Chief S.B. Bakare Vs African Continental Bank Limited (1986)

LawGlobal-Hub Lead Judgment Report

ANIAGOLU, J.S.C.

In this interlocutory appeal, the dispute is as to which of the parties, in the consolidated suit, will begin, in the trial of the suit. The Respondents – the African Continental Bank Ltd., hereinafter simply referred to as the Bank – contended, in support of the Ruling of the trial Judge, that on the state of the pleadings, the onus to begin was on the Plaintiff/Appellant, hereinafter called the Appellant. Upon a superficial appraisal of the matter in issue one might be tempted to regard the whole thing as a storm in a tea pot, but on a deeper assessment of the implications of the issue at stake, one, undoubtedly, will see that although the procedural issue is simple, yet the implications of that issue may have profound effect on the mode of the conduct, by each party, of the case to be put forward by the party.

The background facts behind the issue are that the plaintiff – a customer of the bank – was, and still is, indebted to the Bank, upon accommodations granted to him by the Bank, in a sum yet to be determined. A dispute having arisen as to what this total sum amounted to, the Appellant (Chief S. B. Bakare) took out the writ LD/711/75 claiming:

“(1) A declaration that the sum secured by the equitable mortgage of the properties comprised in Title No. LO 3439 was N273,000.00 plus interest thereon.

(2) A declaration that the sum secured by the equitable mortgage of the properties comprised in Title Nos. MO 1135, MO 0633, MO 6427 and MO 6428 was N70,000.00 plus interest thereon. (3) A declaration that the registration or entry of the mortgage (or purported mortgage) to secure the sums of N273,000.00 and N70,000.00 respectively in the Charges Register of the relevant Land Certificate is illegal.

(4) A declaration that the deed of mortgage made on or dated 30th June 1969 and registered under Title Nos. MO 1135, MO 0633, MO 6427 and MO 6428 is null and void and of no effect.

(5) An injunction restraining the defendant its servants and agents from selling or transferring or purporting to sell or transfer the Plaintiffs properties at 28 Queens Drive, Ikoyi, 42 Calcutta Crescent, Apapa, 20 Rhodes Crescent, Apapa, 14 Oyekan Road, Apapa and 12 Oyekan Road, Apapa.

(6) Rectification of the Register kept pursuant to the Registration of Titles Law by deleting all references to or relating to the equitable mortgage created by the deposit of the Land Certificate Nos. LO 3439, MO 1135, MO 0633, MO 6427 and MO 6428 from the Charges Register of each of the said Land Certificates.

(7) An Order that the defendant do deliver back to the Plaintiff the Land Certificates Nos. LO 3439 MO 1135, MO 0633, MO 6427 and MO 6428.”

The Bank took its own summons against the plaintiff in suit LD/1064/78 and claimed the following:

“The plaintiffs claim is for the sum of N4,636,349.41 (Four million six hundred and thirty six thousand three hundred and forty nine naira forty one Kobo) being money payable by the Defendants to the Plaintiffs for money lent by the Plaintiffs to the Defendants and for money paid by the Plaintiffs for the Defendants as Bankers to the Plaintiffs.

Particulars

Principal and interest due as at 7th September 1978 … N4,636,349.41 as per Statement of Account attached to the Statement of Claim.

AND the Plaintiffs claim the said sum of N4,636,349.41 and interest thereon at the rate of nine percent (9%) per annum agreed to be paid by the Defendants until judgment and at the rate of six percent (6%) per annum from the date of judgment until payment is fully made.

Dated this 20th day of October, 1978.”

Pleadings were ordered and filed. By consent of the parties the trial Court on 2nd November 1981 consolidated the two suits. Trial was to begin but that was not to be. The Bank argued that on the state of the pleadings, it was the duty of the plaintiff to begin, while on the other hand, it was argued for the plaintiff that it was for the Bank to begin.

The learned trial Judge (J. O. Williams, J.) ruled that in all the circumstances it was for the plaintiff to begin. He said:

“The pleadings in this case disclose that the matters which are really in issue between the parties relate to banking facilities which have been granted by a bank to a customer by which the customer was obliged to execute certain instruments. In those pleadings also there had been admissions and denials in relation to the amount of facilities used and the kind of instruments employed in securing some of the customer’s properties. The admissions contained in those pleadings however have not been accepted completely by the bank and because of this, it is my view that evidence should be called before the issues are determined.

“I should make and I hereby rule that the plaintiff in Suit No. LD/711/78 should begin.”

