ECOBANK NIGERIA PLC v. MR. IKWUAGWU KALU
(2014)LCN/7109(CA)
In The Court of Appeal of Nigeria
On Friday, the 11th day of April, 2014
CA/L/811/10
Before Their Lordships
SIDI DAUDA BAGEJustice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGHJustice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMUJustice of The Court of Appeal of Nigeria
Between
ECOBANK NIGERIA PLCAppellant(s)
AND
MR. IKWUAGWU KALURespondent(s)
RATIO
DEFINITION OF A “COURT”
Let us appreciate what a court is. The Supreme Court in the case of MOSES DAKUMA v. THE STATE (1986) 4 SC 22 AT 24, per Aniagolu, JSC (as he then was) stated as follows:
“A court constituted by the law cannot ignore the law. It is constituted to apply the law.
On the duty of a court, again the Supreme Court in the case of CHIEF DR. (MRS) OLUFUNMILAYO RANSOME KUTI & ORS v. ATTORNEY GENERAL OF THE FEDERATION & COMMISSIONER OF JUSTICE & ORS (1985) 6 S.C. 246 AT 291 per Eso, JSC (as he then was) stated as follows:
“The court is to administer law as it is and not as it ought to be.”
Also in MUBUTAU BAKARE v. THE STATE (1987) 3 SC 1 AT 36. Again the Supreme Court per Oputa, JSC (as he then was) stated as follows:
“The role of a trial court is to try the issues, evaluate the evidence, make appropriate findings and come to a conclusion one way or the other a conclusion dictated by the natural drift of the evidence and the probabilities of the case.” PER BAGE, J.C.A.
WHETHER OR NOT A COURT OF APPEAL CAN ASSUME JURISDICTION UNLESS SAME HAS BEEN DONE BY THE TRIAL COURT
There is nothing yet for the Appellate court to pronounce upon. This court cannot assume jurisdiction and pronounce on those questions, unless and until same have been done in the first place by the court of trial. One cannot put something on nothing and expect if to stay there, it will surely collapse. See MACFOY v. U.A.C. LTD (1962) AC 152 at
160; AWOYEMI v. FASUAN (2006) 13 NWLR (Pt. 996) 86 at 107 paras A-B. Also as to what amounts to an academic question see BAMGBOYE v. UNILORIN (1999) 10 NWLR (Pt. 622) 290 at 330; EPEROKUN v. UNIVERSITY OF LAGOS (1986) 4 NWLR (Pt. 34) 162 at 179; N.I.C.O.N. v. POWER INDUSTRIAL ENG. COMP. LTD (1986) 1 NWLR (Pt. 14) 1 at 22 AKEREDOLU v. AKINYEMI (1986) 2 NWLR (Pt. 25) 710; ADEYEMI v. OPEYORI (1976) 9-10. PER BAGE, J.C.A.
SIDI DAUDA BAGE, J.C.A.: (Delivering the leading judgment): The Claimant/Respondent (Respondent) commenced this action by way writ of summons dated May 11, 2009 at the High Court of Lagos State, praying in the main for:
i. “The sum of N25,079,498.81 (Twenty-Five Million, Seventy-Nine Thousand, Four Hundred and Ninety Eight Naira, Eighty-One Kobo) being the terminal benefits due to the Claimant from the Defendant consisting of gratuity, redundancy and pensions contributions in keeping with the terms and conditions of the Claimant’s employment with the Defendant;
ii. Interest on the said sum of N25,079,498.81 (Twenty Five Million, Seventy-Nine Thousand, Four Hundred and Ninety-Eight Naira, Eighty-One Kobo) at the rate of 15% per annum from 8th April, 2004 until final judgment; and
iii. Cost of this suit.”
(the statement of claim is on pages 3 to 15 of the record of appeal.)
The Defendant/Appellant (the Appellant) filed its statement of defence on June 11, 20-09. (The statement of defence is on pages 18 to 62 of the record of appeal) thereafter, the Appellant filed a motion on notice dated June 16, 2009 wherein it prayed the trial court to strike out its name as a party to the suit on the ground that the statement of claim (a) disclosed no reasonable cause of action against the Appellant; and (b) there was no privity of contract between the Appellant and the Respondent. The motion on notice and written address in support are on pages 63-109 of the record of appeal.
