Chrome Air Services Limited & Ors V. Fidelity Bank (2017)
LAWGLOBAL HUB Lead Judgment Report
EJEMBI EKO, J.S.C.
The appellants were the plaintiffs at the trial Court. They were also the appellants at the Lower Court. The Respondent was the defendant and respondent respectively at those Courts.
By a Writ of Summons and Statement of claim filed on the 24th day of November, 2009 the Plaintiffs (now Appellants) claimed against the Defendant (now Respondent) as follows:-
I. A declaration that the Plaintiffs are not indebted to the Defendant in any sum of money whatsoever whether in local or foreign currency.
II. The sum of N100, 000,000.00 (One Hundred Million Naira) in favour of the 1st plaintiff being general damages for detinue.
III. An order of Court mandating the Defendant to return to the 1st Plaintiff Certificate of Occupancy Nos. FCT/ABU/CR.296 in respect of Plot No. 756 Maitama A5 District, measuring approximately 2189.30 square meters and FCT/ABU/NG488 in respect of plot No. 71A3, Garki II District, measuring approximately 1195.06 square meters which the 1st plaintiff deposited with the Defendant in respect of overdraft which his been fully liquidated.
IV. An
1
order of Court mandating the Defendant to return to the 1st plaintiff Recertification Acknowledgement letters it received from the Abuja Geographical Information System in respect of recertification of the title documents prayed in (3) above.
V. Interest at the rate of 10% per annum on judgment sum from the date of judgment until judgment sum is fully liquidated by the defendant.
Upon been served with the plaintiffs claim, the Defendant filed their statement of Defence and also Counter Claimed against the Plaintiffs and Sir Emeka Offor KSM (who was joined by leave of Court) as follows;
a. The sum of N17,099,169.99 (Seventeen Million and Ninety Nine Thousand, One Hundred and Sixty Nine Naira Ninety Nine Kobo only) being the outstanding due to the Defendant/Counter Claimant from the 1st and 3rd Defendants.
b. Interest at the rate of 38% per annum from the 17th June, 1999 till date of judgment and 10% thereafter until full payment.
c. An order of Specific Performance by the payment of the sum of $1,000.000 (One Million US Dollars) by the 2nd and 3rd Defendants to Defendant/Counter Claimant.
d. Interest at the rate of 38%
2
per annum from the 17th June, 1999 till date of judgment and 10% thereafter until full payment.
e. An order of foreclosure and sale of all that property located at Plot 755 Maitama A5, District measuring about 2189.30 square meters covered by Certificate of Occupancy No. FCT/ABU/CR.296 in liquidation of the debts owed by the 1st, 2nd and 3rd Defendants.
f. An order foreclosure and sale of all that property located at Plot 71 A3, Garki II District measuring about 1195.06 square meters covered by Certificate of Occupancy No. FCT/ABU/NG498 in liquidation of the debts owed by the 1st, 2nd and 3rd defendants.
g. An order of foreclosure and sale of all that property located at Plot No. 505 Cadastral Zone A0 in Abuja measuring about 3940.85 square meters covered by Certificate of Occupancy No. FCT/ABU/MISC-5178 in liquidation of the debts owed by 1st, 2nd and 3rd Defendants.
h. Cost of this action.
Both sides called oral evidence, one witness each, at the trial Court. At the close of their respective cases and final addresses the trial Court delivered a reserved judgment. In the judgment the trial Court held as a fact that the appellants,
3
as plaintiffs, were no longer indebted to the defendant/respondent in any sum in Naira denomination, and that in US Dollar Denomination, however, the 2nd and 3rd plaintiffs/appellants were still liable in the sum of $1,000,000.00 USD to the defendant/respondent. The appellants unsuccessfully appealed that finding. This further appeal is against the decision of the Court of Appeal, Abuja Division (the Lower Court), that affirmed the decision of the trial Court and dismissed the appeal of the appellants before it.
Aggrieved by the decision of the lower Court in the appeal No. CA/A/203/2012 the appellants herein have further appealed to this Court. They filed their
Notice of Appeal on 27th November, 2014. It has two grounds, to wit
GROUND ONE
ERROR IN LAW
The Honourable Lower Court erred in law when it held as follows:
Exhibit O and Q as found by the trial Court are clear admissions of indebtedness to the respondent by the 2nd and 3rd Appellants, in addition to the Oruruo Eloka, Dw. 1, at page 111 of the record, especially paragraphs 10 – 15.
