ZENITH BANK PL. V. CHIEF ARTHUR JOHN & ORS (2012)

ZENITH BANK PL. V. CHIEF ARTHUR JOHN & ORS

(2012)LCN/5719(CA)

In The Court of Appeal of Nigeria

On Thursday, the 6th day of December, 2012

CA/PH/436/2010

RATIO

JURISDICTION: IMPORTANCE OF JURISDICTION

I have carefully considered all the foregoing arguments and submissions of respective learned Counsel as well as some of the decided cases and I wish to add that whether a Court is competent or has jurisdiction to entertain any matter before it is always at the heart of any adjudication and is a crucial question to be kept in view. Added to this, the authority which a Court has to decide matters filed before it, or to take, cognizance of matters presented and argued for decision must always be underscored and fully considered.

Whenever the jurisdiction of a Court to entertain a matter is challenged or called to question in this Country, it is not unusual to see that arguments on behalf for or against revolve around the famous case of MADUKOLU V. NKEMDILIM (supra). With respect to the instant appeal, the part of that decision that I consider most relevant involves the determination of whether the subject matter of a case is by law within the jurisdiction of a Court and whether there is no feature in the case which prevents it from exercising its power thereon. It is also crucial to decide whether the case come before it and was initiated by due process of law and upon the fulfillment of any condition precedent to the exercise of jurisdiction. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.

JURISDICTION: OBLIGATION OF THE COURT WHEN AN ISSUE OF JURISDICTION IS RAISED

It is settled law that when an issue of jurisdiction is raised by a party the court ought to generally take it first. See EBHOD AGHE v. OKOYE (2004) 18 N.W.L.R. (Pt.905) 472. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.

JUDGMENT: WHAT ARE DECISIONS IN ANY CASE MADE ON

With respect to this appeal, I wish to emphasize the words in the general principle of legal practice and adjudication that a decision in any case or matter must only be made on its peculiar facts and circumstance. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.

FAIR HEARING: ESSENCE OF FAIR HEARING

In resolving this issue I will like to start by emphasizing that the right of a person to a fair hearing is so fundamental to our concept of justice. In the ventilation of his complaint on the denial of fair hearing to the Appellant by the lower Court, learned Counsel emphasized the provisions of S.36(1) of the 1999 Constitution together with the natural justice principle of audi alteram partem. I understand this complaint of the Appellant. It is a basic attribute of the constitutionally guaranteed right to fair hearing that the Court shall hear both sides not only in the case but also on all material issues in the case before reaching a decision which may be prejudicial to any party in the case. See USANI V. DUKE (2004) 7 NWLR (PT.871) 116 and FAGBULE V. RODRIGUES (2002) 7 N.W.L.R. (Pt. 765) 188.

The burden is on the party alleging breach of fair hearing in a case to prove the breach, and he must do so in the light of the facts of the case. This is necessary because the facts of case and the facts only determine acts which constitute non-compliance with the steps which reinforce the full enjoyment of the right to be heard. See the decision of the Supreme Court in GBADAMOSI V. DAIRO (2007) ALL FWLR (Pt. 357) 812. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.

JUSTICES

ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria

UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria

Between

ZENITH BANK PLC – Appellant(s)

AND

1. CHIEF ARTHUR JOHN

2. ELDER FRANK ULE

3. CHIEF SILAS OFORJI

(For themselves and on behalf of the

Entire people of Umorie Community in Ukwa

West LGA of Abia State) – Respondent(s)

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: (Delivering the Leading Judgment): On the 10th June, 2010, the Owerri Division of this Court, in a unanimous judgment in Appeal No. CA/PH/103/2006, in slightly modified terms, affirmed the judgment of Isoho, J, sitting at the Umuahia Division of the Federal High Court, delivered on 17th November, 2005, in Suit No. FHC/UM/CS/03/2000, between Chief Arthur John and Ors. v. Shell Petroleum Dev. Co. Nig. Ltd. (SPDC Nig. Ltd).

By an order of this court granted on 10th October, 2006, the execution of the above said judgment of Tsoho, J. was conditionally stayed upon the judgment, debtor (SPDC Nig. Ltd) giving the judgment Creditors (Chief Arthur John and others) a Bank Guarantee from Zenith Bank Plc in the judgment sum of about N1,849,000,000 (One Billion, Eight Hundred and Forty Nine Million Naira) within 30 days of the making of that order. This bank Guarantee was accordingly provided to the letter. It was provided to commence and take effect from 28th October, 2009 but not beyond 30th September, 2010.

Upon the dismissal of appeal No. CA/PH/103/2006, the Respondents herein, as the claimants before the High Court of Rivers State, sought for the following reliefs against the Appellant herein, as the Defendant in Suit No. PHC/1690/2010. The reliefs are:-

(1) The sum of N1,622,390,499.46 (One Billion, Six Hundred and Twenty Two Million Three Hundred and Ninety Thousand, Four Hundred and Ninety Nine Naira, Forty six kobo) as principal sum and interest thereon guaranteed to be paid to the claimants as at 10/06/2010;

(2) Interest on the said sum of N1,622,390,499.46 at the agreed rate of 10% per annum from 11/6/2010 till judgment; and

(3) Interest on the judgment debt at the rate of 10% per annum until satisfaction thereof.

