National Inland Waterways Authority V. Standard Trust Bank Plc (2007)

LawGlobal-Hub Lead Judgment Report

CHIDI NWAOMA UWA, J.C.A.

This is an appeal against the Ruling of the Federal High Court Abuja Division delivered on the 21st day of July, 2005.

The Appellant sued the Respondent in the lower Court for the sum of N557,305,217.70 (Five Hundred and Fifty Seven Million, Three Hundred and Five Thousand, Two Hundred and Seventeen Naira, Seventy Kobo) being the amount due and outstanding to the Appellant by virtue of the bank guarantee issued by the Respondent in favour of the Appellant and interest thereon as per the writ of summons and Statement of claim at page5 3-8 of the printed records.

The appellant by a motion ex parte supported by a 17 paragraph affidavit wherein it was deposed that the respondent had no defence to the action. The lower Court thereafter subsequently placed the suit on the undefended list and the writ of Summons was so marked. When the matter carne up for argument on 15/6/05 a Notice of Intention to Defend and an affidavit had been filed in opposition to the application for judgment by the Respondent: under the undefended list, the case was adjourned to 27/6/05 when the Respondent moved its Notice of Preliminary Objection to the action, Counsel lo the Appellant replied to the Notice of Preliminary Objection and moved the Court to enter judgment in favour of the Appellant in the sum claimed alleging that no defence to the action had been disclosed through the objection and/or through the affidavit.

The Preliminary Objection was taken together with the hearing of the Notice of Intention to Defend under the undefended list Procedure. In the Ruling of the trial judge of 21st day of July, 2005, the Court held that the case be transferred to another Court in the Federal High Court, precisely Court 3.

Being dissatisfied with the ruling, the appellant filed its Notice and Grounds of Appeal. Briefs of argument were subsequently filed and exchanged. In his brief of argument, the learned Counsel for the appellant Etigwe Uwa Esq. formulated the following issues for determination.

“1. Whether upon all the valid materials placed before the court the preliminary objection of the Respondent ought not to have been dismissed summarily.

2. Whether judgment should not have been entered in favour of the Appellant via the undefended list procedure in view of the evidence adduced by the Appellant in support of the application for entry of judgment and that adduced by the respondent in opposition.”

The learned Counsel for the Respondent, P.I.N Ikwueto, (SAN) adopted the two (2) issues for determination formulated by the Appellant.

In his submission in respect of issue one, the learned Counsel for the appellant Submitted that the basis for the preliminary objection is that the suit constitutes an abuse of Court process, which learned Counsel said must be established by credible admissible evidence. That the preliminary objection had no supporting affidavit Except processes filed in suit No; FHC/ABJ/CS/511/2004 which were annexed to the Notice of preliminary Objection which learned Counsel argued were not Certified True Copies, he argued that a copy of the process filed was only attached to the Notice of objection without an affidavit which learned Counsel argued is not enough and cited and relied on the cases of Bello v. N.B.N Ltd (1992) 6 NWLR (Pt 246) Page 206 Far East Mercanthe Co. Ltd vs. Boothia Maritime Inc. (1998) 5 NWLR (pt.551) page 620, Enterprises Nig. Ltd vs. Global Transport Oceanico S.A. & Anor (1998) 1 NWLR (Pt.532) Page 1.

In reference to S. 97 (e) of the Evidence Act learned Counsel argued that the only admissible secondary evidence of a public document is a Certified True Copy of Same and relied on the case of Queen vs. Minster of Lands Western Nigeria Ex parte Azikiwe (1969) 1 All NLR 49 amongst other cases. He argued that the preliminary objection of the respondent was not supported by any admissible evidence and that the objection therefore ought to have been dismissed.

In the alternative the learned appellants Counsel argued that assuming that the annexures were admissible, the suit filed before the lower Court would still not have constituted all abuse of Court process. He submitted that the suit essentially concerned the payment of the sum of N557,305,217.00 being the amount due to the Appellant from the Respondent on the basis of a first demand bank guarantee. Under and by virtue of the terms of the guarantee, the Respondent undertook the following:

“Unconditionally and irrevocably to guarantee as Primary obligor and not merely as surety, the payment to the Petroleum (Special) Trust Fund on its first demand without whatsoever right of objection or inquiry on our part and without its first demand to the contractor in the amount not exceeding the said of N557,305,217.00 and in respect of which sum we bind ourselves, our successors and assigned by these presents.”

By the above terms learned appellant’s Counsel argued that the guarantee was expressed to be on “first demand” without a right of objection or inquiry on the Respondent’s part and without the Appellant having to make a first claim to the contractor. He argued further that the liability of the Respondent under the guarantee was primarily and totally independent of any dispute regarding the underlying contract between the beneficiary (Appellant) and the contractor (Giorgio Dredging Ltd) and that both contracts were separate and autonomous. Learned appellant’s Counsel cited and relied all several monographs and judicial authorities in support of his argument amongst which are:

Comparative Law of Security and Guarantees Chapter 26 at Page 339, Law of Guatantee 4th Edition by Geradine Mary Andrew, QC and Richard Millet, QC Chapter 16 paragraph 16-001, also Pagets Law of Banking 12th Edition by Mark Hagood QC Chapter 34 Page 730. He contended that the learned trial judge was in error in holding that: