affidavit of 8 paragraphs. It was said that the applicant relied on all the paragraphs of these affidavits.

Learned counsel for the applicant submitted that the applicant has shown that he has a legal right which is being invaded and has also shown by the grounds of appeal filed on his behalf that this case has a possibility of succeeding. He relied particularly on paragraphs 13, 19, 20, 21 and 24 of the affidavit and also on Exhibits F and G. Learned counsel also relied on the cases of Martins v. Nicannar Food Co. Ltd. (1988) 2 NWLR (Pt.74) 75 at 82; Josien Holdings Ltd. v. Lornamead Ltd. (1995) 1 NWLR (Pt.371) 254 at 268.

It was also the submission of the applicant that the Grounds of Appeal raised substantial and arguable points of law such as to create special or exceptional circumstance to warrant this court to exercise its discretion in favour of granting the application. He referred to the case of Vincent Standard Trading Co. Ltd. v. Xtodeus Trading Co. (Nig.) Ltd. (1993) 5 NWLR (Pt.296) 675 at 688.

It was further submitted that the principles guiding the courts for grant of stay of execution and interlocutory injunction are the same. Reliance was placed on the case of Y.P.O. Shodeinde v. The Registered Trustees of Ahmadiyya Movement in Islam (1980) 1-2 SC 163 at 167. Finally counsel urged us to grant the application.

The application was opposed. Chief Bon Nwakanma, SAN appeared for the plaintiff who shall hereinafter be referred to as the respondent. He intimated the court that the respondent filed a counter-affidavit in opposition on 15/1/97. The respondent relied on all the paragraphs of the counter-affidavit. He also adopted pages 4 and 5 of Exhibit E as his oral submission.

Learned Senior Advocate of Nigeria for the respondent pointed out that the present dispute is a chieftaincy matter. He then submitted that a chieftaincy matter deals with status and as such has no legal right. At best it can be said to be a civil action having regard to the provisions of S.6(6)(d) of the 1979 Constitution as amended.

It was also the submission of learned Senior Advocate that chieftaincy matters are not perishable commodities. He further submitted that a chieftaincy matter is not an appropriate case for an injunction or stay of execution. He relied on the decisions in the cases of Gever v. China (1993) 9 NWLR (Pt.315) 97 at 108-9; Governor Imo State v. Anosike (1987) 4 NWLR (Pt. 66) 663. Finally he urged the court to dismiss the application.

The guiding principles for interlocutory injunctions have been approved by the Supreme Court in the cases of Obeya Memorial Specialist Hospital & Anor. v. A.G. of the Federation & Anor. (1987) 3 NWLR (Pt.60) 325; Kotoye v. Central Bank of Nigeria (1989) 1 NWLR (Pt.98) 419. The applicant in an application for interlocutory injunction must satisfy the court that there is a serious issue to be tried. Once he has done so, then the court will proceed to consider the balance of convenience. If the court is satisfied that it is on the side of the applicant, it should then extract from the applicant an undertaking as to damages.

These principles must be strictly observed. Although decided cases have established that it is impossible to lay down any general rule regulating the discretion of the court in all cases, it must be borne in mind that interlocutory injunctions are not granted for the asking, See John Holt Nigeria Ltd. v. Holts African Workers Union of Nigeria and Cameroons (1963) 2 SCNLR 383; (1963) 1 All NLR 379 at 383. The remedy by interlocutory injunction is so useful that it should and must be kept flexible and discretionary. It must not be made the subject of strict rules. See Governor of Imo State v. Anosike (1987) 4 NWLR (Pt.66) 663.

The purpose of an interlocutory injunction is to maintain the status quo and thereby preserve the res, the subject matter, of the litigation from being wasted, damaged or frittered away with the result that if the case succeeds, the result would be nugatory in that the successful party would reap an empty judgment. It follows that when a court of law finds that the matter sought to be restrained will not render the case, if successful, nugatory, then there is no reason why an injunctive order to maintain the status quo should be made. See Oyeyemi v. Irewole Local Government (1993) 1 NWLR (Pt.270) 462 at 476 where the Supreme Court per Nnaemeka-Agu, J.S.C. said:

“Also it must be noted that the whole purpose of an order to maintain the status quo is to preserve the res, the subject matter of the litigation, from being wasted, damaged, or frittered away, with the result that if the appeal succeeds, the result would be nugatory in that the successful appellant could only reap an empty judgment. When as in this case, a court of law finds that completion of a step sought to be restrained will not render the appeal, if successful, nugatory, then there is absolutely no basis for making the order to maintain the status quo.”

The subject matter of the present action is the Chieftaincy Stool of Amaokpara Autonomous Community. The Office of the Traditional Ruler of the said Community is not a perishable commodity. See Gever v. China (1993) 9 NWLR (Pt.315) 97 at 109; Governor Imo State v. Anosike (supra). In other words, a refusal to make an order of injunction, will not render the appeal, if successful, nugatory.

In the circumstances, there is absolutely no basis to grant the order sought by the applicant. The application therefore fails and it is dismissed. The respondent is entitled to costs which I assess at N1,500.00.

Other Citations: (!997)LCN/0301(CA)

Owena Bank (Nigeria) Plc V. Alhaji Yusuf Muhammed (1997)

LawGlobal-Hub Lead Judgment Report

OGEBE, J.C.A.

The respondent sued the appellant before the Kano High Court claiming in para. 15 of the statement of claim as follows:-

“i. Declaration that the suspension of the plaintiff’s salary and remuneration by the defendant is unreasonable, unwarranted, wrongful, unlawful and cannot be sustained in law.

ii. An order directing payment of the plaintiff’s salary and entitlement from the 17th of November 1989 to date.

iii. A declaration that the plaintiff be at liberty to relinquish his appointment with effect from the date of the orders above if granted and to seek employment elsewhere.”

The appellant filed a statement of defence denying the claim. The respondent gave evidence on his own behalf and on the 20th of September 1993, the learned counsel for him, Mr. Ojo Williams closed his case and the appellant’s counsel before that court, Mr. Abubakar asked for a date to open their defence. The learned trial Judge, Omar J. then adjourned the case to the 6th of October 1993 for defence.

On the 6th of October 1993 only the plaintiff was in court. His counsel was absent. The appellant and his counsel were also absent. The trial court minuted in the record of appeal at page 33 as follows:-

“The case has been fixed for defence today but the defendant is absent and unrepresented. I hereby hold that the defendant has got no defence to offer in this case. Case is adjourned to 28.10.93 for judgment.”

The trial court delivered judgment dated the 26th day of October 1993 on the 28th day of October 1993 in favour of the respondent and granted all the reliefs sought. It is against that judgment that the appellant appealed to this court on ten grounds of appeal. In accordance with the rules of court the appellant filed a brief of argument and identified 4 issues for determination as follows:

i. Whether the learned trial Judge exercised his discretion judicially and judiciously in adjourning the case for judgment following the absence of the appellant and his counsel and whether the failure to notify the appellant of the fact that the suit was fixed for judgment is not a violation of the rules of fair hearing.

ii. Whether the respondent’s appointment was duly determined by his letter of resignation or whether the failure of the appellant to accept the resignation can be interpreted to mean that respondent was still in the service of the appellant.

iii. Whether the respondent was still in the service of the appellant even after the delivery of Exhibits 8 and 8A to his Solicitors and Exh. 9 to him.

iv. Whether the respondent is entitled to the various orders made in his favour and the claims granted to him.”

The respondent also filed a brief of argument and identified 4 issues for determination as follows:-

“1. Can Exhibits 8, 8A and 9 which are mere photocopies of documents, have any evidential value in law when:-

a. the whereabouts of their originals were not explained to the trial court.

b. the said documents, even if originals, (which is not admitted) were made by a party interested in the proceedings when those proceedings were pending or at least anticipated (Grounds 2, 4 appellant’s ground of appeal and Ground 1 (a) and (b) in the respondent’s Notice).

