GOVERNMENT OF ANAMBRA STATE & ANOR V. CARSUL LTD.
(2013)LCN/6214(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 21st day of May, 2013
CA/E/312/2010
RATIO
WORDS AND PHRASES: A DECLARATORY JUDGMENT
A declaration of right connotes an action in which a litigant requests a court’s assistance not because any rights have been violated but because those rights are uncertain.
And, a declaratory judgment is a binding adjudication that establishes the right and other legal relations of the parties without providing for, or ordering enforcement. Black’s Law Dictionary 8th Edition Page 458 and 859.
It would appear indisputable that it is not only the filing of a counter affidavit to oppose the claims in an originating summons that makes such proceedings to be contentious or to result in substantial disputed facts. Indeed, the nature of claims and facts, deposed to in the affidavit in support of the prayers in an originating summons can by themselves disclose disputed facts and hostile nature of the proceedings. See Ossai v. Wakwah (2006) ALL FWLR (Pt. 303) 239 at 256, (2006) 4 NWLR (Pt. 969) 208.
Hon. Bassey Etim v. Hon. Emmanuel Bassey Obot & 22 Ors. (2010) 12 NWLR (Pt. 1207)108 at 156. PER MOJEED ADEKUNLE OWOADE, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
1. GOVERNMENT OF ANAMBRA STATE
2. HON. ATTORNEY-GENERAL/COMMISSIONER FOR JUSTICE, ANAMBRA STATE. Appellant(s)
AND
CARSUL LTD. Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal from the judgment of H.O. OZOH J. in the Awka Judicial Division of the High Court of Anambra State delivered on 24th day of June 2010.
The Respondent herein as Plaintiff took out an originating summons dated 14/7/08 and filed on 23/7/08 against the Appellants who were Defendants to the suit.
The questions for determination in the said originating summons are as follows:-
1. Whether in the light of clause 22 of the Contract Agreement (Exhibit A) providing for Arbitration between the parties, the purported termination of the contract agreement between the parties by the defendants do not constitute a breach of a fundamental term of contract and therefore null and void.
2. What is the combined effect of clause 12 of Exhibit A and clause 22 thereof?
3. Whether the Plaintiff ought not to rightfully continue with contract works under Exhibit A in the light of the breach of a fundamental term of the contract aforesaid.
4. Whether the Plaintiff pursuant to clause 7, 8, 9 and 13 of Exhibit A, is not entitled to payment on certificate No. 5 from the Defendants for works already completed before the purported and irregular termination, and
5. Whether in any case the Plaintiff is not entitled to damages from the Defendants for this breach of contract.
Pursuant to the above questions, the Respondent as Plaintiff seeks the following reliefs:-
A. A declaration that the purported termination of the contract between the parties constitutes a breach of a fundamental term of the contract and is therefore null and void.
B. In the light of the declaration above, An order that the Plaintiff is entitled to continue pending the contract agreement until properly determined.
C. An order that the Defendants pay over to the Plaintiff the sum of N7,630,874.95 (Seven million, six hundred and thirty thousand eight hundred and seventy four naira ninety five kobo) being the sum due on interim payment certificate No. 5. General Damages of N50,000.000.00 (fifty million naira) for breach of contract.
In support of the originating summons, the Plaintiff Respondent attached a 10 paragraph affidavit and documents, Exhibits A – HI and H.
The Defendants/Appellants in reaction filed a 14 paragraph counter-affidavit.
Paragraph 7 and 8 of the Plaintiffs/Respondent’s affidavit in support in particular deposed as follows:-
7. That my humble prayer before the Honourable court is to interpret the said paragraph 22 of Exhibit A and determine whether the Defendants did comply with Exhibit A before the purported termination thereof and in so doing, determine the questions for determination as formulated in the originating summons hereof.
8. That at the time of purported revocation of Exhibit ‘A’ interim payment certificate No. 5 amounted to N7,630,874.95 (seven million six hundred and thirty thousand, eight hundred and seventy four naira ninety five kobo) was yet to be paid. Copy of the payment certificate is annexed as Exhibit G.
The Defendant/Appellant countered paragraphs 7 and 8 of the affidavit in support in their paragraphs 9 and 10 as follows:
9. That the Defendants deny the contents of paragraphs 8-9 of the affidavit in support of this suit as same is false and further state that the contract for this road project subject matter of this suit has since been awarded to Grandstar construction company Ltd. and that work on same is nearing completion.
