ACB INTERNATIONAL BANK PLC V. CHIEF (SIR) A.C. ADIELE
(2013)LCN/6296(CA)
In The Court of Appeal of Nigeria
On Thursday, the 13th day of June, 2013
CA/PH/313/2008
JUSTICES:
EJEMBI EKO Justice of The Court of Appeal of Nigeria
CHIOMA E. NWOSU-IHEME Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
Between
ACB INTERNATIONAL BANK PLC. – Appellant(s)
AND
CHIEF (SIR) A.C. ADIELE – Respondent(s)
RATIO
WHETHER OR NOT PARTIES ARE BOUND BY THE CASE PLEADED AT THE COURT OF APPEAL
Parties on appeal are bound by the case they pleaded at the court of trial. This includes, pleadings and, affidavit evidence. Accordingly, they are not permitted to change course, or introduce a new cause, on appeal. In the determination of the issues at the appellate court, an appeal cannot be divorced from the case that was at the trial court. As it was held in F.B.N. v. SONGONUGA (2007) 3 N.W.L.R. (pt. 1021) 230 an appeal is the continuation of the case at the court of trial. PER EKO, J.C.A.
DEFINITION OF A COMPETENT GROUND OF APPEAL
Accordingly, a point or issue which was not raised, and which was not decided or undecided in the judgment, at the court below cannot be a competent ground of appeal. A competent ground of appeal is the one that arises directly from the judgment or decision appealed. It must be connected with a controversy between the parties. That is what Karibi-Whyte JSC means when he stated in SARAKI v. KOTOYE (1992) N.W.L.R. (pt. 264) 156 that grounds of appeal are not formulated in nubibus and that they must arise from the judgment, Grounds 1 and 3, having not arisen from the judgment appealed, and having been formulated in nubibus, are incompetent, particularly as no leave was sought and granted for formulating them. They deserve to be; and are hereby, struck out. Order 6 Rule 6 of Court of Appeal Rules, 2011 empowers us to do that, and that is what I have done. PER EKO, J.C.A.
EJEMBI EKO, J.C.A (Delivering the Leading Judgment): On 19th April, 2005 the Rivers State High Court (Coram: E. Teetito, J.) entered judgment for the plaintiff, the present Respondent, against the Appellant, sued through its predecessor, ACB INTERNATIONAL BANK PLC, as the defendant on the undefended list procedure as per the claims endorsed on the writ of summons. The claims endorsed on the writ of Summons are as follows-
The plaintiff claims against the defendant as follows-
1. The liquidated sum of N200, 355.94 (Two Hundred Thousand, three Hundred and Fifty Five Naira Ninety Four kobo) only being and representing closing balance of Plaintiffs account with the Defendant Bank.
2. The liquidated sum of N251, 625.78 (Two Hundred and Fifty One Thousand, Six Hundred and Twenty Five Naira, Seventy Eight Kobo) being and representing Plaintiffs monthly Pension of N2, 676.87 (Two Thousand Six Hundred and Seventy Six Naira Eighty Seven Kobo) accruing from March 1997 – December 2004.
3. Interest on the consolidated sums above amounting to 451.981.72 (Four hundred and fifty one thousand, nine hundred and eighty one naira, seventy two kobo) at the rate of 21% per month from 1st March 1997 till Judgment is delivered and there after till the amount of Judgment debt is fully paid.
The court below had earlier on 18th March, 2005 granted leave to the Respondent, as the plaintiff, to bring the claims on the undefended list.
The claims of the Respondent were verified by the affidavit deposed to by Ce Opia-Adiele, a legal practitioner. Paragraphs 3-20 of the affidavit, being germane to this appeal, are hereinbelow reproduced (without the exhibits thereto) as follows –
3. That the Plaintiff retired as Zonal Head of the Defendant Bank in Port Harcourt Rivers State.
4. That the Defendant carries on business as bankers with offices situate at Trans – Amadi Industrial Layout, Port Harcourt within the Jurisdiction of this Honourable Court.
5. That the Defendant was formerly known African Continental Bank PLC prior to recapitalization and the change of its name to ACB International Bank PLC.