This claim was supported by an affidavit of 13 paragraphs pursuant to Order 11, r.8 of the Rivers State High Court Rules, 2006 (High Court Rules) with 6 very copies exhibits attached thereto. These documentary exhibits are the root of this matter and appeal. Further to this, and sequel to an Ex-parte motion brought pursuant to Order 11 rule 8(10) and (12), of the High Court Rules, the Suit was placed on the undefended list and all processes filed pursuant thereto were ordered to be so marked for service on the Defendant/Appellant. This order was made on 2nd August, 2010 and the matter was adjourned to 12/8/2010 for hearing

On the 5th August, 2010, the Defendant/Appellant filed and served a notice of intention to defend supported by an affidavit of 26 paragraphs with 2 documentary exhibits as annexures. Also, on the 9th August, 2010, SPDC Nig. Ltd, filed an application seeking to be joined as on interested party and a further prayer for an order that it be served with all the processes in the Suit of the Claimants/Respondents. It is supported by an unprecedented number of grounds and an affidavit with very copious documentary exhibits. The Claimants/Respondents sought to challenge this application for joinder in a counter affidavit of 11 paragraphs, while a further affidavit in support was filed on behalf of the Defendant/Appellant, learned Counsel filed a further affidavit of 4 paragraphs in support of the notice of intention to defend.

At its sitting of 12th August, 2010, the lower Court took and considered all the arguments of the parties on the motion for an order for joinder etc and the notice of intention to defend. In its ruling of the same 12th August, 2010, the lower Court saw no merit in the application of SPDC Nig. Ltd, for joinder. It accordingly refused and dismissed it. Further to that, the lower court found that the affidavit in support of the notice of intention to defend did not disclose any defence on the merit and it proceeded to discountenance same. Against all these, the lower Court then entered judgment for the Claimants/Respondents in terms.

The Defendant/Appellant was dissatisfied with this ruling and it appealed to this Court. This appeal is predicated on an amended notice of appeal incorporating 10 grounds of appeal. With the leave of this Court, this amended notice of appeal was filed on 13th July, 2011.

To argue the appeal, the Appellant filed on amended brief of argument, with the leave of this Court. It is dated and filed on 21st September, 2011. In response, the Respondents filed an amended brief of argument. It is dated and filed on 26th September, 2012 but deemed properly filed and served on 7th November, 2012. The Appellants reply brief dated 26th January, 2012 but filed on 27th January, 2012 was deemed properly filed and served on 7th November, 2012.

At the hearing of the appeal, respective learned Counsel each identified, adopted and relied on their respective briefs of argument. Learned Counsel Mr. K. C. Osuh for the Appellant urged on us to allow the appeal and set aside the undefended list judgment of the lower Court, while learned counsel to the Respondents Mr. Aside urged on us to resolve all the issues identified for the determination of this appeal against the Appellant and in favour of the Respondents and to consequently dismiss this appeal and affirm the judgment of the lower court.

From the 10 grounds of appeal, learned Counsel to the Appellant formulated the following 5 issues for the determination of this appeal. They are:-

(1) Whether the Learned Trial Judge had the requisite jurisdiction to adjudicate in the matter? (Grounds 1 and 2)

(2) Whether under the Undefended List procedure the Learned Trial Judge was in all the circumstances right to proceed to judgment without a hearing on the merits notwithstanding the fact that the affidavits of the parties were irreconcilably in conflict on all material issues? (Grounds 3 and 4)

(3) Whether the Learned Trial Judge was right to grant the Respondents’ reliefs in full or at all? (Grounds 5 and 6).

(4) Whether the conduct of the Respondents did not amount to abuse of judicial process to disentitle them from the exercise in their favour of the court’s discretion? (Grounds 6 and 7).

(5) Whether the Lower court had the jurisdiction to entertain and determine to finality the undefended List Suit during the pendency of the Motion for stay before the CA Owerri and a further appeal to the Supreme Court thereby sharing jurisdiction with the Supreme Court and CA Owerri over one and the same subject matter? (Grounds 8 and 9)

On behalf of the Respondents, learned Counsel formulated his own 5 issues for the determination of this appeal. They are:-

1. Whether the learned trial Judge had the jurisdiction to entertain this suit?

2. Whether the defendant’s Notice of Intention to Defend and their affidavit in support disclosed a sufficient defence on the merits such that would have occasioned a transfer of the case to the General Cause List?

3. Whether from the ipssisima verba of the Deed of Guarantee the liability of the appellant thereon is dependent on a further appeal to the Supreme Court and if not, whether the conduct of the appeal is not in gross abuse of the process of this Court?

4. Whether the respondents’ Constitutional right of access to the Courts for the redress of disputes arising from interpretation of rights and obligations on a crystallized appellants deed of Guarantee (wherein appellant had in writing admitted liability) can be barred by o mere motion not filed by the appellant, with the sole purpose of not determining its status, but instead to render it worthless and un-enforceable by reason of its approaching 30th September, 2010 expiry date as against the 4th of October, 2010 hearing date for the motion.

5. Whether the relief for injunction sought against the appellant and the respondent which was not granted or the Conditional Stay of Execution granted in favour of SPDC by the court of Appeal (albeit without jurisdiction) but not fulfilled by SPDC and coming after the High Court Judgment appealed from, is of any effect on the instant appeal.