After taking arguments from counsel, the learned trial judge, the Honourable Justice A. Olateru-Olagbegi J. in his ruling dismissed the application. (The ruling is on pages 121 to 124 of the record of appeal.) The Appellant thereafter filed a notice of appeal against the ruling (the notice of appeal is on pages 125 to 126 of the record of appeal.) This is appellant’s brief of argument filed in support of the notice of appeal and in compliance with the rules of this Honourable court.
The two (2) grounds of the notice of appeal on pages 125-126 of the record of appeal is as follows shun of their particulars.
GROUND ONE
ERROR OF LAW
The learned trial judge erred in law when he dismissed the Appellant’s application which sought for an order striking out the name of the Appellant for want of privity of contract with the Respondent and for non-disclosure of the statement of claim of a reasonable cause of action.
GROUND TWO
ERROR OF LAW
The learned trial judge erred in law when he held that the Appellant ought to have come under order 28 of the High Court of Lagos State (Civil Procedure) Rules, 2004 for the interpretation of the purchase and Assumption Agreement between the Appellant and the Nigeria Deposit Insurance Corporation and the Central Bank of Nigeria.
In the brief of argument settled by Fred Onuobia Esq. of learned counsel to the Appellant, dated and filed on 14th September, 2010, two issues were formulated for determination thus:
“(i) Whether the Statement of claim and supporting documentation disclosed a reasonable cause of action or, the existence of privity of contract between the Appellant and the Respondent? And
(ii) Whether, having directed the Appellant and Respondent to state a case for interpretation under Order 28 of the High Court of Lagos (Civil Procedure Rules) 2004, the learned trial judge did not misconstrue the application of the Appellant to strike out the suit of the Respondent?
Chike Okoro Esq. of learned counsel to the Respondent settled the Respondent’s brief of argument dated the 3rd of May, 2011, and filed on the 9th of May, 2011, but deemed properly filed on the 31st of May, 2012. Three issues were identified and formulated for determination by the learned counsel as follows:
1. “Whether having regards to the statement of claim of the Respondent/Claimant, the suit discloses a reasonable cause of action.
2. Whether in the circumstances of this matter there is a privity of contract between the Respondent/Claimant and the Appellant/Defendant.
3. Whether the trial judge did not understand the issues involved in the application of the Appellant/Defendant.
Having perused the issues for determination formulated by each counsel in this appeal, it is glaring to me that the Appellant’s issue No. 1 has adequately captured the Respondent’s issues 1 and 2. Appellant’s issue 2 is the same as the Respondent’s issue 3. In the circumstance, I adopt the issues for determination formulated in the Appellant’s brief of argument in my consideration of this appeal. However, I shall consider them in the following order to wit:
(2), (1)
ISSUE 2
Whether, having directed the Appellant and Respondent to state a case for interpretation under 28 of the High Court of Lagos (Civil Procedure) Rules, 2004 the learned trial judge did not misconstrue the application of the appellant to strike out the suit of the Respondent?
Learned counsel to the Appellant submitted that the motion on notice dated 9th June, 2010 filed by the Appellant sought to have the Respondent’s statement of claim and the name of the Appellant strike out on the basis that:
(i) There was no reasonable cause of action established on the statement of claim against the Appellant, and (ii) there was lack of privity of contract between the Appellant and the Respondent. The affidavit (pages 64 and 65 of the record of appeal) in support of the motion on notice and written address (pages 104 to 109 of the record of appeal) filed by the Appellant in support of the application clearly set out the basis for the application and the legal arguments in support of the application.
Learned counsel submitted further that neither the Appellant nor the Respondent in the papers filed for and against the aforesaid application asked the lower court to construe or interpret the provision of the Agreement in order to determine whether or not (i) there was privity of contract between the Appellant and Respondent and (ii) whether or not the allegation set out in the Respondent’s statement of claim constituted a reasonable cause of action. These questions would only be resolved by the learned trial judge reviewing the statement of claim and the supporting documentary evidence filed alongside the statement of claim.
Learned counsel submitted further that rather than deal with the issues raised in the application, the learned trial judge proceeded to suggest to the parties to “come by way of Order 28 special case stated providence of the Rules of Court” (page 123 of the record of appeal).
Learned counsel submitted further that by asking both the Appellant and the Respondent to state a case for the lower court for interpretation of the agreement, the learned trial judge misconstrued the application brought by the Appellant. We urge the court to so hold.