In the court below, parties filed and adopted their written addresses.
In the judgment of the court contained at pages 46 53 of the Record, the learned trial judge proceeded on the basis that the suit was a proper one to be brought by way of originating summons.
Therefore, the learned trial judge held that the termination of the contract was not in breach of any fundamental term of the contract and therefore the plaintiff cannot rightly continue with the contract works under Exhibit A.
The trial court looked at Exhibit G i.e. the certificate of interim No. 5, found that the amount payable therein, N7,630,874.95k tallies with the claim of the Plaintiff and held that “the Defendants (sic) Plaintiff are entitled to be paid the sum of N7,630,874.95 as payment on Certificate of Interim No. 5 by the Defendants for works already completed before the termination of the contract”.
At pages 52 – 53, the learned trial judge granted the following orders:-
(1) Reliefs A, B and D are refused.
(2) Defendants shall pay the Plaintiff the sum of N7,630,874.95 (seven million, six hundred and thirty thousand, eight hundred and seventy four naira ninety five kobo) being the sum due on interim payment certificate No. 5.
(3) …
Dissatisfied in part with this judgment, the Defendants/Appellants filed a Notice of Appeal (containing two (2) grounds of appeal) before this court on 16/8/10.
The Appellants grounds of appeal together with their particulars are reproduced as follows:-
(1) Ground one – Error of Law
The learned trial judge erred in law when he held that the suit was properly commenced by an originating summons.
Particulars of error
The affidavit and counter affidavit of the Parties disclose that the proceedings are hostile proceedings.
(2) Ground Two: Error of fact and law:
The learned trial judge erred in law when he failed to consider the total denial of the making of the purported interim certificate No. 5 by the Defendant in paragraphs 10 of the Counter Affidavit to the originating summons and held that the Defendant is entitled to be paid the sum of N7,630,874.95 being the sum due on interim certificate No. 5 without resolving the issue whether the said certificate was actually generated.
Particulars of Error:
(a) In paragraph 11 of the counter affidavit, the Defendants expressly denied the interim certificate No. 5 (Exhibit G) or any other certificate which was not paid.
(b) The purported interim certificate No. 5 was not signed by any person at all.
(c) The document was not signed by the Director of Highways or by his representative as required by law to authenticate same.
The relevant briefs for the appeal are as follows:-
1. Appellants brief of argument dated 20/12/2010 and filed on 12/01/2011 settled by Clement N. Nwoye Esq., (Principal State Counsel, Hon Attorney-General’s Chambers Ministry of Justice, Awka).
2. Respondent’s brief of argument dated 10/3/2011 and filed on 11/3/2011 settled by Ikeazor Akaraiwe Esq.
3. Reply brief dated 27/7/2011 and filed on 4/7/11 settled by Clement N. Nwoye Esq.
Learned counsel for the Respondent raised two points of preliminary objection to this appeal. The first, is that the matter of the non-signing of payment certificate No. 5 is a fresh issue in the appeal which requires leave of court to be entertained.
He referred to the cases of Ejiofodomi v. Okonkwo (1982) 16 S.C. 74, Anor. v. Nimba (1994) 1 NWLR (Pt.320) 368 at 373 and Kaigama v. Namwai (1997) 3 NWLR (Pt. 495) 549 at 565.
Secondly, the Respondent alleged that the Appellants formulated and argued two issues without indicating what grounds of appeal those issues emanated from.
I do agree with the learned counsel for the Appellant that the issue of Exhibit G was raised at the Court below when the Defendants/Appellants at paragraph 10 of the Counter-Affidavit denied the depositions at paragraph 8 of the Respondent’s Affidavit in support.
Indeed, the Issue of Exhibit G was part of the judgment appealed against and it was the fulcrum of Ground 2 of the Appellants Notice and Grounds of Appeal.
I equally agree with the learned counsel for the Appellant that it is not mandatory to tie arguments in a brief of argument to grounds after formulating Issues from the grounds of appeal.
Clearly, it is a good practice in brief writing to state what grounds are covered by particular issues, but failure to so do does not render a brief incompetent.
The objections to the appeal by the learned counsel for the Respondent lack merit. The Respondent’s preliminary objection is accordingly dismissed.
