JOYADAMULTI-PURPOSE CO-OPERATIVE SOCIETY & ANOR v. MBOMKEN FADAMA MULTI-PURPOSE CO-OPERATIVE SOCIETY & ANOR (2022)

JOYADAMULTI-PURPOSE CO-OPERATIVE SOCIETY & ANOR v. MBOMKEN FADAMA MULTI-PURPOSE CO-OPERATIVE SOCIETY & ANOR

(2022)LCN/16968CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Monday, June 20, 2022

CA/YL/202/2019

Before Our Lordships:

Fatima Omoro Akinbami Justice of the Court of Appeal

Jamilu Yammama Tukur Justice of the Court of Appeal

Mohammed Lawal Abubakar Justice of the Court of Appeal

Between

1. JOYADAMULTI-PURPOSE (Cooperative Society LTD.) 2. MR. AHMADU PRINCE PAUL APPELANT(S)

And

1. MBOMKEN FADAMA MULTI-PURPOSE (Cooperative Society LTD.) 2. MRS. GAMBO DANIEL RESPONDENT(S)

RATIO

WHETHER OR NOT A COURT CAN MAKE SPECULATIONS ON FACTS

It goes without saying that the Respondents’ failure to show that they have fulfilled all the conditions precedent, and performed all those terms to be performed by them before seeking to enforce their right, under the contract, or show any mutually agreed amount payable, on breach or frontload any contractual agreement has dealt a fatal blow to their case. In F.M.F Ltd vs. Ekpo (2004) 2 NWLR (Pt.856) pg.100 AT 120, paras. E-H, the Court stated thus;
“A Court of law has no business to act on a guess work or mere speculation. A Court of law acts only on concrete evidence established before it. In any case where a party is relying on a written agreement like terms of contract…. to succeed, as a rule of evidence, such documents ought to be tendered in evidence to enable the Court to consider and arrive at a just decision.” PER AKINBAMI, J.C.A.

WHETHER OR NOT AN INCONSISTENT EVIDENCE CAN SUSTAIN AN ACTION IN COURT

The law is trite that evidence that are not consistent, but have contradictions and discrepancies cannot sustain an action and the legal effect of such contradiction that makes a party’s case extremely unreliable, is that such evidence cannot be relied or acted upon. See Ibekendu v. Ike (1993) 7 SCNJ Pg.50 AT 62, ratio 8, Buhari v. Obasanjo (2005) 2 NWLR (Pt. 91 0) pg. 241 AT 586, paras. D,H, Ratio 9, Nsofor, J.C.A, held that “Where a document tendered in evidence by a party is self-contradictory, it is unreliable and of no probative value.” PER AKINBAMI, J.C.A.

WHETHER OR NOT THE COURT MUST MAKE A PRONOUNCEMENT ON EVERY CASE BEFORE IT

It is an established cardinal principle of fair hearing pursuant to S.36 of the Constitution, that whether meritorious or otherwise, competent or not, the Court is duty bound to make pronouncement on every case before it can be struck out. The point is that a party must know the fate of his case as held in Afro-Continental Ltd v. Co-Operative Association of Professionals Inc {2003} 5 NWLR {Pt.813} pg. 303 AT 317-318, paras. F-B, Ratio 1, that;
“It is mandatory that a Court must make a decision and pronounce on every application which is before it and failure to do so is a breach of the right to fair hearing …. and all proceedings which followed the breach are a nullity … ” PER AKINBAMI, J.C.A.

THE POSITION OF LAW ON MISDIRECTION

A misdirection in itself is an error which entails following of wrong direction. See page 999 of the Black’s Law Dictionary 6th Edition and the following cases: ZAKARIYAU HARUNA V SAVANNAH BANK OF NIGERIA & ANOR (1994) LPELR-14221, ENAWAKPONMWHEM AIGHOBAHI & ORS V CHIEF EDOKPAYI AIFUWA & ORS (2006) 6 NWLR (PT. 976) 270, UMORU & ANOR V ZIBIRI & ORS (2003) LPELR 3374. Therefore, this act of misdirection has led to a perverse finding by the lower Court, the High Court of Taraba State. In effect, miscarriage of justice has manifested. See ALHAJI R. GBADAMOSI V OLAITAN DAIRO (2007) 48 WRN1 at 23. The failure of the High Court of Taraba State to review all evidence placed before it, has created a miscarriage of justice in the circumstance of this appeal. See ALHAJA OLADOJA SANUSI OREITAN V ISHOLA AMEYOGUN (1992) NWLR (PT. 237) 527 ONAJOBI AND ANOR V OLANIPEKUN & ORS (1985) 2 SC. 156, BARR. (MRS) AMANDA PETERS PAM & ANOR V NASIRU MOHAMMED & ANOR (2008) 16 NWLR (PT. 1112)1, EMMANUEL OLAMIDE LARMIE V. DATA PROCESSING MAINTENANCE & SERVICE LTD (2005) LPELR AT 1756. PER AKINBAMI, J.C.A.

FATIMA OMORO AKINBAMI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Justice, Taraba State, Wukari Division, delivered by Hon. Justice J. D. Yakubu on 30th May, 2019 wherein the trial Court entered Summary Judgment in favour of the Applicants/Plaintiffs now Respondents, and ordered the Defendants now the Appellants to pay the Respondents N25,900,000.00 only, as actual balance outstanding for the 201 laptops supplied to the Appellants, at the rate of N150,000.00 each and 5% interest from date of judgment until fully liquidated.

BRIEF STATEMENT OF FACTS
By an Application for Summary Judgment, Writ of Summons and Statement of Claim dated 23rd January, 2019, the Respondents herein as Applicants/Plaintiffs in the lower Court commenced the suit of the instant appeal against the Appellants as Defendants under the Summary Judgment Procedure, pursuant to Order 22 of the Taraba State High Court (Civil Procedure) Rules 2011.