I have, considered each of the set of issues formulated for the determination of this appeal by respective learned counsel to the parties. I wish to observe that, though ground 10 of the grounds of appeal is an omnibus ground, no issue was specifically said to have been distilled out of it. Even as on omnibus ground, the Appellant is entitled to formulate an issue out of it either by itself or in conjunction with another ground or other grounds of appeal. Ground 10 is therefore deemed as abandoned and it is accordingly struck out.

I have taken all the remaining 9 grounds of appeal into a proper perspective and that has led me to appreciate and understand the real grievances and complaints of the Appellant against the judgment of the Lower Court leading to this appeal. Against this background, I believe and accept that the 5 issues formulated by the Appellant are all embracing enough to address its grievances against the judgment of the lower Court. A proper resolution of these issues will go a long way to determine the rights and obligations of the parties in the transaction in issue. I will therefore proceed to determine this appeal based on the issues formulated by learned Counsel to the Appellant.

In opening his arguments on the 1st issue, learned Counsel to the Appellant began with an explanation that the law is trite that jurisdiction is a radical and crucial question of competence. He supported this explanation by on extensive quotation from the judgment of the Supreme Court in the case of ATT. GEN. LAGOS STATE V. DOSUNMU (1989) 3 N.W.L.R. (Pt.111) 525 of 566 to 567 where Oputa, JSC referred to and explained the earlier decision of the Court in the famous case of MADUKOLU & ORS. V. NKEMDILIM (1962) 1 All N.L.R. 587 of 595. Further to this explanation, learned Counsel itemized 5 documentary exhibits and characterized them as the documents the Respondents relied on in the prosecution of their claim before the lower Court. He then proceeded to make same 2 observations an Exhibits AJ – 1 and AJ-2, and pointed out that it was against these observations that paragraphs 15 to 18 of the affidavit in support of notice of intention to defend the claim of the Respondents raised the issue of the competence of jurisdiction of the lower Court to hear and determine suit No. PHC/1690/2010.

With the foregoing as a foundation learned counsel referred to paragraph 3 and 4 of the further affidavit of the Respondents and Exhibits A and A1 attached thereto as well as paragraph 6 of Appellant’s further affidavit in support of its notice of intention to defend, to show that Exh. A1 has no relationship with the subject matter of this action. In a further effort learned Counsel pointed out that there is a distinction between the Respondents, in whose favour the Bank Guarantee was issued and the law firm of learned Counsel Mr. L.E. Nwosu SAN. He remarked that this distinguishing feature of the suit is important in determining the competence and jurisdiction of the lower Court to proceed as it did.

Still on the issue of jurisdiction, learned Counsel referred to and quoted in full the provisions of S.20(1) and (2) of the Rivers State High Court Law and explained that the Supreme Court interrelated part materia provisions in the case of OKAFOR V. EZENWA (2002) 13 N.W.L.R. (Pt.784) 319 at 322 H and held that in order to decide whether or not a Court has territorial jurisdiction to entertain a matter, it is necessary to do so only in con of the evidence adduced before it. With respect to the facts in the instant appeal, learned counsel maintained that it is potently clear that the Respondents cannot bring themselves within the ambit of S.20(1) (supra) and failed to satisfy any of the pre-conditions set out therein. Also, according to learned counsel, the contract of Guarantee was made in Lagos State and the breach did not occur within Rivers state and the Appellant does not reside within Rivers State. While referring to other main and collateral issues in this matter and the cases NDAEYO V. OGUNNAYA (1977) SC.11 at 25 and ONYEMA V. OPUTA (1987) 3 NWLR (Pt.60) 259 at 293 – 294, learned Counsel submitted that the Respondents failed to discharge the burden placed on them to prove that Rivers State was the proper venue to institute their action.

In arguing the 2nd leg of his objection to the exercise of jurisdiction by the lower Court, learned Counsel referred to and quoted the provisions of Order 45 rules 4, 5(1) and (2) of the High Court Rules and the decision of the Supreme Court in ONWUKA V. ONONUJU & ORS. (2009) 4-5 SC (PT 11) 188 in which similar provisions of the Anambra State High Court Rules were considered and interpreted to mean that a Court has no jurisdiction to hear or determine an application during the period of the courts vocation without the full consent of the respective Counsel to the parties in the matter.

With respect to this matter, learned Counsel pointed out the period of vacation commenced on 2nd August, 2010 and ended on 12th September, 2010 and maintained that there is nothing on the record to show that this matter was assigned to the learned trial judge pursuant to Section 40 of the Rivers State High Court Law. He also argued that there was no specific feature of this case which shows that it required any urgent hearing to warrant its being taken during the period of the Court’s annual vacation. He added further that there was no effort made to seek the consent of the Appellant and none was given to the hearing of the matter during vacation.