In reply to the submission of the Appellant above, learned counsel to the Respondent submitted that the trial judge in his examination of the issues involved and evaluation of the affidavit evidence before him showed a good appreciation of the facts and issues involved and arrived at unimpeachable decision after a proper appraisal of the affidavit evidence and the arguments by counsel. The appreciation of the issues involved was clearly shown in the clear statements of the issues and the reasons given for exercising its discretion in favour of the Respondent/Claimant as it did. The suggestion of the trial judge made after delivery its decision on the issues raised by the parties did not influence the exercise of his discretion. Indeed, the trial judge was constrained to make the suggestion in view of the wave raised by the appellant/Defendant on the purchase agreement.
Learned counsel further submitted that the Appellant/Defendant made all his argument to hinge and revolved on the interpretation of the purchase agreement which he believed that if interpreted would exclude the Appellant/Defendant Bank from liability in the present case.
Learned counsel submitted further that it is not out of place for a court to advise counsel to explore other options open to them in such circumstances as the trial judge did in good faith. It is not proper to misconstrue such a piece of advise given by the court in good faith.
The trial court on page 123 of the record of appeal stated as follows:
“If both parties agree that the case turns on the interpretation of the agreement, it would be pointless to go through a full blown trial in determining the liability of the Applicant under the said agreement.
In such circumstances, it will say that, the circumstance narrow down the issues considerably, save judicial time and save costs if the parties concur in asking the court to interpret the agreement vis-Ã -vis the alleged succession of the Applicant to the liability of All States Trust Bank on the issue of terminal benefits. In this wise, the parties may come by way of Order 28 special case stated procedure of the Rules of court.”
The contention of the Appellant to the above position taken by the trial court is that, its motion on notice dated 9th June, 2010, sought to have the Respondent’s statement of claim and the name of the Appellant strike out on the basis that:
I. There was no reasonable cause of action established on the statement of claim against the Appellant and
II. There was lack of privity of contract between the Appellant and the Respondent. The affidavit in support of the motion on notice and the written address filed by the Appellant in support of the application clearly set out the basis for the application and the legal arguments in support of the application neither the Appellant nor the Respondent in the papers filed for and against the aforesaid application asked the trial court to construe or interpret the provision of the agreement in order to determine the intention of the application.
This court has examined carefully the contention of the Appellant to this issue. Nowhere is it said, or found, on the record before this court, that the said agreement sought for interpretation is not part of, or an existing document before the court. If the said agreement, is a document before the trial court, which the record has not said otherwise, can the court resort to, direct, or advise parties on the need to interpret same, in order to narrow down the issues between the parties in the overall interest of justice. This court is of the firm view that, the trial court can so do, or so direct.
Let us appreciate what a court is. The Supreme Court in the case of MOSES DAKUMA v. THE STATE (1986) 4 SC 22 AT 24, per Aniagolu, JSC (as he then was) stated as follows:
“A court constituted by the law cannot ignore the law. It is constituted to apply the law.
On the duty of a court, again the Supreme Court in the case of CHIEF DR. (MRS) OLUFUNMILAYO RANSOME KUTI & ORS v. ATTORNEY GENERAL OF THE FEDERATION & COMMISSIONER OF JUSTICE & ORS (1985) 6 S.C. 246 AT 291 per Eso, JSC (as he then was) stated as follows:
“The court is to administer law as it is and not as it ought to be.”
Also in MUBUTAU BAKARE v. THE STATE (1987) 3 SC 1 AT 36. Again the Supreme Court per Oputa, JSC (as he then was) stated as follows:
“The role of a trial court is to try the issues, evaluate the evidence, make appropriate findings and come to a conclusion one way or the other a conclusion dictated by the natural drift of the evidence and the probabilities of the case.”
In the instant appeal, the trial judge had look at the natural drift of the evidence before him, and the probabilities of the case, and advise that, to narrow down the issues, and save the precious judicial time, parties may apply under Order 28 of the Lagos State (Civil Procedure) Rules to have the agreement which is before him interpreted.