By that Originating Process, the Respondents claimed the sum of N28,500,000.00 only being the balance sum of the 350 units of HP Laptops they supplied the Appellants, and 10% interest from judgment till liquidation.

The Appellants in opposing the claim and in line with the relevant Rule 4 of Order 22 filed the four (4) necessary processes which includes; statement of defence, depositions of witnesses, the exhibits to be used in their defence, and a written address in reply to the application for summary judgment, and urged the Court to transfer the claim to the General Cause List of the Court.

The Appellants also filed a Counter-Claim to the Respondents’ claim and also exhibited documents in proof of their Counter-Claim.

Parties through their various counsel argued their case and same was adjourned for ruling, and on the 30th May, 2019 the learned trial Judge ruled that the Appellants’ failure to file a Notice of Intention to Defend which according to the Ruling showed that, the Appellants have no defence to Respondents’ claim. He therefore granted an unclaimed and unproven sum of N25,900,000.00 only as the actual balance outstanding for 201 laptops supplied to the Appellants at N150,000.00 each and 5% interest from date of judgment until final liquidation.

However, the Court did not comment on the Appellants’ counter-claim in any way in the ruling, or give them any opportunity to prove/hear their Counter-Claim despite the fact that it is an independent claim on its own.

Being aggrieved, the Appellant filed a notice and 7 Grounds of Appeal. dated 10th July, 2019 and filed on 23rd July, 2019. In it the Appellant sought for:
1. AN ORDER allowing this appeal.
2. AN ORDER setting aside the ruling of the trial Court made on the 30th day of May, 2019 and the consequential orders.
3. AN ORDER entering judgment in favour of the Appellants.

Also filed on 4th of November, 2021 is the Appellant’s Brief of Argument. In it the Appellant articulated just three issues for determination:-
i. Whether or not the learned trial Judge was right to hold that Notice of intention to defend is a requirement to defend a claim under the Summary Judgment Procedure under Order 22 of the Rules of the trial Court and that the Appellants failure to file it presupposes they have no defence to Respondents claim. (Grounds 2 and 3 of the Notice of Appeal)
ii. Whether or not the trial Hon. Court was right to have granted the Respondents’ unclaimed and unproven sum of N25,900,000.00 only as a liquidated sum for the supply of HP Laptops worth tens of millions of Naira based on self-conflicting claims and without any contractual agreement. (Grounds 4, 5 and 6 of the Notice of Appeal)
iii. Whether or not the refusal and failure of the learned trial Hon. Judge to comment on the Appellants Counter-Claim or allow them the opportunity to present their claim infringed on their fundamental right to fair hearing guaranteed under the Constitution. (Ground 7 of the Notice of Appeal)

The Respondents filed their brief of argument on 26th, January, 2022, and distilled a lone issue for determination of this appeal.
The lone issue is as follows:
“Whether it will not be a breach of the respondents’ right to fair hearing should this Court enter judgment on the appellant’s counter-claim without ordering re-trial of the suit to enable both parties argue it on the merit.”

LEGAL ARGUMENTS/SUBMISSIONS OF APPELLANTS’ COUNSEL ON ISSUE ONE.
“Whether or not the learned trial Judge was right to hold that notice of intention to defend is a requirement to defend a claim under the Summary Judgment Procedure under Order 22 of the Rules of the trial Court and that the Appellants’ failure to file it presupposes they have no defence to Respondents’ claim.” (Grounds 2 and 3 of the Notice of Appeal)

Learned counsel for the Appellants stated that the Respondents commenced this suit on appeal under Order 22, of the extant Rules, of the trial High Court. However, the trial Court in its Ruling of 30th May, 2019 seems to have adopted a wrong procedure under the old trial Court repealed rules, in arriving at its decision now on appeal.

The extant rule of the lower Court is Taraba State High Court (Civil Procedure) Rules 2011, and Order 22 provides for Summary Judgment Procedure. However, Order 22 Rule 4 provides thus;
“where a party served with the processes and documents referred to in Rule 1, intends to defend the suit, he shall, not later than 30 days, file his statement of defence, depositions of his witnesses, the exhibits to be used in his defence and a written address in reply to the application for summary judgment.”

Learned counsel submitted that what is required of a defendant who intends to defend a claim under Order 22, of the Rules of the trial Court to be filed are;
i. statement of defence,
ii. depositions of his witnesses,
iii. the exhibits to be used in his defence and
iv. written address in reply to the application for summary judgment.

But, a look at the processes filed by the Appellants found at pages 23 to 54 of the Record of Appeal, they will satisfy this Court that the Appellants, have complied with all the four (4) necessary required processes contemplated above to be filed under Order 22 Rule 4 of the Taraba State High Court (Civil Procedure Rules) 2011. Notice of intention to defend is not a requirement under the said Order 22 Rule 4.

However, the learned trial learned Judge held in his ruling at paragraphs 2-3, of page 63 of the Record of Appeal as follows;
“The memorandum of appearance filed by the Respondents/Defendants is not and cannot by any stretch of imagination be said to be the Respondents/Defendants’ Notice of Intention to defend this claim as envisaged under ORDER 22 Rule 4 of the Rules of this Court. By Rule 4 of ORDER 22 the Respondents/Defendants are required to file their Notice of Intention to defend, and thereafter within 30 days are mandatorily required to file their statement of defence, deposition of their witnesses in reply to the application for summary judgment.
The implication of the failure by the Respondents/Defendants herein to file their Notice of Intention to defend this Suit, I am constrained to abide by the Provisions of the Rules of this Court, and plethora of authorities to hold that failure by the Respondents/Defendants to file their Notice of Intention to defend, alongside their defence it presupposes that the Respondents/Defendants have no defence to the Applicants/ Plaintiffs Suit.”