It was from this Ruling that the plaintiff appealed to the Court of Appeal which upheld the Ruling of the trial Court and dismissed the appeal. The plaintiff has further appealed to this Court against that order of dismissal upon the following grounds of appeal:

“1. The Court of Appeal misdirected itself in law in holding that “it is not in dispute that the party to begin is determined by the court at its discretion, having regard to the material issues disclosed in the pleadings. ”

Particulars of Misdirection

Where the material issues disclosed in the pleadings lead to the clear conclusion that if no evidence is led one of the parties would lose the contest, then it is that party who ought to begin and there is no room for the exercise of any discretion by the court.

2. The Court of Appeal erred in law in holding as follows (in the lead judgment):

“Before the judge in the court below, learned counsel for the appellant did not say he was no longer pursuing reliefs 3 and 4. It cannot therefore De true to say the only material issues was the quantum of debt owed the respondent by the appellant. In this court Chief Williams has said for the first time that in view of the Supreme Court judgment in Bucknor-Maclean vs. Inlaks Limited. (1980) 8-11 S.C. 1 he could no longer pursue reliefs numbers 3 and 4”

Particulars of Error

(a) In the particular circumstances of this case the Court of Appeal ought to have exercised “its powers to amend the pleadings and claim in order to ensure that the court below can try the real matters in controversy between the parties.

(b) It is too plain for argument that claims (2) and (3) as well as claim (6) which is purely ancillary thereto are incontestable having regard to the decision of the Supreme Court in Bucknor-Maclean v. Inlaks Limited. (1980) 8-11 S.C. 1.

(c) This action was filed and the pleadings settled before the Supreme Court decision mentioned above.

(d) In the premises it is unfair and unjust for the court to insist that the Appellant must be treated as if he intends to pursue those claims.

(e) Appellant’s Counsel having made it categorically clear that he has no intention of proceeding with the claims aforesaid, the Court of Appeal ought to have dealt with the appeal on that basis.

3. The learned Justices of the Court of Appeal were in error in failing to uphold the argument of the Appellant to the effect that having regard to the state of the pleadings and the law, it was the Respondent and not the Appellant who should have been directed to begin.”

Before us Chief Williams formally withdrew claims 3,4,5,6 and 7 of the plaintiffs claim in Suit LD/711/78. The reason for his doing so will presently be made apparent.

From the briefs of Counsel and their amplification of those briefs before us, the arguments of Counsel ran as follows:

Chief Williams pointed out that his paragraphs 3, 4, 5, 6 and 7 were included by him in his claim when Owumi v. Paterson Zochonis and Company (Nigeria) Limited (1974) 1 All N.L.R Part II at 107was still the law. But the decision in Bucknor-Maclean v. Inlaks Limited which over-ruled Shell BP Petroleum Development Co. Ltd. v. Jammal Engineering Nigeria Limited (1974) 1 All N.L.R. 542 and Owumi (supra) has changed all that.It was by reason of the inclusion of those five claims that it would have been necessary that the defendant should begin. Owumi having been overruled by Bucknor Maclean v. Inlaks Limited, it should be apparent to anyone he argued, that the claims in 3, 4, 5, 6 and 7 could no more be sustained. The trial Judge, he contended, was presumed to know the law and since the decision of the Supreme Court, on 29th August 1980, of Bucknor-Maclean v. Inlaks (supra), the trial Judge should know that those five claims could not be proceeded with. With only claims 1 and 2 remaining, the learned trial Judge should have ruled, he argued, that it was the duty of the Bank to start since the Bank was in possession of the mortgage documents on which the transactions were entered into and since the Bank was alleging that those mortgage documents secured further advances beyond those admitted by the plaintiff. Claims 3, 4, 5, 6 and 7 attacked the validity of the instruments of mortgage and of their registrations which the decision of the Supreme Court in Bucknor-Maclean has set at rest. He pointed out that he informed the Court of Appeal that he could no longer pursue those claims in view of that decision. The Court of Appeal should then have ruled that with Counsel’s statement that he could no longer legally pursue those claims, the onus was on the plaintiff to begin.