By interpreting the said agreement, the learned trial judge maintained will assist the court to determine whether or not (1) there is privity of contract between the Appellant and Respondent and (ii) whether or not the allegation set out in the Respondent’s statement of claim constituted a reasonable cause of action or not. This to my mind is what the motion on notice of the Appellant, as the Applicant before the trial court had sought to achieve. The trial court was indeed right to have done so in the interest of justice. I do not agree with the contention of the Appellant that the trial court by asking both the Appellant and the Respondent to state a case for the trial court for interpretation of the agreement, the learned trial judge misconstrued the application brought by the Appellant. On the contrary I am of the firm view that, the position of the trial court, showed a clear appreciation of the appellant’s application before it. The trial court has not taken any decision before this appeal was filed and entered. The court provided a methodology in its own right on how to answer the application of the Appellant be it. The Appellant refused, and or complied with the direction or advice given by the trial court. The said agreement is a document before the court. The court has an unreserved right to act and pronounce on it. If the Appellant was not patient to comply with the directive or advice of the court, and had allowed the court take a decision after the said interpretative duty that would have formed an effective basis of an appeal before this court. The trial court would have failed in its duty, if it had failed to state the law as it is. The Appellant in my view is insisting on the law stated as it ought to be. That will not be right. Bringing this appeal is like jumping the gun. The Appellant’s motion on notice dated 9th June, 2010 is still pending at the trial court. No decision is yet taken on the prayers sought for in the application and the trial court has indeed not refused to take such a decision. Parties in this appeal must go back to the trial court. They must comply with the directive, or advice, given by the trial court on how to go about dealing with the application in the best interest of justice. I resolve issue No. 2 of the Appellant’s brief of argument, which is equivalent of issue No. 3 in the Respondent’s brief against the Appellant, and in favour of the Respondent.
On issue No. 1 to wit whether the statement of claim and the supporting documentation disclosed a reasonable cause of action or, the existence of privity of contract between the Appellant and Respondent. This issue is the same with issues 1 and 2 of the Respondent’s brief of argument. In view of the resolution by this court to issue No. 2 of the Appellant’s brief, the determination of issue 1, becomes an academic question. The trial court is yet to pronounce, or even consider, or make legal postulations on the questions posed under issue 1. There is nothing yet for the Appellate court to pronounce upon. This court cannot assume jurisdiction and pronounce on those questions, unless and until same have been done in the first place by the court of trial. One cannot put something on nothing and expect if to stay there, it will surely collapse. See MACFOY v. U.A.C. LTD (1962) AC 152 at
160; AWOYEMI v. FASUAN (2006) 13 NWLR (Pt. 996) 86 at 107 paras A-B. Also as to what amounts to an academic question see BAMGBOYE v. UNILORIN (1999) 10 NWLR (Pt. 622) 290 at 330; EPEROKUN v. UNIVERSITY OF LAGOS (1986) 4 NWLR (Pt. 34) 162 at 179; N.I.C.O.N. v. POWER INDUSTRIAL ENG. COMP. LTD (1986) 1 NWLR (Pt. 14) 1 at 22 AKEREDOLU v. AKINYEMI (1986) 2 NWLR (Pt. 25) 710; ADEYEMI v. OPEYORI (1976) 9-10.
The two questions posed by the Appellant under issue No. 1, are yet to be answered by the trial court becomes mere academic question. This court cannot indulge itself in the luxury of answering them. I resolve issue No. 1 against the Appellant and in favour of the Respondent.
On the whole therefore, having resolved the two issues in this appeal against the Appellant and in favour of the Respondent, the appeal is devoid of any merit and it is hereby dismissed. The ruling of Honourable Justice A. Olateru Olagbegi of the High Court of Lagos State, Lagos Judicial Division is hereby affirmed by this court. This court also makes the order, remitting back the case to the Honourable Chief Judge of Lagos State, to be sent back to Honourable Justice A. Olateru Olagbegi for the continuation of hearing of the case.
I make no order on costs.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I am In agreement with the succinct judgment prepared by my learned brother, Sidi Dauda Bage, J.C.A. which I had the advantage of reading in draft and hereby graciously adopt at my Judgment without more.
RITA NOSAKHARE PEMU, J.C.A.: I had the privilege of reading in draft the lead judgment just delivered by my brother SIDI DAUDA BAGE J.C.A and I agree with his opinion and conclusions.
I abide by the consequential order made as to costs that there shall be no order as to costs.
Appearances
Fred OnuobiaFor Appellant
AND
Chike OkoroFor Respondent