By reaching the above decision, it appears, the trial Court relied on the old repealed Taraba State High Court (Civil Procedure) Rules Cap. 63 Laws of Taraba State 1997, which provided for filing of Notice of intention to defend, and same occasioned a misapplication, misdirection and error of law leading to a fundamental and procedural irregularity and a miscarriage of law and justice.

Under the old rule, Summary Judgment is known as Undefended List Procedure and under Order 22 Rule 3(1) thereof provided thus; “If a party served with the writ of summons and affidavit as provided in Rules 1, and 2 thereof delivers to the Registrar not less than 5 days, before the date fixed for hearing a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the Court may give him leave to defend upon such terms as the Court may think just.”

The law is settled that new laws abolish the old ones, and the new extant 2011, Rules of the trial Court has abrogated the old 1997 Cap 63 Rules with effect from 1st July, 2011 when the New Rules became operational.

The law is trite that if a law is repealed it is taken as though it never existed, except the actions which were commenced, executed or concluded at the time the law was in existence. See Abubakar v. Bebeji Oil & Allied Production Ltd (2008) 23 WRN, Pg.65 AT 33.

And the suit of the instant appeal was dated and filed on 23rd January, 2019 under the extant Rule of trial Court, as seen at page 2 of the Record of Appeal.

Learned counsel reiterated the fact that, Order 22 Rule 5(1) of the extant Court rule, provides what determines a Defendant to defend a claim under Summary Judgment thus;
(1) Where it appears to the Court that a defendant has a good defence and ought to be permitted to defend the claim, he may be granted leave to defend.
(2) Where it appears to the Court that a defendant has no good defence, the Judge may thereupon enter judgment for the plaintiff.

Referring to the above provision, it is submitted that the only determinant under the New Rule for entering judgment for a plaintiff, or granting a defendant leave to defend the suit, is the presence or absence of a good defence as can be gleaned from the four (4) required processes; statement of defence, depositions of witnesses, exhibits and written address and not failure to file any of the processes or notice of intention to defend, which is unknown to the extant rule of the trial Court.

It is clear even from Order 22 Rule 3(1), of the old Rules, that merely filing a notice of intention to defend does not qualify a party the leave, to defend a suit except it is filed with an affidavit disclosing a defence on the merit.
See Thor Ltd Vs. First City Merchant Bank (2003) Vol. 94 LRCN, Pg.194 AT 202EE, R1, where the Supreme Court held that;
“What the trial Judge will be looking for at that stage of the proceedings before him when considering a summons for summary judgment …. is whether the Defendant has disclosed by his affidavit such facts as may be deemed sufficient to entitle him to defend the action.”

It is clear that the trial Court’s decision now on appeal, was based on gross departure from the rules of that Court. And the law is trite that Rules of Court are meant to guide the Court for proper adjudication of cases as presented by the parties. It is meant to be obeyed, observed and followed. Courts and parties in litigation do not have options but to comply with the requirements of the rules, which guide and direct the procedure and proceedings of Court. See E.B.N Ltd. v. Halilco (Nig.) Ltd. (2006) 7NWLR (Pt.980) pg.568 AT 5841paras.B-D ratio 2.

It is submitted that the ruling is perverse, having been based on a wrong law, and a fundamental procedural irregularity as against Order 22 Rule 4, of the extant rules, and same has caused a gross miscarriage of justice.

A miscarriage of justice means a departure from the rules, which permeates a judicial procedure, as to make that which happened not in the proper sense of the word a judicial procedure at all. See Jinadu v. Esurombi-Aro (2005) 14 NWLR (Pt.944) pg.142 AT 1941 paras. A-C Ratio 19; Maja v. Samouris (2002) Vol.95 LRCNPg.341 AT 355, R.6 where the Court held that a procedural irregularity is a cause for complain thus;
“Rules of Court, as far as the conduct of proceedings is concerned, are generally binding on the parties and the Court and a party would be allowed to complain of a procedural irregularity on appeal, if, inter alia, it can be shown that it materially affected the merits of the case or that he suffered a miscarriage of justice by reason of such irregularity in the proceeding.”

Learned counsel assumed without conceding that “notice of intention to defend” is a required process to be filed under the new rule, it would amount to gross irregularity to enter judgment for the Respondents on a disputed and self-contradictory sum, solely on the Appellant’s failure to file a piece of paper titled “notice of intention to defend” while they have disclosed a good defence by filing all other processes including a Counter-Claim.

The law has long been settled that, technical justice is no justice at all, and a Court of law should distance itself from it, because the days of technicality are gone. The current vogue is the doing of substantial justice to both sides in such a way that the case will be heard and determined on its merit. See Akpan v. Bob & Ors (2011) Vol.193 LRCNI Pg.78 AT 141)) & 142A ratio 12.

Learned counsel submitted that the lower Court under its duty which is expressed in the law maxim that “Equity looks at the intent rather than the form”, ought to look at the substance of Appellant’s defence rather than which process was filed or not.

It is submitted that filing of Notice of Intention to Defend, is not a requirement under Order 22 Rule 4, of the extant rules of the trial Court in defending a claim under the Summary Judgment Procedure, pursuant to Order 22 of the said rules, as wrongly held by the trial Court, and the non-filing of same does not presuppose no defence to a Plaintiff’s claim. This Court is urged to so hold.

It is submitted further, that all that is required under Order 22, Rule 5 of extant rules of the lower Court to grant leave to a party to defend a claim under the Summary Judgment, is the disclosure of a Good Defence in four (4) required processes and not the filing of Notice of Intention to Defend. Learned counsel urged the Court to so hold.