2. What is the effect of Exhibit 3 on Exhibits 1 and 2 which constitute the master-servant relationship between the parties to this appeal? (Grounds 3, 4 and 9 of the appellant’s grounds of appeal and ground 2 in the respondent’s Notice).
3. Whether there is sufficient evidence before the court to support the granting of the reliefs claimed by the plaintiff/respondent having regard to:-

a. paragraph 15 of the amended statement of claim particularly the addendum thereof appearing on page 16 of the record of appeal on which no issue was joined by the defendant/appellant.

b. evidence of plaintiff/respondent on his entitlements appearing on page 32 of the record which was not challenged even under cross-examination. (Grounds 5, 6, 7 and 8 of the grounds of appeal).

4. (a) was the trial court in error in closing the appellant’s case in its absence and in holding that the appellant had no defence when:-

i. there was no application before the court for adjournment for further hearing.

ii. the appellant’s statement of defence, even if taken as established, cannot constitute a challenge to the main claim and oral evidence of the respondent?

(b) If the answer to (a) is in the positive, did the error, if any, occasion a miscarriage of justice? (Ground 10 of the grounds of appeal).”

In addition to his brief, the respondent also filed respondent’s Notice under Order 3 Rule 14(2) of the Court of Appeal Rules 1981 as amended contending that the decision of the court below be affirmed on grounds other than those relied upon by that court.

The most critical issue in this appeal is the 1st issue formulated by the appellant which is equivalent to the 4th issue formulated by the respondent. If that issue is decided in favour of the appellant, then the case between the parties will have to be heard de novo and the remaining issues in the appeal which have to do with the merits of the case will have to abide the result of the retrial. I shall therefore consider the 1st issue prior to the remaining issues.

Under this issue the learned Senior Advocate for the appellant submitted that the appellant was not given the opportunity of presenting its case and denied fair hearing when the trial Judge on the 6th of October 1993 adjourned the case for judgment in the absence of the appellant and its counsel. He said on that day only the plaintiff was present without his counsel in court. The trial Judge without asking the plaintiff/respondent to make any comment took over the case and adjourned the matter for judgment after holding that the appellant had no defence to offer in the case. The learned Senior Advocate submitted that this exercise of discretion by the trial court was arbitrary and was not a proper exercise of judicial discretion. He said that on other occasions when the respondent and the counsel were absent, the case was adjourned in their favour but on the only occasion when the appellant and his counsel were absent the appellant was shut out from presenting its defence. The trial court did not even order that a fresh hearing notice should be issued to the appellant to notify it of the date of the judgment. He relied heavily on the cases of Ceekay Traders Ltd. v. General Motors Co. Ltd. & 2 Ors (1992) 2 NWLR (Pt.222) P. 132 at p. 156; and Usikaro & Ors. v. Itsekiri Communal Land Trustees & Ors. (1991) 2 NWLR (Pt.172) 150 at 176 to 177.

In reply the learned counsel for the respondent submitted that the grant of an adjournment in a trial is within the absolute discretion of a trial court. He said that in this case the matter was fixed for defence with the knowledge and at the request of the appellant, but the appellant chose to absent itself without any reason and made no application for an adjournment. The trial Judge was therefore right in adjourning the matter for judgment. He said that to grant an adjournment in the circumstance of this case would have amounted to granting the party what that party had not asked for. It would also have amounted to wrong-doing to the other party. He relied on the ease of Odusole v. Odusote (1971) All NLR 219 at 223. He said that the closure of the appellant’s ease by the trial court was in compliance with Order 37 rules 1(2) and 2 of the Kano State High Court (Civil Procedure) Rules 1988.

It is a well-known principle of law that the question of an adjournment of a matter is entirely within the discretion of a trial court. A trial court must always be the master of the proceedings before it. The question of whether or not a matter should be adjourned or continued must always be decided judicially and judiciously, the exercise must not be capricious or made in such a way that injustice would result to either party. See the case of Ceekay Traders Ltd. v. General Motors Co. Ltd. & 2 Ors. (1992) 2 NWLR (pt222) P. 132 at P. 156. In the case of Usikaro and Ors. v. Itsekiri Communal Land Trustees & Ors. (1991) 2 NWLR (Pt. 172) 150 at page 180 Olatawura J.S.C. stated the principles to be followed in such cases thus:-

“It is acknowledged that it is sometimes frustrating when a Judge is fully prepared to hear a case only to be faced with an application for adjournment. If he had struck out the case as against the dismissal which permanently deprived them of having their case heard on merit, I am sure the appellants would have had the case relisted. The power of the court to dismiss cases without affording the parties the opportunities to hear their cases on merit must be used if at all, sparingly … Let no man walk out of our courts disappointed in the administration of justice. He will prefer to lose the case on the merits than to allow his opponent win by default. There is no provision for a walk over in our adversary system. It is not a game of football or a tennis competition. It must be shown and seen that any party has a fair trial.”

Applying these principles to this case, let us examine the peculiar facts of this case. On the 6th of October 1993 only the respondent was in court, his counsel was not present. The appellant was absent and his counsel was also absent. The case had earlier been adjourned on the 20th of September 1993 for defence. Faced with that situation, what option was left to the trial court? If the defendant and his counsel were present to begin their defence, would the respondent have handled the matter without his counsel when he was being represented all along by counsel? Was the trial court justified in holding that the defendant had no defence to offer in the case when in fact it filed a copious statement of defence of 18 paragraphs? Does the mere absence of a defendant from the court on the day fixed for defence mean that the defendant had no defence to offer?

It would appear to me that neither the respondent nor the appellant was ready to go on with the case on the 6th of October 1993. As I said earlier the respondent’s counsel was not in court, and in all probability he would not have gone on to face the defence alone without his counsel. The learned trial Judge did not even ask for his comments before adjourning the matter for judgment. It did not occur to the court to ask the respondent to address the court on the case before judgment. Since the adjournment for judgment has the effect of shutting out the appellant from putting its defence the learned trial Judge ought to have put the defence on notice so that the appellant would be in full picture of what transpired in its absence.

In normal circumstances a person who has been appearing in a matter before a court of law and absents himself on a particular date set for hearing has a duty to check the progress of the matter in his absence without any formal notification of an adjourned date. However, in the present situation where the adjournment for judgment would permanently shut the appellant from presenting its defence, the trial court had a duty to notify the appellant of the adjourned date.

There is no evidence whatsoever to support the holding of the trial Judge that the appellant had no defence to offer in the case. That holding was purely speculative and a trial court must not speculate.

Order 37 rules 1(2), 2 and 5 of the Kano State High Court (Civil Procedure) Rules 1980 read:-

“1.(2) If, when the trial of an action is called on, neither party appears, the action may be struck out of the list, without prejudice, however, to the restoration thereof, on the discretion of a Judge.

2. If, when a trial is called on the plaintiff appears, and the defendant does not appear, then the plaintiff may prove his claim, so far as the burden of proof lies upon him.
3. The Judge may, if he thinks it expedient for the interest of Justice, postpone or adjourn a trial for such time, and upon such terms, if any, as he may think fit.”

Under these rules if a plaintiff fails to appear as well as the defendant, the action may be struck out without prejudice to its restoration on the discretion of the Judge. If the plaintiff appears and the defendant does not appear, the plaintiff may prove his claim. Under rule 5 the Judge can adjourn a trial without any formal application by either party in the interest of justice. In this case, it was the first occasion when the appellant failed to appear to open its defence that the matter was adjourned for judgment by the court suo motu. What was the hurry all about? The important consideration in these rules is that in every given situation the trial Judge has discretion depending on the circumstances of the case.