6. That sometime on or about February 1997 the Plaintiff formerly retired from the services of the Defendant Bank.
7. That the Defendant duty assessed and approved Plaintiff’s retirement benefits/entitlements in a letter dated 30th January, 1997 a copy of which is annexed hereto and marked EXHIBIT “A”.
8. That in the aforesaid letter, the Defendant undertook to advice Plaintiff of his benefits under their staff pension scheme through the pension department.
9. That by the terms of the said letter, the Zonal Head Port, Harcourt of the Defendant Bank was advised to credit Plaintiff its account with the sum of 267,833.31 (Two Hundred and Sixty Seven thousand Eight Hundred and Thirty Three Naira Thirty One Kobo) less Plaintiffs indebtedness to the Bank.
10. That the Defendant in line with its staff pension scheme, began paying a month pension of 2,676.87 (Two Thousand six Hundred and seventy Six Naira Eight Seven Kobo) in the Plaintiffs savings account.
11. That from March 1997 December 2004 the afore-stated pension of 2,676.87 (Two Thousand Six Hundred and Seventy Six Naira Eighty seven Kobo) had risen to N251,625.78 (Two Hundred and Fifty One Thousand, Six Hundred and Twenty Five Naira Seventy Eight Kobo) only.
12. That sometime in December 1998, the Defendant though its human resources manager purportedly withdrew Plaintiffs retirement and replaced same with a dismissal from service due to his conviction by the Failed Bank Tribunal. A copy of the letter is attached and marked Exhibit “B”.
13. That the Defendant vide the aforesaid letter insisted that Plaintiff returns all monies paid him as retirement benefits/entitlements and pension, and went ahead to reverse monies paid into Plaintiffs savings Account as pension and also froze Plaintiff current account with it, which had a closing balance of 200,355.94 (Two Hundred Thousand Three-hundred and Fifty Five Ninety Four Kobo) photocopies of Plaintiff passbook and statement of account are attached and marked Exhibit “C” and “C1”.
14. That despite the letter written by Plaintiffs solicitor praying Defendants to maintain the status quo pending the outcome of Plaintiff Appeal to the Court of Appeal, Defendant went ahead to freeze Plaintiffs Account. Copy of the letter is attached and marked EXHIBIT “B”.
15. That the Court of Appeal sitting in Calabar after due consideration quashed the conviction of the
Plaintiff by the Failed Banks Tribunal and discharged and acquitted him. A copy of the Judgment order in attached and marked Exhibit “E”.
16. That Plaintiff informs me and I verily believe him that by the Bank’s policy, the interest rate for current Deposit Accounts as at 1997 stood at 21 %? per month.
17. That despite repeated demands, the Defendant has failed refused and or flagrantly neglected to pay the outstanding consolidated sum of N451, 981.72 (Four Hundred and fifty One Thousand Nine Hundred and Eight One Naira, Seventy Two Kobo).
18. That I know as a fact that the Defendant is not interested in paying the aforesaid sum of money Unless compelled to do so by the Honourable Court.
19. That I also know that Plaintiffs claim is for a liquidated money demand.
20. That the Defendant has no defence to this claim.
The Appellant, as the defendant filed Notice of Intention to Defend the suit on 19th April, 2005 together with an affidavit purporting to set out the defence of the Appellant on the merits.
Only paragraph 3 of this terse affidavit of David Eka, Jnr is material, and it is herein below reproduced as follows –
3. That I was informed by the Defendant – and I verily believe him as follows-
a. That the plaintiff was a staff of African Continental Bank PLC up to 11th February, 1997.
b. That the plaintiff was initially retired from service but due to the judgment of Failed Bank Tribunal, the retirement was converted to dismissal.
c. That the Defendant is not aware of the said acquittal by the Court of Appeal, as it was not a party to the action.
d. That since the Defendant is not aware of the Judgment of the Court of Appeal the Judgment of the Failed Banks Tribunal is still relied upon.
e. That the justice of this case will be active if the Defendant is given leave to defend this suit.
