E.O Falola V. Union Bank Of Nigeria Plc (2005)

LAWGLOBAL HUB Lead Judgment Report

U.A. KALGO, JSC

The appellant who was the plaintiff in the trial court claimed against the defendant now respondent as per paragraph 20 of the Statement of Claim, the following reliefs:-

(i) An order compelling the Defendants to pay to the Plaintiff the said sum of N4,500,560.00 with interest thereon at the rate of 20% per annum with effect from 28th day of October, 1983.

(ii) The sum of N25 Million as damages for wrongful detention of the said N4,500,560.00 property of the plaintiff

(iii) The sum of N5 Million for false imprisonment of the Plaintiff when on or about 10th day of January, 1984, the Defendant acting through its Ikeja Branch wrongfully and by means of false and malicious allegation procured the Police to arrest the Plaintiff whereby the Plaintiff was arrested and kept at Ita Oko detention camp near Epe Lagos for a period of 18 (Eighteen) months.

(iv) An order that the continuous refusal by the Defendants to pay the Plaintiff his N4,500,560.00 is illegal and malicious.”

Pleadings were ordered, filed and exchanged between the parties.

By an application dated 30th of May, 1995 the appellant prayed the trial court for an order entering judgment against the respondent on the ground of clear, unambiguous and unequivocal admission of liability, pursuant to the provisions of Order 28(6) of the Lagos State High court (Civil Procedure) Rules 1972. The application was heard on the 13th of February, 1996 and on the 19th of April 1996, the learned trial judge, Longe J, in a considered ruling ordered thus:

“There is therefore judgment for the Plaintiff against the defendant for the sum of N4, 500,560.00 being plaintiff’s money deposited with the defendant and of which the defendant admitted in its letter of 10th August, 1990.”

The respondent appealed against this order to the Court of Appeal. The appeal was heard and in a unanimous judgment, the Court of Appeal allowed the appeal, set aside the decision of the trial court and ordered that the case be remitted to the Lagos State High Court to be tried de novo by another judge on the pleadings already filed by the parties. The appellant was dissatisfied with this decision and he appealed to this court.

In this court, the parties filed their respective briefs and exchanged them between them. The appellant identified 3 issues for determination which read thus: –

“1. Whether the court of First Appeal was right in holding that the judgment of Longe J. dated 19th April, 1996 was a final judgment.

If issue No. I hereof is answered in the negative, whether the grounds of appeal filed by the Respondent (Appellant at the Court below) are grounds of law, fact (sic) mixed law and fact.

In the alternative, whether the Court of Appeal was right in holding that there exists (sic) irreconcilable affidavit evidence requiring calling oral evidence to clear before the court of trial.”

The respondent’s 2 issues are the same as issues 1 and 3 of the appellant. The appellant’s issue 3 is in the alternative to issue 2 and looking at the contents of the grounds of appeal filed by the appellant, I find his issues 1 and 3 more germane to this appeal. I will therefore consider appellant’s issues 1 and 3 as in 1 and 2 of the respondents.

Issue 1 deals with whether the judgment of Longe J. was final or interlocutory. This calls for the consideration of what is a final or interlocutory judgment.

In any judicial proceedings, the word “judgment” connotes a binding determination by a court or tribunal in a dispute between two parties. See Osafile V. Odi (No.1) (1990) 3 NWLR (Pt. 137) 130. And the expression “final decision” has been construed as a decision completely determining the rights of the parties before the court. See Omonuwa V. Osbodin (1985) 2 NWLR (Pt.) 938; Akinsanya V. UB.A (1986) 4 NWLR (Pt.35) 273; Ude V. Agu (1961) 1 ALL NLR 61; Chike Obi V. D.P.P (No. 2) 1961 ALL NLR 458; Akintola V. Aderemi (1962) 1 ALL NLR 461 “Decision” as defined by section 318 (1) of the 1999 Constitution means, in relation to a court, any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation.” From this definition it is clear that “decision” includes judgment” and so a “final decision” is and includes a “final judgment.” A “final judgment” and “interlocutory judgment” are not defined in any statute or the rules of court and must therefore be seen through case law as interpreted by the courts.

The test for determining whether a judgment or order is final or interlocutory as in this case is whether that judgment or order has finally and completely disposed of the rights of the parties in the case, so much so that if it is given for the plaintiff, it is conclusive against the defendant and if it is given for the defendant, it is conclusive against the plaintiff, and no further reference can be made to the court in respect of the judgment or order. See Omonuwa V. Oshadim (supra).

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In the instant case, the appellant as plaintiff applied to the trial court for summary judgment under order 28 (6) of the High Court of Lagos (Civil Procedure) Rules 1972 against the defendant now respondent on the ground a clear, unambiguous and unequivocal admission of liability in his favour in a letter Exhibit A, dated 10th August, 1990, written and signed by the defendant/respondent’s staff. The learned trial judge made the following order:

“There is therefore judgment for the Plaintiff against the defendant for the sum of N4,500,560.00 being plaintiff money deposited with the defendant and of which the defendant admitted in its letter of 10th August, 1990.”

He also proceeded to make a consequential order which reads: –

“The plaintiff has also claimed the interest of 21 %per Annum in the writ on this suit but in the Statement of Claim it has been inadvertently stated to be 20% per Annum. Since the Statement of Claim takes over from the writ the court can only give 20% interest rate. Thus this judgment sum of N4,500,560.00 shall carry an interest rate of 20% from 28/10/1983 till the amount is liquidated.”

