University Press Ltd.V. I.K.martins (Nig.) Ltd. (2000)

LAWGLOBAL HUB Lead Judgment Report

ACHIKE, J.S.C. 

The respondent, as plaintiff, instituted this action on 5/4/90 at the High Court, Onitsha, claiming the outstanding debt of N22,100.00 in respect of reams of newsprint paper sold and delivered to the appellant, as defendant, together with interest. The defendant entered a conditional appearance to the writ. Subsequently, the plaintiff filed a statement of claim. Its paragraphs 4, 5 & 6 are relevant to the issue now contested by the parties and are hereunder reproduced:

“4. Sometime in November, 1989, during scarcity of newsprint, the defendant at Onitsha approached and pleaded with the plaintiff to supply it, the defendant with some reams of newsprint to enable the defendant execute a contract with the Federal Government

5. The defendant at Onitsha ordered by means of Local Purchase Orders Nos. 2257 and 2262, 6000 reams of newsprint paper at the rate of N85 per ream valued five hundred and ten thousand naira (N510,000.00) from the plaintiff. The plaintiff hereby pleads the Local Purchase Orders and will rely on them at the trial.
6. Pursuant to the said Orders, the plaintiff duly supplied and delivered to the defendant a total of 5000 reams of newsprint paper on two occasions of firstly 2000 reams on LPO No. 2257 and later 3000 reams on LPO No. 2262 about 10/11/89 the defendant duly acknowledged the delivery by signing the waybill thereof at Onitsha after physically counting same. The plaintiff will at trial rely and found on various waybills issued the defendant at Onitsha. The defendant is hereby given notice to produce the originals of the waybills”.

The first supply of 2000 reams was duly paid for; the delivery in respect thereof was acknowledged by signing the waybill at Onitsha. The second supply was similarly acknowledged but a few days later, the defendant resident at Ibadan complained in writing that there was a short supply of 240 reams. On receipt of this complaint, the plaintiff traveled to Ibadan and held discussion with the defendant whereupon both agreed that the reams of newsprint were correctly supplied. However, the plaintiff made repeated demands for the payment of the short-delivered reams but to no avail hence the institution of this action, to which, as earlier stated, the defendant entered a conditional appearance on protest.

Thereafter the defendant filed a motion praying the court first, to strike out the suit in that the action was commenced at Onitsha High Court in Anambra instead of at Ibadan High Court which, according to the defendant, is the appropriate venue. Second defendant complained that the writ of summons which was for service was issued out of jurisdiction without leave of the court. The second ground was however abandoned. The affidavit in support of the motion was deposed to by one Adewusi, a Credit Controller in defendant’s employment. In paragraphs 6 to 11, including paragraphs 13 and 14 he deposed that the contract for the supply of the newsprint was concluded in Ibadan whereat the two LPOs, Exhibits A and B attached to the affidavit, were issued. Also exhibited to the affidavit were receipt note. Exhibit C, letter dated 15th November 1989 from the appellant’s Production Manager to the respondent’s Managing Director, i.e. Exhibit E. letter dated 28th November, 1989 written by respondent’s Managing Director to the appellant’s Production Manager – Exhibit F, Minutes of the Meeting dated 9th January, 1990 attended by officials of both parties – Exhibit ‘G’ and photocopy of Bank draft for the sum of N402,475 raised by the appellant in favour of the respondent – Exhibit H.

The respondent also filed a counter-affidavit to which were attached Exhibits A. A1 & B being three copies of the respondent’s waybill issued to the appellant, letter dated 22nd December, 1989 written by the appellant’s company secretary to the respondent, Exhibit C and two cheque leaves of United Bank for Africa – Exhibits D & E .

After submissions by parties’ counsel and due consideration of the statement of claim and the affidavit evidence placed before him, Uzodike, J, ruled and declined jurisdiction. He held that the proper venue was the High Court Ibadan, Oyo State. Accordingly, he struck out the action.