Chief Onyiuke, for the Bank, drew attention to the fact that this Court was not called upon at this stage to consider the merits of this case. The simple issue which this Court is to determine is whether, on the state of the pleadings as at 14th January 1982, the High Court was right in its ruling that it was the plaintiff/appellant who should begin and whether the Court of Appeal was right in upholding that ruling. He stressed that this is a case to be tried on pleadings, filed by the parties, by which they ate bound, in the trial of the case. The procedure governing the trial of the case was as contained in the High Court of Lagos State Civil Procedure Rules 1972. The Rules, he argued, are designed inter alia to eliminate as much as possible any ambiguity and to ensure clarity and precision in the conduct of the case by the parties to the case. He pointed out that as this case is a consolidated action, where a correct ruling has been made by a court on the question of which party to the consolidated suit should begin, that ruling gives the other party a vested right to insist on the other party to produce evidence on the whole consolidated action and close his case before the opposing party can be called upon to present its own case. The party upon whom the duty to begin has been placed by the ruling of the trial judge cannot, he submitted, reverse the position by a subsequent abandonment of part of his claims. He pointed out that the, plaintiff never at any time applied to the trial Judge to amend his pleadings and the court made no order granting him leave to amend. On the state of pleadings as at 14th January 1982, the plaintiff’s assertion that the only issue before the court was how much he owed the Bank could not be right. Nor could he be right that, having regard to the rules, his statement that the only issue was for the court to determine how much he owed amounted to an application for leave to amend appellant’s pleadings or to a discontinuance of those claims. All the claims before the court were in issue and an issue does not cease to be an issue before a court, he contended, because that court may at the end of the trial, from the state of judicial authorities, rule against the party raising the issue. Chief Onyiuke finally asked us to dismiss the appeal by reason of the fact that the Judge’s ruling on 14th January 1982 was rightly based on the pleadings as they stood on that day.

In resolving this preliminary dispute it is well worth keeping certain basic legal principles in view, namely, firstly, that this action between the parties in this appeal was one settled on pleadings and triable on pleadings. Parties are, therefore, bound by their pleadings; secondly, in a civil action, counsel are completely in control of their cases, the trial Judge merely holding the balance between the parties and seeing to it that the trial proceeds within the norms of law and procedural principles laid down by law for the trial of such cases; thirdly, that the Ruling of the trial Judge in this case was an exercise by him of his judicial discretion, and unless that discretion is shown to have been wrongly exercised or shown to have been exercised upon wrong principles, or that the exercise has been tainted by some illegality or substantial irregularity, this Court, on principle, will not interfere with that exercise of the Judge’s discretion.

The first of these does not require further elaboration except perhaps to refer to one or two of a string of decided cases on the subject such as Alhaji Lemonu & Ors. v. Alii Balogun & Ors. (1975) 1 ALL N.L.R. 30 at 40 and Total (Nig.) Ltd. & Anor. v. Wilfred Nwako & Anor. (1978) 5 S.C.1 at 1618.

The second restates an old principle by which Counsel conducting a civil case is unfettered in his discretion – subject to law – of how to conduct the case. Suffice it to refer to a recent statement of this Court on the subject in Nwafor Elike v. Ihemereme Nwankwoala & Ors. (1984) 12 S.C. 301 at 311-312 in which the Court stressed the freedom of action of Counsel thus:

“Counsel conducting a civil case is, as a matter of law and civil procedure, in complete control of his case. He is a master in his own house. He knows the witnesses to call; the number of such witnessess sufficient for the case he is presenting to court; the order of presenting and marshalling those witnesses for the proof of vital points in his case and for effectiveness in support of his case (see: Briscoe v. Briscoe (1968) p. 501; (19661 All E.R. 465); the method of presenting the sequence of his facts; the decision whether to rely on provisions of a statute or other law for the proof of that issue; the decision on the tactics to employ in meeting his opponent’s case; when and where to throw in the towel and change his approach by amendments or otherwise; whether to surrender to judgment in the light of the evidence adduced by the other side or to be adduced, having regard to the pleadings, and every other decision to be taken in the conduct of his own side of the case for good or for evil. The trial Judge is rarely to interfere except for holding a legitimate balance between the parties and seeing that the conduct of the case of each side is done in accordance with the rules and standards laid down by the law judge who takes over from counsel the conduct of the case of either party to the conflict, is no more an impartial judge, but a combatant in the fray, unworthy of his appointed seat.”

Appellant’s Counsel, in this appeal, in the exercise of this his unfettered right and control, did not withdraw claims 3, 4, 5, 6 and 7 before the trial Judge, nor did he amend his writ or statement of claim, nor did he inform the trial Judge that he was abandoning the claims. The learned trial Judge would not have been entitled to strike out the claims, suo motu, before the end of trial, without any application from Counsel, even if he had become aware that upon the decision of the Supreme Court in Bucknor-Maclean (supra), the defendant could not succeed in those claims 3, 4, 5, 6 and 7.

