Tsokwa Motors (Nig.) Ltd V United Bank For Africa Plc (2008)
LAWGLOBAL HUB Lead Judgment Report
P.O. ADEREMI, J.S.C
The appeal in this matter is against the judgment of the Court of Appeal (Jos Division) in appeal No. CA/J/78/98 delivered on the 10th of April, 2000. The appellant, as plaintiff before the High Court of Justice sitting at Yola, Gongola State; per paragraph 15 of its amended statement of claim dated 4th November 1996, claimed against the respondent, who was the defendant before that court the following reliefs: –
“(1) A declaration that the plaintiff is not indebted to the defendant in the sum of N773,386.45 or any sum at all.
(2) A declaration that the actual positions of the Plaintiff’s accounts are as follows:-
(a) Account No. 1025 at 31/12/86 was N897,137.27k credit and not N352,066.64k as per statement of account given to the plaintiff.
(b) Account No. 1722 as at 4/2/86 was N1,095,732.20k credit and not N2,609.32k debt as per the statement of account given to the plaintiff.
(3) A declaration that the defendant is not entitled/has no right to sell the property having regard to the disputed positions of the accounts and the plaintiffs strong averment that it is not indebted to the defendant.
(4) An injunction restraining the defendants, its agents or assigns from selling any property of the plaintiff and an order compelling the defendant to release to the plaintiff the plaintiffs Certificate of Occupancy No. GS, 1801 in the defendant’s keeps as plaintiffs bankers.
(5) A declaration that the defendant has been negligent in handling the accounts of the plaintiff.
(6) N500,000.00 general damages to the plaintiff for the defendant’s negligence in handling the plaintiffs said Account Nos. 1722 and 1025.
(7) An order of the court that the defendant should correct and amend the plaintiffs books of account to reflect the actual position of the accounts by crediting the accounts with all unauthorized transfers, uncredited lodgments, value of dishonoured cheques not returned to the plaintiff, reversing all unauthorised/fictitious debits and interest charges. The plaintiff also claims 30% monthly interest on all such sums found due and credited into its account (as herein claimed) from date due till paid.
(8) A declaration that the advertisement by the defendant to auction the plaintiffs motor workshop
at plot 19 Zaranda Street, Demsawo Ward, Jimeta-Yola was improper and made in bad faith and adversely affected the plaintiffs business.”
Pleadings, as ordered were duly filed and exchanged between the parties and with the leave of court, their respective pleadings were amended in turn. Hearing of the case commenced in earnest
before the trial court, holden at Jalingo Judicial Division of the High Court of Justice, Taraba State. In a considered judgment delivered on the 27th of October 1997, the trial judge granted the reliefs claimed by the appellant/plaintiff in part in the following terms: –
“Taking the entire body of this judgment into consideration, particularly the issue of unauthorised
transfer and unreturned cheques without proper records. I am of the view that the defendant was negligent in handling plaintiff’s account. This has caused some hardship to the plaintiff and is therefore entitled to nominal damages which I assess at NI00,000.00.
Defendant is by this judgment to put the plaintiff’s account in correct position by crediting to the accounts all unauthorised transfers, interests charged and value of dishonoured cheques not returned to plaintiff; uncredited lodgments, reverse all unauthorised debits and interest charges as adjudged. A fix interest of 20% is charged on such sums found due and credited into plaintiffs accounts.
With regards to relief 8, the plaintiff has not proved by evidence before this court that the defendant has put up an advertisement to auction plaintiffs workshop at plot 19 Zaranda Street, Demsawo Ward, Jimeta – Vola. It is therefore not proper to grant such a declaration without evidence and same is refused.”
Being dissatisfied with the judgment of the trial court, the present respondent, as the aggrieved party before the trial court appealed therefrom to the court below (Court of Appeal, Jos Division) upon a Notice of Appeal which contained duly the omnibus ground of appeal. Subsequently, a motion on notice dated 30th March 1998 was brought by the present respondent as the appellant before that court for leave to file additional grounds of appeal. Suffice it to say that a copy of the said motion on notice was served on the counsel for the respondent before the court below (now the appellant in this court) on or about the 2nd of April 1998 without any indication as to return date for the hearing of the said motion. It is the case of the present appellant that he was not served with the hearing notice of the aforesaid motion which was granted by the court below in the absence of himself and his counsel. The present appellant incorporated into his brief of argument a preliminary objection as to the use of the additional grounds of appeal which were granted behind him. In its reserved judgment delivered on the 10th of April 2000 after taking the addresses of counsel, the court below overruled the preliminary objection and went ahead to allow the appeal as it was held that the plaintiff/respondent, now the appellant, failed to prove his claims which were accordingly dismissed.