Dissatisfied, the respondent appealed to the Court of Appeal, Enugu. Allowing the appeal, that court ordered the Onitsha High Court to assume jurisdiction but before another judge and determine the case on its merit. The lower court said, obiter, that ordinarily “the debt arising from contract between the parties should be paid by the defendant/appellant in Onitsha which incidentally is the plaintiff/creditor’s residence or place of business”.

The appellant formulated three issues for determination, namely:

“1. Was the Court of Appeal right to hold that the trial judge ought to have assumed jurisdiction to hear the claim ensuing out of the contract and to make it the duty of the appellant to pay at Onitsha which is the respondent’s residence or place of business when according to the said court, there was conflict in the affidavits of the appellant and the respondent as to venue which conflict was not resolved by the High Court and when the Court of Appeal failed to resolve the said conflict ,

2. Was the Court of Appeal right to hold that the contract was entered into at Onitsha by looking at the statement of claim when it had already regarded such approach as a misconception (sic)
3. Was the Court of Appeal right to have delved into the substantive issue of the appellant’s indebtedness or not to the respondent when what was on appeal before it was the question of the appropriate venue of trial”

Respondent neither filed a brief nor was it represented at the hearing. I think it is desirable to make a cursory remark touching on the issues submitted for the determination of this appeal. I am satisfied that the issues as formulated partly affect the main point in controversy between the parties i.e. the question of venue for trial, on the one part, and partly affect some questions which incidentally arose from the body of the leading judgment of the lower court, on the other pan. One is therefore tempted, for the purpose of this appeal, to characterize the above three issues in two categories namely, in terms of major or main issues and minor or subsidiary issues. Issue No. 1 undoubtedly belongs to the first category while Issues Nos. 2 and 3 will readily be subsumed under the second category. Nevertheless, the consequence attributable to a successful issue will obviously depend on whether it is a major or subsidiary issue; if the former, the effect will be crucial such that it may upturn the appeal in favour of the appellant but if the latter the effect may be no more than a pyrrhic victory without the sting that would radically change the judgment appealed against. From my close study of the three issues, I would wish to consider the three issues in the reverse order.

Issue No.3

“Was the Court of Appeal right to have delved into the substantive issue of the appellant’s indebtedness or not to the respondent when what was on appeal before it was the question of the appropriate venue of trial”

Learned appellant’s counsel submitted that the learned Justices of the lower court were right to hold that the presumption is that the plaintiff who is the alleged creditor should be sought by the defendant, (herein appellant, the alleged debtor, to be paid where he lives, reliance being placed on the authority of National Bank of Nigeria Ltd and Ors v. John Akinkunmi Shoyoye & Anor (1977) 5 SC 181 at 192. But it is counsel’s further submission that the facts of Shoyoye were inapplicable to the circumstances of the present case in many respects. For example, in Shoyoye the amount of the indebtedness was not in dispute whereas in the present case the appellant has seriously contested its continued indebtedness to the respondent to the tune of N22,100. Furthermore, it is submitted on behalf of the appellant that the issue of indebtedness goes to the substantive matter yet to be raised before the trial court whereas the preliminary issue before the trial court was simply the venue for trial. It is counsel’s submission that the Court of Appeal erred in law to have made a pronouncement on the substantive matter wherein he adjudged the appellant a debtor to the respondent. Counsel relies on several authorities, to wit, Odumegwu Ojukwu v. Governor of Lagos State (1986) 3 NWLR (Pt. 26) 39 at 45 and Ogbonnaya v. Adapalm (1993) 6 SCN J 23 at 32. (1993) 5 NWLR (Pt. 292) 147.

It is manifest that the case before the learned trial Judge of the High Court Onitsha had hardly taken off. Indeed, the question at stake was one of appropriate venue at which the case would commence. As we have shown earlier, there was an interlocutory application before the High Court to thrash out the proper venue and no question of liability in respect of the contract between the parties arose nor could it arise at that point in time. This Court has counseled for caution, times without number, that trial courts as well as intermediate appellate courts should desist from making positive pronouncements touching on the substantive issue while they are only engaged in determination of interlocutory matters before them. Surely, this practice is unacceptable because it pre-judges the real matter in controversy even before arguments by learned counsel have been marshaled on the substantive issue.