The responsibility for making the necessary application rested upon Counsel and not upon the trial Judge. Provisions for these have all been made in the High Court of Lagos State (Civil Procedure) Rules Cap. 52 Volume III Laws of the Lagos State of Nigeria. By Order 23 Rule 1, the plaintiff (or Counsel on his behalf) could discontinue his action wholly or in part. Under Order 25, a party could virtually make any amendments he wished (subject to terms) to its indorsements, pleadings or proceedings.

Not only did Appellant’s Counsel not make any of these applications but also he did not even make any reference to Bucknor-Maclean v. Inlaks (supra) – a case on which he said he relied for his failure to amend – to the trial Judge, let alone deal with the purport of the Supreme Court decision in respect thereof.

His silence before the High Court was, however, not repeated before the Court of Appeal. In the Court of Appeal, he did tell the Court that the only claims he wished to pursue were those which raised the question of the quantum of his indebtedness to the Respondent. But did that make any material difference to the legal situation

Appellant’s Counsel contended that it ought to. He argued that the Court of Appeal was wrong in not giving effect to Appellant’s Counsel’s statement that the only claims which the Appellant wished to pursue were those directed to the quantum of the Appellant’s indebtedness to the Bank. How the Court of Appeal could have given effect to it would have been, he said, for it to make the necessary amendment to the claim by deleting or striking out the claims which were no more being pursued. Respondent’s Counsel, on the other hand, submitted, and in my view rightly, that at that stage the ruling of the trial Judge as to who should begin could not be altered by a party to the suit conceding certain parts of the claim. No doubt, in the course of trial, concessions made by the parties could shift the onus of proof, inter se, of matters in contention as the trial of the case progresses.

But the Court of Appeal is not a Court of first instance. It is an appeal court. It does not exercise its power in vacuo. Although it possesses the power to strike out claims in an appeal before it which have been abandoned before it, yet it does not exercise this power for the purpose of undermining the ruling of the trial court, legitimately made by the trial court, on the state of the pleadings before it. To do that would amount to a subjective approach to the exercise of its powers on appeal.

Order 32 of the High Court of Lagos (Civil Procedure) Rules makes provisions for proceedings at trial. Rule 11 thereof states that “proceedings at the trial of a cause where pleadings have been filed shall be as prescribed in the following rules”: One of the rules following, is Rule 12. That rule provides:

“12. The party on whom the burden of proof is thrown by the nature of the material issues or questions between the parties, according as the Court may determine, shall begin. He shall state his case. He shall then produce his evidence and examine his witnesses. ”

By the nature of the pleadings in the instant appeal based upon the claims before the Court in the consolidated suit, the learned trial Judge had decided that it was for the Appellant to begin. It is the accepted rule of practice that the party should begin on whom lies the burden of proof on the pleadings. Order 32 of the Lagos High Court (Civil Procedure) Rules contains the same substance as, and is in pari materia with, Rule 7 of Order 35 of the Rules of the Supreme Court in England (See 1979 Annual Practice p.570). In Seldon v. Davidson (1968) 1 W.L.R. 1083 it was doubted whether, having regard to section 108 of the County Court’s Act, 1959, an appeal would lie from the ruling of the Judge that it was for the defendant, to whom it was alleged in the claim that money was lent, to begin by reason of the defendant’s plea that the money was given to him as a gift. But it was held that assuming an appeal lay from that ruling, the payment of money prima facie imported an obligation to repay it, and that the Judge was right in placing the onus on the defendant to prove the facts which he alleged showed it was not repayable.

Under our 1979 Constitution there is no doubt that the Judge’s ruling in the present appeal is challengeable, subject of course to the rules of Court, on appeal. Being, however, an exercise of discretionary power, it can only be set aside, as hereinbefore stated, upon certain established principles, one of which is that when the discretion is not exercised on wrong principles it should not be disturbed. That principle was recognised and applied by the English Court of Appeal in Grunther Industrial Developments v. Federated Employers Insurance Association (1973) 1 Lloyd’s Rep. 394. The facts of the case were that the plaintiff brought an action on a fire insurance policy against the insurance company, namely, the defendants, and the defendants in their defence made an allegation of fraud against the plaintiff. At the trial,the judge ruled that even though the substantial issue in the case was one of fraud, the plaintiff should begin. On appeal against the ruling the Court of Appeal in a unanimous judgment upheld the ruling of the judge on the ground that the statement of claim, having alleged a loss under the policy and that required production of the policy, and put the actual loss in issue, the judge did not exercise his discretion on wrong principles in ordering that the plaintiff should begin and therefore the ruling must be upheld.

