ACCESS BANK PLC v. MRS. ADERONKE FOLASHADE SIJUWADE
(2016)LCN/8285(CA)
In The Court of Appeal of Nigeria
On Friday, the 11th day of March, 2016
CA/AK/1/2013
RATIO
COURT: DUTY OF THE COURT REGISTRAR; WHETHER IT IS THE DUTY OF THE COURT REGISTRAR TO RECEIVE PROCESS, ASSESS SAME, RECEIVE THE ASSESSED FEES AND ENDORSE THE PROCESS
It is the duty of the Court Registrar to receive process, assess same, receive the assessed fees and endorse the process. Pages 301 to 304 of the Record of Appeal shows that the instant Notice of Appeal was assessed at N3,020.00 on 18/1/2011 which was paid by the Appellant. This takes the issue from non- payment of filling fee to may be under payment of filing fees. Under assessment of filing fees must necessarily be the mistake of the registrar and not that of the litigant whose duty or obligation is to pay exactly the assessed fees. It will therefore be unconscionable to punish the litigant for the fault of the Registry. See the case of Abeje V. Alade (2010) 24 WRN 138 at 158 and Omojuyigbe V. Nipost (2010) 24 WRN 61 at 110-111. It would have been a different kettle of fish had the Appellant paid a lesser amount than that assessed by the Registrar. That not being the case, the Respondent’s quarrel appears to be with the Registrar, and not the Appellant. On this note, this ground is also discountenanced. per. MOHAMMED AMBI-USI DANJUMA, J.C.A
PRACTICE AND PROCEDURE: PRELIMINARY OBJECTION; THE IMPLICATION OF THE PARTICULARS IN SUPPORT OF GROUNDS WHICH ARE NOT RELATED TO THE GROUND
On grounds 4,5, 6 and 7 of the preliminary objection, the sum total of all legal principles and judicial precedents on the relationship between ground of appeal and supporting particulars is that on reading a ground of appeal and its particulars, the adverse party must be left in no doubt as to what the complaint of the Appellant is. In other words, a ground of appeal and its particulars go together. Where the particulars in support of ground are not related to the ground, the ground is incompetent. See Hembe V. Hueze (2001) 2 SC 26; Aderounmu V. Olowu (2001) 2 SCNJ Kalejaiye (2010) 12 SC (pt111) 1. per. MOHAMMED AMBI-USI DANJUMA, J.C.A
COURT: DEFAULT JUDGEMENT; THE NATURE OF DEFAULT JUDGEMENT
It is elementary that default judgment is one given in default of appearance or pleading against a Defendant or in a cross action whose names appear as such Defendant or plaintiff in the record of the trial Court. Further, it must be pointed out that the nature of default judgment is one that is given after the invocation of the coercive powers by the Court as a result of the default of the defendant to comply with the rules of Court, Court directives etc. It is equally common place that for there to be a default of appearance, the case must be fixed in the Open Court by the Court for hearing or as in the instant case for the pre-trial conference. When a case is not fixed for a definite date for a definite action to be done in the Open Court, the Registrar is obligated to serve hearing notices on the parties as to when and what is to be done at the adjournment date. per. MOHAMMED AMBI-USI DANJUMA, J.C.A
COURT: DECLARATORY RELIEFS; WHEN A COURT CAN MAKE A DECLARATORY OF RIGHT OF RIGHT TO A PARTY
It is quite elementary in law that given the nature of declaratory reliefs, it cannot be given just for the asking, even in default of appearance or pleadings. The Court must be satisfied by credible evidence before it make a declaration of right to a party. This underscores why the grant or refusal of declaratory reliefs is subject to the discretion of the Court. See Congress for Progressive Change V. Independent National Electoral Commission (INEC) (2011) 18 NWLR (pt. 1279) 493, Nwokidu V. Okanu (2010) 3 NWLR (pt. 1181) 362, Ekundayo V. Baruwa (1955) 2 ALL NLR 211. Indeed in the case of the C.P.C. V. INEC & Ors. (supra), the Supreme Court had this to say on grant or refusal of declaratory reliefs, at page 538 paragraphs D – E, thus: “It is trite that in a claim for declaration the onus is on the plaintiff to establish his claim upon the strength of his own case and not upon the weakness of the case of the Defendant. The plaintiff must therefore satisfy the Court that upon the pleadings and cogent and credible evidence adduced by him that he is entitled to the declaration of right in his favour” Furthering at page 554 paragraphs E – G, the Supreme Court reiterated the position as follows:
“It is elementary law that in a claim for a declaration such as the instant one, the onus is on who alleges to establish his case and not rely on the weakness of the defence. A plaintiff in such a situation must satisfy the Court with cogent and compellable evidence properly pleaded that he is entitled to the declaration, even admissions by the defendant may not do. See Bello V. Magnus Eweka (1981) 1 SC 101″.