Being aggrieved by that decision, the appellant has appealed to this court by a Notice of Appeal dated 5th of July, 2000 and filed on the same date incorporating therein twelve grounds of appeal Distilled therefrom are five issues for determination which as set out in the body of its amended appellant’s brief of argument, they are in the following terms: –
“(1) Whether having regard to fundamental principle of fair hearing, the Learned Justices of the Court of Appeal were right in overruling the Preliminary Objection and failing to set aside their proceedings on 21/5/98 in relation to the additional ground of appeal on the ground that the failure to communicate the hearing date of the Motion on Notice to the appellant therefrom was not fatal as the appellant is said to be a nominal party.
(2) Whether having regard to the principles of fair hearing, the Learned Justices of the Court of Appeal were right in making copious references and utilizing the original case file as well as manuscripts contained therof to resolve the issue of jurisdiction against the Appellant without affording the appellant and/or its counsel the opportunity of addressing them.
(3) Whether the Learned Justices of the Court of Appeal were correct in their interpretation and application of section 16 of the States (Creation and Transitional) Provisions (No.2) Decree No. 41 of 1991 vis-a-vis the instant case let alone justified in nullifying and voiding the proceedings of the trial court.
(4) Whether from the Pleadings filed and exchanged, evaluation of evidence by the trial Court, the lower Court was justified to have interfered with the findings of fact and/or evaluation of evidence of DW2 thereby coming to the conclusion that the appellant had failed to establish that its money was transferred to unknown account without its authority.
(5) Whether the award of N100,000.00 damages amounted to double compensation to warrant its setting aside on the ground that the Appellant was earlier awarded its claim for unauthorized transfers and unreturned cheques.
The respondent, on its part also identified five issues for determination by this court. As gleaned from its brief of argument, the issues are as follows: –
“(1) Whether the Appellant was denied fair hearing when the Court of Appeal heard the Motion to file additional grounds of appeal on 21/5/98 and whether the Appellant’s Preliminary Objection to the competence of the Respondent’s Appeal and Additional Grounds of appeal were properly dismissed.
(2) Whether the Learned Justices of the Court of Appeal breached the principles of fair hearing in resolving the issue of jurisdiction of the trial court by reference to the docket or the case file.
(3) Whether the Court of Appeal was right in holding that section 6 of Decree No. 41 of 1999 cannot be invoked to save the proceedings of the trial Court and that the appropriate court to hear the subject matter of the appeal was the High Court of Adamawa State.
(4) Whether the findings of the Learned Justice (sic) of the Court of Appeal that:
(a) The Appellant failed to establish that money was transferred from his account to an unknown account.
(b) The Learned trial Judge did not evaluate evidence of DW2, and
(c) The trial Judges (sic) findings are not based on evidence of facts pleaded is correct in law.
(5) Whether the Learned Justices of the Court of Appeal were right in holding that the award of N100,000.00 nominal damages to the Appellants (sic) by the Learned trial Judge amount (sic) to double compensation.”
When this appeal came before us on the 16th of October 2007for argument, Mr. Kehinde, learned counsel for the appellant referred to, adopted and relied on his client’s amended brief of argument filed on the 9th of November 2006 and the reply brief filed on the 8th of February 2007 and urged us to allow the appeal.
Mr. Okafor, learned Senior Counsel for the respondent, referred to his client’s amended brief of argument filed on 21st December 2006, while drawing our attention to the point that the interpretation of the provisions of Section 6 of Decree No. 41 of 1991 is contained in the decisions in Chime v. Chime (1995) 6 NWLR (pt.404) 734 and Chime v. Chime (2001) 3 NWLR (pt.70 1) 527, he urged us to dismiss the appeal.