Ordinarily, where the trial judge has in fact delved into and determined the substantive issue when considering an interlocutory matter it is clear that even if he has rightly determined the interlocutory matter before him, he cannot dispassionately revisit the substantive issue and be expected to take an opposite view from his original stand on the matter. Indeed, whether the trial judge remains constant in his view on the substantive decision he had earlier taken or not, it would make no difference to the dilemma arising from his procedural error. This is because if the trial judge is allowed to revisit the substantive issue at any stage of the trial it will no doubt seemingly amount to the judge silting on appeal on his earlier decision on the substantive matter. This will surely outrage the sense of justice of an independent observer. In such a situation an appellate intermediate court will have no option than to order a re-trial before another judge of the same jurisdiction. In the present case, the error of delving into the substantive issue was committed by an intermediate appellate court. Perhaps, it would have been equally simple for this court to order a re-hearing of the case before another panel of the Court of Appeal if only to show that the outrage occasioned by such procedural error is no less worrisome or grievous because it was committed by an appellate court. It is needful however, to recall that this case on appeal was filed at the trial court on 15/4/90 – approximately a decade ago! This is, to say the least, an affront to our much avowed sense of justice and fair play, bearing in mind the aphorism ‘that justice delayed is justice denied’.

The critical question that must be put is, where do we go from here Clearly, it will exacerbate the already inordinate delay for this Court to order the case to be remitted to the Court of Appeal before another panel for determination and thereafter allow the parties, in exercise of their constitutional right of appeal to come to this court. This dilatory approach can hardly be overlooked.

It is pertinent to give a global consideration to the problems raised under issue No.3. Now it is beyond peradventure that the substantive aspect of this case was never properly before the lower court for determination, that is to say, it was not predicated on any of the grounds of appeal arising from the judgment of the trial Judge. No doubt, the contested view expressed by the Court of Appeal is similar to such views often expressed by trial or appellate courts in the course of the preparation of their judgments. Invariably, such views are unsolicited in the sense that counsel in the case neither raised the issue nor were they invited to address the court on it. The issue arose impromptu and ought to be so treated. Such view or opinion in our jurisprudence is referred to as obiter dictum in contrast to ratio decidendi which is the substance for which a case stands. The obiter dicta are always overlooked when the principle for which a case stands is being ascertained. It is the ratio decidendi that lays down the principle of law that has the binding force of precedent. It makes good sense that such peripheral expressions, i.e. obiter dicta, should not be allowed to becloud the substance of a court’s judgment. In the result, since the main issue in this appeal i.e. issue of venue, can readily be determined without over-dramatizing the inconsequential speculations by the lower court on the substantive issue, there is no justification to give any protracted consideration to this issue.

For all I have said, I hold that the appellant’s complaint under issue No.3 is well-founded and accordingly. I turn in a negative answer to issue No.3.

Issue No.2

“Was the Court of Appeal right to hold that the contract was entered into at Onitsha by looking at the Statement of Claim when it had already regarded such approach as a misconception”

On this issue appellant’s learned counsel relied on two alleged conflicting assertions made in the leading judgment of the lower court. First, his Lordship said:

“It is without doubt a misconception on the part of the plaintiffs counsel to have argued in this court as he did in the Court below that the learned trial Judge should have confined himself to the averments in the statement of claim on the question of venue even when counsel for the defendant raised it by way of motion. It seems to me that a plaintiff should not be allowed to determine the venue simply by facts in his statement of claim. When a defendant has facts at his disposal which will reveal the true position, it may be unnecessary for him to wait to disclose these in the statement of defence and lead evidence of them at the trial”.

Then later in the judgment, he had this to say:

“Looking at the statement of claim, the contract was made at Onitsha. There is nothing affirmative on the face of the LPOs and the paper Receipt Note which the defendant referred to as exhibit ‘A’, ‘B’ and ‘C’ respectively in its affidavit in support of the motion, nor of the three waybills referred to as exhibits A, A1 and B in the plaintiffs counter affidavit that the contract was made other than in Onitsha”.

