CHARLES A. KEKONG & Anor v. OSHEGAABANG & Ors
(2010)LCN/3913(CA)
(2010) LPELR-9013(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 30th day of June, 2010
CA/C/138/09
RATIO
EFFECT OF THE RESPONDENT FILING AN ISSUE FOR DETERMINATION THAT IS NOT RELATED TO ANY OF THE GROUNDS OF APPEAL FILED BY THE APPELLANT
The Respondents framed an extra issue in addition to the four issues the Appellant had framed from the four grounds of appeal which they adopted. The Respondent neither Cross-appealed nor filed a Respondent’s notice. The extra issue is not related to any of the four grounds of appeal or any combination thereof. The said issues formulated by the Respondents is incompetent and of no value in the determination of the appeal. See Omo V. JSC, Delta State (2000)7 SC (Pt 2) 1. Momodu V. Momoh (1991)1 NWLR (Pt.169) 608 (SC), Ossai V. Wakwah (2006) 4 NWLR (Pt 969) 208 SC. PER NWALI SYLVESTER NGWATU, J.C.A.
WHETHER AN APPEAL CAN BE PREDICATED AGAINST WHAT A COURT HAS NOT DECIDED IN ITS JUDGMENT OR RULING
An appeal is a challenge against the decision of a trial Court and it is never predicated against what a Court has not decided in its judgment or ruling. See Babalola V. State (1989) 4 NWLR (Pt 115) 264 SC, Akpan Udoete V. Heil & Anor (2002) 13 NWLR (Pt783) 64 at 86 (CA). PER NWALI SYLVESTER NGWATU, J.C.A.
IMPORTANCE OF DETERMINING THE ISSUE OF JURISDICTION OF A COURT WHEN RAISED
Jurisdiction is the Authority which the Court has to decide matters that are litigated before it, or to take cognizance of matters presented in a formal way for its decision. See Mobil Producing (Nig) Unlimited V. Lasepa (2002) 18 NWLR (Pt 798) 1 at 32 SC; Miscellaneous Offences Tribunal V. Okoroafor (2001) 18 NWLR (Pt 745) 295 at 326 (SC). In Daplanlung V. Dariye (2007) 8 NWLR (Pt 1036) 332, the Apex Court held: “The question of jurisdiction of Court is a radical and crucial question of competence, because if a Court has no jurisdiction to hear and determine a case the proceedings are and remain a nullity ab initio no matter how well conducted and brilliantly decided they might be, because a defect in competence is not intrinsic, but extrinsic to the entire process of adjudication. Jurisdiction of Court is thereafter considered to be the nerve center of adjudication, the blood that gives life to an action in a Court of Law in the very same way that blood gives life to a human being” It is therefore logically prudent that the issue be addressed whenever and wherever it is raised so that the Court, trial or Appellate, does not engage in exercise in futility. See Ukwa V. Bunge (1999) 8 NWLR (Pt 518) 527 (SC), Jeric (Nig) Ltd V. UBN PLC (2000) 12 SC (Pt 11) 133. PER NWALI SYLVESTER NGWATU, J.C.A.
EFFECT OF THE EVIDENCE THAT IS AT VARIANCE WITH THE PLEADINGS
The evidence of PW1 was a departure from the pleadings with which the Parties and Court are bound. See Akpapuna & Ors v. Obi Nzeka 11(1983) 2 SCNLR 1, Aguocha V. Oguocha (1986) 4 NWLR (Pt 37) 566. Evidence of PW1 is at variance with the pleadings and such evidence goes to no issue West African Chemical Co Ltd V. Caroline Poultry Farm Ltd (2000) 2 NWLR (Pt 644) 197 (CA). PER NWALI SYLVESTER NGWATU, J.C.A.