Again, in the case of Mrs. Olufunmilayo Akinboye & Anr. V. Ishola Adeko (2011) 6 NWLR (pt.1244) 415 at 444, paragraph E, I had the opportunity to put the position succinctly thus:
“It is also trite that no declaration against a person or authority can be made without affording him the benefit of a hearing. See Section 36 of the 1999 Constitution, F. R. N.” per. MOHAMMED AMBI-USI DANJUMA, J.C.A
PRACTICE AND PROCEDURE: WHETHER A MAIN CLAIM AND ALTERNATIVE RELIEF CAN BE GRANTED AT THE SAME TIME
It is trite in law that a main claim and alternative relief cannot be granted at the same time. In the case of G. K. Investment Nigeria Limited V. Nigeria Telecommunications Plc . (2009) 7 SCNJ 92 at 116 paragraphs 5 – 10, the Supreme Court, per Ogbuagu J. S. C, had this to say:
“Where a claim is in the alternative the Court should first consider whether the principal or main claim ought to have succeeded. It is only after the Court may have found that it could not for any reason, grant the principal or main claim that it would then consider the alternative claim”
Expounding further at paragraph 20 of the same page 116, the eludite jurist put paid to the issue thus:
“In other words again, an alternative award is an award that can be made instead of another. It is a separate claim and a separate award. It is not an additional award. Otherwise it would amount to double compensation which must be avoided”
It is elementary that both law and common sense frown at double compensation. In the case of Arisons Trading & Engineering Company Ltd. V. The Military Governor of Ogun State & Anor. (2009) 6 SCNJ 141 at 178, the same Supreme Court at paragraphs 15-20 per Ogbuagu JSC, opined thus:
“It is now firmly settled that in a claim for damages for breach of contract, the Court is concerned only with damages which are natural and probable consequences of the breach or damages within the contemplation of the parties at the time of the contract. See the case of Mobil Oil Nigeria Ltd. V. Akinfosile (1969) 1 NMLR 227.
However in such a claim the Court, must be careful not to compensate a party twice for the same wrong. By the law against double compensation, a party who has been fully compensated under one head of damages for particular injury, cannot be awarded damages in respect of the same injury another head as appears to be the intention of the Appellant”.
An award of both the principal or main claim together with the alternative claim is an award at large and at best inchoate. per. MOHAMMED AMBI-USI DANJUMA, J.C.A
DAMAGES: DEFINITION OF DAMAGES; WHAT A PARTY MUST PROVE TO BE ENTITLED TO DAMAGES
Damages mean monetary compensation obtainable by a party that succeeded in an action for a wrong which is either a tort or breach of contract. This is trite in law. But inherent in this definition is the fact that for a party to qualify or be entitled to damages he must have proved his case or in other word be a successful party in the case. Damages therefore flows from the wrong already established to the satisfaction of the Court. In the case of Anambra State Environmental Sanitation Authority & Anr. V. Raymond Ekwenem (2009) 7 SCNJ 1 at 19, 20 paragraphs 30 – 35, the Apex Court, per Adekeye J. S. C. opined thus:
“Damages mean the pecuniary compensation obtainable by a successful party in an action for a wrong which is either a tort or a breach of contract. The purpose of an award of damages is to compensate the plaintiff for damages, injury or loss suffered. The guiding principle is restitutio in intergrum. Where a Court is called upon to access that, a party which has been damnified by the act which is in issue must be put in the position in which he would have been if he had not suffered the damaged for which is in issue must be put in the position he is being compensated”
It is equally pertinent to reiterate that award of any specie of damages be it general, aggravated, special etc. is no doubt at the discretion of the trial Court and like all discretionary powers of the Court, must be exercised judicially and judiciously. See Anambra State Environmental Sanitation Authority & Anr. V. Raymond Ekwenem (Supra) at 23 paragraph 30.
By necessary implication, a Court must be duly satisfied and /or convinced by a probable evidence led that a wrong has been committed before it can exercise its discretion to ascertain the quantum of damages that would reasonably assuage the wrong done and award same.
In the same case of Anambra State Environmental Sanitation Authority & Anr. V. Ekwenem (Supra) at 24 paragraph 5, 10, the Apex Court put the matter poignantly, thus:
“I have to confirm that an award of damages either special or general are not awarded as a matter of course but on sound and solid legal principles and not on speculations or sentiment. Neither is it awarded at large or out of sympathy borne out of extraneous considerations but rather on legal evidence of probative value adduced for the establishment of an actionable wrong or injury.”
The rationality for this level of conviction is underscored by the fact that a claim for damages is peculiar to wrongs such as tort and breach of contract that more often than not, involves issue of fact than law. per. MOHAMMED AMBI-USI DANJUMA, J.C.A.
JUSTICES:
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
Between
ACCESS BANK PLC
(Substituted by order of Court) – Appellant(s)
AND
MRS. ADERONKE FOLASHADE SIJUWADE
(Substituted by order of court) – Respondent(s)
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the default Judgment of Hon. Justice A.A. Aderibigbe of Osun State High Court sitting at Osogbo, delivered on the 29th day of October, 2010 in favour of the Claimant/Respondent.
The claim, of the plaintiff/respondent at the trial Court against the Appellant was for the following as per his statement of claim dated 13/01/2010:
(A) Declaration that the Defendant owes a duty of care to all her customers to whom Master Cards and Visa cards were issued (inclusive of the claimant herein) to allow such customers access to the funds in their accounts at all times unless the were not in credit.
(B) Declaration that the Defendant was negligent and in breach of her duty of care as a banker to the claimant in failing or omitting to ensure that the Master Card issued to the claimant in furtherance of Account Number 0125250000000376 and Visa card for Account Number 01251780000000100 were functional and/or structured in a manner that could have allowed claimant to have unhindered access to the funds in the two accounts respectively being operated by
the claimant in the Defendant’s bank inspite of the fact that the accounts are in substantial credit of over 4000.00.