While referring to the cases of CASH AFFAIRS FINANCE LTD. V. INLAND BANK (NIG.) PLC. (2005) 5 NWLR (Pt.658) 568 at 587 G-H, IDRIS V. ARCHIBONG (2001) 9 NWLR (Pt.718) 447 at 457 – 459 and BAYERO V. MAINASARA & SONS. LTD. (2006) 8 NWLR (Pt.982) 391 at 425 – 426 H – A, learned Counsel argued and submitted that the writ of summons upon which the Respondents’ claim was based is a nullity, because of illegal and unauthorized alterations made on it. Against this argument, learned counsel maintained that the lower Court and the learned trial Judge were wrong to have entertained same as such and to give judgment on it. He urged on this Court to find and hold that the writ of summons herein is a nullity and to set same aside, In conclusion, and while referring to the case of ATT. GEN., BENDEL STATE V. A|DEYAN (1989) 4 N.W.L.R. (Pt 118) 646 of 665 C, learned Counsel maintained that if a Court has no jurisdiction to entertain any matter it cannot acquire same by any acquiescence or submission by any of the parties to it and he urged on this Court to in the circumstance hold that the conditions precedent to the assumption of jurisdiction to hear this matter were non-existent. He finally urged this court to answer the question in this issue in the negative and also resolve same against the Respondents.

In his issue one, learned Counsel to the Respondents argued and, made submissions on the jurisdiction and competence of the lower Court to entertain Suit No. PHC/1690/2010 giving rise to this appeal. After pointing out some of the incontrovertible facts surrounding this matter, more particularly the Bank Guarantee directly in issue, learned Counsel, while referring to some of its key features, emphasized that it was issued in favour of the plaintiffs in Suit No. FHC/UM/03/2000 as the Respondents in Appeal No. CA/PH/103/2006 upon an order made by the Port Harcourt Division of the Court of Appeal. Still on the facts relevant to the jurisdiction of the lower Court, learned Counsel pointed out that it was the dishonouring of the cheque issued by the Respondent’s solicitor upon the proceeds of the Bank Guarantee was in Port Harcourt and it was this event that signaled the Appellant’s breach of its contractual obligations under the Bank Guarantee and which led to and triggered the filing of the Claimants/Respondents action before the lower court. Right from paragraph 4.1.1(b) through to 4.1.2 at pages 6 to 7 of his amended brief of argument, learned counsel to the Respondents continued to pick out on all the features and events that firmly rooted the claim of the Respondents to Port Harcourt and linked same to the territorial jurisdiction within the meaning and contemplation of S.20(1) and (2) of the High Court as ably outlined in the amended brief of the Appellant.

Also not forgetting the other leg of the arguments of the Appellant on jurisdiction, learned Counsel for the

Respondents, emphasized that the Appellant was less candid in failing to see and underscore the real urgency that the Respondents faced upon realizing that the Appellant had failed to honour the cheque of their Solicitor of 2001/2010 on the proceeds of the Bank Guarantee against its imminent expiry on 30/09/2010. Against this background learned counsel referred to page 285 of the record of appeal and highlighted why it became necessary for an application to be made to the Honourable Chief Judge of Rivers State High Court to assign the matter to the vacation Judge. He also emphasized that the action was filed together with an affidavit of urgency as set out at pages 69 – 70 of the record, more particularly paragraph 4 thereof where it was averred in part thus:-

4″.. the defendant is delaying and/or refusing to honour its guarantee to us the claimants… Craftily waiting for the expiry on the 30th September, 3010 while telling us that they are calculating our due based on the said guarantee.”

Using this scenario of the antecedents of this matter as his foundation, learned Counsel recounted all the series of events subsequent to and leading to its being decided by the learned trial Judge during the period of vacation. According to learned Counsel the direct opposite of the steps taken by the lower Court would have resulted in the Bank Guarantee ending up as a worthless paper and the Respondents being left with a phyric victory and a mockery of the judicial process. Against the leverage, learned Counsel maintained that all the decisions referred to on behalf of the Appellant are a misconception or a palpable mischief. He then singled out the case of ONWUKA V. ONONUJU & ORS. (supra) and argued that it is distinguished from the facts and circumstances of this matter because discontinuing an action during the period of annual vacation of the Courts is neither compelling or necessarily urgent.

According to the learned counsel to the Respondents, the Appellant’s challenge of the competence of the writ in this action is an entirely new issue that was not raised or argued of the lower Court and submitted that it was not proper for it to be decided upon by this court as no leave was sought for or obtained so to do. He urged this court to discountenance all the arguments made in that behalf. However, without conceding the appropriateness of the approach of the Appellant, learned Counsel, ex abundante, referred to a number of decided cases of this court and the Supreme Court and argued that the appellant lacks the competence to seek to impugn a process of court to which he unconditionally entered appearance to and defended. Upon these arguments and submission, he urged this Court to resolve this issue against the Appellant and in favour of the Respondents.

In his reply brief of paragraph 3.5 at page 17, learned counsel sought to clarify his position when he explained that the Appellant does not wish to challenge the right of the Respondents to approach the rower court or have access to its processes but do so during the pendency of an application by SPDC for stay of execution and injunction before the Owerri Division of this Court is what is of the heart of the dispute in the instant appeal. He added further that because of the appeal of SPDC to the Supreme Court against the decision of this Court, the propriety of the lower Court’s exercise of jurisdiction to determine the Respondents’ action is also being disputed.