Contrary to the contention of learned counsel to the appellants, this Court holds the view
4
that the respondent have discharged the onus of proof of a counter claimant, by the evidence of Dw.1 and Exhibits O and Q; and thus having acknowledged their liability the onus is on the 2nd and 3rd Defendants to the counter claim, herein appellants to show that they paid, or are not indebted; this is more so especially in view of the appellants’ eagerness, portrayed particularly in Exhibit O to pay.
GROUND TWO
ERROR IN LAW
The Honourable Lower Court erred in law when it held as follows:
The abandonment of the 3rd Defendant/Appellant’s case is total, by reason of the fact that no sufficient evidence was elicited in contradiction from the testimony of Dw.1, contrary to the contention of learned counsel to the appellant; it is just not enough in the circumstances to refuse or fail to lead evidence in support of your pleadings, only to cross-examine the witness for the counter claimant, and assume that there cross examination is enough. The evidence elicited from such cross examination must not only be pleaded, relevant but also substantially support the claim of the appellant. I did not see such thing in this case. The circumstances of this case
5
are clearly in contradistinction to the position of the law in OFEM & ANOR v. EWA & ANOR (2012) LPELR – 7852 – CA.
The appellants also formulated two (2) issues from the two (2) grounds of appeal, viz:
- Whether the Court below was right when it held that the Respondent discharged the onus of proof of the counter-claim and that the Appellants failed to show that they paid or are not indebted to the Respondent. (Ground 1)
- Whether the Court below was right in its position that the failure of the 3rd Appellant to testify at the High Court left the evidence of Dw.1 uncontradicted as it pertains to the counter-claim ( Ground 2 )
In the Respondent’s Brief, filed on 30th January, 2015, the Respondent raised preliminary objection to the competence of the appeal on the grounds that:
a. The grounds of appeal herein are grounds of fact and or mixed law and fact.
b. No leave was obtained before the filing of the appeal.
c. the mere labelling of a ground of appeal as “error in law” does not translate the ground into a ground of law.
d. this Honourable Court lacks the jurisdiction to entertain an appeal based on facts or mixed
6
law and fact without leave.
The issue raised by the Preliminary Objection is simply: whether the Appellant’s appeal is competent It is true, as submitted by the Respondent on the authority of TILBURY CONSTRUCTION CO. LTD v. SUNDAY OGUNNIYI (1988) 2 NWLR. (pt. 74) 64, that the mere labelling of a ground of appeal as a ground of law, or error in law; does not ipso facto make or transform the complaint in the ground of appeal to one of complaint of error of law. The ground of appeal’to be one of error or law must in actuality or substance, be a complaint that the Court below had committed error of law in its judgment, the subject of the appeal. The ground of appeal read together the particulars of error must unequivocally point at error in law.
The Notice of Appeal is an originating process. To determine whether or not it has properly initiated an appeal before this Court under Section 233 (3) of the 1999 Constitution, the Notice of Appeal shall be submitted to scrutiny in order to determine whether or not it has strictly complied with the relevant enabling provisions of the law. See ABBAS v. TERRA (2013) 3 NWLR (pt. 1334) 284 at 286. The enabling
7
provisions of Section 233 (2) & (3) of the Constitution are clear:
(2) An appeal shall lie from the decisions of the Court of Appeal to the Supreme Court as of right in following cases-
a). where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the Court of Appeal;
b)
c)
d)
e)
f)
(3) Subject to the provisions of Subsection (2) of this Section, an appeal shall lie from the decision of the Court of Appeal to the Supreme Court with leave of the Court of Appeal or the Supreme Court.
In other words, a ground of appeal other than one complaining or raising issue of law alone is not filed as of right. The appellant shall, for a ground involving question of mixed law and fact or of fact alone, seek and obtain leave of Court before filing or bringing appeal on that ground.
The appellants posit that their appeal comes under Section 233(2) of the Constitution, and therefore as of right, since the two grounds of appeal “involve questions of law alone”. The Respondent, on the contrary, maintains that the two grounds of appeal are grounds of mixed law and
8
fact, or of fact, and therefore the appeal on them could not been brought as of right. The Respondent on this stance submits that the Appellants needed to have first sought and obtained leave of Court under Section 233 (3) of the Constitution before filing the Notice of Appeal, and having brought their appeal without satisfying the pre-condition, the appeal therefore is incompetent.