From what I have been saying in this judgment, it is clear to me that the trial court’s exercise of its discretion to adjourn the matter for judgment and shut out the appellant from presenting its defence without even the simple courtesy of notifying the appellant of the drastic turn of events was capricious and arbitrary and was a denial of fair hearing to the appellant. A trial court should always remain an umpire and should not descend into the arena to the disadvantage of either party. The parties should be allowed to fight their own battle. In this particular case, the trial Judge went far beyond his role as an impartial arbiter and his judgment cannot be allowed to stand.

Having resolved this issue in favour of the appellant, I find it unnecessary to go into the other issues formulated by both sides and the respondent’s Notice to affirm the decision on other grounds than the ones stated by the trial court. As these other issues have to do with the merit of the case, it will not be proper or safe for this court to go into them now so as not to prejudice the outcome of a retrial of the matter before the lower court. Accordingly this appeal is allowed and the judgment of the trial court, including the order on costs is hereby set aside. The case is remitted to the Chief Judge of Kano State for retrial before another Judge. The appellant is entitled to costs of N1, 500.00 against the respondent.

Other Citations: (1997)LCN/0300(CA)

Alhaji Yakeen Owonikoko & Ors V. Alhaji Alimi Arowosaiye (1997)

LawGlobal-Hub Lead Judgment Report

MOHAMMED, J.C.A.

The parties in this appeal were before Elelu-Habeeb J. of the Kwara State High Court of Justice sitting at Offa where the appellants as plaintiffs claimed in their writ of summons the following reliefs –

“(a) Declaration that the plaintiffs are the persons entitled to a customary/statutory Right of Occupancy over and above all that piece or parcel of land being, lying and situate at MAGBON AREA ERINILE, particularly the land called Am Family land.

(b) The sum of N2,000.00 being damages for trespass and waste committed on the land by the defendant.

(c) An Order of perpetual injunction restraining the defendant by himself, agents, servants, privies and others deriving title under him howsoever from disturbing trespassing, dealing with or in any other way tamper with the plaintiffs peaceable possession of the parcel of land.”

After the exchange of pleadings between the parties, the case went into full trial in the course of which the appellants called 6 witnesses while the respondent testified in his own defence and also called one other witness who testified for him. Learned counsel on both sides submitted written addresses to the trial court before the case was adjourned for judgment. In her judgment delivered on 21/12/93, the learned trial Judge without going into the merit of the case dismissed the claims of the appellants/plaintiffs in the following words –

“I therefore hold that I cannot entertain this action as a court of first instance because the matter had been adjudicated upon by the Ibolo Grade 1 Area Court and an appeal has been filed to the Upper Area Court, Ilorin in respect of the same matter.

Accordingly the claims of the plaintiffs are hereby dismissed in its entirety for constituting an abuse of court process.”

The appellants as plaintiffs who were not happy with this decision of the learned trial Judge decided to appeal against it by filing their Notice of Appeal containing 10 grounds of appeal. The grounds without their particulars are as follows:-

“1. The learned trial Judge erred in law by holding that Exhibit D1 constituted esptoppel per rem judicatam in the circumstances of this case and this led her to dismiss the case of the appellants and this has occasioned a grave miscarriage of justice against the plaintiffs/appellants.

2. The learned trial Judge erred in law when she held as follows:-

In essence therefore I cannot rule that the subject matter and the parties in Exhibit D1 and in the case at hand are not the same.

3. The learned trial Judge misdirected herself on the facts when she held as follows:-

‘I therefore hold that 1 cannot entertain this action as a court of first instance because the matter had been adjudicated upon by Ibolo Grade 1 Area Court and an appeal has been filed to the Upper Area Court, Ilorin in respect of the same matter.”

4. The learned trial Judge erred in law when she held that the present suit is an abuse of the process of the court and she thereby dismissed the entire suit of the appellants thereby shutting the gate of justice against the appellants forever.
5. The learned trial Judge erred in law by her total failure to consider and pronounce upon the merits of the case when from the evidence led by the appellants and their witnesses they are entitled to all the reliefs claimed.
6. The learned trial Judge erred in law by dismissing the claims of the plaintiffs in limine without considering at all or making findings on the merits of the claims as placed before her.
7. The learned trial Judge erred in law and caused a grave miscarriage of justice to the appellants when she suo motu without evidence led on the contents of Exh. D1 went to look at the contents and drew inferences therefrom when the respondents only dumped the document on the court and same was not read or taken as read at the trial.
8. The learned trial Judge erred in law when she held as follows:-

‘……….I have taken time to go through the record of proceedings in the Ibolo Grade I Area Court and the Notice’ of Appeal filed at the Upper Area Court, Ilorin (Exhibit D1 & D2 respectively).’

9. The learned trial Judge erred in law on the uses she made of Exhibit D1 when there was no evidence led on the contents of the said exhibit at the trial.
10. The decision is totally unreasonable, unwarranted and cannot be supported having regard to the weight of evidence.”

Although the learned counsel to the appellants in the appellants’ brief and oral argument before us had maintained that 9 grounds of appeal were filed by the appellants, it is quite clear from the grounds of appeal I have quoted above, that the appellants’ Notice of Appeal in fact contains 10 and not 9 grounds of appeal.

In compliance with the rules of this court, briefs of argument were duly filed and served by the parties before the appeal came up for hearing on 22/1/97. The two issues set down for determination in the appellants’ brief of argument which were also adopted by the respondent in his brief are as follows:-

“1. Whether having regard to the capacities of the parties, the claim, the facts and other circumstances of this case, it can be said that the decision encompassed in Exhibit D1 was res judicata of the present case, moreover when there is no certainty and correlation between the land claimed in exhibit D1 and the present case and when the said exhibit was just tendered without evidence led on its contents to enable the trial court be sure of the uses to which the document was to be made.

2. Whether the learned trial Judge was right having regard to the fact that the parties have fully led evidence on the case to have refused to review, make findings of fact and pronounce on the merit of the cases presented before her as an alternative to the peremptory dismissal of the appellants’ case and whether the suit can be said to be an abuse of the process of the court.”

The respondent in addition to his brief of argument had also filed a respondent’s Notice dated 22/1/94 contending that the decision of the lower court of 21/12/93 which is the subject of this appeal should be affirmed on grounds other than those relied upon by the trial court.

On the first issue for determination it was submitted for the appellants that the proceedings and judgment of the Ibolo Area Court in Exhibit D1 did not fulfill the required conditions for being regarded or as providing a defence of res-judicata to the respondent. The case of Adebayo v. Babalola (1995) 7 NWLR (Pt. 408) 383 at 405-406 was cited and relied upon by the appellants. The appellants had contended that the appellants having instituted the present action in a representative capacity, the parties in Exhibit D1 and the present case are not the same as there was no evidence that the appellants are privies of the former defendant in Exhibit D1. That there is also no nexus between the land in Exhibit D1 and the land in the present case. Relying on a number of cases one of which is Udo v. Obot & Ors. (1989) 1 NWLR (Pt. 95) 59 at 73, learned counsel to the appellants submitted that Exhibit D1 did not constitute a defence of res judicata in the present case to justify the learned trial Judge applying it against the appellants. Concluding his arguments on this issue, learned counsel to the appellants cited the case of Duruminiya v. Commissioner of Police (1961) NNLR 70 at 73-74 and argued that the conduct of the learned trial Judge in examining Exhibit D1 herself without the contents being tested in open court and applying the same in her findings against the appellants had occasioned a miscarriage of justice to justify setting aside the decision of the trial court.