Learned counsel for the Appellants formulated two (2) issues for determination namely:
l. Whether the court below was right in holding that the suit was properly commenced by an originating summons when the affidavit and counter affidavit of the parties disclosed that the proceedings are hostile proceedings.
2. Whether the learned trial judge was right in holding that the Respondent was entitled to be paid the sum of seven million, six hundred and thirty thousand, eight hundred and seventy four naira, ninety five kobo (N7,630,874.95) being the sum allegedly due on Interim Certificate No. 5 without resolving the Issue whether the said certificate was actually generated and without considering the total denial of the certificate by the Appellant.
Learned counsel for the Respondent also formulated two issues for determination to wit:
(a) Whether the suit as (sic) was not properly commenced when it was commenced by originating summons, as a corollary.
(b) Whether Order 3, Rule 5, 6 and 7 of the High Court (Civil Procedure) Rules debars originating summons because proceedings are hostile even when matters confronted or interpretation of instruments and statutes are in issue.
(c) Whether the purport of the words:
“Without prejudice to any rights or liabilities which may have accrued to or have been incurred by the
parties …” as stated in clause 12 of the contract Agreement (Exhibit A) was not that the Appellants would pay the Respondent all sums outstanding to them at the point of termination of the contract Agreement (Exhibit A).
The appeal will be decided on the issues formulated by the Appellant.
On Issue No. 1, Learned counsel for the Appellants set out the provision of order 3 Rule 6 of the High Court (Civil Procedure) Rules of Anambra State 2006 and submitted that the court below holding as it did that the suit was properly commenced by summons.
He submitted that the rights claimed by the Respondent herein does not merely depend on the construction of Exhibit A. It is a claim for monetary interest and damages which needed to be proved by evidence beyond the mere construction of a document.
Originating summons should only be applicable in circumstances where there is no dispute on questions of facts or even the likelihood of such dispute.
He referred to the case of Chief Albert Nwoko & Anor v. Reuben John Ekerete (2010) 4 NWLR (Pt.1183) 78 at 89.
He argued that originating summons procedure deals mainly with interpretation of documents or laws where the facts are not disputed.
Where the facts are controversial or contentious and cannot be ascertained without evidence being adduced, originating summons cannot be appropriately used.
Learned counsel for the Appellants submitted that originating summons is an unusual procedure or method of commencing proceedings in the High Court. That, it is best suited for cases where there are no substantial dispute of facts, or there is no likelihood of there being facts in dispute and when the sole or principal question in issue, is or likely to be one directed at the construction of a written law, constitution, instrument, deed or will, contract or other document or other question of law or circumstances where there is not likely to be any dispute as to fact.
He referred to the case of Hon. Bassey Etim v. Hon Emmanuel Bassey Obot & 2 Ors. (2010) 12 NWLR (Pt. 1207) 108 at 156.
Appellants counsel submitted that in the instant case, the Respondent as Plaintiff did not just seek the court’s interpretation of the contents of Exhibit A but further sought an order that the Defendants (Appellants herein) pay over to the Respondent the sum of N7,630,874.95 (Seven million, six hundred and thirty thousand, eight hundred and seventy four naira, ninety five kobo) being the sum due on Interim payment certificate No. 5, and General Damages of N50,000.000.00 ( Fifty million naira) for breach of contract. That, the basis of the claim of the sum of seven million, six hundred and thirty thousand, eight hundred and seventy four naira, ninety five kobo (N7,630,874.95) is Exhibit G.
The Appellants, said counsel filed a Counter Affidavit wherein they denied the contents of paragraphs 8 – 9 of the affidavit in support of the originating summons and in their written address in opposition to the hearing of the originating summons denied that the Respondent generated any certificate which was not paid. The authenticity of the document was put in issue by the counter-affidavit of the Appellants.
He submitted that a cursory look at Exhibit G shows that the document is an unsigned piece of paper. It was neither signed by the Director of Highways (the Engineer) nor any of his representatives, not even by the Respondent. Counsel referred to the case of Collito (Nig.) Ltd. & Anor. v. Hon Justice Titi Daibu & 3 Ors. (2010) 2 NWLR (Pt.1178) 213 at 282 – 283 and submitted that an unsigned document is a worthless document.
The Appellants, said counsel, having challenged the document, (Exhibit G), the burden of establishing the authenticity of the document then crystallized on the party propounding the document to establish his authenticity /genuineness.