This Court is urged to resolve the Appellant’s first issue in their favour, by holding that filing of Notice of Intention to Defend is not a requirement under Order 22 of the Rules of trial Court, and the Appellant does not need to file it before being given the opportunity to defend the claim.

ISSUE TWO:
Whether or not the trial Hon. Court was right to have granted the Respondents’ unclaimed and unproven sum of N25,900,000.00 only as a liquidated sum for the supply of HP Laptops worth tens of millions of Naira based on self-conflicting claims and without any contractual agreement. (Grounds, 4, 5 and 6 of the Notice of Appeal)

It is submitted that the Summary Judgment procedure is aimed at the recovery of a liquidated sum or debt, where there is a belief that there is no defence and no need for the full rigors of trial. SeeB. V. T Ltd. & Anor v. A. T.M PIc. (2012) Vol. 213 LRCN, Pg. 68 AT 84KP, Ratio 3. See page 1449 Black’s Law Dictionary, 7th Edition by Bryan A. Garner. See also Order 22 of Rules of the trial Court.

The Respondents’ claim is based on contract of sale, and supply of HP Laptops. And the law is that if a liquidated amount or debt is in respect of a contract like in the instant case, the parties to the contract must have mutually and unequivocally agreed on a fixed amount payable on breach without further investigation. See G.M.O. Nworah & Sons Co. Ltd v. Akputa (2011) Vol. 191 LRCN, Pg.153 AT 171KU, R3. See also pages 941 & 411 respectively of Black’s law Dictionary, 7th Edition.

And contract is “An agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law”. See Black’s Law Dictionary, page 318. See also Mini Lodge Ltd. & Anor v. Ngei & Anor (2010) Vol. 182 LRCN P.172 AT 203 r. 7

It is also settled law that he who asserts must prove, and the onus is on the person who seeks to enforce his right under a contract, to show that he has fulfilled all the conditions precedent and performed all those terms which ought to have been performed by him. See Ezenwa vs. Oko & Ors (2008) Vol. 157 LRCN, Pg.230 AT 244ZEE, ratio 4.S. 131 Evidence Act.

Order 1 Rule 2(2)(d) of the trial Court’s Rules made it mandatory for, the Respondents to front-load copies of all documents to be relied on at trial. The Respondents who are alleging a contract of sale, and supply of HP Laptops, only exhibited Appellant’s application dated 16th January, 2012 for the supply of 350HP Laptops at N150,000.00k only per unit.

From the sole exhibited document, it is clear that the Respondents did not front-load any document creating any contractual obligation between the parties, or any document showing that the Appellants were supplied, or in receipt of any HP Laptop because that “application” does not qualify as such.

However, the Appellants at paragraph 5 of the Statement of Defence and paragraphs 4-5, of 2nd Appellant’s witness statement on oath at pages 24, and 30 of the Record respectively, averred that their “application for the supply” was cancelled after Taraba State Post Primary School Management Board said it will supply the laptops. The Respondents never replied or countered that averment and same is deemed admitted as the truth. See Cappa & D’ Alberto Ltd. v. Akintilo (2003) 9 NWLR (Pt.824) Pg. 49 AT p.71, paras. E-G, Ratio 6.

The Appellants denied being supplied any HP Laptops by the Respondents, and further challenged them to show any evidence approving their application, of supply and receipt of the laptops, or any evidence of contractual obligation, as such transaction of a huge sum running into tens of millions of naira cannot be done on mere application without documentation/terms of contract.

It goes without saying that the Respondents’ failure to show that they have fulfilled all the conditions precedent, and performed all those terms to be performed by them before seeking to enforce their right, under the contract, or show any mutually agreed amount payable, on breach or frontload any contractual agreement has dealt a fatal blow to their case. In F.M.F Ltd vs. Ekpo (2004) 2 NWLR (Pt.856) pg.100 @ 120, paras. E-H, the Court stated thus;
“A Court of law has no business to act on a guess work or mere speculation. A Court of law acts only on concrete evidence established before it. In any case where a party is relying on a written agreement like terms of contract…. to succeed, as a rule of evidence, such documents ought to be tendered in evidence to enable the Court to consider and arrive at a just decision.”

The Respondents in paragraph 8, of their Statement of Claim at page 16, of the Record of Appeal alleged thus: “The plaintiffs state that to perform their part of bargain in the contract, the 2nd defendant paid the sum of One Million Two Hundred thousand Naira only (N1,200, 000. 00) in the month of February, 2013”.

They have also variously averred that they “supplied” the Respondents laptops, and the Respondents took “delivery” of laptops in their claim at pages 4, 10, 14, 15, 16, 17 and 18 of the Record of Appeal.

The above averments presuppose that there was a contract of sale, supply and receipt of HP Laptops between parties. It is to be noted that no document tendered by the Respondents could verify these facts, yet the trial Judge granted such huge amount of Twenty Five Million, Nine Hundred Thousand Naira only (N25,900,000.00) without seeing contract documents backing same.

Niki Tobi JSC, had this to say on such a situation in Mobil Prod. (Nig.) Unltd v. Monokpo (2003) 1B NWLR (Pt.BS2) pg.346 AT p.43B, paras. E-H, Ratio 24;
“In the light of the huge amount involved in the case, I expected the learned trial Judge to take caution or precaution in this matter before giving judgment in limine involving a staggering and tremendously huge sum … there was obvious need for the learned trial Judge to consider the justice of giving a judgment on such an amount… without seeing the exhibits which were material to the case.”

Learned counsel submitted that, apart from Respondents’ failure to show any contractual obligation between parties, they also filed self-conflicting processes in proof of their claim.