Against this background, learned appellant’s counsel submitted that in view of the motion paper which is accompanied by the affidavit evidence placed before the lower court. It was not possible for that court to determine the vexed question of venue with reference only to the statement of claim. It is his further submission that the lower court has, by reason of the above two assertions, approbated and reprobated, on what should be the proper documents to be examined by the court with regard to the issue of venue at this preliminary point in time. Finally, counsel submitted that the issue of venue having been questioned, the determination of that issue could not be restricted to an examination of the statement of claim. In support of his contention, counsel relied on the National Bank of Nigeria Ltd v. John Shoyoye (supra) at p.193-4 and Western Steel Works Ltd & Anor v. Iron and Steel Workers Union of Nigeria (1987) 1 NWLR (Pt. 49) 284 at 305.

I have carefully examined the above-two excerpts of the leading judgment of the lower court the contents of which learned counsel for the appellant has invited us to hold amount to approbation and reprobation. Nothing can be further from the truth. In the first excerpt, Uwaifo, J.C.A. (as he then was) chides plaintiffs counsel for his erroneous submission wherein he argued that the vexed issue on venue should be determined by restricting the inquiry to the plaintiffs statement of claim. Indeed, the learned justice of the lower court emphasised the need to look elsewhere, where possible, in the resolution of the problem of venue. In his Lordship’s analysis of the problem, as borne out in the second excerpt, it is quite clear, contrary to the submission of learned appellant’s counsel (at pp 7 & 8 of his brief) that his Lordship examined not only the statement of claim but the motion paper and the affidavit evidence attached thereto.

It is clear that the defendant who was within his legal right not to file a statement of defence at that stage of his protest on venue was entitled to put across all facts available to it by way of affidavit evidence. There is no iota of truth that the lower court confined itself to the statement of claim in reaching its decision on question of venue. I am satisfied that learned appellant’s counsel did not give a dispassionate consideration to the above two excerpts of the lower court’s judgment that form the plank of his complaint. Clearly, there can be no other justifiable way of examining and determining the appellant’s protest on venue except by examination and evaluation of affidavit evidence separately fielded by the plaintiff and the defendant in conjunction with the statement of claim. To do otherwise will lead to a grave miscarriage of justice which we cannot overlook. See National Bank of Nigeria Ltd. v. John A. Shoyoye (supra) and Western Steel Workers Union Nigeria (supra).

The result is that issue No.2 is resolved against the appellant as having no merit whatsoever.

Issue No. 1

“Was the Court of Appeal right to hold that the trial judge ought to have assumed jurisdiction to hear the claim ensuing out of the contract and to make it the duty of the appellant to pay at Onitsha which is the respondent’s residence or place of business when

according to the said court, there was conflict in the affidavits of the appellant and the respondent as to venue which conflict was not resolved by the High Court and when the Court of Appeal failed to resolve the said conflict”

It may be recalled that the Court of Appeal observed, and rightly in my view, that there was conflict in the affidavit and counter-affidavit evidence of the appellant and the respondent in relation to the parties’ respective views on the question of proper venue of the court to adjudicate on the case in controversy. Learned appellant’s counsel however submitted that despite this state of the affidavit evidence and without according any resolution to the conflict, the lower court proceeded to pronounce on the vexed issue of venue. It is counsel’s submission that the failure by the lower court, like the trial court, to resolve the conflict in evidence left it in a quandary to determine the appropriate venue for the trial of the case. Counsel also submitted that the lower court was in error to have said that it was the duty of the appellant (i.e. the defendant) to pay the plaintiff at Onitsha which is the respondent’s residence or place of business without first resolving the conflicts in the affidavit evidence.

Undoubtedly, the question of payment would only arise after the trial court had taken evidence on whether or not there was short-delivery as alleged. It is therefore premature and uncalled for at that stage for the lower court to pronounce on the appellant’s obligation to locate the whereabouts of the respondent for the purpose of paying him when, in fact, the question of any indebtedness on the part of the appellant in favour of the respondent was yet to be determined. Be that as it may, it is needful to be guided by the appropriate Rules of Court in this regard notwithstanding the unresolved conflict in the affidavit evidence. The motion on notice at the instance of the defendant/appellant was brought pursuant to Order 4 Rules 3 and 5 of the Anambra State High Court Rules 1988.