There is no doubt in my mind that the challenge to the jurisdiction of the lower court in this appeal goes to the substantive issue before that Court, that is whether the contract in the Bank Guarantee was cognizable and enforceable within Rivers State, as well as whether the pendency of an application for stay of execution of judgment pursuant to which the guarantee was given or an appeal to the Supreme Court against that same judgment were not sufficient enough features to make it hands off the matter. It is settled law that when an issue of jurisdiction is raised by a party the court ought to generally take it first. See EBHOD AGHE v. OKOYE (2004) 18 N.W.L.R. (Pt.905) 472.With respect to this appeal, I wish to emphasize the words in the general principle of legal practice and adjudication that a decision in any case or matter must only be made on its peculiar facts and circumstance. It must be appreciated that the facts and circumstances in this appeal are quite peculiar and unique, having regards to some of the terms and conditions set out in the Bank Guarantee and the chequered history of the case with respect to the number of Courts involved and the locution of the various Courts and the parties. It is in realization of this position of the law that the learned trial Judge embarked on an exercise to determine if the lower Court had the required jurisdiction to proceed as it did.

This challenge to the jurisdiction and competence of the lower Court was not by the Appellant but arose out of the wish and desire of the SPDC NIG. LTD. At pages 154 and 164 of the record of appeal as part of its affidavit in support of motion for joinder, the SPDC sought to be joined in the matter to among other things challenge the jurisdiction of the lower court to entertain this action during the annual vacation of the High Court under Order 45 rules 4 and 5 of the Rivers State High Court Rules, 2006.

After having considered the provisions of Order 45 (supra) the learned trial Judge held the view that those provisions were not absolute and decided that under 0.45(5) (2) (supra) the Chief Judge can direct a Judge to hear and determine a matter during vacation if there was some urgency in it. With this view in mind, the learned trial judge went further to decide that he had jurisdiction to entertain the claims of the Respondents against the Appellant by virtue of the assignment of the matter to him by the Chief Judge of the Rivers State High Court.

Aside from these, there was no other challenge to the jurisdiction and competence of the lower Court to entertain this matter. I have read and considered the letter of learned Counsel to the Respondents addressed to the Hon. Chief Judge of Rivers State High Court at page 285 of the record. It is dated 21st July, 2010 and at the bottom of page one of this 2 page letter is a request that:-

“We therefore, most respectfully urge My Lord to assign this suit to a vacation Judge.”

To the extent that the learned trial Judge proceeded with this matter and delivered his ruling and judgment on it, there is a very strong presumption that all that was done was regularly done pursuant to all the enabling powers in that behalf. Also, to the extent that neither SPDC nor the Appellant complained to the Hon. Chief Judge of the Rivers State High Court to challenge the exercise of jurisdiction over this matter by the learned trial Judge during vacation, is a further strong ground to hold that the lower court was fully conscious and mindful of its responsibility in the adjudication of this matter and the urgency with which it needed to be handed. I have no reason whatsoever to doubt it that the matter was properly assigned to the learned trial Judge by the Hon. Chief Judge. All the statements of learned Counsel in the amended Appellant’s brief tending impugn the integrity of the learned Judge and his Court official is most unfortunate and grossly uncharitable. I condemn it.

I have read and considered the entirety of the processes of Court leading of the decision of the lower Court as well as its record of proceedings pursuant thereto and I saw no place where the territorial jurisdiction of the Court or venue for trial viz-a-viz the Bank Guarantee was challenged. I fully agree that by its character and contents as well as the circumstances under which it was issued, there is no feature of the Bank Guaranteed that could be said to be outside the jurisdiction of the lower Court in the circumstance of this matter. I agree with learned Counsel to the Respondents that the case of ONWUKA V. ONONUJU (supra) was referred to out of con and it can be distinguished from the facts in this matter. I also agree that it is irrelevant and totally inapplicable to the facts and circumstances of this matter.

In view of all the foregoing, I firmly believe and hold that issue one must be resolved against the Appellant and it is accordingly so resolved.

In arguing his issue number 2, learned Counsel to the Appellant began by pointing out that the affidavits of the Appellant and Respondent were irreconcilably in conflict on material issues. While referring to a number of decisions of this Court and the Supreme Court such as NATIONAL CO-ORDINATOR, NATIONAL PROGRAMME ON IMMUNIZATION V. MABOL and ASSOCIATES LTD (2010) 2 N.W.L.R. (PT. 1179) 612 at 6133, IMONIYANE HOLDINGS LTD. V. SONEB ENT. LTD. (2010) 4 NWLR (Pt.1185) 561 at 577, NKWO MARKET COMM. BANK (NIG.) LTD. V. OBI (2010) 14 NWLR (PT.1213) 169 at 185 etc. learned Counsel underscored the importance and place of affidavit evidence in the trial of actions under the undefended list procedure. Against the backdrop of this learned Counsel analyzed the handling of this matter by the learned trial Judge, and went on to find faults against each and every key decision he made. He further went on to argue that the Appellant was denied its constitutionally guaranteed right to fair hearing. He referred to a plethora of cases and the provision of S.36 of the 1999 Constitution to support his arguments and submissions on the position of the Courts on the definition and application of the principle of fair hearing in trials before the Courts of this country.

In a further effort learned Counsel maintained that not only did the proceedings violate the Appellant’s right to fair hearing but the approach of the learned trial Judge to the issues raised by the Appellant did not comply with the law and also the findings and conclusions are not borne out of the facts. He then went on to give 5 instances to justify these submissions at pages 17 to 19 of the Appellant’s amended brief.