JUSTICE
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
JA’AFARU MIKA’ILU Justice of The Court of Appeal of Nigeria
NWALI SYLVESTER NGWATU Justice of The Court of Appeal of Nigeria
Between
1. CHARLES A. KEKONG
2. BESSIE BANKONS OBI Appellant(s)
AND
1. OSHEGAABANG
2. CHRISTOPHER MOMNANG
3. GEORGE ADEDE
4. IKIAYISHI JOHN A
5. GABRIEL U. MONGIM
6 MONIQUE EKPONG
7. AGBE AUGUSTINE
8. MAGDALENE EKUM
9. MNOKWU GAGA
(AKA PAPA AGBANDA)Respondent(s)
NWALI SYLVESTER NGWATU, J.C.A. (Delivering the Leading Judgment): It was alleged and admitted that the 8th Respondent, a staff by Ogoja Local Government secured a loan of N500,000.00 from the 9th Respondent. The 8th and 9th Respondents claimed that the loan was for the use of the Appellants and the 1st set of Respondents. The loan was to be paid back interest free within one month. It would however attract an interest of 30% per month in default. All the Respondents except the 2nd set as well as the Appellants worked for the Ogoja Local Government either as career Civil servants or members of the Local Government Caretaker Committee. Contrary to the case of the second set of Respondents (as Plaintiffs) the 1st Set of Respondents and the Appellants (as Defendants) claimed that the money was spent on a political function of the Ogoja Local Government Caretaker Committee. As the appellants and the 1st set of Respondents defaulted in repaying the loan the 2nd set of Respondents (as Plaintiff) proceeded by way of undefended suit and claimed the following reliefs from the Appellants and the 1st set of Respondents (as defendants):
1. N500,000.00 from the defendants jointly and severally.
2. Interest rate of 30% per month from April 2003 till date.
3. Interest rate of 10% from judgment till final liquidation.
4. N90,000.00 costs.
The defendants to the suits filed their notices of intention to defend accompanied by affidavit allegedly disclosing defence on the merit. The matter was subsequently transferred to the general cause list. The parties were allowed to rely on their various affidavit in place of formal pleadings.
Ogoja Local Government was joined as a 3rd party on the Application of the 3rd and 4th defendants now 1st and 2nd Appellants by Itam J. who then presided. The name was struck out by another judge who then presided. After a full dress trial Learned Counsel for the parties filed written address which were later adopted.
In his judgment delivered on 28th day of October, 2008, the Learned trial Judge, Edem J. found:
“that the plaintiffs have proved their claim which they brought to court and are therefore entitled to a judicial relief.”
In the flowery, colourful and flamboyant language which has become his identification mark, the Learned trial Judge ordered as follows:
“Where in entering as I do I do hereby enter judgment for the Plaintiffs against the defendants jointly and severally as follows.
1. The sum of N500,000.00 being loan demanded and had by the defendant from the Plaintiff.
2. Interest rate of 30% as undertaken by the defendants from the date on Exhibit 3, 17th April 2003 till this date judgment.
3. 10% interest from the date of this judgment till liquidation of the judgment debt.
4. N9,000.00 costs.
This is my judgment.” (See pages 144-145 of the records)
The 3rd and 4th defendants (now 1st and 2nd Appellants felt aggrieved and appealed on three grounds herein after reproduced, shorn of their particulars:
1. The judgment is against the weight of evidence.
2. The Learned Trial Judge was in grave error when he held that where a principal denies an agent, the agent becomes personally liable for his / her actions.
3. The Learned Trial Judge erred in Law in assuming jurisdiction and holding that the 3rd and 4th defendants did not raise issues touching on jurisdiction in their pleadings.
From their four grounds of appeal (the 4th ground was filed as a additional ground with the leave of the Court) the Appellants presented the following four issues for determination:
1. Whether the Trial Judge was right in holding and concluding that where a principal denies an agent, the agent becomes personally liable for his/her actions.
2. Whether the Trial Judge was right in striking out the name of Ogoja Local Government Council from the suit as a third party when the matter was adjourned for continuation of hearing of evidence of PW1.
3. Whether the Trial Judge was right in assuming jurisdiction when the Plaintiffs claimed interest for a loan where they are not registered money lenders.
4. Whether the Lower Court was not in grave error to have awarded a relief not claimed by any of the parties.
In their brief of argument the Respondents adopted the four issues framed by the appellants in their own brief, and in addition presented the following issue for determination:
“Whether having regards to the records of proceedings compiled by the Appellants, Appellants have furnished the Court with sufficient materials to sustain this appeal.”
Rather than summarise the arguments of Learned Counsel for the parties, I shall refer to relevant parties there of in the resolution of the issues in the appeal.
The Respondents framed an extra issue in addition to the four issues the Appellant had framed from the four grounds of appeal which they adopted. The Respondent neither Cross-appealed nor filed a Respondent’s notice. The extra issue is not related to any of the four grounds of appeal or any combination thereof. The said issues formulated by the Respondents is incompetent and of no value in the determination of the appeal. See Omo V. JSC, Delta State (2000)7 SC (Pt 2) 1. Momodu V. Momoh (1991)1 NWLR (Pt.169) 608 (SC), Ossai V. Wakwah (2006) 4 NWLR (Pt 969) 208 SC. The said issue is hereby struck out.