(c) An order compelling the Defendant to pay over to the claimant without any deduction whatsoever all funds in the two Account Numbers; 0125250000000376 and 01251780000000100 respectively being operated at the Osogbo branch of the Defendant.
(D) An order compelling the Defendant to pay to the claimant the sum of N10,000,000.00 (Ten Million Naira) as general damages occasioned to the claimant by reason of the breach of the duty of care in failing to ensure that the Master Card and Visa card issued to the claimant on the two accounts were operational and functional at Arabian Park Hotel, Dubai, UAE whereat the claimant had foisted on him the additional burden and responsibility of looking for alternative funds to use in paying for services and purchases at Dubai, UAE and also at Osogbo where the Defendant official had tried unsuccessfully to activate the cards.
OR in the Alternative to (a) to (d) above,
(E) Declaration that the refusal of the Defendant to repay or refund the funds in Accounts Numbers 0125250000000376
01251780000000100 respectively being operated at the Osogbo branch of the Defendant to claimant in line with the claimant’s demand vide letter dated 31st December, 2009. Constitutes a breach of the banking contract between the claimant and the Defendant.
(F) Declaration that the refusal of the defendant to repay the funds in the claimant’s account and the consequential use of the funds in pursuit of the Defendant’s business and for the purposes of appropriating unjust profits to the Defendant without regard to the claimant’s position is unconscionable, unfair and constitutes a wrongful aggravation of the claimant’s right as a customer of the Defendant bank.
(G) And order compelling the Defendant to pay over to the claimant without any deduction whatsoever all funds in the two Account Numbers 01252500000000376 and 01251780000000100 respectively being operated at the Osogbo branch of the Defendant.
(H) An order compelling the Defendant to Pay to the claimant the sum of N10,000,000.00 (Ten Million Naira) as aggravated damages occasioned to the claimant by reason of the breach of the banking contract in failing to repay the sums in the claimant’s
account as demanded in the claimant letter of 31st December, 2009.
(i) 21% interest on Judgment sum from date of judgment till final liquidation.
FACTS RELEVANT TO THIS APPEAL
The claimant/Respondent as a customer operating two different accounts with the Defendant/Respondent, Osogbo branch, was issued a master card and a Visa card by the Defendant/Appellant. The purpose of the two cards were to enable him access funds standing to his credit in the two accounts anywhere in the world. There are funds on the two accounts.
The claimant/Respondent travelled to Dubai, United Arab emirates (UAE) but was stranded there as he could not access any fund in his two accounts via the two cards. Upon his return to Nigeria, claimant/Respondent lodged a written complaint about how he was represented to the hotel he lodged as a fraudster and his integrity defamed due to his inability to access his funds via any of the two cards to pay for services he received. Claimant/Respondent in the said letter of complaint dated 31/12/2009 demanded that the problem be fixed within seven days. Obviously the problem was not rectified and the Claimant/Respondent on
13/01/2010 instituted this suit. Parties closed pleadings on 17/3/2010 and applied for pre-trial conference. The case suffered series of adjournments until 5/10/2010, by agreement of both counsels, PTC was said to have been fixed for 11/10/2010. On the agreed 11/10/2010, Defendant/Appellant’s counsel wrote a letter seeking for adjournment which the Honourable Court obliged and adjourned the matter to 29/10/10. On 29/10/2010, at around 9.20am, the Defendant/Appellant’s counsel called that he was still at Ikire a distance of about 65 Kilometers according to Respondents’ counsel from Osogbo where the Court was sitting because his car broke down.
When the matter was eventually called at after 10am, on the said 29/10/2010, neither the Defendant nor her counsel was in Court or represented, the claimant/Respondent’s counsel moved the Court to enter default judgment against the Defendant/Appellant.
The Defendant/Appellant unsuccessfully sought to set aside the said default judgment, hence this appeal.
The Defendant/Appellant filed a Notice of Appeal dated 18/01/2011, containing three (3) Grounds of appeal. In compliance with the rules of this Court,
parties filed their respective Briefs of Arguments. Appellants Brief of Argument was settled by Mr. Solomon S. Wada, dated and filed 6/6/2014. Otunba Olayinka Bolanle Esq. settled the Respondents brief dated and filed 13/6/2014.
At the hearing of the appeal on 3/11/15, Appellant’s counsel, Mr. J.B. Olaoye adopted the Appellant’s Brief of Argument and formulated three issues for determination of this appeal as follows:
(A) Was the trial judge right in proceeding on the 29th day of October, 2010 to have entered a default judgment in favour of the Claimant/Respondent when in actual fact the case was for mention and not for pre- trial conference?
(B) Can the default judgment dated the 29th day of October, 2010 be sustained in law at all?
(C) Whether the cost of N50,000.00 awarded by trial judge was based on a proper exercise of judicial discretion.
The Respondent’s brief of Argument was adopted by the Respondent’s counsel, Otunba Bolanle Olayinka who raised a preliminary objection on 7 grounds, thus:
1. There is no nexus between the parties stated in the Appellant’s Brief and the ones indicated in the originating Notice of
Appeal.