The perverse averments in the affidavit of David Eka, Jnr, purporting to be an affidavit disclosing the defence of the Appellant on the merits to the suit, were done inspite of the enrolled Order of the Court of Appeal, Exhibit E, and paragraph 15 of the affidavit verifying the claims of the Plaintiff/Respondent. The Court below gave due consideration to the two affidavits and held, rightly in my view, that it was “not persuaded that the Defendant has prima facie defence to this suit” and that there was no defence to the suit. Since this finding of fact has not been appealed it remains binding for ever against the Appellant; as the Defendant in the suit. See UDEGBUNAM V. FCDA (2003) 10 N.W.L.R. (pt. 829) 487.
As I earlier stated, the court below granted all the three, reliefs or claims of the Plaintiff/Respondent against the Defendant/Appellant. The latter being aggrieved thereby, filed the Notice of Appeal at pages 22 – 24 of the Record on three (3) grounds of appeal, which are herein below reproduced without their particulars. That is –
1. The Learned trial Judge erred in law when he proceed to hear the suit in which there were two causes of action without the plaintiff obtaining prior leave of court to unite the two causes of action in one suit.
2. The learned trial Judge erred in law when he entered Judgment for the Plaintiff as per his claim on interest when there was nothing before the court justifying the grant of same.
3. The learned trial judge erred in law when he entered Judgment on the 3rd claim of the plaintiff which is a claim for interest on the consolidated sum when prior leave of court was not granted to unite or join the causes of action the consolidated sum) in one suit.
Ex facie the grouse or complaint of the Appellant in his grounds 1 and 3, as above reproduced, is about the irregular procedure of entertaining the misjoinder of causes of action. These complaints are made without prior leave of court sought and granted. The Appellant is seriously laboring under some confusion or misconception here. The Record, at page 19 thereof, shows that the court granted to the plaintiff/respondent leave to proceed against the Defendant/Appellant as per the 3 claims on the undefended list procedure. There is nothing, from the Records, suggesting that the Appellant, as the Defendant, objected to this procedure of misjoinder of causes of action at the trial court.
It was open to the Appellant, legally, to object to the misjoinder of the causes of action, as a procedural defect, before proceeding further in the suit at the court below. The Appellant did not do that as preliminary objection. The Appellant, as the defendant, has waived that right to protest or object to the procedural defect, if any. The Appellant, having waived that right at the court of trial, cannot be heard, belatedly, in this Court to complain that the suit or the writ was bad for misjoinder of causes of action. The concept of waiver espoused in ARIORI v. ELEMO (1983) 1 SC 13 and applied in EZOMO v. OYAKHIRE (1985) 2 SC 200 is that a person who is under no legal disability and having full knowledge of his rights or interests, conferred on him by law and who intentionally, decides to give them (or some of them) up, cannot be heard to complain that he has not been permitted to exercise those rights or that he has been denied the enjoyment of those interests. This is a specie of estoppel by conduct under Section 151 of the Evidence Act; 1990 (now S.169 Evidence Act, 2011).
The issue of misjoinder of causes of action did not arise in the proceedings at the trial court. It is, therefore, a fresh issue in this appeal. The law is trite that an appeal court will not entertain a fresh issue not raised at the trial court, except a substantial question of law or constitution and only with leave of court. See GABRIEL v. THE STATE (1098) N.W.L.R. (pt. 122) 457; FEDIORA v. GBADEBO (1978) 8 SC 219. Since no prior leave of court was sought and obtained by the Appellant to raise and argue this fresh issue of misjoinder of causes of action as an error in the procedure adopted by the trial court the grounds of appeal formulated thereon are incompetent. The rules of natural justice, codified in Section 36 (1) of the 1999 Constitution, particularly the requirement of audi alteram partem, do vehemently abhor adjudication, or the practice of obtaining justice, by ambush. Fair hearing does not permit the appellant to play a “fast one” on either the Court or his adversary. It is also important that the trial Judge should not be adjudged to have erred in law on a matter or issue that he was not opportuned to decide or refuse to decide.