On this, he referred to the case of Chief Ayogu Eze v. Brig. Gen. J.O.J. Okoloagu Rtd. & 125 Ors (2010) 3 NWLR (Pt. 1180) 183 at 112.
Learned counsel for the Appellant argued that the Respondent started on a false claim that it was awarded the contract, subject matter of the suit for N780,000.000.00 (Seven hundred and eighty million naira) which was reduced to N500.000.000 (five hundred million naira) after a competitive bidding.
Learned counsel for the Appellant submitted that having raised in their counter affidavit, triable issues which needed oral evidence in proof, the affidavits having become irreconcilably in conflict, the court should not have relied on affidavit evidence in dealing with the case, and ought to have ordered pleadings to effectively determine the matter.
Counsel submitted that in deciding this argument,the trial court in his judgment held thus:
“This suit borders on the construction of the contract Agreement Exhibit A. Facts are not at all disputed.I hold that this suit was properly commenced by an originating summons. Originating summons is reserved for issues like the determination of short questions of construction and not matter of such controversy that the justice of the case would demand settling of pleads.
It is intended to enable simple matter to be settled by the court without the expense of bringing an action in the usual way, not to enable the court to determine matters which involve a serious question”.
Counsel submitted that in reaching the foregoing decision, the court below erred in law when he failed to take cognizance of the discrepancies in the claim of the Respondent on the facts of the contract,the fact that the Respondent’s claim of the sum of N7,630.874.95 is an unsigned unverified unauthenticated piece of paper and went ahead to enter judgment for the Respondent in that wise.
Respondent’s Issue No.1,also raised the Issue of the propriety of commencing the suit by originating summons.
Learned counsel for the Respondent reproduced the provisions of Order 3,Rules 5, 6, 7 and 8 of the Anambra State High Court (Civil Procedure) Rules 2006, which sets out the originating summons procedure.
He argued that if the questions stated in the originating summons for the Honourable Court’s determination were a challenge on the termination of the Respondent’s contract simpliciter the Appellants would be correct to say that the issues disclosed in the originating summons were contentious warranting the Honourable Court’s order for pleadings to be filed.
However, said counsel, the questions for the Honourable Court’s determination were an attack simpliciter on the Appellants action in terminating the contract (Exhibit A). But, that the originating summons revolved around the construction of clauses in Exhibit A.
Learned counsel for the Respondent referred to the cases of National Bank of Nigeria & Anor v. Lady Alakija & Anor (1978) 9-10 SC 59 at 71.
In Re Giles Reeal and Personal Community Exparte Michell (1890) 43 Ch.D. 391 and RE Sir Lindy Packinson & Co. Ltd. Ex-parte Smith (1965) 1 ALL ER 60 and submitted that originating summons is intended to be used in limited situations, that it is ideal for construction and interpretation of documents and the trial court was correct to have held that the originating summons procedure was properly adopted.
The question whether or not originating summons was the proper procedure that was to be adopted in the instant case requires first and foremost an examination of the applicable laws vis-a-vis the claims of the Plaintiff/Respondent and perhaps further, the affidavit evidence of the parties.
Order 3, Rules 5, 6 and 7 of the Anambra State High Court (Civil Procedure) Rules 2006 provide for originating summons procedure in the following terms:
“5. Any person claiming to be interested under a deed, will, enactment or other written instrument may apply by originating summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of the persons interested (underlined emphasis supplied).
6. Any person claiming any legal or equitable right in a case where the determination of the question whether he is entitled to the right depends upon a question of construction of an enactment, may apply by originating summons for the determination of such question of construction and for a declaration as to the right claimed.
(underlined emphasis supplied).
7. A Judge shall not be bound to determine any such question of construction if in his opinion it ought
not to be determined on originating summons but may take any such orders as he deems fit…”
Clearly, by Sections 5 and 6 of Order 3 of the Anambra State High Court (Civil Procedure) Rules 2006, the only remedy available for a party who had submitted any question of interpretation or construction of instrument, enactment, deed or will to the court is the remedy of declaration. Anything, outside of the remedy of declaration would have to be accommodated under some other procedures for the commencement of action under the said High Court Rules, perhaps by way of writ of summons but not originating summons.