Issue 1, queries:
“Whether the trial Judge was right in holding that where a principal denies an agent, the agent becomes personally liable for his/ her actions.”
This is framed from ground 2 of the amended grounds of Appeal.
As framed this ground of appeal is in general terms, contrary to order 6 R. 3 of the Court of Appeal Rules 2007. Be that as it may I have critically examined the judgment of the Court below and I find that the Learned Trial Judge made no such sweeping pronouncement in the judgment.
The ground as couched is at large and in my humble view it is better left for academic text writers who are in a position to write treaties on hypothetic legal situations. His Lordships considered the evidence on alleged agency of the Appellants to Ogoja Local Government most of which is documentary and concluded as follows:
“From the above findings so far I concluded and hold as follows on the satellite issues thus:
a) The defendants are in no ramification agents of Ogoja Local Government.
b) The loan transaction was not in an official capacity.
c) The transaction was in individual or personal capacity of the defendants.
d)The defendants are therefore properly sued in the capacity which they are sued.” See pages 139-140 of the records.
Rather than appeal against the actual finding of the trial Judge the Appellants propounded a general theory of Law which the Lower Court did not pronounce upon as their grounds of appeal. An appeal is a challenge against the decision of a trial Court and it is never predicated against what a Court has not decided in its judgment or ruling. See Babalola V. State (1989) 4 NWLR (Pt 115) 264 SC, Akpan Udoete V. Heil & Anor (2002) 13 NWLR (Pt783) 64 at 86 (CA).
In his argument Learned Counsel for the Appellants abandoned the ground of appeal and the issue framed there from. Rather he impugned the finding of the Trial Court that the Appellants were not agents of the Ogoja Local Government. The issue which the Appellants listed as number one in their brief and the ground from which it is framed are hereby struck out as incompetent.
Consequently the argument on the said issue 1 goes to no issue in the appeal.
Issue No 2 in the Appellants’ brief questions the right of the Learned Trial Judge in striking out the name of Ogoja Local Government Council from the suit as a third party when the matter was adjourned for continuation of hearing of evidence of PW1. The issue does not question the striking out of Ogoja Local Government Council per se, but impugns only the timing of the order striking it out.
Learned Counsel for the Appellants referred to page 67 lines 9-10 of the records and said that the matter was adjourned to 2/5/06 for cross-examination of the PW1 and that the Court should not have heard argument on the 3rd party. He relied on Faladu V. Kwoi (2002) FWLR (Pt 113) 365; Pam V. Muhammed (2008) 40 WRN 85 in his contention that the Lower Court was in grave error to have taken argument on the objection of the 3rd party on a date the matter was fixed for another purpose.
On the other hand the Respondents argued that the procedure adopted by the trial Court was right since that objection related to the issue of jurisdiction of the Court. Reliance was put on Olaleye Fajimolu V. University of Ilorin (2007) All FWLR (Pt 350) 1361 at 1363 and Yakubu Iyanda V. Saidu Amai (2007) All FWLR (Pt 349) 1172 at 1173-1174.
Jurisdiction is the Authority which the Court has to decide matters that are litigated before it, or to take cognizance of matters presented in a formal way for its decision. See Mobil Producing (Nig) Unlimited V. Lasepa (2002) 18 NWLR (Pt 798) 1 at 32 SC; Miscellaneous Offences Tribunal V. Okoroafor (2001) 18 NWLR (Pt 745) 295 at 326 (SC).
In Daplanlung V. Dariye (2007) 8 NWLR (Pt 1036) 332, the Apex Court held:
“The question of jurisdiction of Court is a radical and crucial question of competence, because if a Court has no jurisdiction to hear and determine a case the proceedings are and remain a nullity ab initio no matter how well conducted and brilliantly decided they might be, because a defect in competence is not intrinsic, but extrinsic to the entire process of adjudication. Jurisdiction of Court is thereafter considered to be the nerve center of adjudication, the blood that gives life to an action in a Court of Law in the very same way that blood gives life to a human being”
It is therefore logically prudent that the issue be addressed whenever and wherever it is raised so that the Court, trial or Appellate, does not engage in exercise in futility. See Ukwa V. Bunge (1999) 8 NWLR (Pt 518) 527 (SC), Jeric (Nig) Ltd V. UBN PLC (2000) 12 SC (Pt 11) 133.