From these 5 instances, learned Counsel maintained that:-

(a) The Appellant had raised by affidavit evidence serious issues of law and facts which needed to be tried;

(b) The Respondents had filed further affidavit to dispute same; and

(c) The learned trial Judge decided at that stage of the proceedings that the Appellant’s defences did not succeed on the merits without a hearing.

According to learned counsel, the lower Court, in all the circumstances, was not right to proceed to judgment without a hearing on merits and urged this Court to resolve this issue in favour of the Appellant.

In his composition response to this issue and also issue 3 learned Counsel to the Respondents underscored the factual basis and foundation of this action to involve the demand for payment of a liquidated sum of money as per the terms of a Bank Guarantee and interest thereon. In addition to the Bank Guarantee document itself, learned Counsel went on to itemize 4 other processes of the lower court filed to support the claim, learned Counsel explained that from the issues thrown up by the nature of the claim and the affidavits of the parties the Appellant must disclose a prima facie, defence on the merits. Using this as his springboard, learned Counsel set out what he considered as the 6 key facts upon which a defence on the merits to this action must be predicated upon. He then referred to decided cases which outlined the essential features and the various procedural steps that must be taken in a well conducted trial in an undefended list action.

According to learned Counsel the failure of the Appellant to disclose a bona fide and prima facie defence to the claim of the Respondents coupled with the overwhelming undeniable documents attached to support, it was very fatal to its desire to have the processes so marked “Undefended” to be transferred to the general cause list. While referring to the case of GOROYE V. UBA (2000) F.W.L.R. (Pt.2) 1102 at 1110 D-E, learned Counsel pointed out that it is settled law that an affidavit setting out a defence must do it so clearly with particulars. He then referred to paragraphs 6, 9, 10, 11 and 13 of the affidavit in support of notice of intention to defend and typified them as mere allegations and statements that bear no relation of all with the terms of the Bank Guarantee. To the extent of being what he called sheer fabrications, learned Counsel maintained that all those averments cannot be defences on the merits of all and the enforcement of the guarantee should not be made dependant on them.

In addition to this, learned Counsel referred to the further affidavit in support of the notice of intention to defend and argued that paragraph 4 thereof sought to deny and disown an admission of liability by a very senior officer of the Appellant, Mr. Osilama Otu. Upon this foundation, learned Counsel submitted that the Bank guarantee given to the Respondents by the Appellant on the specific order of this court was never recited in any of its clauses to be dependent or contingent upon an undisclosed arrangement by the Appellant with 3rd parties.

Taking this issue to the next level learned counsel to the Respondents focused his attention on certain clauses of the Bank guarantee Exh. AJ1, more particularly clause 4 of its page 1 and paragraph 2 of page 2. He referred to the case of NWANKWO V. E.D.C.S.U.A. (2007) 5 N.W.L.R. (Pt .1027) 377 at 410 A-B and F – G, a case where the Supreme Court held that a Bank guarantee similar to Exh AJ1 herein is a binding contact between its within named parties. While referring to the case of UNION BANK V. TIEGBARA EDAMKUE & ORS (2005) 7 N.W.L.R. (Pt.925) 520 of 549, learned Counsel explained that there is no law requiring a trial judge to hear oral argument of Counsel in an undefended list procedure. He explained further that all that is required of a trial Court in the circumstance of the instant appeal is to look at all the affidavit evidence placed before it by the parties and then come to o decision either to enter judgment as per the claim or transfer the matter to the general counsel list. He argued that the Appellant has not shown that the enforceability of the Bank guarantee was contingent or dependant upon the outcome of a further appeal to the Supreme Court or motion for stay of execution. He urged the Court to resolve this issue against the Appellant and in favour of the Respondent.

With respect to the facts and circumstance of this appeal I am of the view that one should remain fully focused that the rules of Court dealing with cases to be put on the undefended list are designed to ensure quick dispensation of justice. This, should however, not to be done of the expense of fair hearing. It must also be emphasized that the undefended list procedure is a truncated form of the ordinary civil hearing that is peculiar where regular and normal hearing is unnecessary due to the absence of an issue to be tried or the quantum of the claim disputed to require or necessitate such hearing. Under this procedure, the defendant’s affidavit in support of the notice of intention to defend must disclose facts which will throw some doubt on the case of the plaintiff. See JIPREZE V. OKWONKWO (1987) 3 NWLR (Pt.62) 737.Another complaint of the Appellant is that the affidavit evidence in support of the claim of the Respondents and those of the Appellant in support of the notice of intention to defend are irreconcilably in conflict on material issues. Therefore, according to learned Counsel the only way forward for the lower Court was to transfer the matter to the general cause list for a full and regular trial where oral evidence will be adduced to resolve the conflicting facts as the recommended practice, courtesy of the decision in the famous case of FALOBI V. FALOBI (1976) 1 N.M.L.R. 169.