I have had a careful reading of all the issues raised by the parties. They are all materially similar. I shall therefore take issues Nos. 1 and 2 on each of the two briefs together; issue No.3 on each of the briefs; issue No.4 on each of the briefs and issue No.5 on each of the processes again together.
On issues Nos. 1 and 2, the appellant argued that neither it nor its counsel was served with the hearing notice of the motion of 21/5/98 by which the respondent was granted leave to file additional grounds of appeal. Although it conceded that it was served with an advance copy of the said motion on 2/4/98, that process bore no return date, it contended. It was its further argument that although the court below agree with its submission that it was not served with the hearing notice of the motion, -but that court (court below) said it (the appellant) was a nominal party and therefore non-service of the hearing notice on it was not a fundamental vice and the proceedings were in no way adversely affected. On the objection it raised as to the issue of jurisdiction of the court to entertain the suit, while conceding that the court below had the right to have a resort to the case file/jacket as well as the manuscripts of the proceedings from the trial court, as the purpose of that exercise was to resolve the issue of jurisdiction, it was of importance that the court below gave the parties an opportunity to address it on that issue before coming to a conclusion on the issue of jurisdiction so raised by it. It was finally urged that issues Nos. 1 and 2 be resolved in its favour.
On the same issues, the respondent has argued that even if the appellant was not served with the hearing notice of the motion, for reason of being a nominal party, according to him, that would not vitiate the proceedings as there was no relief against it.
Moreover, it was further argued that, the court below found from the records and through the Registrar of the court that the appellant was served. On the point of referring to the case file or docket by the court below, it was its submission that the court below had the right to do so in the interest of justice and the case of NUHU V. OGELE (2003) 18 NWLR (pt.852) 251 at 271 was relied on while urging that the two issues be resolved in favour of the respondent.
It is trite law that non-service of process on a party properly so called will render proceedings on such unserved process null and void. But in the circumstances of this case the Registrar, an official of the court who is always seised with facts relating to the administrative aspect of the case in court such as the filing of same in the Registry, payment of the correct fees for filing, issue of service of processes etc, informed the court that the appellant had been served with the hearing notice in respect of the motion on notice for leave to file additional grounds of appeal. Reliance on this category of court officials by a Magistrate or a Judge is sine qua non to the smooth running of state of affairs in the citadel of justice. It has always been established in law, that scrutinising the original file of case to find out the truth as to what has gone on in the court from where an appeal has been lodged, is a necessity in the desire to do justice. It was the result of this exercise that made the court below to discover that the issue of jurisdiction had been raised in the trial court and both parties had canvassed arguments on the point and what was more, arguments on this point are well entrenched in their respective briefs. So it is wrong to contend that the court below raised that issue suo motu. Issues Nos. 1 and 2 in each of the two briefs must therefore, be resolved in favour of the respondent, and I hereby do.
Issue No.3 on each of the two briefs relates to the issue of interpretation of Section 6 of the States (Creation and Transitional) Provisions (No.2) Decree No. 41 of 1991 – the grouse here is as to whether the court below was correct in its interpretation of the provision Section 6 aforesaid; provides: –
“Any proceeding pending before any court of a State immediately before the commencement of
this Decree may after such commencement be continued before that court and shall not be adversely affected by the provisions of this Decree.”
In interpreting the above, provision as to its applicability to this case, the court below held at pages 342/343 inter alia: –
“Pending proceedings expressed in the section must be one in respect of which some appreciable progress has been achieved in its prosecution in order that it could qualify for continuation in the court in which it is initiated. Thus, Section 6 of Decree No.41 to my mind does not contemplate that every pending matter before any court of a State immediately before the commencement of the Decree should so continue after it has come into force. To the extent that not every matter shall be continued after the Decree had come into force, there must be some compelling reasons why the matter must or must not be continued with. Clearly where some witnesses have been taken and the suit, with the creation of the new States, will have to be started de novo, the provision of Section 6 can be invoked to save obvious hardships that will inevitably visit the suit. Every proceeding that is part-heard it must be realised, has gone some steps in expenses monetarily and materially as well as in terms of human energy. For such proceedings to start all over (de novo) by reason of States creation over which neither the court nor the parties had control, could be unjust. In order to deviate from such glaring injustice, Section 6 was enacted. The section appears to equally address situations in which starting a case de novo may wrest parties of vital witnesses who may have died or would not be traced after they had earlier testified in the matter. It is for the above reasons, in my judgment, that Section 6 of the Decree was enacted. Where, therefore, such factors do not exist in the sense that no witnesses have been taken at all in the proceeding, as in the appeal at hand, at the time Decree No. 41 came into force, there cannot be justification in continuing the proceeding where the cause of action and everything in it occurred outside the territorial jurisdiction of the court where it is pending.”