In the affidavit in support of the motion the defendant deposed that one Mr. Fawibe issued the LPOs. i.e Exh. ‘A’ & ‘B’. at lbadan on behalf of the defendant. The plaintiff, however in its counter-affidavit deposed that the aforesaid Mr. Fawibe came down to Onitsha to make the contract while there he collected the reams of newsprint, the subject – matter of the contract and also issue the LPOs while at Onitsha. The plaintiff also deposed that the three waybills Exhs , A, A I & B. where signed in Onitsha by both parties but the defendant on its part stated that the newsprint papers were received with an acknowledgement at Ibadan when they were brought by the plaintiff. It is clear that the places of issuance of these exhibits constitute the areas of conflicts between the parties. As already noted, neither the trial court nor the lower court resolved these areas of conflict before reaching their diametrically opposing decisions.

Now we shall turn to the Rules of Court in our pursuit for the determination of the appropriate venue for trial of the suit i.e. Order 4 Rules 3 & 4.

They stipulate as follows:

“3 All suits for the specific performance, or upon breach of any contract, may be commenced and determined in the judicial division in which such contract was made or ought to have been performed or in which the defendant resides.

4………….

5 In case any suit shall be commenced in any other judicial division than that in which it ought to have been commenced, the same may notwithstanding. be tried in the judicial division in which it shall have been so commenced; unless the court shall otherwise direct, or the defendant shall plead specifically in objection to the places of trial before or at the time when the suit is being set down for trial”

Rule 3 as set out above makes venue dependent on three alternatives namely:

(a) the judicial division where the contract was made:

(b) the judicial division where the contract ought to have been performed: or

(c) the judicial division where the defendant resides.

In the view of the trial court the plaintiffs position could not be subsumed under alternative (a) or (b) above: it preferred alternatives (c) hence it held that Ibadan was the appropriate judicial division for the trial of the suit. On the other hand, the Court of Appeal was clearly of opinion that alternative (a) and (b) could each operate in favour of the commencement of the suit at the Onitsha Judicial division.

It is pertinent to observe that the objection taken by the defendant could not be determined within the provision of Order 3 Rule 5 of the Anambra State High Court Rules 1988. Since the defendant had not filed his pleadings it was perfectly in order for it to raise its objection on venue of trial by motion. The result is that, like the two lower courts, this Court is expected to determine the matter in controversy by looking at the writ of summons, the statement of claim, the defendant’s motion paper, including the supporting affidavit and the counter affidavit with their annexures exhibited thereon. We have earlier identified the areas of conflict in the affidavit and counter-affidavit of the parties and observed that neither of the two lower courts resolved the conflict by calling oral evidence as prescribed in such circumstances as laid down by this Court in its numerous decisions, such as Falobi v. Falobi (1976) 9 & 10 SC 1; Nwosu v. Imo State Environmental Sanitation Authority (1990) 4 SCNJ 97, (1990) 2 NWLR (Pt. 135) 688 to mention just a few.

Discounting the areas of conflict in the parties’ affidavit evidence, we may now turn our attention to the exhibits attached to both the affidavit and counter affidavit. i.e. Exhibits A & B on the one part (furnished by the defendant) and Exhibits A. A1 & B. on the other part. (fielded by the plaintiff). These exhibits are absolutely mute as regards the place of their issuance. No doubt such information would have gone a long way to assist in determining either where the contract was made or where the contract was to be performed. It is however surprising that in the face of vehement denial of paragraphs 12, 13, 14 and 15 of the affidavit and ascertain in clearest terms that one Mr. J. A. Fawibe, the defendant’s company secretary came to Onitsha and issued LPG No. 2262 at Onitsha for the supply of 4000 reams of newsprint paper, the defendant did not think it sufficiently cogent to request Mr. Fawibe to personally depose to an affidavit to deny such weighty assertion, rather, through one Adewusi, the defendant deposed to an affidavit on the alleged information given to him by Mr. Fawibe that the contract was made at Ibadan. Failure to extract direct and positive evidence from Mr. Fawibe left a dent on the appellant’s duty to prove his assertion that Ibadan rather than Onitsha ought to be preferred as the appropriate venue.