The obedience of the Court, trial or Appellate, to its cause list with regard to the status of the cases listed must yield way to the superior issue of jurisdiction when and where ever raised by either party or the Court suo motu. The issue is resolved in favour of the Respondents against the Appellants.
I will save issue 3 for the last and deal with issue 4 which complains that the trial court awarded a relief not sought by the respondents. Learned Counsel for the Appellants referred to pages 18 to 20 of the records and pointed out that the claim for 30% interest per month was from April 2003 to January 2005. Counsel said that the claim in evidence of 30% interest per month from April 2003 till date at page 51 of the record was outside the pleading, and ipso facto the trial Court was in error in awarding 30% (purportedly as undertaken by the defendants) form the date of Exhibit 3, 17th April, 2003 till this date of judgment. See page 144 of the records.
In reply learned Counsel for the Respondent went into a discussion of a matter intended for hearing on the undefended list but transferred to the general cause list in which case he argued that the award of 30% interest per month till date of judgment was justified.
There are three different dates involved in this issue. In relief No 2 endorsed on the writ of summons issued on 7th February 2005 claims is for:
“Interest at the rate of 30% per month from April 2003 to January 2005 as agreed by the defendants upon failure to repay the said N500.000.00 after one month.”
See page 20 of the record.
At page 65 of the PW1 who is now the 1st Appellant in her oral evidence in chief claimed:
“Interest rate at 30% monthly from April 2003 till date as agreed by the defendants upon failure to repay the N500,000.00 after one month.”
Till date in my humble view, refers to the date the witness was testifying which is shown in the record as 9th February 2006. On the other hand the interest rate of 30% monthly awarded by the trial court is:
“From the date on Exhibit 3, 17th April, 2003 till this date judgment”
The judgment was delivered on 28/10/2008. It is clear from the above that the claim endorsed on the writ was for 30% monthly interest from April 2003 to january 2005.PW1 in her evidence claimed the interest from April 2003 to date which is 9th February andthe trial Court made the award from April 2003 to 28/10/08. The evidence of PW1 was a departure from the pleadings with which the Parties and Court are bound. See Akpapuna & Ors v. Obi Nzeka 11(1983) 2 SCNLR 1, Aguocha V. Oguocha (1986) 4 NWLR (Pt 37) 566.
Evidence of PW1 is at variance with the pleadings and such evidence goes to no issue West African Chemical Co Ltd V. Caroline Poultry Farm Ltd (2000) 2 NWLR (Pt 644) 197 (CA).
The trial Court was in error when it made an award that expanded the Claim endorsed on the writ even though there was no amendment of the Claim on the writ or affidavit which took the place of pleading in the matter. I resolve issue 4 against the Respondents and in favour of the Appellants.
Issue 3 appears a little complex Learned Counsel for the Appellants referred to Section 7 of the Money Lenders Law of Cross River State 2004 and pages 77 lines 7 of the record for the evidence of the PW1 under Cross-examination to the effect that the Appellants were not money lenders at the material time. He argued that based on the evidence of PW1 and the money lenders Law the trial Court should have struck out the case for incompetence and ipso facto want of jurisdiction.
In reply Learned Counsel for the Respondents reiterated the point raised by the Appellant that the Respondents were not money lenders. He submitted that so long as the Respondents were not in the business of money lending but were only sympathetic to the Appellants based on the exigency of the time, they did breach provision of section 7 of the Money Lenders Law of Cross-River State. He further argued that even if the Appellants did give out loan and charged interest on it, the Appellants who enjoyed the loan cannot turn to say that the transaction is unlawful, adding that no man is allowed to benefit from his wrong. He relied on the decision of the Court, Ilorin Division in the case of Alhaji S. Adetoro V. Union Bank of Nigeria PLC (2007) All FWLR (Pt 396) 590 at 600-606 ratio 16.
In his judgment the Learned Trial Judge held, inter alia:
”Indeed the law has since been crystallized that even if the address not supported by pleading and evidence shines like a trillion star (Sic) it would vanish like a meteor into the Bermada Triangle of the Law.”