The learned counsel to the respondent in the respondent’s brief however contended that the respondent had pleaded in paragraphs 27, 28, 29, 30 & 31 of his amended Statement of defence that he had sued the 3rd appellant/plaintiff before Ibolo Area Court in Offa for encroaching on this land at Magbon and the said Area Court gave judgment in favour of the respondent. That the respondent duly testified in support of these pleaded facts which justified the finding of the learned trial Judge that the appellants’ claims in the present action were an abuse of court process having regard to the decision in the case of Chukwunla v. Nwalu Chukwu & Ors (1953) 14 WACA 341. That having regard to the case of Tofi v. Uba (1987) 3 NWLR (Pt. 62) 707, learned counsel to the respondent observed that the lower court had inherent jurisdiction to prevent the abuse of its process. On the conduct of the learned trial Judge in examining Exhibits D1 & D2 while writing her judgment, the learned counsel to the respondent pointed out that the documents having been duly admitted in evidence, the learned trial Judge on the authority of Dina v. New Nigerian News Papers Ltd. (1986) 2 NWLR (Pt.22) 353 at 362, was justified in relying on the documents in her judgment in sustaining the defence of estoppel in favour of the respondent. That by considering the entire proceedings in Exhibit D1 including the judgment of the Ibolo Area Court, the learned trial Judge was right in upholding the respondent’s defence of estoppel per rem judicatam.

It is now settled that a judgment of court of competent jurisdiction can be relied upon in a subsequent litigation as per rem judicatam or to found issue estoppel or cause of action estoppel or estoppel by standing by. Our law in this respect requires that both the parties to an action and the court must know for which purpose proceedings and previous judgments pleaded and tendered in evidence are meant to serve. In the present case, the respondent said he had pleaded Exhibits D1 & D2 in paragraphs 27, 28, 29, 30 & 31 of his amended statemcntof defence in order to plead estoppel per rem judicatam. The said paragraphs at page 25 of the record read –

“27. The defendant avers he sued the 3rd plaintiff before Ibolo Area Court holding at Offa for encroaching on his land at Magbon and the said court gave judgment to the defendant on the 29th day of December 1989 in Suit No. 26/89 and case No. 37/89.

28. The defendant avers the 3rd plaintiff was dissatisfied with the judgment of Ibolo Area Court Grade I, Offa and appealed to Upper Area Court, Offa in Suit UAC1/3/90.
29. The defendant says the land at Magbon belonged to his family, and will rely on all the documents he pleaded.
30. The defendant will rely at the hearing of this case on all oral and documentary evidence he pleaded in this case.
31. Whereof the defendant says the plaintiff’s claim before this honourable (sic) is an abuse of court’s process and absolutely be dismissed with costs.”

It is quite clear from paragraph 27 of the respondent’s amended statement of defence above, that this claim against the 3rd appellant at the Ibolo Area Court was for trespass and what was decided by the Area Court in favour of the respondent was not even pleaded. Paragraph 28 on the other hand only pleaded the fact that there had been an appeal by the 3rd appellant to the Upper Area Court Offa against the judgment of the trial Ibolo Area Court and no more, while paragraphs 29 & 30 have nothing to do with the issue of the defence of res-judicatam. However paragraph 31 has clearly raised the issue of abuse of court process on which the learned trial Judge dismissed the appellants’ claims.

It is trite law that any party relying on estoppel as a defence in a trial in the High Court must specifically plead it by pleading relevant facts clearly supporting that defence. See Odadhe v. Okujeni (1973) 11 SC343 at 353 where Ibekwe J.S.C. (as he then was) observed:-

“It is relevant to observe that the plaintiff did not plead estoppel. It was therefore not open to him to raise it, either in the court below or before us. Moreover this point was never taken before the learned trial Judge. This court has said over and over again that where a plaintiff did not setup estoppel in the court below as part of his case, it would, in our opinion, be wrong for this court to allow such an issue to be raised as one of the issues in the case for the first time in this court.” This statement of the law applied equally to a defendant. See Abisi v. Ekwealor (1993) 6 NWLR (Pt. 302) 643 at 672.

It is also settled that for a party to sustain a plea of res judicatam, the party pleading it must satisfy amongst others, not only that the parties or their privies as the case may be are the same in the present case as in the previous one, but also that the issues and the subject matter are the same in the previous suit as in the present suit. See Ojiako v. Ewuru (1995) 9 NWLR (Pt. 420) 460 at 468 – 469. These essential ingredients of the defence of estoppel per rem judicatam were neither pleaded nor established by evidence in the present case to justify it being applied by the learned trial Judge in dismissing the claims of the appellants. In the present case, the appellants have filed their claims in a representative capacity after obtaining the leave of the lower court, while in Exhibit D1 the proceeding was between the respondent and the 3rd appellant in their individual capacities. Also while in Exhibit D1 the claim was one for trespass, in the present case the issues office to the land in dispute and injunction are clearly involved. Further more in the absence of clear boundaries of the land involved in Exhibit D1, it cannot be said that the land in dispute in Exhibit D1 is the same as the land in the present case. The fact that the land in Exhibit D1 and the present case are described as being located at Magbon is not enough to satisfy the requirement that the subject matter in the two suits are the same. This is because the fact that the parcel of land in previous litigation bears the same name with the parcel of land in later litigation does not necessarily mean that they are the same. See Adomba v. Odiese (1990) 1 NWLR (Pt. 125) 165 and Olukoga v. Fatunde (1996) 7 NWLR (Pt. 462) 516 at 531.

As for the conduct of the learned trial Judge in reading Exhibit D1 on her own and relying on it to make her findings in dismissing the appellants’ claims, it is quite clear that the ingredients necessary to support the defence of estoppel per rem judicatam were neither pleaded nor established by evidence. It was therefore wrong for the learned trial Judge to have based her findings on Exhibit D1 that the land in dispute in the proceedings in the Ibolo Area Court and the land in the present case are the same having regard to the boundaries. In other words it is indeed wrong in law for a trial Judge to place himself in the position of a witness and arrive at a conclusion based on his personal observation or knowledge of which there is no evidence on record to support it because the court cannot resolve conflicts in cases presented by parties by substituting the result of its own observation in the absence of evidence. See Ejidike v. Obiora (1951) 13 WACA 270, Chukwuogor v. Obuora (1987) 3 NWLR (Pt. 61) 454; and Ojiako v. Ewuru (1995) 9 NWLR (Pt.420) 460 at 476. In the instant case, contrary to the findings of the trial court, there is no evidence on record that the boundaries of the land in dispute in Exhibit D1 and the land in dispute in the present case are the same.

Another factor which rendered the respondent’s plea of estoppel per rem judicatam inapplicable in this case is the fact that the respondent himself had pleaded in paragraph 28 of the amended statement of defence that the judgment of the Ibolo Area Court he was relying upon in support of this defence was on appeal to the Upper Area Court but the result of the appeal if any had not been disclosed. The law is that a judgment which is already on appeal is no longer final as it is liable to be set aside or nullified on appeal thereby rendering it inoperative as a basis for the defence of estoppel. See Olukoga v. Fatunde (1996) 7 NWLR (Pt. 462) 516 at 532. From the foregoing therefore, it is not difficult to see that the defence of estoppel in any of its forms was not available to the respondent at the court below to justify applying it in his favour.

The second issue is whether the learned trial Judge was right in dismissing the appellants’ claim on the ground that their action was an abuse of the process of the court. It was argued for the appellants that the learned trial Judge was in error in not going into the evidence adduced by the parties to pronounce on the merits of the case. That it is settled that where a preliminary point that can dispose of a matter was left till the end of a full trial, the trial court has a duty even if it finds in favour of the preliminary matter to still decide the merit of the matter in the alternative, just in case an appellate court rules that its decision on the preliminary point is wrong. That in this case the matter having gone on full trial, not withstanding her opinion on the issue of abuse of court process, the learned trial Judge ought to have pronounced on the merit of the case on the authority of Nwagbogu v. Abadom (1994) 7 NWLR (Pt. 356) 351 at 369. Learned counsel for the appellants therefore observed that since the case cannot now be decided otherwise than by resolving the conflicting evidence of witnesses for the parties, this court should order a retrial of the action on the authority of a number of cases including Okedare v. Adebara (1994) 6 NWLR (Pt. 349) 157 at 174. According to the learned counsel, the failure of the lower court to pronounce on the merit of the case amounted to failure of justice against the appellants on the authority of Union Bank of Nig. Ltd. v. Nwaokolo (1995) 6 NWLR (Pt. 400) 127 at 150.