In paragraph 9 of the affidavit in support of the application for Summary Judgment deposed by FaizaAudu Dangiri on behalf of the Respondents at pages 3-5 of the Record of Appeal, she deposed to the fact that Respondents supplied the Appellants 201 Units of HP Laptops at N150,000.00 each.

The simple arithmetic total is N30,150,000.00 only.

By paragraphs 10 and 11 of the same affidavit, it was deposed that the Appellants paid N1,200,000.00, N2,500,000.00, N300,000.00, N150,000.00 and N100,000.00 between 2013 to 2018 respectively.

By simple arithmetic, the various sums totaled N4,250,000.00 only.

Therefore 201 HP Laptops at N150,000.00 each, which is N30,150,000.00 minus total amount paid which is N4,250,000.00 gives a balance of N25,900,000.00 only (i.e. N30,150,000.00 – N4,250,000.00 = N25,900,000.00) and not 28,500,000.00 only as deposed in paragraph 12 of same affidavit as balance sum being claimed by the Respondents.

Furthermore, the 2nd Respondent as the sole witness in paragraph 5, of her witness statement on oath, deposed to the fact that the Respondents supplied the Appellants 201 Units of HP laptops at N150,000.00 each totaling N30,150,000.00 only.

At paragraphs 6, and 7 of same affidavit, she deposed that the Appellants paid N1,200,000.00, N2,500,000.00, N300,000.00, N150,000.00 and N100,000.00 between 2013 to 2018 respectively, leaving N28,500,000.00 only yet unpaid.

However, by paragraph 1, of the Writ of Summons and paragraphs 6, 7 and 15 (1) of their Statement of Claim, both processes attached to the affidavit as Exhibit “B” at pages 13 to 17 of the record are alleging a conflicting figure of 350HP Laptops supplied to the Appellants. 350 contradicts 201alleged in paragraphs 9 & 5 of the affidavits at page 4 and 18 respectively of the record.

The law is trite that evidence that are not consistent, but have contradictions and discrepancies cannot sustain an action and the legal effect of such contradiction that makes a party’s case extremely unreliable, is that such evidence cannot be relied or acted upon. See Ibekendu v. Ike (1993) 7 SCNJ Pg.50 AT 62, ratio 8, Buhari v. Obasanjo (2005) 2 NWLR (Pt. 91 0) pg. 241 AT 586, paras. D,H, Ratio 9, Nsofor, J.C.A, held that “Where a document tendered in evidence by a party is self-contradictory, it is unreliable and of no probative value.”

The Appellants in opposing the Respondents claim filed in their Statement of Defence and Counter-Claim, and the 2nd Appellant deposed to facts in opposition to the Respondents’ averments on the supply of HP Laptops.

The 2nd Appellant in paragraphs 4, 5, 6, 7, 8 of his affidavit, deposed to the facts that they never collected laptops from the Respondents but cancelled the transaction and after a year in 2013, he received N10,000,000.00 only through his Union Bank Account from Best Scan Solutions which the 2nd Respondent later claimed to be the sender and asked him to keep for her. He further averred that he started repaying the said money on 2nd Respondent’s request, and has paid N6,672,996.67 only which sum he exhibited several evidence of repayment while the Respondents claimed he only paid N4,250,000.00 only.

The above depositions by the Appellants gave rise to their Counter-Claim for the refund of N6,672,996.67 only, paid to Respondents since their claim is for money for supply of HP Laptops, while 2nd Appellant has been wrongly repaying N10,000,000.00 cash deposit via his Union Bank Account.

The depositions in the two affidavits in support of the Respondents’ case are self-conflicting. Also, the depositions in the affidavits of the Appellants and the Respondents in support of their claims are also in total conflict with the other on material facts, and it is trite law that where there are conflicts in affidavits, oral evidence must be called to resolve same. See Chairman N.P.C v. Chairman Ikere LGA (2001) 90 LRCN, Pg. 2803 AT 2812D, Ratio 1. The Respondents by their pleadings claimed they supplied 350 HP Laptops in one breadth, and in another breadth claim 201 HP Laptops and that the Appellants paid N4,250,000.00 only leaving the sum of N28,500,000.00 only which they are now claiming. They never claimed N25,900,000.00 only or proved same by their pleadings or in the open Court.

However, the trial Judge in his judgment at pages 63 to 64 of the record granted an unclaimed and unproved N25,900,000.00 only for 201 laptops, on self-conflicting pleading and number of Laptops without calling oral evidence.

The law is settled that it is an infraction of fair hearing for the Court to do in the recesses of its chambers, what a party has not himself done in the advancement of his case in the open Court. It is not for the Court to go on a voyage of discovery or speculation as to how many laptops were supplied and the balance. See Awuse v. Odili {supra} AT 510-551, paras. G-A, Ratios 20 & 22.

More so, the law is also elementary that the Court is not a Father Christmas, that grants what is not asked for, proved or proper before it or that can pick and choose between conflicting evidence. Learned counsel urged the Court to so hold. See Omokuwajo v. FRN {2013} Vol. 223 LRCN {PT.2} Pg. 166 AT 192 EEJJ, ratio 5.

It was reiterated by learned counsel that the Respondents did not succeed in their own claim. They did not support their case with credible evidence. It is therefore wrong for the trial Court to automatically enter judgment in their favour. The discretion of the trial Court was not therefore properly exercised in the circumstances.

The Respondents’ alleged liquidated claim of N28,500,000.00k only, is not arithmetically ascertainable without further investigation, or based on mutually and unequivocally agreed terms by parties on breach.

It is further submitted that the lower Court erred by granting the Respondents’ unclaimed and unproven sum of N25,900,000.00 only, on self-contradictory facts and pleadings, and same is an infraction of the Appellants’ fundamental and constitutional right to fair hearing.