Parties on appeal are bound by the case they pleaded at the court of trial. This includes, pleadings and, affidavit evidence. Accordingly, they are not permitted to change course, or introduce a new cause, on appeal. In the determination of the issues at the appellate court, an appeal cannot be divorced from the case that was at the trial court. As it was held in F.B.N. v. SONGONUGA (2007) 3 N.W.L.R. (pt. 1021) 230 an appeal is the continuation of the case at the court of trial.
Accordingly, a point or issue which was not raised, and which was not decided or undecided in the judgment, at the court below cannot be a competent ground of appeal. A competent ground of appeal is the one that arises directly from the judgment or decision appealed. It must be connected with a controversy between the parties. That is what Karibi-Whyte JSC means when he stated in SARAKI v. KOTOYE (1992) N.W.L.R. (pt. 264) 156 that grounds of appeal are not formulated in nubibus and that they must arise from the judgment, Grounds 1 and 3, having not arisen from the judgment appealed, and having been formulated in nubibus, are incompetent, particularly as no leave was sought and granted for formulating them. They deserve to be; and are hereby, struck out. Order 6 Rule 6 of Court of Appeal Rules, 2011 empowers us to do that, and that is what I have done.
The only issue arising from the only surviving ground, that is ground 2, is: Whether it was proper for the trial court to enter Judgment on the undefended list in this suit as it did on 19th April, 2005? The suit was brought and, fought under Order 23 Rule 1 Rivers State High Court (Civil Procedure) Rules, 1988 that provides-
Where a claimant in respect of a claim to recover a debt or liquidated money demand believes that there is no defence to his claim, he shall make an application to a court for the issue of writ of summons in respect of the claim to recover such debt or liquidated money demand and shall support the application by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there is no defence thereto.
The operative words are “a claim to recover a dept or liquidated money demand”. Claim 1 and 2 made by the plaintiff/Respondent against the Defendant/Respondent, which I had earlier reproduced are clearly for debt or liquidated money demand. Claim no. 1 is clearly for the liquidated sum of N200, 355.94 being and representing closing balance of the plaintiff’s account with the Defendant/Appellant. While claim No.2 is said to be for the liquidated sum of N251,625.78 being and representing the plaintiff’s monthly pension of N2,676.87 accruing from March 1997- December, 2004.
I have read the Appellant’s Brief. Appellant and his Counsel do not appear to me to suggest that claims 1 and 2 are not claims for “debt or liquidated money demand”. They seem to concede that.
Their only grouse, as it appears, is that the claims nos 1 & 2 on the writ of summons should not have been mingled with the claims for unascertainable interest thereon, as made under claim no.3. I think that it was for this reason that they made no effort to dispute claims 1 & 2 on the writ of summons.
The claim for interest on the sums in claims 1 & 2 was made on a claim for interest as of right. The moneys in claims 1 & 2 had accrued to the Plaintiff/Respondent as of right, that is pension right. Upon the conviction of the Plaintiff/Respondent by the Failed Banks Tribunal the Defendant/appellant, in whose custody the plaintiff/Respondent’s deposit current account was, made a reverse entry and appropriated to himself the sums of money in that account. The conviction was annulled by the Court of Appeal, as evidenced by Exhibit E, which made the Defendant/Appellant’s hold to the same unlawful. This was not contested. The Appellant merely averred, glibly, that they were “not aware of the judgment of the Court of Appeal” inspite of Exhibit E.
Paragraphs 16 and 17 of the affidavit verifying the plaintiff’s Claim 3 were not denied or challenged. The law is settled that facts not disputed or challenged are deemed to have been admitted and are therefore taken as established. See OGOLO v. FUBARA (2003) 11 N.W.L.R. (pt. 831) 231. The Defendant/Appellant, in my view, was caught by this rule of evidence. Paragraph 16 of plaintiff’s supporting affidavit avers that “by the Bank’s policy, the interest for Current Deposit Account as at 1997 stood at 21% per month”. Is this fact not within the knowledge of the defendant Bank? It is and yet they made no effort to deny it. As facts not denied or disputed are taken as established, this fact is accordingly taken as established.
Appellant seems to argue that the interest claimed on the writ of summons in the undefended List Procedure was “unascertainable interest”. I do not think so. The claim no. 3 is clearly one for ascertainable, interest at the rate of 21% per month being the interest rate governed by the defendant/Appellant’s own policy.