On the issue of the abuse of the process of court, it was contended for the appellants that the present action was not an abuse of court process. That even if it was, at most their action could only have been struck out and not dismissed.

The case of Pavex Int. Co. Ltd. v. IBWA (1994) 5 NWLR (Pt. 347) 685 at 699 was cited in support of this submission. That having regards to the nature of the claims in the present suit, it cannot be said that the issues are the same as those in Exhibit D1. Also the fact that the action in Exhibit D1 was contested between the parties in their individual capacities while the present suit was instituted in a representative capacity by the appellants, the parties, on the authority of Odife v. Aniemeka (1992) 7 NWLR (Pt. 251) 25, cannot be said to be the same. Therefore relying on the case of Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 at 190, learned counsel urged this court to hold that the appellants’ action in the present case was not an abuse of the process of court.

It was however contended for the respondent that even if the learned trial Judge was in error in dismissing the case before on the ground of abuse of court process, it was not enough to reverse the judgment as the error did not occasion any miscarriage of justice. That since both parties has agreed that there were sufficient facts before the learned trial Judge to have decided the case on the merits, this court should proceed to consider these facts and hold that the case was fit for dismissal. Learned counsel to the respondent relying on the respondent’s Notice filed to urge this court to uphold the judgment of the lower court on grounds other than those relied by the trial court, went into the details of the evidence led by the parties at the trial court and urged this court to consider the evidence on record and uphold the dismissal of the appellants’ case. A number of cases was cited and relied upon in support of this submission notable of which is the case of U.B.A. Ltd. v. Achoru (1990) 6 NWLR (Pt. 156) 254.

In the determination of issues No.2 in this appeal, the first question to be answered is whether the action filed by the appellants against the respondent at the lower court was an abuse “of the process of the court as found by the learned trial Judge. An abuse of the process of the court may occur when a party improperly uses judicial process to the harassment, irritation and annoyance of his opponent, and to interfere with the administration of justice. A clear example is where two similar processes are used against the same party in respect of the exercise of the same right and subject matter. See Okafor v. Attorney-General. Anambra State (1991) 6 NWLR (Pt. 200) 659 at 681 and Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 at 188 – 189 where Karibi-Whyte J.S.C. said-

“The concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety of conditions. Its one common feature is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice.

It is recognized that the abuse of the process may lie in both a proper or improper use of the judicial processes in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. See Okorodudu v. Okorodudu (1977) 3 SC 21; Oyebola v. Esso West African Inc. (1966) 1 All NLR 170. Thus, the multiplicity of actions on the same matter between the parties even where there exists a right to bring the action is regarded as an abuse. The abuse lies in the multiplicity and manner of the exercise of the right rather than the exercise of the right per se.

The abuse consists of the intention, purpose and aim of the person exercising the right to harass, irritate and annoy the adversary, and interfere with the administration justice; such as instituting different actions between the same parties simultaneously in different courts, even though on different grounds. See Harriman v. lIarriman (1989) 5 NWLR (Pt. 119) 6.” (Italics mine).

In the instant case, the only ground upon which the learned trial Judge found the appellants’ action before her as being an abuse of court process was the fact that the contents of Exhibits D1 & D2 show that there was an earlier case between the respondent as plaintiff and the 3rd appellant as defendant before the Ibolo Area Court which decided the case in favour of the respondent that the 3rd appellant had encroached on his land. That the 3rcl appellant was not happy with that decision of the Ibolo Area Court and had appealed against it to the Ilorin and not Offa Upper Area Court as pleaded. For this reason the learned trial Judge felt that tile appeal in the Upper Area Court should have been pursued rather than instituting a fresh action before her court which exercises appellate jurisdiction over the Upper Area Court. The filing of the present action by the appellants in the court below therefore was regarded as an abuse of the court process by the learned trial Judge who proceeded to dismiss the action. With the greatest respect to the learned trial Judge, she could have been right if the present case before her was between the same parties involving the same subject matter and on the same issues as the case decided by the Ibolo Area Court in Exhibit D1 which is on appeal to the Upper Area Court Offa and not Ilorin as found by the trial Judge. However, I have a1rencly found earlier in this Judgment that the parties in the present case arc not the same as the parties in Exhibit D1. It was not also shown that the subject matter in the two cases were the same or that the issues arising from the two cases were the same. There was therefore no basis at all for the learned trial Judge to regard the appellants’ action before her as an abuse of court process which will only arise in instituting a multiplicity of actions on the same subject matter against the same opponent and on the same issues. In this respect by filing the present action at the lower court the appellants in my view, cannot be accused of improperly using the issue of judicial process to irritate and annoy the respondent, their opponent or affect the efficient and effective administration of justice. Therefore the conduct of the appellants in exercising their constitutional right of access to the court to have their dispute resolved, was not an abuse of the court process as found by the learned trial Judge.

The next question for determination in this issue is whether the learned trial Judge on finding the appellants’ action constituting an abuse of court process ought to have simply struck out the same rather than dismissing the action. The appellants have submitted in paragraph 5.07 of their brief of argument that even if the lower court had found their action an abuse of court process, the most severe sanction they would have suffered was an order striking it out and not an order of dismissal. The cases of Aduba v. Registered Trustees Living Christ Mission (1994) 4 NWLR (Pt.339) 476 at 486 and Po vex Int. Co. Ltd. v. I.B.W.A. (1994) 5 NWLR (Pt. 347) 685 at 699 were cited in support of this submission. However, having carefully examined the two cases cited and relied upon by the learned counsel to the appellant on this point. I regret to say with the greatest concern that the two cases did not decide the point for which they were cited and relied upon. Both cases were decided by this court. In the first case, there was no finding that there was an abuse of court process at page 486 of the report not to talk of any order striking out such action found to have been an abuse o[ court process. Similarly in the second case, while it is correct that this court found that the filing of motions at the lower court after this court had been seized of the matter where similar applications were pending was an abuse of court process, there was no specific finding that where an action is found to be an abuse of court process, it should be struck out rather than being dismissed. This conduct of the learned counsel for the appellants in quoting the judgment of this court out or context in support of his clients’ case could be very serious if it was done deliberately to mislead this court. This is because the role of counsel in guiding the courts to reach the correct decision is a very vital role in our system of administering justice in this country. If this-vital role of counsel is not properly played in the course of proceedings in our courts, the obvious result is of course failure of justice with no doubt unpleasant consequences. As to the proper order to ‘be-made where a court of law has found a matter before it to be an abuse of its process, it has to be stressed that an abuse of court process simply means that the process of the court has not been used bonafide and properly. In other words an abuse of court process is not in the specie of sins commonly called an irregularity. It is a more fundamental vice which is deserving of the punishment of dismissal. Every superior court of record in Nigeria is conferred with all the inherent powers and sanctions of a court of law by virtue of Section 6(6) (a) of the 1979 Constitution of the Federal Republic of Nigeria. These inherent powers are a necessary adjunct of the powers conferred by the rules of court, and they arc invoked by the courts to ensure the due application and proper lubrication of the machinery of justice, and to ensure its protection from abuse. Therefore, because it is an abuse of court process for a suitor or litigant to litigate again over an identical question which has already been decided against him, even if the matter is not strictly res-judicatam, once a court is satisfied that the proceedings be[ore it is an abuse of its process, that court has the right, and in fact a duty lies upon it to invoke its coercive powers under S.6(6)(a) of the 1979 Constitution to punish the party in abuse of its process. This power is exercisable and the duty dischargeable by all superior courts of record in this country of which the Kwara State High Court of Justice is cerk1inly one, by dismissing the abusive action. See Arubo v. Aiyeleru (1993) 3 NWLR (Pt. 280) 126 at 142. In the instant case therefore, the order of dismissal made by the learned trial Judge rather than an order striking out the action was quite in order.