Impressive display of knowledge. His Lordship continued and referred to Exhibit 3 dated 17/4/03 which reads:
“We the members of Ogoja EXCO have collected the sum of 14500, 000.00 from Papa Agbanda as loan to pay back at 30% interest.” And asked “Does it then conjour any means for the defendants to run to money lending Law and bully themselves over of a voluntary undertaking made by them and not through an agreement with the Plaintiffs. The signature of the Plaintiffs is not on the document. The after thought of the defendants is a meaningless absurdity carried to far”
See page 141-142 of the record.
With profound respect and regret I find myself unable to appreciate the position of the Learned Jurist on Exhibit 3 on which the case before him was founded. Appellants were not money lender at the material time as accepted by the parties and the court lent N500,000.00 interest free for one month but with 30% interest Per month for the subsequent months upon failure to repay the money within one month. The Appellants have claimed interest of 30% on the money lent not just for the subsequent months but also from the initial interest free month.
In retrospect the loan as originally granted is subject to 30% interest per month. The argument that the Appellants did not sign Exhibit 3 or that the Appellant lent the money based on the exigency of time and based on a sympathetic consideration is specious.
Contrary to the Law cited by Learned Counsel for the Appellants the Applicable Law is the Money Lenders Law Chapter M7 Laws of Cross-River State 2004. S.1. of the Law vests the Response Commissioner with power to make an order to exempt a person or a body corporate from the provision of the Law.
In absence of showing to the contrary the Appellants are not, at least at the material time, exempted from the provision of the Money Lenders Law Cap. M7 of Cross River State 2004. S.31 of the Law defines money lender in inclusive terms to included
“every person whose business is that of money-lending or who carries on or advertises or announces himself or hold himself out in any way as carrying on that business…………..”
In her evidence under Cross-examination the PW1 swore that:
“Before the incident I had made such facilitation for credit for the same committee they paid back those credit facilities.”
See page 64 of the records.
In view of the facts proved or admitted the transaction which gave rise to this appeal is one in a series of business transactions.
The Appellants were not licensed under S.2 of the Law. S.3 (a) imposes a penalty of N200.00 for 1st conviction and term of imprisonment for three months or a fine of Two Hundred Naira or both for subsequent convictions under S.2 of the Law.
Contrary to the view expressed by the Learned Trial Judge the 30% interest per month on the loan was not a unilateral decision of the Appellants. The 30% interest was a condition upon which the Loan was granted and whether or not the appellants or any of them signed the document evidencing the interest is not material.
There is no doubt that the provisions of the Money Lenders Law of the State are impugned. The effect of the breach on the transaction in question will depend on the intention of the Law, that is whether the very transaction itself is illegal or the breach is merely a ground for action by the authorities against the person who committed the breach. Here the Law is made for the protection of the public and failure to comply with its provision makes the transaction illegal. See Ayo Solanke V. Abraham Abed & Anor (1962) NRNLR 92.
The transaction by which the Appellants lent money at 30% interest for any month is in violation of the money lenders Law and is by the same Law illegal. It is an illegal contract, a contract against Public Policy.Ex turpi causa non oritio actio. No action can be founded on a base cause. See Scott V Brown Doering McNab & Co (1891-4) All E. R 654.
This Court will not aid the Appellants to enforce a transaction criminalized by the Money Lenders Law. The Parties herein are in pari delicto and the money that exchange hands under the illegal transaction is irrecoverable. See Kearley V. Thompson (1886-90) All E.R Report 1055. The gains and loses resulting from the illegal transaction will lie where they fell.
The issue is resolved against the Appellants, and consequently the appeal is dismissed inspite of issue 4 resolved in favour of the Appellants. The suit is struck out. Parties to bear their costs.
KUMAI BAYANG AKAAHS, J.C.A.: I had the privilege of reading in draft the judgment of my learned brother Ngwuta, JCA. The contract giving rise to this action is unenforceable because it was made in breach of the Money Lenders Law of Cross River State 2004 and so is contrary to public policy and therefore illegal. On this basis the learned trial Judge ought to have struck out the suit I am therefore in complete agreement with my brother Ngwuta, JCA that the appeal stands dismissed while I endorse the order striking out the suit.
JA’AFARU MIKA’ILU, J.C.A.: I agree with the reasons and the conclusion in the lead judgment of my learned brother Nwali Sylvester Ngwuta, J.C.A. The suit is struck-out. Parties to bear their costs.
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Appearances
O.N. Asbir Esq.For Appellant
AND
Patrick O. Eka Esq.For Respondent