The interest claimed on the sums claimed in Claims 1 & 2 on the writ of summons being interest that is ascertainable, and is being claimed as of right, will, in my view fall within the bracket of “liquidated money demand”. This demand is clearly tied to the pension funds of the plaintiff/Respondent which the Defendant/Appellant had unilaterally, and unlawfully expropriated. Claim 3 therefore, represents the total loss to the Respondent for this unilateral conduct of the Appellant.
The issue is accordingly resolved against the Appellant, and in favour of the Respondent. On the whole there is no substance in this appeal. This appeal, like the hollow defence put up by the Defendant at the trial, is most frivolous and vexatious. It smacks of abuse of court process to undermine and prejudice the right of the opponent. I will not give kudos to the lawyers for the Defendant/Appellant right from the trial court to this court.
Costs assessed at N150, 000.00 are hereby awarded against the Appellant and in favour of the Respondent.
CHIOMA E. NWOSU-IHEME (Ph.D), J.C.A: I read in draft the judgment just delivered by my brother, EJEMBI EKO, JCA. I have nothing further to add. I am in agreement with the analyses of the issues in the appeal, as done by my learned brother, and the conclusions on the issues. I hereby adopt the judgment including the consequential orders made therein.
STEPHEN JONAH ADAH, J.C.A: I have had the benefit of reading in draft the judgment just delivered by my learned brother Ejembi Eko, JCA. I am in full agreement with his Lordship’s reasons and conclusion and I also abide by the order made therein.
One intriguing or rather interesting point in this appeal is the legal chess game prayed by this Appellant. The Respondent was retired from his employment in the Appellant Bank and at the retirement benefits that pertain to him paid to him. Thereafter, the Appellant woke up one day and decided that the retirement of this Respondent who was no longer in their employment and whose issue of retirement had since been settled, be converted to dismissal because the Tribunal has convicted the Respondent. That inequitable and iniquitous decision was effected by the Appellant and amazingly without authorization from the Respondent or any court order deep in and froze the Bank account of the Respondent with her and appropriated the money in the Respondents savings account. This, to say the least is arbitrary and a naked abuse of power.
The Respondent pursued his appeal against the case at the Tribunal and the Court of Appeal quashed the decision of the Tribunal. The Respondent served a judgment order of this Court on the Appellant but the Appellant in his affidavit before the court averred that she was not aware of the decision of the Court of Appeal acquitting the Respondent. When it soothed her she acted tendentiously with dispatch feigning the decision of a Tribunal and when it did not soothe her she refused to recognize the decision of the Court of Appeal. This attitude is not a desirable one in civilized Country with enthroned rule of law like Nigeria. Courts are to be respected and their decisions applied no matter how an individual feels. Wali J.S.C, counseled in Shugaba v. U.B.A. Plc (1999) 11 NWLR (pt. 627) 459 that “Orders of the Court are to be respected and obeyed. The dignity and honour of Court cannot be maintained if its orders are treated disdainfully and scornfully without due respect.”
On the issue of interest, the general rule is that monetary judgment attracts appropriate interest even where none is claimed. See the cases of F.I. Ibama v. Shell Petroleum Dev. Co. of Nig. Ltd (1998) 3 NWLR (Pt. 542) 493, 500 and Nigerian General Superintence Co. Ltd v. The Nigerian Ports Authority (1990) 1 NWLR (Pt.129) 741 cited with approval by Ogbuagu JSC in the case of Diamond Bank Ltd v. PLC Ltd. (2009) 18 NWLR (Pt.1178). There is a monetary judgment in this case. Therefore there cannot be any fuss about interest not being claimed in this case.
I do not have any reason to disturb the decision of the lower court in this appeal. The appeal is truly hollow and vexatious. It is also dismissed by me and as earlier stated, I abide by the orders of my learned Brother Ejembi Eko, JCA.
Appearances
A. A. William-Chuku (the brief was settled by R.C. Oriaku). For Appellant
AND
Ce Opia-Adiele For Respondent