Now with the two issues arising for determination in this appeal having been resolved in favour of the appellants, what I have to determine now is the appropriate order to make in the circumstances. While the appellants are asking for an order of retrial, the respondent is relying on his Respondent’s Notice in urging this court to affirm the order of dismissal of the appellants’ action on grounds other than those relied upon by the learned trial Judge. In several decisions of the Supreme Court in Eliochin (Nig) Ltd. v. Mbadiwe (1986) 1 NWLR (Pt. 14) 47; Williams v. Daily Times of Nig. (1990) 1 NWLR (Pt. 124) 1 at 21 – 22; and Eze v. Obiefuna (1995) 6 NWLR (Pt. 404) 639 at 652, to mention but a few, the principle has invariably been laid down that a respondent seeking to set aside or vary a finding which is crucial or fundamental to a case, can only do so thorough substantive cross-appeal and not through a Respondent’s Notice to a affirm or vary the judgment on other grounds. In other words where a respondent wants a complete reversal of the decision of the lower court, he ought to file a cross-appeal instead of a respondent’s Notice. In the present case, although the learned trial Judge heard witnesses from both sides and took the final addresses of the learned counsel to the plaintiffs now appellants and the defendant now respondent, the learned trial Judge without going into the merits of the case simply dismissed the appellant’s claims on the grounds that their action was an abuse of court process. What the respondent is asking this court to do through his Respondent’s Notice, is to appraise the evidence on record and enter judgment for the respondent by dismissing all the claims of the appellants against him. This shows quite clearly that even the respondent did not agree with the decision of the lower court for dismissing the appellants’ claims for being an abuse of court process without going into the merits of the case. I am afraid the respondent cannot challenge this decision by the Respondent’s Notice. The only way for the respondent to have the decision of the lower court reversed is by cross-appealing against it in the absence of which his relief in this respect cannot now be heard and granted by this court. In any case the exercise of the appraisal of evidence which the respondent is asking this court to embark upon for the failure of the learned trial Judge to do so, and pronounce on the merits of the case, cannot be done in the instant case where the bulk of the evidence led by the parties is oral evidence in which credibility of the witnesses would have to playa vital role in the determination of which party’s evidence is heavier on the imaginary scale of justice. It is trite that this court being an appellate court which did not have the benefit of hearing and seeing the witnesses gives evidence, shall not be in a position to determine their credibility. This responsibility is primarily that of the trial court. See Karibo v. Grend (1992) 3 NWLR (Pt. 230) 426.

On whether or not a retrial should be ordered in this case, it is the law that where there has been such an error in law or an irregularity in procedure which neither renders the trial a nullity nor makes it possible for the appellate court to determine whether there has been no miscarriage of justice; a retrial is ordered. See Duru v. Nwosu (1989) 4 NWLR (Pt. 113) 24. Also where an appeal is allowed because of the failure of the trial court to make findings on material issues and the determination of such issues depends on the credibility of the witnesses as precisely is the case in the instant appeal, a retrial is ordered. See Karibo v. Grend (supra); and Okedare v. Adebara (1994) 6 NWLR (Pt. 349) 157. A retrial is also ordered where the other party is not being wronged to such an extent that would lead to a miscarriage of justice when the plaintiff as in the present case is afforded an other opportunity to relitigate the same matter all over again. See Bakare v, Apena (1986) 4 NWLR (Pt. 33) 1; Duru v. Nwosu (supra); and Okedare v. Adebara

(1994) 6 NWLR (Pt. 349) 157.

There is no doubt that in the present case the learned trial Judge applied the principles of estoppel per rem judicatam wrongly and came to the conclusion also wrongly that the appellants’ case before her was an abuse of court process before dismissing the same without pronouncing on the merits of the case although the case went through a full trial. Indeed the irregularity did not render the trial a nullity but at the same time I cannot say that there was no miscarriage of justice. Further more, there was a failure on the part of the learned trial Judge to make findings on all material issues raised before her which cannot now be determined by this court because the determination of the issues depends on the credibility of the witnesses. Having regard to the circumstances of this case therefore, I do not think an order or retrial would occasion any miscarriage of justice to the respondent who in any case was also not happy by the failure of the learned trial Judge to pronounce on the merit of the case.

In the result this appeal SUCCEEDS AND IT IS HEREBY ALLOWED. The judgment of the lower court of 21/12/93 IS HEREBY SET ASIDE. The case is remitted to the Honourable Chief Judge of Kwara State for re-assignment to another Judge to hear afresh, the appellants’ claims contained in their writ of summons.

The appellants are entitled to costs which I assess at N1.500.00 (one thousand, five hundred naira only).

Other Citations: (1997)LCN/0299(CA)

Lawal Magaji Mohammed V. Umar Barau & Ors. (1997)

LawGlobal-Hub Lead Judgment Report

ATINUKE OMOBONIKE IGE J.C.A. 

There was a Nation wide Local Govt. Election conducted by NECON on 15th day of March 1997. The UNCP and DPN are two of, the five registered political parties. The petitioner in this case contested the said election on the platform of the UNCP as Chairman while the 1st and 2nd Respondents contested on the platform of the DPN as candidates for Chairmanship and vice chairmanship respectively:

After collating the results of the election, NECON declared 1st and 2nd Respondents as winners in the election.

The petitioner being dissatisfied with the decision of NECON challenged the said decision before the Kaduna election tribunal on a no of grounds including the following:

1. That the 1st respondent was wrongly returned at the said election.
2. That the 1st and 2nd Respondents were at the time of the election not qualified and or disqualified from being elected as Chairman and Vice Chairman of Igabi Local Govt. Area.
3. That the election was void by corrupt practices, irregularities and electoral offences.

The petitioner sued the 1st and 2nd Respondents and 63 others challenging the results. After looking into the merits of the petition the Lower Election Tribunal dismissed the petition and confirmed NECON’S decision that 1st and 2nd Respondents were the winners as chairman and vice chairman of Igabi Local Govt. Area.

The petitioner still dissatisfied appealed to the election Appeal Tribunal and formulated the following 4 issues for determination:-

1. Whether the refusal of the petitioner’s application for production of documents in the custody of Respondents and the probing and searching questions put to PW2 by the Lower Tribunal occasioned a miscarriage of justice.
2. Whether the petitioner discharged the onus of proving their case as required by law.
3. Whether the Lower Tribunal admitted and evaluated all the admissible evidence led at the trial and ascribed appropriate weight to the admissible evidence.
4. Whether the findings and holdings of the Lower Tribunal is supported by evidence or legally admissible evidence.

The appeal Tribunal after reviewing the entire case including arguments advanced by parties Counsel, dismissed the appeal and confirmed the decision of the lower Tribunal.

Still dissatisfied the petitioner under the umbrella of his party the UNCP further petitioned the office of the Attorney General for a review of the judgment of the election Appeal Tribunal. The Attorney General looked into the issues involved and came to the conclusion that the judgment of the Appeal Tribunal was right and recommended same.