The discussion of the issue and the principle is contained at page 395 in the short judgment of CAIRNS, L.J. who stated as follows:

“The question that arose before the learned Judge was as to whether it was for the plaintiffs or for the defendants to begin. The defence to the action admits the fire but contains an allegation of fraud, and the contention on behalf of the defendants before the learned Judge and in this Court has been that the substantial issue in the action is one of fraud – that the onus with regard to that is upon the defendants, and that therefore it is for the defendants to begin and seek to establish the case of fraud. Now, when one looks at the defence in this case, one finds first of all, that the insurance policy which is sued upon is admitted only subject to its production at the hearing, and one finds further that it is denied that the plaintiffs suffered any loss of profits. So far as this second point is concerned, the contention of the plaintiffs is that because the trial which is now proceeding has been limited by agreement to liability, the issue of damages is not going to be before the Court at this stage. That is right in relation to quantum of damages, but it appears to me that before the plaintiffs can establish a prima facie case, first they have to put the policy in evidence, and, secondly, they have to prove that there was some damage. It is contended on behalf of the plaintiffs that notwithstanding that onus lying upon the plaintiffs, the substantial matter is going to be the issue of fraud, and therefore the defendants ought to begin. In my view, on the pleadings as they stand, it is not a case where it can be said that justice demands that the defendants should begin. It appears to me that under the relevant rule, which is R.S.C., Order 35, rule 7, under the first paragraph of that rule there may be a discretion in the trial Judge in relation to the matter. I can only say that in so far as there is a discretion, it was not in this case in my view exercised on wrong principles and was not an exercise which I should be prepared to say was wrong. ”

Finally, in concluding this judgment I feel obliged to refer to a comment by Edmund Davies, L. J., in Seldon v. Davidson (supra) at page 1089 where he said:

“If, however, it be right that, whenever a judge makes a ruling in a county court matter, the party against whom that ruling is given may, in effect, say: “I do not want this county court hearing to proceed any further; I want to go to the High Court to get the ruling tested,” and, upon such an application being made, the county court judge adjourns the case, it may well be that a chaotic state of affairs would arise. ”

Although I have already stated at the beginning of this judgment that the issue involved in this appeal is profound and therefore the bringing of the appeal is justified, yet it is desirable that I take this opportunity to call attention to the habit of some litigants, in Lagos especially, of rushing to the Court of Appeal and thence to this Court to test and challenge the ruling of the High Court on the smallest issues which arise in the course of the trial of cases. Many a time this entails the suspension of the trial by the Judge and an adjournment of the case sine die. Sometimes, many years go by before the conclusion of the appeal proceedings – a fact contributing to the much discussed delay of cases in our Courts.

One, of course, would not say that in appropriate cases such appeals should not be undertaken, but this must be limited to serious matters (such as the instant appeal involving a claim of over four million naira) in which the issue in contention has a serious bearing on the course of the trial or on the outcome of the proceedings. It should not be embarked upon on trifling legal issues which can be taken up generally with the substantive appeal at the conclusion of hearing. The nearness of the Supreme Court to the High Court in Lagos cannot be one of the reasons why litigants find it convenient to go to the Supreme Court on such trifling issues.

It is to be hoped that parties would not contribute to the delay in the A hearing of cases in our Courts by unnecessary application for adjournment of cases for them to test on appeal trivial issues which could easily wait for the conclusion of trial and taken up with the main appeal to the Supreme Court. Not to heed this is to add to the congestion of cases in our courts and to bring about the “chaotic state of affairs” mentioned by Edmund Davies, L.J., in Seldon v. Davidson (supra). The High Court and the Court of Appeal should lean against granting adjournments, or granting leave for interlocutory appeals, in such trivial matters.

The time, energy and expense involved in such appeals cannot be justified merely by the lawyer’s academic satisfaction that a legal principle, no matter how trivial, has been established or that a trifling legal issue has been resolved.

Lawyers may enjoy the splitting of hairs on obtuse legal points but that extravagant exercise has the result of weighing heavily on the pockets of litigants and unnecessarily exhausting the energies of the Appeal Courts.

For the foregoing reasons this appeal must be and is hereby dismissed with N300.00 costs to the Respondents.

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Other Citation: (1986) LCN/2273(SC)