Diamond Bank Limited V. Pamob West-africa Limited (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering The Leading Judgment)

The Respondent herein as the plaintiff before the High Court of Anambra State, Onitsha Judicial Division in its Amended Statement of Claim claimed a sum of N10,000,000.00 (Ten Million Naira) as general damages for breach of contract by the appellant. The respondent’s case is that the respondent applied for a letter of credit for the sum of N100,000.00 (one hundred thousand dollars) from the appellant at its Onitsha branch.

The appellant approved and issued a letter of credit for $83,500.00 (Eighty three Thousand, Five Hundred Dollars) and for which form ‘M’ was completed by the respondent and required documents were collected from the respondent. The appellant by its letter of 18th October, 1993 cancelled the letter of credit granted to the respondent and returned the respondent’s documents.

By its 2nd further amended statement of defence, the appellant’s case was that its acceptance to bid for foreign exchange on behalf of the respondent at central Bank of Nigeria did not amount to an approval of allocation of foreign exchange or issuance of letters of credit to the respondent. The Federal Government of Nigeria disburses foreign exchange to the central Bank of Nigeria to allocate same to genuine importers by biding system done through the banks as agents of the importers.

The appellant’s bids at auctions 34 and 35 conducted at the central Bank of Nigeria on 30/9/93 and 7/10/93 were unsuccessful. The appellant included the respondent’s name in its bid schedule at Auction 35 fixed for 14/10/93 but had to withdraw the item because the respondent cancelled its request for foreign exchange and demanded for the return of its documents by its letter dated 13/10/93.

The court below after hearing witnesses of both parties and considering the documents tendered awarded a sum of N2,000,000:00 (two million naira) as general damages in favour of the respondent for breach of contract by the appellant. The judgment was delivered on 29th June, 2006.

The appellant is aggrieved by that judgment and has appealed to this court on 8 grounds contained in the Amended Notice of Appeal dated 7th November, 2008 and deemed as properly filed on 5th March, 2009. Briefs of Argument were filed and exchanged by counsel. The appellant’s brief of argument is dated 11th March, 2009 and filed on 31st March, 2009. It was deemed as properly filed on 25th October, 2010.

The respondent’s brief of argument is dated 23rd November, 2010 and filed on the same day. The appellant’s reply brief is dated 25th February, 2011 and filed 25th February, 2011. It was deemed as properly filed on 26th February, 2013. The respondent’s reply on points of law in respect of preliminary objection is dated 5th March, 2013 and filed on the same day. All the briefs were adopted on 27th October, 2014.

The respondent filed a notice of preliminary objection dated 23rd November, 2010 and filed on the same day. The grounds of the objection are:

1. Issue No. 1 formulated by the appellant/respondent is incompetent as it does not relate to any of the grounds of appeal contained in the Appellant’s Amended Notice of Appeal and ought not to have been argued with incompetent ground 7 of the Amended Notice of Appeal.
2. Ground 7 of the appellant’s Amended Notice of Appeal is incompetent as the particulars of the ground of appeal does not relate to the ground of appeal.
3. The brief of argument filed by the appellant/respondent is incompetent for failure of the appellant to pay necessary fees as prescribed by the Court of Appeal rules 2007.

The argument in support of the objection was incorporated into the respondent’s brief. At the hearing of the appeal, the learned respondent’s counsel withdrew grounds 1 and 2 and the arguments in support and they were struck out.

On ground 3 which is failure to pay necessary fee prescribed by the rules of this court, counsel submitted that the appellant’s 45 days within which to file its brief started running from 28/5/2008 when the record of appeal was deemed properly filed. According to him, the appellant filed its brief on 31st March, 2009 and paid filing fee of N2,000.00 (Two Thousand Naira). The appellant was granted extension of time up till 25th October, 2010 to the its brief. He argued that by the Court of Appeal Rules, 2007, the appellant is statutorily required to pay one hundred naira (N100,00) per day for 835 days for failure to file its brief up and until 25th October, 2007. He submitted that non-payment of the required statutory fee renders the appellant’s brief filed out of time incompetent and not properly filed before this court and consequently robs this court of the jurisdiction to entertain this appeal, he relied on Ukpabio Vs N.F.V.C.B (2008) 9 NWLR pt.1092 page 219 at 244-245 (H-A), Ukangwu vs Pitt (2009) 9 NWLR Pt.1147 page 465 at 471 (F-H), Ekpeto vs Wanogho (2001) 8 NWLR Pt.716 page 665 at 667(6). He urged the court to discountenance the appellant’s brief and dismiss the appeal.

The appellant’s counsel in his reply brief submitted that failure to pay filing fees is different from failure to pay penalty for late filing of brief. He further submitted that the authorities relied on by the respondent’s counsel relate to non-payment of filing fees and therefore inapplicable to the present case. He argued that the appellant’s brief having been deemed properly filed and served without an objection from the respondent’s counsel, this court cannot turn round to set aside its own ruling by holding that the appellant’s brief is incompetent. He argued further that what the respondent’s counsel is asking this court to do is to sit on appeal over its own ruling. He relied on Buhari vs. Obasanjo (2005) All FWLR (Pt.273) page 1 at 100 (F-G). He urged the court to overrule the objection.

In his reply on points of law in respect of the objection, the respondent’s counsel argued that failure to raise objection to the appellant’s application for extension of time to file its brief and to deem same as properly filed and served cannot amount to waiver of payment of mandatory filing fee as the law is clear that parties cannot by consent waive mandatory provisions of statute. He submitted that the appellant had enough time since the preliminary objection was raised to pay the fee but chose to take cover under the ruling of the court.

By virtue of Order 12 Rule 1 of the Court of Appeal Rules 2007 and part A of the Third Schedule thereto, the fee for filing of brief of argument is N2,000.00 (Two thousand Naira) and N100.00 (One hundred naira) for each additional day thereof for failure to file brief within the prescribed period. The N2, 000.00 prescribed for filing was paid. The additional fee of N100.00 (One Hundred Naira) per day was not paid. The appellant applied for an order to deem his brief filed out of time as properly filed and served and the application was granted. Thus the appellant’s brief has already been regularized whether rightly or wrongly and cannot be revisited by this court. The respondent’s objection ought to have been raised at the time the appellant moved the court to regularize his brief and not after the brief has been regularized. The style of the respondent’s counsel amount to intentionally laying an ambush for the appellant so as to score a technical victory thus making litigation to look like a game of chess.