There is no doubt that learned counsel had made arguments and submissions on irreconcilable conflict in affidavit evidence and on material issues. I wish to however, observe that all these arguments are on general terms without specific reference to any such conflicting facts and the extent to which they remain irreconcilable that the conflict cannot be fully and adequately resolved by a consideration of the totality of all the other lawfully adduced facts available before the Court. I wish to at this stage observe and point out that the Defendant/Appellant was represented by learned Counsel Mr. Wifa SAN. Mr. Wifa SAN appeared in Court with 3 junior lawyers on the 12/8/2010 on behalf of the Defendant/Appellant. He participated fully in the proceedings of that day had said. At page 318 of the record of appeal it was recorded thus:-

“My Lord, we are vehemently opposed to the application for joinder. The grounds upon which the SPDC Nig. Ltd wants to be joined are contained in paragraph X. By that paragraph, the SPDC Nig. Ltd has provoked the Court to look of the Suit before the Court in totality and the affidavit in support of the suit under the undefended list and the notice of intention to defend. If the Court finds that it is not handicapped in any way in determining the suit, the Court should not join the SPDC and go ahead to give its judgment.”

It was further recorded thus:-

“I submit that based on the Bank Guarantee given by the Defendant, the question the Court is to answer is as to whether event has happened and whether is demand has been made. My Lord, the Bank Guarantee will expire on 30/9/2010. The motion for stay of execution got listed for 4/10/2010 making sure that by 4/10/2010 the guarantee expires.

I urge the Court to enter judgment under the undefended list. My lord, the Defendant having filed a defence, has waived any irregularity. I refer to Order 5 rule 2.”

Thereafter and while all these were going there was no indication that learned counsel Mr. Wifa SAN had offered to say more then being fully contented with all that was happening in Court. This Court and indeed all Counsel are bound by the record of Appeal. It is presumed to be correct until it is successfully challenged and proved to be otherwise. I am therefore of the view that the challenge to the jurisdiction of the lower Court to entertain this matter during vacation or based on its subject matter lacked specificity or support. It is superficial and an uncoordinated afterthought.

I have carefully considered the affidavit of Chief Authur John in support of the undefended list claim in all its 13 paragraphs and the copious annexures, more particularly the Bank guarantee (Exh. AJ1) at pages 6-127. I have also fully read and considered the affidavit of Stanley Princewill in support of the notice of intention to defend and the annexures thereto of pages 135- 147 of the record. Added and further to these processes I also paid attention and focused on the further affidavit of Smith Azubuike in support of the claim, more particularly its paragraph 3 which introduced Exhibit 1 in evidence as well as the further affidavit of Mr. Princewill. It is of 9 paragraphs in support of the notice of intention to defend. Having done all these, I am unable to agree with learned Counsel to the Appellant that there was any conflict in affidavit evidence of all or such that would be so irreconcilable that cannot be resolved by a proper consideration of all the available evidence before the Court.

Let it be reiterated here that Exhibit 1, the letter of Mr. M.O. Otu, addressed to the Group Managing Director, First Bank of Nigeria, PLC, is direct on the point and compelling in its circumstance. The letters of the Bank Guarantee (Exhibit AJ1) are very clear and unambiguous. An agreement voluntarily entered into must be honoured in good faith. In the absence of fraud or mistake, the Court does not write or re-write agreements for parties. Therefore, if the words in an agreement are clear, precise and unambiguous then no more can be necessary than to expound those words in their ordinary and natural sense, it is unnecessary to go outside or beyond such a document for the purpose of construing in terms and effect. See ISIYAKU V. ZWINGINA (2003) 6 NWLR (Pt.817) 560 and JADESIMI V. EGBE (2003) 10 NWLR (Pt.827) 1.Against this background and having regard to the peculiar facts and circumstances of this matter coupled with the total lack of specificity in the submissions and arguments of learned Counsel to the Appellant, I am unable to agree with him that there was any material conflict in affidavit evidence on material issues that cannot adequately be resolved from other available evidence before the Court. I also do not see any need to fall back on the principles in the case of Falobi v. Falobi (supra) I am also unable to place my finger and pin point any circumstance in the conduct of the hearing of this matter before the lower Court as to convince me to hold that there was denial of fair hearing to the extent that learned Counsel to the Defendant/Appellant was totally shut out or denied opportunity to participate in the proceedings leading to the judgment of the lower court. This issue is hereby decided and resolved against the Appellant.

Learned Counsel to the Appellant argued his issues 3 and 4 at pages 19 to 23, aerographs 4.24 to 4-27 of the amended brief. The crux of the arguments and submissions of learned Counsel revolve around his view that it was not right for the lower court to proceed to judgment on the question of the liability of the Appellant on the guarantee without a hearing to determine the effect the counter guarantee had on the operativeness of the Bank Guarantee, Exh. AJ1. In his effort to change the course of events in this matter learned Counsel quoted a portion of the letter of Mr. M. O. Otu (Exh.1 supra) and proferred his interpretation of the facts and the law involved in the issues raised therein: Against what he highlighted as the constitutional right of the SPDC Nig. Ltd to appeal to the Supreme Court against the judgment of the Owerri division of this Court, learned Counsel maintained that it was not proper for the lower court to shut its eyes to this fact, and also the fact of the existence of an application for injunction, to deal with the terms of the Bank Guarantee alone. While referring to the case of MOHAMMED V. OLAWUNMI (1993) 4 N.W.L.R. (Pt.287) 254, learned Counsel argued that the lower Court was in grave error to, in the circumstance proceed as it did. He referred to prayers 4 and 5 in the motion for injunction and criticized both learned Counsel to the Respondents and the lower Court. The former for filing Suit No. PHC1690/2010 and the latter for entertaining same as it did. He typified all these as abuse of process. He proceeded to urge this Court to so hold and resolve these issues against the Respondents.