Besides the brief of the Attorney General, the counsel for the 1st and 2nd and 65th Respondents filed a brief urging us to dismiss the petition as lacking in merit on the grounds inter alia that the petitioners have not been able to prove that 1st and 2nd Respondents are still in the employment of the Federation or state or Local Government or that they are disqualified on grounds of age or invalid nomination and that the election was voided by corrupt practices. I have examined carefully the various briefs and submissions of parties in this petition and also the evidence offered by the petitioners to challenge NECON’S Return and decisions of both Lower Tribunal and Appeal Tribunal. I am of the view that the petition of the petitioners lacks merit and was rightly dismissed on the onset.

The petitioners failed to substantiate their claims that 1st and 2nd Respondents were under age. They also failed to prove that 1st and 2nd Respondents were still in public office at the time of the election. Exhibits P1 and P2 disproved their allegation.

The law is very clear that he who asserts a claim must prove it. See the Case of Anyanwu v. Bara 1992 5 NWLR (Pt 242) 386. This, the petitioners have failed to do hence the Lower Tribunal was right in dismissing the petition as lacking in merit.

This body has no reason whatsoever to disturb the decision of the Lower Tribunal which was affirmed by the Election Appeal Tribunal. We also confirm their decisions. The sum total is that the petition of the petitioners was rightly dismissed as lacking in merit.

Other Citations: (1997)LCN/0298(CA)

Cletus I. Ilomuanya V. Lobi Bank of Nigeria Limited (1997)

LawGlobal-Hub Lead Judgment Report

MUSDAPHER, J.C.A. In the High Court of Lagos State of Nigeria holden at Ikeja and in Suit No. ID/560/88, the respondent herein took out a specially endorsed writ accompanied with a Statement of claim against the appellant as the defendant in the following terms:-

“The plaintiffs claim against the defendant is for the sum of N95,927.02 being overdraft granted to the defendant by the plaintiff at defendant’s request; and also interest at 17% per annum from 24th of July, 1987 till judgment, and at 6% per annum with effect from the date of judgment until the whole debt is fully liquidated.”

The appellant entered appearance after which the respondents filed summons for judgment in accordance with the procedure set out under Order 10 of the High Court of Lagos State Civil Procedure Rules 1972. The appellant made an affidavit purportedly showing cause why summary judgment should not be entered. The summons for judgment filed on the 7th day of June 1988 was moved and argued. In the Ruling delivered by the trial Judge on the Summons for judgment, the learned trial Judge upheld the motion and held amongst other issues thus:

“The defendant is not saying that he has paid the debt. The amount being claimed is a debit in his account though it may have gotten there through the influence of someone else. He is not putting up any legal defense which even if the defendant’s allegations are true would preclude the plaintiff from succeeding in his claim.

In the event, the application to sign a final judgment from the amount claimed succeeds.

There will be judgment for the plaintiff for the sum of N95,972.02 plus interest at the rate of 17% per annum from 24th July, 1987 till this day and thereafter at the rate of 4% per annum until the judgment debt is finally liquidated”.

Dissatisfied with the judgment, the appellant filed a Notice of Appeal containing the following grounds of appeal:-

(1) That the learned trial judge erred in law in giving judgment for the plaintiff when:-

(i) The application for judgment did not specify the amount of judgment demanded.

(ii) The application was not verified on oath as to:-

(a) cause of action

(b) the amount claimed as required by Order 10 rule 1(a) of the High Court of Lagos State (Civil Procedure) Rules, 1972.

(2) That the learned trial Judge erred in law entering the judgment for the plaintiff under Order 10 rule 1(a) of the High Court of Lagos State (Civil Procedure) Rules 1972 without taking into account the defendant’s affidavit dated 13/5/1988 setting out in full the nature of defence to the action.”

The aforementioned Notice of Appeal was filed on the 26/7/1988. Additional grounds of appeal were also filed on 1/8/1988. The additional grounds read:-

“1. That the learned trial judge erred in law in failing to give the defendant a chance to join the said Godfrey Okoro Manager of the plaintiff’s Bank who was accused by the defendant as having created the loan and received it for his own purpose as provided under Order 13 Rule 22 of the High Court of Lagos (Civil Procedure) Rules 1972 and thereby failed to give the defendant a fair hearing on the allegations raised in his affidavit contrary to Section 33 of the Constitution of the Federal Republic of Nigeria.

2. The learned trial judge erred in law in failing to consider the effect of:-

(1) The irregular payment of 2 cheques in one day amounting to N76,000.00k by the said Manager, Godfrey Okoro in excess of N50,000.00k lending power of a branch manager as contained in the counter-affidavit.

(2) The irregular payment of the sums of N8,000.00k and N2,000.00k separately by the said manager, Mr. Godfrey Okoro, to the accounts of the defendant without his knowledge and authority as contained in the counter-affidavit as tending to establish the defendant’s allegation that the money in question was created and received by the said manager, Godfrey Okoro for his own benefit in fraud of his employers.

(3) The learned trial judge erred in law in failing to call for oral evidence to resolve the allegations and counter allegations contained in the two opposing affidavits before the court.

(4) The learned trial judge erred in law in failing to consider that the affidavit, evidence of Godfrey Okoro, a person accused by the defendant of taking the money in question, is a statement by a person interested and particularly paragraph 10 of the counter-affidavit, and therefore inadmissible under section 90(3), of the Evidence Law”.

In compliance with the provisions of Order 6 of the Court of Appeal Rules, briefs of argument were filed and exchanged and at the hearing of the appeal in this Court both learned counsel proffered oral submissions. Before dealing with the grounds of appeal and the issues raised for the determination of the appeal, it is expedient to set out the background facts.

There is no dispute that there existed a bank and customer relationship between the respondent and the appellant. The appellant maintained Account No.020352 with the respondent. On the 17th day of June, 1987, three cheques for the sums of N36,000.00k, N40,000.00k and N20,000.00k were issued against the account. There is no dispute that the appellant issued the cheques which were duly cashed and money was taken out. On the same date a cheque in the sum of N130,000.00k was paid into the account – as it turned out, that cheque was not honoured. The respondent alleged that the amount of N96,000.00k covered by those cheques was an overdraft granted to the appellant at his request while the cheque of N130,000.00 paid into the account was a guarantee for the overdraft. It is not disputed that cheque of N130,000.00k paid into the appellant’s account was not honoured and also that the overdraft was not paid. When the respondent demanded the payment of the overdraft and interest, the appellant in his letter admitted the claim and prayed for time within which to pay. It was when he failed to pay that the respondent took this action.

In his affidavit in opposition to the application by the respondent to enter final judgment under the procedure under Order 10 of the Lagos State High Court (Civil Procedure Rules 1972, the appellant did not deny the transaction but alleged it was Mr. Okoro, the acting Manager of the respondent, who used his Account to take the money out for his own use. He also alleged that the letter of admission was drafted by Mr. Okoro, he merely signed it. As mentioned above the learned trial Judge held that even if it is true that Mr. Okoro influenced the transaction the respondent is entitled to judgment against the appellant who knowingly allowed his account to be fraudulently used.

Now the learned counsel has formulated three issues for the determination of the appeal. The issues are:-

“1. Is Godfrey Okoro a person who can swear positively to the facts verifying the cause of action and the amount claimed and stating that in his belief there is no defense to the action as required by Order 10 rule 1 (a)?

2. Has the appellant put up a defence which is a triable issue to the plaintiffs claim on the strength of his affidavit?
3. Is the judge competent at that stage to determine the issues raised in the conflicting affidavits of Godfrey Okoro and Cletus Ilomuanya without calling for oral evidence?”

On the first issue the learned counsel for the appellant contended that Mr. Godfrey Okoro was not qualified “to positively swear to the facts verifying the cause of action and the amount claimed and stating in his belief there was no defense to the action” as he was a person interested at the time he swore the affidavit. He was on suspension for granting this loan irregularly. Mr. Okoro was accused by the appellant in his affidavit that –

“(1) He unlawfully used the appellant’s account to withdraw N96,000.00 for his own benefit.