This Court is therefore urged to resolve the Appellants’ second issue in their favour, and hold that the decision of the trial Court is against the weight of evidence, and set aside the judgment entered for the Respondents in the sum of N25,900,000.00 only with 5% interest.

ISSUE THREE:
Whether or not the refusal and failure of the learned trial Hon. Judge to comment on the Appellants’ Counter-Claim or allow them the opportunity to present their claim infringed on their fundamental right to fair hearing guaranteed under the Constitution. {Ground 7 of the Notice of Appeal}

The law is trite that a counter-claim is an independent action that stands to be proceeded with should the Plaintiff’s claim succeed, or even abates either because same had been discontinued or had not succeeded. See General Oil Ltd v FSB lnt’l Bank Plc. {2005} 5 NWLR {Pt.919} Pg.579 @591 paras.C-E, R 4.

The Appellants filed a Counter-Claim. See pages 27 to 28 of the Record of Appeal to which the Respondent did not file any defence or reply to and the law is settled that what is not countered or denied is deemed admitted.Cappa & D’ Alberto Ltd. v Akintilo {supra} AT 711 paras. E-G, Ratio 6.

Even under Order 25 Rule 7(1)(2) & 8, of the Rules of the trial Court, every allegation of fact in any pleadings if not specifically denied in the pleadings, of the opposite party shall be taken as admitted, and if there is no reply to a defence, there is an implied joinder of issue on that defence.

However, the trial Court’s Ruling of 30th May, 2019 did not consider the Appellants’ Counter-Claim one way or another, or say anything as to the fate of the claim, despite the fact that it is an independent claim of its own, that stands to be proceeded with, should the Respondents’ claim succeed or even abate.

Moreover, the Appellants’ Counter-Claim, is for the refund of N6,672,996.67 only, which the 2nd Respondent collected from the Appellants, N1,000,000.00 only for detinue and conversion, general damages and costs, as distinct from the Respondents’ claim of N28,500,000.00 being balance of 350 or 201 units of HP Laptops supplied to Appellants.

The mere fact that the Appellants have a Counter-Claim is a strong reason for the Court to grant them leave, to defend the Respondents’ claim, and also allow them to prove their counter-claim, because a counter-claimant must be proved, before obtaining judgment on the counter-claim. See Dala Air Services v. Sudan Airways {2005} 3 NWLR {Pt.912} pg.394, R. 8
However, the refusal of the trial Judge, to consider the Appellants’ Counter-Claim one way or the other in its Ruling, or allow it to go on is a breach of the Appellants’ Constitutional fundamental right to fair hearing guaranteed under S. 36 (1) Constitution of the F.R.N 1999 (as amended) which states thus;
“In the determination of his civil rights and obligations, including any question or determination by or against any government or any person shall be entitled to a fair hearing within a reasonable time by a Court or Tribunal established by law and constituted in such manner as to ensure its independence and impartiality.”

In Ajisefinni v. Director of Public Prosecution {2002} FWLR {Pt.122} pg.88 AT 103-104, paras. H-B, R.2, it was held that;
“the rule or principle of fair hearing which is not a technical rule but one of substance, stipulates that both parties must be heard audialterampartem … the rule however does not entail more than giving an opportunity or equal opportunity to such parties to be heard ..”

The Rules of Court are meant to uphold fair hearing as held Per Onnoghen, JSC in O.O.M.F. Ltd v. N.A.C.B. Ltd (2008) Vol.165 LRCN Pg.91 AT 111ZJJ &112AF, Ratio 8, thus;
” … all that I am saying is that in the dispensation of justice to all and sundry, the rules of Court are available to aid the Court in balancing the scale of justice between the parties in respect of their contending claims. The intention of the Rules is to do justice by according the parties their right to fair hearing, not to deny same.”

It is an established cardinal principle of fair hearing pursuant to S.36 of the Constitution, that whether meritorious or otherwise, competent or not, the Court is duty bound to make pronouncement on every case before it can be struck out. The point is that a party must know the fate of his case as held in Afro-Continental Ltd v. Co-Operative Association of Professionals Inc {2003} 5 NWLR {Pt.813} pg. 303 AT 317-318, paras. F-B, Ratio 1, that;
“It is mandatory that a Court must make a decision and pronounce on every application which is before it and failure to do so is a breach of the right to fair hearing …. and all proceedings which followed the breach are a nullity …
However, the Appellants who filed a Counter-Claim were not heard on it, or given an opportunity to be heard as their claim was totally ignored by the Court in its ruling thereby infringing on Appellants’ right to fair hearing.

It is submitted that a Counter-Claim is an independent action that stands to be proceeded with, should the Plaintiff’s claim succeed, or even abates and therefore the Appellants ought to be given opportunity to prove their Counter-Claim despite the grant of Respondents’ claim.

The lower Court’s failure to allow the Appellants an opportunity to prove their Counter-Claim, is a denial of their fundamental and Constitutional right to fair hearing and this Court is urged to so hold.

This Court is urged to resolve the Appellants’ last issue in their favour by holding that the failure of the trial Judge to rule on the Counter- Claim, and allow the Appellants the opportunity to prove same, is a breach of their fundamental right to fair hearing, under the Constitution, and same has nullified the Court’s entire proceedings including the decision now on appeal.

In concluding, learned counsel urged this Court to allow the instant appeal and grant the reliefs as per the Notice of Appeal.