Looking at paragraph 20 of the statement of claim, it is abundantly clear that the appellant as plaintiff made 3 distinct and separate claims of money against the respondent, which are:

(1) Payment of N4,500,560.00 deposited with the respondent with interest at the rate of 20% per Annum;

(2) N25 Million as damages for wrongful detention of the said N4,500560.00;

(3) N5 Million for false imprisonment of himself caused by the respondent in January, 1984 at Epe Lagos State.

These 3 claims are in my view distinct, separate and independent and must be proved on the preponderances of evidence for the appellant to succeed. Number 1, according to the trial court is admitted and therefore needs not be proved in law, and judgment is given on it fully including the claim of interest. Therefore the right of the appellant in that claim was fully and completely determined by the trial court. There is nothing more the court could have done in respect of that item of claim as between the parties. It is therefore a final judgment of that court in respect of item (1). In Sodipo V. Lemminkainen Oy (1985) 2 NWLR (Pt 8) 547, it was held by this court that a final judgment is a judgment obtained in an action by which a previous existing liability of the defendant to the plaintiff is ascertained and established or where the question whether there was a pre-existing right of the plaintiff against the defendant is finally determined in favour of either the plaintiff or the defendant. In this case, as I stated earlier in this judgment, the trial court found a pre-existing right of the plaintiff/appellant against the defendant/respondent vide the admission in Exhibit ‘A’ and this was finally determined in favour of the appellant in the judgment. Also in the case of Ebokam V. Ekwenibe & Sons Trading Co. Ltd. (1990) 10 NWLR (Pt. 622) 242 in considering a similar situation such as in the instant appeal and after reviewing decisions on final or interlocutory judgments or decisions, I came to the inevitable conclusion that: –

“In order to determine whether the decision is final or interlocutory, the decision must relate to the subject matter in dispute between the parties and not the function of the court making the order.”

In this case, the issue in dispute is the deposit of N4,500,560.00 allegedly made by the appellant with the respondent and the interest charged thereon. The judgment of the trial court fully dealt with the issue leaving nothing undone and so the appellant’s rights on that claim was fully and completely disposed of. This does not affect the function or powers of the court to make the order as it did. The judgment of the trial court on that issue is therefore final. The fact that there are 2 other independent claims of the appellant against the respondent does not and cannot affect the finality of the judgment on the first claim.

I therefore agree entirely with the Court of Appeal that the judgment of the trial court on item (1) above was a final and not interlocutory judgment. I answer issue 1 in the affirmative.

I now consider alternative issue 3 of the appellant and issue 2 of the respondent. The learned counsel for the respondent submitted in his brief that alternative issue 3 did not arise from ground of appeal 2 and the decision of the Court of Appeal. I think I will disagree with him. The Court of Appeal, after examining the pleadings of the parties found that they joined issue on the alleged admission. It then went thither and examined the affidavits filed by the parties in the appellant’s application for judgment and held that –

“Whereas the plaintiff (appellant) believed and accepted that the letter written on 10/8/90 and signed by one Mr. E. H. Akpan for and on behalf of the defendant had the permission and authority or imprimatur of the defendant, the defendant however contended that its Mr. E. H Akpan did not write the said letter.”

This was conceived from the contents of the parties’ affidavits. Paragraph 3 of the appellant’s affidavit in the application for judgment reads: –

“3. That the Plaintiff/Appellant informed me and I have no doubt to disbelieve him that on 12/8/90 the Defendant wrote a letter to him specifically admitting liability of his claim of N44.5 million which

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money the Defendant had converted”

And by paragraph 4 of the respondent’s counter-affidavit in the application, the respondent specifically denied being the maker of the letter of admission. He deposed that.’ –

“I was informed by Mr. E. H. Akpan at 10am in our chambers on the 12th day of May, 1999 that he did not write nor sign any letter to the Plaintiff at all.”

There is apparent conflict of sworn evidence between the above two paragraphs of the appellant and the respondent and in order to resolve the conflict, it has been well established by myriad of decisions of this court that evidence must be called to resolve the conflict before any decision is taken on the matter. This was not done here and I agree with the Court of Appeal that the trial court was in error for doing what it did in this case. See Falobi V. Falobi (1975) 9-1-SC 1: Adkins Scientific Ltd V. Aladetoyinbo (1995) 7 NWLR (Pt. 409) 526 First Bank of Nig. PLC V. May Medical Clinics Diagnostic Centre Ltd & Anor. (2001) 4 SC 108 (cited in the respondent’s brief); (2001) 6 SCM, 63; Din V. A. G. Federation (1986) 1 NWLR (Pt. 17) 471 at 487; Akinsete V. Akinditure (1966) 1 ALL NLR 471 at 148; I therefore find that although the Court Appeal did not, in so many words, use the words “irrecon-cilable conflicts in affidavits,” their finding that the admission in Exhibit A was specifically denied by the respondent, is enough to point directly to the conflict which was not properly resolved by the trial court as required by law. This therefore destroys the validity of the order of the trial court giving judgment to the appellant on the alleged admission in Exhibit A. I also answer issue 3 in the affirmative.

Having resolved issues 1 and alternative issue 3 of the appellant against him, I find that there is no merit in this appeal. I accordingly dismiss it and affirm the decision of the Court of Appeal. I also award the costs of N10,000.00 in favour of the respondent

SC.298/2000