My Lords, I had earlier set out the grounds of appeal and the issues formulated therefrom by the Appellants for the determination of their appeal. The perusal of the grounds of appeal together with their particulars of error, when read together with the issues for the determination, leaves no doubt that the two grounds of appeal are purely on facts. Dr. Ameh, SAN for the Respondent puts it succinctly thus: “the issues framed from the grounds (of appeal) have put the argument to rest that the grounds are grounds of facts only.”
The complaint in Ground one is merely that the lower Court did not properly evaluate the facts before it. The totality of the ground and its particulars comes down to this: that the lower Court did not appreciate or apprehend the facts on which it
9
held that the evidence of the Dw.1 viz-a-viz Exhibits O and Q, as found by the trial Court, are clear admissions of their indebtedness to the Respondent. Indebtedness of one party to other is one of facts. It calls for the estimation or valuation of one set of facts against the other in order that the judge would appreciate, realize or see that one party is or is not indebted to the other. Where the ground of appeal is couched in a way, as the instant ground one, that reveals or questions the evaluation of facts by the lower Tribunal before the Tribunal would come to its finding of fact such a ground is one of facts, or at best one of mixed law and facts. As Onu, JSC, stated in MEDICAL AND DENTAL PRACTITIONERS DISCIPLINARY TRIBUNAL v. DR. JOHN EMEWULU NICHOLA OKONKWO (2001) 3 SC 76; (2001) 6 NWLR (pt. 710) – where the error complained of is one predicated on disputed facts calling into question the correctness of the facts determined, it is invariably a question of mixed law and facts. A. C. B. PLC v. OBMIAMI BRICK & STONE (1993) 6 SCNJ 98; (1993) 5 NWLR (pt. 274) 399.
I have read the opinion of Adekeye, JSC in B. A. S. F (NIG.) LTD v. FAITH ENTERPRISES
10
LTD. (2010) 4 NWLR (pt. 1183) 104 at 132 cited by the Appellant’s counsel. It also accords with the earlier dicta of this Court in M. D. P. D. T. v. OKONKWO (supra) AND A. C. B PLC v. OBMIAMI (supra) that where admissible evidence has been led, the assessment of that evidence is entirely for the Court. If the complaint, as in the instant case, is about the assessment of the admissible evidence, the ground is that of fact. Adekeye JSC also stated in B. A. S. F (NIG) LTD v. FAITH ENT. LTD (supra) that where the ground questions the evaluation of the facts before the application of the law, it is ground of mixed law and facts.
The complaint in Ground two of the grounds of appeal is that the lower Court was in error in its findings as of the fact that the 3rd defendant had abandoned his case at the trial Court, having failed to adduce evidence or elicit evidence from the opponents witness (Dw.1) to support his case as pleaded. The issue formulated from this ground of appeal is: whether the Lower Court was right that the failure of the 3rd appellant to testify at the trial Court left the evidence of Dw.1 uncontradicted as it pertains to the
11
Counter-Claim
The verb contradict, in its ordinary grammatical meaning, also means to assail, controvert, deny, dispute or traverse. One fact or set of facts is required to contradict, controvert, or traverse another fact or set of facts. That is why in Section 123 of the Evidence Act, 2011, it is provided that facts not disputed or which are taken as admitted need no further proof. See also DIN v. AFRICAN NEWSPAPERS OF NIGERIA LTD. (1990) 21 NSCC (pt. 2) 313 at 320.
Clearly from the earlier templates set by this Court in M. D. P. D. T v. DR. OKONKWO (supra),A. C. B PLC v. OBMIAMI BRICKS & STONE (supra) and B. A. S. F (NIG) v. FAITH ENTERPRISES LTD (supra); it becomes very hard for me to agree with the Appellants counsel that the two grounds of appeal on which the Appellants appeal is predicated “involve questions of law”. I agree with the senior counsel for the Respondent that the two grounds of appeal are grounds of mixed law and facts, or of facts. They accordingly require leave of the Court of Appeal or of this Court first sought and obtained before this appeal on them could be brought in accordance with Section 233 (3) of the
12
Constitution. The failure of the Appellant to first seek and obtain the leave before bringing this appeal has rendered this appeal incompetent.
The preliminary objection is on terra firma and it is accordingly sustained. Consequently, the appeal being incompetent is hereby struck out.
The Respondent is entitled to costs, which I assess at N500, 000.00. The said amount shall be paid to the Respondent by the Appellants, jointly and or severally as costs.
SC.817/2014