2. The jurisdiction of this Honourable Court has not been properly activated in that appropriate fees prescribed by the Court of Appeal Rules (Order 12 Rule 1 and part 11, Third Schedule) of the Court of Appeal rules 2007 (which was the Rule in force as at the time of filling the Notice of Appeal (Which Rule has been replaced by Order 12 Rule 1 and part 11 third Schedule of the Court of Appeal Rules 2011).
3. The Notice of Appeal purportedly filed complains about two different decisions of the Court below dated 29/10/2010 and 6th January, 2011 an approach inconsistent with the provisions of Order 6 Rules 2 and 3 of the Court of Appeal Rules, 2011.
4. Particulars Nos. (i) to (iv) purportedly advanced in support of Ground No.1 in the Notice of Appeal are unrelated to the main ground and particular . No. (v) thereof is argumentative and conclusive,
5. The particulars in Ground No.2 of the Notice of Appeal are unrelated to the Ground and ought to be struck out.
6. The particulars purportedly identified as basis for the complaints in grounds 1 and 2 of the Notice of Appeal are reasons extraneous to the decision appealed against and
are ipso facto incompetent.
7. The third and only other ground did not relate in any way to the judgment of the Court below dated 29th of October 2010.
Aside from the seven issues raised as preliminary objection, the Respondent’s counsel did not formulate any issue for determination of this appeal but replied the two issues formulated and argued by the Appellants. Equally, the Appellant counsel filed replies to the Preliminary objection and Respondent’s Brief on 12/8/2014.
ARGUMENT OF ISSUES:
ISSUE 1
“Was the trial judge right in proceeding on the 29th day of October, 2010 to have entered a default judgment in favour of the claimant/Respondent when in actual fact the case was for mention and not for pre-trial conference?”
In arguing this issue learned counsel for the Appellant indicated that this issue is related to Ground No. 1 in the Notice of Appeal. Learned counsel submitted that this case, at the trial Court came up for the first time before Justice Aderibigbe on 11/10/4810 whereupon it was only the claimant and his counsel that were present and that there was nothing on record of proceeding on that day to show that the
claimant’s counsel urged the Court that the case be adjourned for pre-trial conference nor did the Court specifically adjourned the matter for pre-trial conference to 29/10/2010.
(He referred to page 168 of the Record of Appeal). Counsel submitted that even his letter for adjournment at page 157 of the record of Appeal did not request that the case be adjourned for pretrial conference to 29/10/2010. He argued that he could not have requested that the matter be adjourned for pretrial conference when he knew he had to file a motion to enable him properly put across the defence of his client, and that motion was ultimately filed on 28/10/2010. Counsel submitted that his absence on that 29/10/2010 was due to his car that developed fault on his way to the Court and not intentional. Learned counsel submitted that the Respondent’s counsel misrepresented to the trial Court on that eventful 29/10/2010 that the matter was fixed for pre-trial conference and had been fixed repeatedly for the last three adjournments by consent of both parties. He relied on the case of Udo Akpan V. The State (1987)5 SCNJ 112, to submit that allegations of events not supported by the
record of proceedings are not valid for consideration on appeal.
Counsel restated his earlier submission that the record of proceedings of 11/10/10 bears out the fact that neither the Respondent’s counsel applied that the case be set down for a pre-trial conference nor was there any order to that effect that the case would be set down for pre trial conference on 29/10/2010.
Counsel relied on the cases of Hon. Uche A. Ilobi V. Hon. A.O. Uzeogwu & Ors. (2005) All FWLR (Pt.285) 595 at 612 to submit that setting down a matter for hearing is clear invitation to the other party to take steps or face the consequences of non appearance/inaction.
Learned counsel strongly argued that it was wrong for the trial Court to have treated a date for mention of a case as if it were one for a pre trial conference and proceed to enter default judgment in the absence of the Defendant. He called in aid the case of Kano V. Bauchi Meat Products (1978) 9, 10 SC 51 and Olubukola Stores V. SBN (1975) 4 SC 51 to contend that the effect of such judgment would be a nullity. Furthering learned counsel complained that the Appellant/Defendant’s motion filed on 28/10/2010
as captured at page 124-125 of the Record of appeal was not disposed off one way or the other before the default judgment was entered. He contends that it is trite that a Court must dispose all pending motions before a judgment can be entered. He relied on Hon. Uche A. Ilobi V. Hon. A.O. Uzoegwu & ors (supra), and urged us to resolve this issue for the Appellant.
Reacting, Learned counsel for the Respondent submitted that Appellant while arguing this issue misrepresented facts as the matter was adjourned for pre-trial conference on 29/10/2010 and not for mention as stated by the Appellant. Learned counsel referred to pages 112 and 113 of the Record of appeal to show that even the Appellant in her motion on notice to set aside the default judgment, stated that the case was for pre trial conference in both the grounds and Affidavit in support of his motion. He relied on Mrs. Ekpuk V. Mrs. Okon (2002) FWLR (Pt.84) 145 at 161, 162 and Okafor Adone & Ors V. Ozo Gabriel Ikebadu & Ors (2001) FWLR (Pt.72) 1893 @ 1908 or 2001) 7 SC (Pt.111) 22 to submit that it is not permissible for a party to set up different cases at the trial Court and Appellate
Courts. Counsel argued that, that will amount to approbating and reprobating at the same which must be deprecated.