(2) He drafted t1ie letter written by the appellant admitting the loan.

(3) He paid in the sum of N10,000.00k to the appellant’s account in order to reduce the loan.

Accordingly, Mr. Okoro is a person interested in the manner and therefore not qualified to swear to the affidavit. Vide section 90 (3) of the Evidence Act. Learned counsel also referred to the case Anyeabosi V. R.T. Briscoe Nigeria Ltd. (1987) 3 NWLR (Pt. 59) at 84.

For the respondent, it argued firstly that the issue and the relevance of Section 90(3) is a fresh point which did not arise for adjudication in the Court below and no leave has been sought and granted to raise the issue on appeal. Secondly, it is irrelevant to the facts of this case or the procedure under Order 10 of the Lagos State High Court (Civil Procedure) Rules. The case of Anyeabosi cited is not applicable as it was dealing with the admissibility of documents and the document was in any event admitted notwithstanding the fact that it was an employee of the plaintiffs who prepared and tendered it.

I respectfully agree with the views of the learned counsel for the respondent. It is now settled law that an appellant will not be allowed to raise on appeal a question which was not raised or considered by the Court below. But where the question involves substantial points of law substantive or procedural and it is plain that no further evidence would be necessary, the court may allow the question to be raised and the point of law taken in order to prevent an obvious miscarriage of justice. See Akpene v. Barclays Bank of Nigeria (1977) 1 S.C. 47, Usman v. Kareem (1995) 2 NWLR (Pt. 379) 537. Where a new issue is raised on appeal without leave of the Appellate Court such issue may be struck out as incompetent. See Egbunike v. A.C.B. Ltd (1995) 2 NWLR (Pt. 375) 34. It is now firmly established that no point substantial or otherwise that has not been taken and adjudicated upon by the trial Court will be allowed to be raised for the first time on appeal except special circumstances are shown.

I am also in agreement with the learned counsel for the respondent, that under the provisions of Order 10 Rule 1(a) of the Lagos State Civil Procedure Rules Section 90(3) of the Evidence Act does not apply. There is nothing in the rules of the Lagos State High Court suggesting the quality of a deponent to the verifying affidavit. What is required is an affidavit which may be made by any person who can swear positively to the facts and stating his belief that there is no defence to the action. There is no other requirement. The deponent may be a party or some other person. See FSB Int. Bank Ltd v. Imano (Nig) Ltd. (1995) 2 NWLR (Pt. 377) 295.

I accordingly reject the appellant’s contention in the first issue.

The second issue can conveniently be dealt with the third issue. The points raised question the decision of the learned trial Judge that the appellant did not put up any triable argument sufficient enough to allow him defend the action. It is further contended that there is conflict in the affidavit of Mr. Okoro verifying the claim and that of the appellant resisting the claim. It is submitted that where conflict arises in the two competing affidavits, the appellant ought to have been allowed to defend the action and that the conflicts be resolved by oral evidence. For the appellant it is argued that he raised these triable issues in his affidavit-

(a) He never applied for the overdraft and Mr. Okoro said he applied for the loan orally.

(b) That the sum of N96,000.00k covered by the three cheques were all issued in same day so as to enable Mr. Okoro as the Acting Manager, the authority to allow the cheques as his limit was only N50,000.00k. Therefore it was a ruse to cheat the bank.

(c) That due to the side tracking the banks regulations on this loan, the respondent bank suspended Mr. Okoro thus giving clear indication that the respondents were not happy with the conduct of Mr. Okoro, and

(d) That Mr. Okoro paid into the appellant’s N8,000.00k and N2,500.00 in October, 1987, this amounted to an admission on the part of Mr. Okoro. It is submitted that these pieces of evidence, would entitle the appellant to defend the action within Order 10 Rule 3. Learned counsel relied upon the case of Nishizawa Ltd v. Jethwani (1984) 12 SC 234.

For the respondent it is contended, that an application for a loan or overdraft can be made orally or where a customer raises a cheque in excess of the actual balance in his Account, once the bank honours the cheque, the customer becomes a borrower. All the other points do not really derogate from this fact, that the appellant had issued cheques against his Account which were honoured by the bank. Whatever private arrangement the appellant had with Mr. Okoro does not affect the liability of the appellant to the bank. He knowingly agreed to the transaction. He allowed his account to be used by signing cheques at his peril.

Now the procedure under order 10 of the Civil Procedure Rules of Lagos State High Court is designed to enable a plaintiff to obtain summary judgment without trial where the case is patently clear unassailable and the defence put forward by the defendant does in law avail the defendant. See FSB International Case (supra). See also Iron Products Ltd. v. S.A.C. Ltd. (1992) 4 NWLR (Pt.238) 734.

The purpose of Summary Judgment under Order 10 procedure is for the expeditious disposal of claims which are virtually incontestable in the sense that the defendant clearly has no valid defence in such a situation the plaintiff is entitled to an early judgment without having to go to a full trial. The defendant must show if he wants to be allowed to defend the action, a valid defence and not a sham defence. Whatever be the facts the defendant puts forward must amount to a legal defence. See Nishizawa case (supra), Macaulay v. Nal Merchant Bank Ltd (1990) 4 NWLR (Pt. 144) 283. The affidavit opposing the application for judgment must show a legal defence, the fact that some other party may be liable is not enough. In the instant case, there is no contest that it was the appellant who issued the cheques against his account, it is not disputable that he knew of the consequences of issuing the cheques and writing the letter admitting the claim of the respondent. As between the appellant and the respondent, the facts are clearly unambiguous that the appellant took the loan. If he has any claim against Mr. Okoro as to what happened to the money after be cashed the cheques, it is a matter clearly between the appellant and Mr. Okoro. See Peter Tiwell (MG) Ltd v. Inland Bank (Nig) Ltd. (1997) 3 NWLR (Pt 494) 408. I am of the firm view that as between the appellant and the respondent, the appellant’s affidavit did not disclose any triable issue. It is now settled law that if a customer to a bank draws a cheque for a sum in excess of the amount standing to the credit of his account, it is really a request for a loan and if the cheque is honoured the legal effect is that the customer has borrowed the money. See A.C.B. v. Egbunike (1988) 4 NWLR (Pt. 88) 350, See also Desalu v. Akapo (1967) 1 All NLR 201. The appellant did not claim to have repaid the money and did not show any reason why the respondent should be precluded from getting the summary judgment

The final point is the question of the alleged conflict in the affidavits. From the undisputed facts, I am of the view that there are no material conflicts in the two affidavits. The fundamental issue which is not disputed is the overdraft which had remained unpaid up to the time of filing the action. The position of the law is that generally where affidavit evidence is in conflict, a trial Judge should call for oral evidence to reconcile the conflict, but where there is documentary evidence before him which will assist him to resolve the conflict; there is no need to call the oral evidence. In the instant case, there is a letter signed by the appellant admitting the respondent’s claim. The fact that the letter was drafted by Mr. Okoro is of no moment. See A.G. of Enugu State v. Avop Plc. (1995) 6 NWLR (Pt. 399) 90. Bob-Manuelv. Briggs (1995) 7 NWLR (Pt. 409) 537. The facts of this case do not call for any resolution of any conflict in the affidavit evidence. All the points raised are not substantial and they do not affect the facts deposed to by the respondent. They deal with matter entirely between the appellant and Mr. Okoro. Thus all issues raised in this appeal are decidedly resolved against the appellant. This appeal is bound to fail and I hereby dismiss it. I affirm the judgment of the Court below. The respondent is entitled to the costs of this appeal which I assess at N3,000.00k.

Other Citations: (1997)LCN/0297(CA)