The arguments and submissions on issue 3 of the Respondents is the response to the joint issues 3 and 4 of the Appellant. According to learned Counsel to the Respondents, this is of the heart of this appeal. He described it as the “lynch pin”. As a background to his further arguments, learned Counsel referred, to and quoted generously from the judgment of the lower court in its page 12 and 13, now contained at pages 326 of the record of appeal, and maintained that this was a crucial finding upon which there was no appeal. In addition to this, learned Counsel highlighted some of the stipulations in the Bank Guarantee which the learned trial judge considered and interpreted in arriving at the above crucial finding. Against the backdrop of this learned Counsel referred to the Supreme Court decision in TRANCHAL V. N.A.B. LTD (2006) 6 SC 4 of 26 to the effect that where liability is admitted any application for the contrary to be decided must b e locking in merits.

In conclusion learned Counsel urged on this Court to decide and hold that the conduct of the claimants/Respondents in approaching the lower court as they did was merely a pursuit of their constitutionally guaranteed right of access to the Courts for a determination of their right under the Bank Guarantee.

In determining these 2 issues of the Appellant, it is very important, in my respectful view, to underscore an important fact and that is the relationship between the Counter guarantee, Exh.283 and Exh. JA1. There is no doubting the fact that the Respondents have nothing to do with the Counter guarantee. It is absolutely irrelevant for a determination of the contractual rights and obligations of the parties in this appeal. It is a cardinal principle of the law that the duty of a court is to interpret a contract contained in an instrument just as made by the parties on their own volition without any need to import any unrelated documents or issues.Whatever views learned Counsel to the Appellant has on the Counter guarantee does not impress me as compelling or reasonable. All such views of his appear to me to be absolutely irrelevant, extremely patronizing, self-serving and totally inapplicable to the facts and circumstances of this appear. To the extent of the terms and conditions set out in the Bank Guarantee, more particularly in its paragraph 4 of its page 2, the appeal of the SPDC to the Supreme Court or any motion it may have filed for an injunction, in my view, is totally irrelevant and need not have anything to do with the matter that led to this appeal.

I absolutely believe and take it as sacrosanct that our courts must do all that is within their powers to protect the rights of litigants to enjoy their constitutionally guaranteed right to appeal within the stipulated parameters and circumstances, I also strongly believe that no citizen should be allowed by the Courts to overstretch the exercise of his right of appeal in such a way or manner as to make a mockery of the system of administration of justice, good conscience and public policy. Our Courts should not be seen to be helpless in situations when litigants aim to dribble with the justice delivery system in a maradonic style or turn it like a yoyo.

With respect to issues 3 and 4 my findings and decision all go to endorse and approve all the procedural steps, taken by the learned trial judge. There is no iota or trace of abuse of judicial process of the Courts by the Respondents and the reliefs granted to the Respondents by the lower court were appropriate and proper in the circumstance. These 2 issues are decided against the Appellant.

After having fully considered the decision of the Supreme Court in SARAKI V. KOTOYE (1992) 9 N.W.L.R. (Pt.264) 156 at 188 – 189 E-G ably referred to by learned Counsel to the Appellant at page 26 of his amended brief of argument, I find it sufficiently helpful in determining the 5th issue formulated by Counsel on behalf of the Appellant. In that case it was held that:-

“The concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety and conditions. Its one common feature is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice…

The abuse constitutes in the intention, purpose and aim of the person exercising the right to harass, irritate and annoy the adversary, and interfere with the administration of justice; such as instituting different actions between the same parties simultaneously in different Courts, even though on different grounds. See Harriman v. Harriman (1989) 5 NWLR (Pt.119) 6.

…Hence as I have observed, it is not the exercise of the right per se, but its improper and irregular exercise which constitutes an abuse. Essentially, it is the inconvenience, inequities involved in the aims and purposes of the application which constitute the abuse.” (emphasis supplied).In view of the foregoing I am of the firm view that there was no abuse of process by the Respondents in this appeal.

Having decided issues No. 1 as I did above, I hereby hold further that all the arguments of the Appellant on its issue 5 are of no moment and it is resolved in favour of the Respondents. This appeal totally lacks merit and it is hereby dismissed. The judgment of the Rivers State High Court delivered on 12th August, 2010 in Suit No. PHC/1690/2010 is hereby affirmed and upheld. I order for N30,000.00 costs against the Appellant in favour of the Respondents.

CHIOMA NWOSU-IHEME(PH.D) J.C.A.: I have had the privilege of reading in draft the judgment of my learned brother A.A.B. Gumel, JCA. I am in total agreement with the reasons therein and the inevitable conclusion that the appeal is bereft of merit.

Accordingly, the appeal fails and same is hereby dismissed. I also award N30,000.00 costs in favour of the Respondents.

UCHECHUKWU ONYEMENAM, J.C.A.: I had before now read the judgment delivered by my learned brother Ali Abubakar Babandi Gumel. I agree with his reasonings and conclusions. Having nothing to add, I also dismiss the appeal for lacking in merit. I abide by the consequential orders.

Appearances

Mr. o. Akonni SAN with Mr. A.E. Aperua-YusufFor Appellant

AND

Mr. L.E. Nwosu SAN with Mr. E. Asido and Miss Mary-Anna NnamaniFor Respondent