Counsel submitted that the case of Kano V. Bauchi Meat Product (supra) and Olubukola Stores V. SBN (supra) relied on by the appellant is not on all forms with the case at hand as it was very obvious that the instant case was adjourned to 29/10/10 for pre trial conference.
Counsel strongly faulted as erroneous the submission of the Appellant’s counsel in paragraph 4.3.0 of their brief that at page 157 of the Record of Appeal, he did not apply for pre-trial conference when the Rules of Court is clear that it is the responsibility of the plaintiff/Respondent to file forms 17 and 18 for service on the Defendant/Appellant, which forms were duly issued, filed and served on the Defendant/Appellant and he had responded by filing her own form 18. He referred to pages 108 and 109 of the Record of Appeal. Counsel contends that the issuing, filing and exchange of forms 17 and 18 by both counsel presupposes readiness for pre trial conference by both parties.
Learned counsel relied on Order 25 Rule 6 of the High Court of Osun State (Civil
Procedure) Rules 2008 to submit that the learned trial judge is empowered to enter final judgment against a Defendant who was absent at a pretrial conference or who failed to obey a rescheduling order of Court: he urged us to construe the provisions of Order 25 Rule 6 of Osun State High Court (Civil Procedure) Rule 2008, literally in this case as any other construction would defeat the intention of the Rule maker. He relied on Awolowo V. Shagari (1979) 6-9 SC 79; Salami V. Chairman LEDB (1989) 5 NWLR (Pt.123) 539. Mohammed Buhari & Anor. Vs. Alhaji M. Dikko Yusuf & Anr. 14 NSCQR (Pt.11) 114 at 1161 and PDP V. INEC (2001) FWLR (Pt.31) 2735.
Counsel argued that the Appellant must not be heard to complain since he failed to avail herself of the proviso to the said Order 25 Rule 6, by applying to the trial Court within seven days for setting aside of the default judgment. Learned counsel conceded that it was not enough on the part of the appellant to show that he filed a motion on 28/10/10 but must take further step to show that the fact of the existence of the motion was in some way brought to the attention if the learned trial judge which the
appellant never did, Counsel referred to the further Affidavit of one Alaba Doherty, his litigation clerk dated 15/12/10 at pages 233 and 234 of the Records to show that as at 15/12/10, the said Appellant’s motion purportedly filed on 28/10/10 had not even been served on the Claimant/Respondent. Counsel submitted that the appellant failed to discharge his responsibility of bringing to the attention of the learned trial judge and the Respondent the pendency of the purported motion he filed on 28/10/10 and as such cannot blame either the Court or the Respondent as both were not aware of the pendency of the said motion while conducting the proceeding of 29/10/10. Counsel relied on Consolidated Breweries Plc & Anor V. Aisowieren (2002) FWLR (Pt.116) 959 at 981 to the effect that where a motion on Notice was filed and not moved, such an application is deemed to have been abandoned. He further referred to the case of SCOA Nig. PLC & Anor. V. Alhaji Danbota & Anor (2003) FWLR (Pt.178) 1001 at 1009; Pius Okeke & Ors V. Ichie Otika Nwokoye & Ors (1999) 3 NWLR (Pt.635) 495 and All?Peoples party & Ors v. Professor Ogunsola (2002) FWLR (Pt.117) 1120
at 1134 to the effect that there is a world of difference between raising an issue on a motion paper and arguing the said motion. Having submitted this much he urged that this issue be resolved for the Respondent.
ISSUE B.
“Can the Default judgment dated the 29th day of October, 2010 be sustained in Law at all?”
Addressing this issue, the learned counsel for the Appellant indicated that this issue is distilled from Ground 2 of the Notice of Appeal and went ahead to refer to paragraph 27 (a),(b),(c)and(d) on the Claimant/Respondent statement of claim contained at pages 10-16 of the Record of Appeal as disclosing that the relief sought by the Claimant/Respondent borders on both tort of negligence and breach of contract respectively. He then contend that the default judgment of the learned trial judge as contained on page 251 of the Record of Appeal, did not delineate whether it was the reliefs predicated on allegation of negligence that succeeded or those on allegation of breach of contract.
Counsel argued that two of the reliefs granted on tort of negligence and breach of contract are declaratory reliefs together with general damages, and
an alternative aggravated damages. Counsel pointed out quite strongly that there was no evidence led by the Claimant/Respondent before these prayers were granted. Learned counsel further submitted that the Honourable trial judge cannot rely on the written statement on Oath of the claimant/Respondent as evidence in this matter since same was never adopted by the Claimant/Respondent under Oath before the Court prior to entering of the said default judgment. Learned counsel called in aid the case of Momodu Olubodun & Ors V. Oba Adeyemi Lawal & Anor (2008) 9 MJSC at 28 to submit quite strongly, that it is now settled in law that a Court does not grant declaration of right either in default or on admission without taking evidence and being satisfied that the evidence led is credible. Learned counsel relied quite strongly on the case of Hon. Uche A. Ilobi V. Hon. A. O. Uzoegwu & Ors. (2003) ALL FWLR (pt 285) 595 at 617 to the effect that the learned trial judge was in error in granting the declaratory reliefs without any evidence led in support.