In the instant case, it is only claim (a) of the Plaintiff/Respondent that sought the relief of declaration. The other claims of the Respondent notably, claim (b), for an order that the Plaintiff is entitled to continue pending the contract agreement until properly determined, claim (c) for the Defendant to pay over to the Plaintiff the sum N7,630,874.95 (Seven million, six hundred and thirty thousand, eight hundred and seventy four naira ninety five kobo) being the sum due on interim payment certificate No. 5, and claim (d) for General damages of N50,000.000.00 (Fifty million naira) for breach of contract are all not for declaration of right, they go beyond declarations of right, they are in the nature of enforcement orders and therefore not entertainable under the provisions of Order 3 of the Anambra State (High Court) Civil Procedure Rules 2006 by way of originating summons.
A declaration of right connotes an action in which a litigant requests a court’s assistance not because any rights have been violated but because those rights are uncertain.
And, a declaratory judgment is a binding adjudication that establishes the right and other legal relations of the parties without providing for, or ordering enforcement. Black’s Law Dictionary 8th Edition Page 458 and 859.
It would appear indisputable that it is not only the filing of a counter affidavit to oppose the claims in an originating summons that makes such proceedings to be contentious or to result in substantial disputed facts. Indeed, the nature of claims and facts, deposed to in the affidavit in support of the prayers in an originating summons can by themselves disclose disputed facts and hostile nature of the proceedings. See Ossai v. Wakwah (2006) ALL FWLR (Pt. 303) 239 at 256, (2006) 4 NWLR (Pt. 969) 208.
Hon. Bassey Etim v. Hon. Emmanuel Bassey Obot & 22 Ors. (2010) 12 NWLR (Pt. 1207)108 at 156.
By way of historical relevance, Order 5 Rule 3 (b) of the High Court (Civil Procedure) Rules of Anambra State 1988 which followed the uniform Civil Procedure Rules 1988 provided for the originating summons procedure as follows:-
“Unless otherwise provided by any written law from time to time in force in the state, the following suits shall be commenced by an originating summons, that is to say where:-
(a) the sale or principal question at Issue is, or likely to be, one of the construction of a written law or of any instrument made under any written Law, or at any Deed, Will, Contract or other document.
(b) there is unlikely to be any substantial dispute of facts”.
The provision of Order 3 Rules 5, 6 and 7 of the High Court (Civil Procedure) Rules Anambra State 2006 seems to be an improvement on the provision of Order 5 Rule 3(b) of the Anambra State Civil Procedure Rules of 1988 in that it dispensed with the words “there is unlikely to be any substantial dispute of facts” which may indeed raise controversies and possible subjective interpretations.
The 2006 provision of Order 3 of the High Court (Civil Procedure) Rules Anambra State provides only for the remedy of declarations as to right in the procedure of originating summons.
In the instant case, the learned trial judge was in breach of the provision of order 3 Rules 5 and 6 when he entertained the Plaintiff’s Respondent’s claims which in addition to a declaration of right also contains claims for enforcement of order, payment of monetary sum and damages for breach of contract.
An action brought under the originating summons proceedings though designed for expeditious hearing of deserving cases, is not the same as an action brought under the undefended list procedure and cannot under the Anambra State Civil Procedure Rules 2006 be used otherwise than for the remedy of declaration of right and under the Uniform Procedure Rules 1988 cannot be used to settle claims where there are substantial disputes of facts.
Issue No. 1 is resolved in favour of the Appellant.
Appellants Issue No. 1 has turned out to be a sole determining Issue in this appeal and having resolved same. I do not find it any longer necessary to deal with the second issues in the appeal.
The appeal is meritorious and it is accordingly allowed.
Suit No. A/193/2008 is remitted to the Hon. Chief Judge Anambra State for assignment to another Judge of the High Court of Anambra State other than H.O. Ozoh, J. for trial de novo.
I make no order as to costs.
ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, MOJEED ADEKUNLE OWOADE JCA, gave me the privilege of reading before now the judgment just delivered.
I agree with the reasoning of my learned brother and the conclusion that the appeal is meritorious. I allow the appeal and abide by the consequential order.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had read the judgment just delivered by my Learned brother, MOJEED ADEKUNLE OWOADE. I agree with his reasoning and conclusions. I also hold that this appeal succeeds. I abide by all the orders made therein.
Appearances
C. M. Nwoye, Asst. Chief State Counsel Anambra StateFor Appellant
AND
C. I. Adaghara (Mrs.) holds the brief of R. AkaraiweFor Respondent