I pause here to say that a quick perusal of the record or proceedings shows that the cause of action accrued at Yola, Adamawa State. The landed property upon which the declaratory judgment is sought is in Yola, Adamawa State. Also the current accounts in dispute are operated in Yola, Adamawa State where they were originally opened. With the aforesaid facts staring one in the face, can I fault the findings and interpretation given to the provisions of Section 6 by the court below My answer is in the negative. Issue No. 3 in the appellant’s brief is, accordingly answered in the affirmative while I resolve issue No. 3 in the respondent’s brief in its favour.
Issue No.4 of each brief turns on the evaluation of evidence. In appeals on findings on facts, the attitude of the appellate court (which this court is) is now well established; it is one of caution and of reluctance in interfering with the facts found by the trial courts. But where there is an obvious or patent error in appraisal of oral evidence and ascription of probative value to such evidence or even where there is an improper or imperfect use by the trial judge of the opportunity he had in seeing and hearing the witnesses or where he has reached a wrong conclusion on proved or accepted facts, the appellate court in such circumstances, is duty bound in law to interfere and set aside such perverse findings. The case of the appellant, from the inception, was that there was delay in the return of its dishonoured cheques not that they were not returned.
It had contended that if the dishonoured cheques had been timeously returned, it would have quickly asked its debtors to make good their undertaking to pay their debts. Its pleadings on this issue is very clear – paragraph 9 (d) of the amended statement of claim is explicit on this point. Suffice it to say that the averment in paragraph 9 (d) ,was denied by the respondents in paragraphs 7 and 8 of its amended statement of defence. The court below in its judgment held as follows: –
“The respondent whose case from its pleadings is that the appellant delayed returning its dishonoured cheques failed to prove that. Instead PW 1 led evidence to the effect that the cheques in question were never returned at all an issue not pleaded.
Therefore the Appellant was not duty bound to prove when and how it returned the cheques in question as no evidence was led in proof of the averment in paragraph 9 D of the Amended Statement of claim to the effect that the Appellant delayed returning the cheques. From the pleadings and the evidence on record therefore, the Respondent is not entitled to the sum of N28,253.00 as there is no evidence to prove that the respondent is so entitled to the amount.”
After a thorough review of the printed evidence, the court below held, which I am m agreement with, that the appellant/plaintiff did not discharge the onus on it to prove that the sum of N617,659.43 was transferred from its account to an unknown account. The case thus collapsed. Issue No. 4 must therefore, be resolved in favour of the respondent. And I so do, while I resolve it against the appellant.
Issue No.5 on each brief poses no problem for quick resolution. The award of the trial court of the sum of N100,000.00 as nominal damages having regard to the award earlier made to the appellant of its claim for unauthorised transfer and unreturned cheques is definitely double compensation. The trial judge had earlier held: –
“The sum of N617,659.43 is hereby to be reaccredited by the defendant with all the interest charged on the same amount to the plaintiffs account No. 1025.”
The trial judge had also held: –
“Consequently, the defendant is to re-credit the total sum of N28,253.00 to the plaintiffs account No. 1025 as the value to its eight dishonoured and unreturned cheques.”
It has been repeatedly held by this court that where a victim of an injury has been fully compensated under one head of damages, it is improper to award him damages in respect of the same injury under another head. See Ezeani & Ors v. Ehdike (1964) 1 ALL NLR 402. I must not forget to say here that even having set aside the basis upon which the double compensation was awarded, the sum of N100,000.00 awarded as nominal damage is outrageous, the law will never allow it to stand.
Issue No.5 on each of the two briefs is consequently resolved in favour of the respondent but against the appellant.
In the final analysis, for all I have said above, it is my judgment that this appeal is unmeritorious. It must be dismissed and I accordingly dismiss it with costs of N10,000.00 awarded in favour of the respondent but against the appellant.
SC.193/2000