Secondly, counsel submitted that the default judgment ought to be set aside because the
Defendant/Appellant was denied the right and opportunity by the trial Court to know which of the alternative reliefs was granted and the basis for granting them- whether she was negligent or that she breached the contract that she had been held liable in Ten Million naira damages claimed and awarded.
Thirdly, counsel relied on the case of Dr. Oladipo Maia V. Mr. Coata Samouris (2002)15 WRN69 @ 89 to the effect that general and/or aggravated damages cannot be awarded without evidence led and received by Court.
Furthering, counsel submitted that the learned trial judge mistook general and/or for aggravated damages for special damages and went ahead to award the exact amount N10,000,000.00 (Ten Million) without any evidence led and received by the Court. He called in aid the case of Sunday Akanmu V. Oluwole Olugbode (2001) 13 WRN 132 at 155 to submit that the learned trial judge was wrong in his exercise of discretion since it is the responsibility of the Court to calculate what sum of money will be reasonable in the circumstances of the case to be awarded by way of general damages based on evidence led by the claimant.
Learned counsel submitted
further that there was neither any evidence to show the quantum of damages that was awarded nor what aggravated the damages.
Counsel argued further that since no evidence was led to establish that the Defendant/Appellant was negligent and in breach of her duty of care and/or she was in breach of the banking contract she had with the Respondent, general or aggravated damages cannot be awarded in the circumstances. He relied on Peter Obi V. INEC & Ors. (2007) 9 MJSC 1 at 32 paragraphs E-F to submit that it is trite that a declaratory order or judgment declares a right or an entitlement or the position of the law.
Also he relied in Amaye V. Associated contractors (1990) 6 SCNJ 149 at 172 to the effect that general damages is a kind damages which the law presumes to flow from the wrong complained of. Concluding, counsel submitted that it was erroneous for the learned trial judge to have awarded any amount as damages at all when the allegation of wrong against the Defendant/Appellant were not yet proved. He urged that this issue be resolved for the Appellant.
Responding on this Issue B, counsel for the Respondent pointed out that this issue is
not properly distilled from a competent ground and that the particulars are either unrelated with the ground which itself is vague or argumentative and ought to be struck out. Learned counsel then submitted that the combined effect of Order 1 Rule 2 and Order 25 Rule (1) (b) of Osun State High Court (Civil Procedure) Rules 2008 is to ensure and secure a just expeditious and economical disposal of suits. Said counsel, the Rules provides time limits within which pre trial conference shall be commenced and concluded, the duties of the trial judge at pretrial conference as well as the sanction against the claimant and the Defendant, one of which was invoked by the Court against the default of Appellant herein. Counsel, going further, submitted that the learned counsel for the Appellant while arguing this issue, missed the very vital point that the nature of default in the instant case is peculiar to pre-trial conference, very unlike the default judgment obtained under a normal trial proceedings. Furthering this line of argument, counsel posited that Order 25 of Osun State High Court (Civil Procedure) Rules 2008 did not provide that witness be called or evidence
be led in chief or a witness be examined in oath before the trial judge can invoke the provided sanction on the defaulting party. Rather, said counsel, the essence of sanction is to introduce sanity and diligence in prosecution of their respective cases by parties.
Learned counsel submitted that the judicial authorities ably relied on by the Appellant’s counsel are not applicable to the instant case since they were not predicated on pre-trial conference proceedings and therefore ought to be discountenanced. He called in aid the cases of Nafiu Rabiu V. Kano State (2005) 5 WRN54; Bronik Motors Ltd V. Wema Bank Ltd 1983 1 SCNLR 295; Bakare V. NRC (2007) 17 NWLR (Pt.1064) 606 at 621 and the Book: Maxwell on Interpretation of statutes to submit that the provision of Order 25 of Osun State High Court (Civil Procedure) Rules, 2008 is very clear and unambiguous and that it is settled rule of interpretation of Statutory provisions, that words that are clear and unambiguous should be given their ordinary literal or grammatical meanings.
At this juncture, learned counsel argued that upholding this appeal would amount to allowing the Appellant to profit from her
wrong in absenting herself from Court on 29/10/2010 for the pre-trial conference and her refusal to apply to the trial Court within seven days to set same aside.
Having argued this much counsel urged that this issue be resolved for the Respondent.
In Reply, on point of law, filed on 12/8/2014 on issue A, learned counsel for the Appellant insisted that there was no misrepresentation of facts since all the consequences of event (sic) as alleged by the appellant are supported by the record of proceedings. Counsel submitted that the ground of the Appellant’s argument on this issue A is that the learned trial judge erred in law when he proceeded to enter default judgment on the day the case was coming up for the first time before his Lordship Hon. Justice Aderibigbe. He relied on Black’s Law Dictionary Ed. Bryan A Garner at page 1512 on the meaning of trial “Denovo” to submit that a trial denovo is wider than retrial because it includes instances where a Chief Judge of a State orders that a case be heard anew, not because of a wrongful admission of evidence but there is change in the Constitution of the Court. Counsel argued quite strongly that the effect
of starting a case denovo before another judge is to render null all pending orders including orders as to bail. The implication of this is that the previous adjournment of this matter for pre-trial conference by Hon. Justice O.A. Afolabi is null and thus the matter was to start denovo before Hon. Justice Aderibigbe, who will upon application by counsel re-fix the matter for pre-trial conference. Learned counsel reiterated that it is wrong for a Court to treat a date fixed for mention of a case as one of hearing especially when all parties or their counsel are not in Court and that any judgment secured therein cannot stand. He further submitted that in the instant case, hearing could not have properly commenced on 11/10/2010 since the trial Court did not order the issuance of and service of hearing notice on the Appellant to that effect. Therefore, counsel relied on the cases of Agena V. Katseen (1998) 3 NWLR (pt.543) 560; Aladegbemi V. Fsanmaole (1988) 3 NWLR (pt.81) 129 to submit that the Proceedings of the trial Court from 11/10/10 in the suit up to judgment was in breach of the appellant right to fair hearing and as such a nullity.