RESPONDENTS’ SUBMISSIONS
Respondents’ counsel in arguing the lone issue “Whether it will not be a breach of the respondent’s right to fair hearing should this Court enter judgment on the appellant’s counter-claim without ordering re-trial of the suit to enable both parties argue it on the merit,” Submitted that it is a settled principle of law, that a counter-claim is an independent action, as stated in the case of General Oil Ltd vs FSB Int’l Bank Plc. 2005 5NWLR (PT. 919) pg 579 591 paras C-E R.4. A defendant to any counter-claim must be given the opportunity to enter his defence and file his processes before the trial, the counter-claim will be said to be a fair trial, as opposed to what obtained in Suit No: TRSW/2M/2019 been a judgment entered based on application for Summary Judgment under Order 22 Rules 1, 2 & 3 and not a counter-claim based on the rules of pleadings under Order 25 of the Taraba State High Court Civil Procedure Rules, 2011.

The position of the law is that, except where the matter was transferred to the general cause list under Order 22 Rules 4-5 of the Taraba State High Court Civil Procedure Rules, 2011, the Appellants’ argument in Issues No. 1, and 2 cannot stand, otherwise the right to fair hearing as provided under Section 36 (1) of the 1999, Constitution would have been breached, because the Respondents were not equally given the opportunity to defend the purported counter-claim which was not argued in the Lower Court. See U.NT.H.M.B VS NNOLI 1994 8NWLR PT 363 R. 12.

It is submitted that for the appellants to apply for judgment in respect of their purported counter-claim, which was not heard at the lower Court, and which neither of the Respondents were given the opportunity to respond to, is to say the least, the appellants are trying to not only over-enrich themselves, but are probating and approbating as in one hand, they are complaining of being shut out, and on the other hand are asking for judgment, over the same or an independent action that the Court had not heard.

The above contention by the respondents is supported by the Appellants’ submission in paragraph 6.04 at page 15 of their brief. See Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) See SHELL PETROLEUM CO. NIG. V F.B.I.R 1996 8 NWLR PT. 466 PAGE 256-269 RATIO 15 that:
“A brief of argument should be brief and concise, containing concise statement of facts of the case which are material to the consideration of the questions presented for determination by the Court. It should also contain direct, concise, and succinct statement of the argument in the appeal. Where a brief offends the rules, it is liable to be struck out. In this case, the appellants’s brief which consists of 70 pages, and the Respondent’s brief made up of 435 pages are not ideal briefs.”

Learned counsel finally urged this Court, to order for retrial of the suit, having conceded to issues no. 1 and 2 in their brief of argument, and give both parties the opportunity to be heard on the application for summary judgment as well as the purported counter-claim filed at the lower Court by the Appellants.

RESOLUTION OF ISSUES
The Appellants’ counsel rightly pointed out that the Respondents commenced the suit of the instant appeal under Order 22 of the extant Rules of the trial Court. But the learned trial judge in his ruling of 30th May, 2019 misapplied Order 22 Rule 4. This Order 22, Rule provides thus:
“Where a party served with the processes and documents referred to in Rule 1, intends to defend the suit, he shall not later than 30 days, file his statement of defence, depositions of his witnesses, the exhibits to be used in his defence and a written address in reply to the application for summary judgments.”
From the above rule, l agree with Appellants’ counsel that all is required by a defendant who intends to defend a claim under Order 22, of the Rules of the trial Court to be filed are:
1. Statement of defence
2. Depositions of his witnesses
3. The exhibits to be used in his defence and
4. Written address in reply to the application for summary judgment.
I have carefully perused the processes filed by the Appellants, at pages 23 to 54 of the record of appeal, and it is clear that they satisfy the provisions of Order 22, Rule 4. Notice of Intention to defend is definitely not a requirement under the said Order 22, Rule 4. The learned trial judge misapplied the provisions of Order 22 Rule 4, which is the extant law pursuant to which the Appellants instituted their suit. The repealed Taraba State High Court (Civil Procedure) Rules Cap 63 Laws of Taraba State, 1997 is no more applicable.

In the case of Maja v Samouris (2002) Vol 95 LRCN 341 AT 355 R. 6, the Supreme Court held that a procedural irregularity is a cause for complain thus:
“Rules of Court, as far as the conduct of proceedings is concerned, are generally binding on the parties and the Court and a party would be allowed to complain of a procedural irregularity on appeal, if, inter alia, it can be shown that it materially affected the merits of the case or that he suffered a miscarriage of justice by reason of such irregularity in the proceedings.”

The first issue from all l have elucidated above is resolved in favour of the Appellants.

Issue Two
I agree with Appellants’ contention that the Respondents claimed they supplied 350 HP Laptops in one breath, and in another breadth claimed 201 HP Laptops. That the Appellants paid N4,250,000:00 only leaving the sum of N28,500,000:00 only, which they are now claiming. They never claimed N25,900,000:00, or proved same by their pleadings or in open Court. On a careful study of the judgment, l find that the learned trial judge granted an unclaimed and unproved N25,900,000:00 for 201 Laptops, on self-conflicting pleadings wherein the exact number of Laptops supplied has not been ascertained. The learned trial judge erred in law to have entered judgment in favour of the Respondents.

The Appellants’ second issue is resolved against the Respondents.