Let us also turn to the contents of the claim and the statement of claim which so far remain unchallenged and can only be properly challenged by the defendant’s statement of defence. I have at the outset of this judgment reproduced the salient paragraphs of the statement of claim i.e. paragraphs 4, 5 and 6. The combined effect of these paragraphs as well as paragraphs 3 and 4 of the claim raises a strong presumption that the jurisdiction to entertain the suit resided in the Onitsha High Court, bearing in mind that the available conflicting affidavit evidence on crucial material facts deposed to by the parties remained untested by cross-examination and so unresolved. Undoubtedly, the onus to dislodge the presumption of venue in favour of Onitsha High Court’s jurisdiction on the face of the statement or claim that the contract as earlier stated, was both made and performed at Onitsha, was on the defendant. The law is clear on the matter and quite elementary that it needs no authorities to confirm it that a person who asserts has the onus to establish what he asserts. A careful examination of all the documents relied on by the defendant in his protest to the venue for trial shows nothing affirmative to prefer Ibadan rather than Onitsha as the venue for trial.

In the circumstances of this case, I am clearly of opinion that appellant has failed to show that it can rely on Order 4 Rule 3 of Anambra State High Court Rules 1988 to deny jurisdiction to the High Court Onitsha over the suit as it has not been shown that the venue is other than Onitsha High Court. I agree with the lower court that the learned trial judge was in error to have declined jurisdiction and struck out the suit.

It remains to observe that while his Lordship, Justice Uwaifo JCA in the leading judgment relied on the authority of National Bank Ltd v. Shoyoye (supra) and adverted to what is undoubtedly a true and correct statement of the law, to wit, that in the absence of clear indication by the contract as to where the debt should be paid, it is the law that the debtor is under a duty to seek the creditor in order to pay him at his place of business or residence. As already noted, this statement of the law is rather premature as it inferentially conveys the impression that the obligation to pay under the contract has already been decided in the present case. This statement, obviously, has no nexus with the issue of venue for trial more so as the reference to Shoyoye also gives the impression that the appellant has been adjudged liable in the present suit whereas that issue, even now, is still at large. Permit me to caution again that a court dealing with interlocutory matter should not be seen as giving pre-emptive determination of the substantive claim. In my view with utmost respect, the remark is irregular and unwarranted. It is a technical error which cannot be said to have occasioned a miscarriage of justice. It is a minor judgmental slip. It will not be in the interest of justice for an otherwise excellent judgment to be overturned by the judge’s technical slip which has not been shown to be fatal or such, as earlier stated, as would occasion a miscarriage of justice. See Onajobi v. Olanipekun (1985) 4 NWLR (Pt.2) 156;(1985) 11 SC(Pt.11) 156 at p.163.

Providentially, even if this somewhat high flier makes its second judicial journey to the Court of Appeal, the panel that determined the appeal thereat is impossible to be reconstituted at the Enugu Division -two of the Justices having left the lower court for good while the third Justice has been transferred out of the Enugu Division. That obiter however must be roundly discouraged and ignored. For all I have said, Issue No. 1. despite the inelegance and error of the lower court, as pointed out herein, should be resolved in favour of the respondent because that error cannot, in the circumstances of this case, be a ground for allowing the appeal. It is pretty clear that the error arose from the court’s obiter. A pronouncement identified as obiter cannot go to the substance of the appeal. A complaint on the court’s obiter in a judgment can never constitute an appealable ground of appeal.

All in all, the appeal fails. Accordingly, it is hereby ordered that the suit be remitted to the Onitsha High Court for determination on its merit before another judge of the same judicial division. I assess costs at N10,000 in favour of the respondent.

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SC.50/1994