On issue B, learned
counsel replied relying on Momodu Olubunmi & Ors v. Adeyemi Lawal & Anor (2008) 9 MJSC 1, to submit that it is age old principle of law that a Court does not grant declaration of right in default or on admission without taking evidence and being satisfied that the evidence led is credible. Counsel argued quite strenuously that the trial Court departed from this sacred principle of law and that same amounted to leaving room for technicality to triumph while substantial justice prostrates. Finally, learned counsel relied on the cases of Nishizawa V Jethwani (1984) ALL NLR 470; Nneji V. Chukwu (1988) 3 NWLR (Pt 31) Sc 184; Bello V. A.G. Oyo State (1986) 5 NWLR (Pt 45) 528 and State V. Gwonto (1983) 1 SCNLR 142 to submit that the spirit of the law does not reside in forms and formalities but in substance. He urged us to hold that the default judgment entered by the trial judge is tantamount to slaughtering substantial justice on the alter of technicalities and uphold this appeal.
Preliminary objection
In arguing issue I his preliminary objection, counsel for the Respondent submitted that the names listed as parties in the Notice of Appeal and
those on the Appellants Brief are not the same, albeit the Appellant clever rendition of the phrase “substituted by Order of Court” on the Brief of Argument; and it is clear that this Court had not granted any application for substitution of any party. Counsel argued that the only application for substitution at the trial Court was made by the Respondent on 12/04/2012 after the Court had given judgment, to enable Mrs. Aderonke Folashade Sijuade to be substituted in place of the Late Hon. Justice Adedotun Adetayo Sijuade (Rtd) for the purpose of continuing with the enforcement of the judgment of the Honourable Court dated 29/10/2010 and which judgment already enured to the estate of deceased judgment creditor, and that the application was granted. Learned counsel argued that even though the application was granted, that the Court lacks the jurisdiction to grant same having become functus officio after 29/10/2010 over the matter. He relied on the case of Onyema V. Oputa (1987) 3 NWLR (pt. 60) 259 S.C. to submit that it is trite that where a Court lacks jurisdiction same cannot be conferred either by acquiescence, default or waiver.
Responding to this
Ground 1 of the preliminary objection, counsel for the appellant faulted the submission of the Respondent’s counsel on the ground that there is no correlation between the names of parties on the Notice of Appeal and that on the Appellant brief. Counsel pointed out the fact that in the process of attempting to enforce the default judgment, the claimant died and incidentally, that same year the Defendant’s assets and liabilities were bought by Access Bank Plc. That prior to this developments, the instant Notice of Appeal has been filed on 18/1/2011.
Consequently the Claimant/Respondent filed a motion on Notice for substitution of both parties on 12/4/2012 which was granted by the learned trial Court on 19/4/2012. He referred to pages 1-27 of the Supplementary Record of Appeal and urged that the issue be discountenanced.
While arguing his Ground 2 of the Preliminary objection, counsel for the Respondent submitted that the Appellant failed to pay in full the prescribed filling fees for filing of the instant Notice in accordance with the Court of Appeal Rules 2007 (Order 12 Rule 1 and part II Third Schedule thereof) which was the extant rule of Court of
appeal when the Notice of Appeal was filled. Counsel argued that under – payment renders the Notice of Appeal, being an originating process indeed the entire appeal incompetent and cannot confer jurisdiction on this Court. (He referred to pages 301 to 304 of the Record to show the underpayment.) he relied on the case of Ogli Oko Memorial Farms Limited & Anor V. Nigerian Agricultural cooperative Bank Ltd & Anor (2008) 4 SC. 95 at 108 and 109 for this proposition.
Reacting, counsel for the Appellant submitted that it is the duty of the Court Registry to assess processes for filing and that the instant process-Notice of appeal was duly assessed at the Court registry and the assessed fee paid upon filing same. He relied on the case of Abeje V. Alade (2010) 2 WRN 138 at 158 line 16 to submit that the default of the Registry should not be visited on the litigant. He relied further on the cases of Omojuyigbe V. Nipost (2010) 24 WRN 61 at 110-111 line 25-5 and Prince well V. Amachree (2005) 3 NWLR (pt.912) 358 at 369 to submit that it is the duty of the Registrar of Court to assess processes and prescribe the necessary fees payable and that where the
Registrar under-assesses, such negligence cannot be visited on the litigant. He pointed out that the sum of N3,020.00 was assessed by the Registrar as payable of on the instant Notice of Appeal and same was paid; therefore this Honourable Court’s jurisdiction has been competently activated especially since on the authority of Akpaji V. Udemba (2009) 2 MJSC (Pt.11), the remedy for failure to pay fee is an order by the lower Court that the appropriate fees or any short fall be paid. He urged that this ground also be discountenanced.