Issue Three
A counter-claim is a positive assertion by the Defendant in the suit of the plaintiff, which assertion would ordinarily constitute a complete suit of its own. It is my humble opinion that a counter-claimant is a positive litigation opportunist who seeks to take advantage of his being dragged to Court to also express his grievances. This way duplicity of action is avoided where the parties are same and the subject matter “also same” or similar.
My Lord Onnoghen JSC in the case of Ogli Oko Memorial Farms Ltd & Anor v. Nigerian Agricultural and Co-operative Bank Ltd & Anor (2008) LPELR – 2306 (SC) p. 16 defined counter-claim as:
“…a separate and independent action which has to be instituted in accordance with the Rules of Court.”
As a claim within a claim, it has double status by the provisions of the Rules of Court.
It is indeed a counter-claim by its status being a Defendant’s reaction to a Plaintiff’s claim in addition to the defence. It is not a set-off.
It also has that independent status that even if the main claim fails, the counter-claim can proceed. Thus, the failure of the main claim does not cut off the umbilical cord, of the counter-claim and therefore starving it.
No such vital link exists between the main claim and the counter-claim, which is in law, an independent suit capable of surviving on its own. My Lord Nnaemeka-Agu JCA (AHTW) in the case of Emaphil Limited v. Charles N. Odili (1987) 4 NWLR (67) 915 AT 921-922 puts it more accurately thus:-
“It is trite law that a counter-claim is for many practical purposes an independent action in which the defendant counter-claimant is in the position of a plaintiff and the plaintiff is in the position of a defendant. Whereas a set-off is a defence to the plaintiff’s claims a counter-claim need not be so.
A counter-claim need not be connected with a plaintiff’s action at all, because a counter-claim is regarded as a separate action in which the rules relating to the counter-claim and defence thereto are governed by the rules governing a plaintiff’s and defendant’s pleadings respectively.
If the defendant has a valid cause of action of any description against the plaintiff, there is no necessity to bring a cross-action, unless his cause of action is of such a nature that it cannot be conveniently tried by the same Tribunal or at the same time as the plaintiff’s claim.”
Where the plaintiff’s claim is for any reason stayed or dismissed after pleading or held to be frivolous, the Court can still proceed to try and grant the relief prayed for in the counter-claim (Mogaji v. Odofin (1987) 4 S.C. 90).
The dual status of the counter-claim, lies in the fact that it must be filed in terms of fee payment, and must also be signed by a legal practitioner in accordance with the provisions of Section 2 (1) and 24 of the Legal Practitioners Act. (See also Ogli Oko Memorial Farms Ltd & Anor v. Nigerian Agricultural and Co-operative Bank Ltd & Anor (supra).

In the overall consideration of the foregoing, I am left in no doubt that the learned trial judge, grossly misdirected himself on the affidavit evidence and exhibits, in support of the suit of the Respondents, by reaching the conclusion he reached in the judgment now being appealed. A misdirection has been described as an error which entails following a wrong direction in law or fact see cases UMORU & ANOR V. ZIBIRI & ORS (2003) LPELR – 3374, TAVERSHIMA M. HAMBE & ANOR V. AGBER HUEZE & ORS (2001) LPELR 1350. This act of misdirection of the Court on the evidence before it, has resulted into a miscarriage of justice against the Appellants, who had complied with the provisions of Order 22, Rule 4, of the Taraba State High Court (Civil Procedure) Rules 2011.

A miscarriage of justice has been described, as a departure from the rules which permeates a judicial procedure, as to make that which happened not in the proper sense of the word a judicial proceeding at all. See the cases ADELAJA V. OGUNTAYO (2001) 6 NWLR (PT. 710) 603 AND JINADU V. ESUROMBI-ARO (2005) 14 NWLR (944) 142 at 194.

In the circumstance of the fact of this Appeal as can be garnered from the record of appeal, there is apparent failure on the part of the Court to do justice, when it failed to apply the extant applicable law Order 22, Rule 4 to the Suit of the Respondents. The effect of this is that justice is misplaced, misappreciated and misappropriated. It constitutes an ill conduct on the part of the Court amounting to injustice.

A misdirection in itself is an error which entails following of wrong direction. See page 999 of the Black’s Law Dictionary 6th Edition and the following cases: ZAKARIYAU HARUNA V SAVANNAH BANK OF NIGERIA & ANOR (1994) LPELR-14221, ENAWAKPONMWHEM AIGHOBAHI & ORS V CHIEF EDOKPAYI AIFUWA & ORS (2006) 6 NWLR (PT. 976) 270, UMORU & ANOR V ZIBIRI & ORS (2003) LPELR 3374. Therefore, this act of misdirection has led to a perverse finding by the lower Court, the High Court of Taraba State. In effect, miscarriage of justice has manifested. See ALHAJI R. GBADAMOSI V OLAITAN DAIRO (2007) 48 WRN1 at 23. The failure of the High Court of Taraba State to review all evidence placed before it, has created a miscarriage of justice in the circumstance of this appeal. See ALHAJA OLADOJA SANUSI OREITAN V ISHOLA AMEYOGUN (1992) NWLR (PT. 237) 527 ONAJOBI AND ANOR V OLANIPEKUN & ORS (1985) 2 SC. 156, BARR. (MRS) AMANDA PETERS PAM & ANOR V NASIRU MOHAMMED & ANOR (2008) 16 NWLR (PT. 1112)1, EMMANUEL OLAMIDE LARMIE V. DATA PROCESSING MAINTENANCE & SERVICE LTD (2005) LPELR AT 1756.

In consequence of the foregoing, I resolve this issue against the Respondents. Since the Court below failed to evaluate all the evidence placed before it and which manifested into a misdirection and resulting to a miscarriage of justice, the only remedy available to this Court is to set aside the judgment of the High Court of Taraba State delivered on the 30th May, 2019. This Suit No TRSW/2M/19 is ordered to be remitted to the Chief Judge of Taraba State for retrial by another judge.

JAMILU YAMMAMA TUKUR, J.C.A.: I had the privilege of reading the draft copy of the lead judgment just delivered by my learned brother, FATIMA OMORO AKINBAMI, JCA. I agree entirely with the decision of my learned brother setting aside the judgment of Taraba State High Court delivered on 30th May, 2019 in Suit NO. TRSW/2M/19 remitting same back to the Chief Judge for retrial by another judge. I have nothing more to add.

MOHAMMED LAWAL ABUBAKAR, J.C.A.: I had read in the leading judgment just delivered by my learned brother, Fatima O. Akinbami, JCA.

I agree with his conclusion and reasons to set aside the lower Court judgment and order of retrial.