While arguing Ground 3 of the preliminary objection, learned Respondent’s counsel referred to paragraphs 1 and 2 of the Notice of Appeal at page 301 of the Record of Appeal to submit that the Notice of Appeal purports to make complaint about two different decisions which is a wrong procedure, unless there was an order to consolidate the two decisions made by the Court. He placed reliance on Order 6 Rules 2 and 3 of the Court of Appeal Rules 2011 to the effect that the procedure adopted by the appellant is an abuse which goes to the competency of the entire Appeal. He called in aid the case of Adegoroye V. Omega Bank Plc (2004)
All FWLR (pt.239) 871 at 879-881 to submit that this Court held that the provision of Order 3 Rule 2 (1) of Court of Appeal Rules 2002 which is impari materia with the extant Order 6 Rule 2 (1) of Court of Appeal Rules 2011) prescribe that any appeal on two decisions must commence with two separate notices of Appeal otherwise it will be defective.
Reacting, learned counsel for the appellant submitted that the procedure employed by the Appellant did not run foul of the provisions of Order 6 Rule 2 (1) of the Court of appeal Rules 2011 since it only complained about the default judgment delivered on 29/10/2010 and the ruling on motion to set aside the said Default judgment made on 6/01/2011 arbitrarily awarding cost of N50,000.00 (Fifty Thousand naira) against the Defendant/Appellant. He urged that all the submissions of the Respondent’s counsel on this issue be discountenanced.
Arguing Grounds 4, 5, 6 and 7 of the Notice of preliminary objection together by the Respondent’s counsel, he submitted that all the particulars provided in substantiation of the grounds are unrelated to the main ground they respectively purport to adumbrate or are either
argumentative or based on conclusion of counsel. Specifically, argued counsel, that particular No. 1 are unrelated to the main ground while particular No. 5 is both argumentative and conclusive. Furthering, counsel submitted that all the particulars in support of Ground 2 of the Notice of Appeal are not related to the Ground as they are reasons extraneous to the decision appealed against and ipso facto incompetent. On ground No. 3, counsel submitted that same cannot relate in any way to either of the two issues formulated as issues no. A and no. B of the Appellant’s Brief of Argument and should be struck out as unwieldy, repetitive, narrative and argumentative.
He relied on Anie V. Ugbade (1995) 6 NWLR (pt. 402) 425, Overseas Construction Company Ltd. V. Creek Enterprises Ltd. (1985) 3 NWLR (pt.113) 407 and Ogbanenuga V. Okudo No. 2 (1990) 4 NWLR (pt.146) 551. Learned counsel submitted while relying on the case of Fyney V. Sule (2002) FWLR (Pt.94) 115 at 133 that should any of the grounds be found competent, that the law is clear that an incompetent ground cannot be argued with a competent ground otherwise both would be incompetent.
Moreso, said
counsel, it is not he duty of the Court to separate arguments in respect of valid and invalid grounds as that will amount to descending into the arena of conflict. He relied on Bello V. Udoye & Anor. (2004) ALL FWLR (Pt.225) 63 at 82.
Finally, counsel relied on Gwandu V. Gwandu & Ors. (2004) ALL FWLR (pt.229) 841 to submit that an issue formulated from incompetent ground of Appeal is itself incompetent. He urged us to hold that the issues formulated by the Appellant are incompetent having being predicated on incompetent grounds of Appeal.
Reacting counsel for Appellant pointed out that particulars of Grounds of Appeal must be intimately related to the ground and should not be divorced from it. He faulted the submissions of Respondent’s counsel and submitted that particulars Nos. 1 to 4 advanced in support of Ground No. 1 in the Notice of Appeal are related to the main Ground of Appeal as they gave insight to the nature of the ground of appeal and brought to the fore the real complaints of the Appellant against the judgment appealed against. Counsel strongly submitted that particulars Nos. 1 to 7 in support of Ground 2 flowed from the ground
constructively advancing reasons why the judgment as per paragraph 27 of the Defendant Statement of Claim filed on 13/1/2010 occasioned a miscarriage of justice. Furthering, counsel submitted that Ground No. 3 related to the decision appealed against and connected with a live point in controversy between the parties. Finally on this issue, counsel reiterated the fact that the purpose of ground of appeal is to give notice to the other side to the appeal. He urged us to dismiss this Respondents preliminary objection.
RESOLUTION OF PRELIMINARY OBJECTION:
On ground 1 of the preliminary objection, it is clear from the record that the subject default judgment was delivered on 29/10/2010 and Notice of Appeal was filed on 18/1/2011. It is equally not in dispute between the parties that after the filing of Notice of Appeal which under our laws does not automatically operate as a stay of execution, the Respondent who was attempting to enforce the judgment died and incidentally the Defendant/Appellant was acquired by Access Bank Plc that same period.
The implication of these development are that both the Claimant/Respondent and Defendant/Appellant lost
juristic personality.
And to remedy the situation, the Respondent filed a motion for substitution of both parties which was granted by the trial Court. Given these clear facts, one is at a loss as to what the Respondent is quarreling with. Moreso there is no rule of civil procedure that provides that once Court orders substitution of parties, that all processes already filed will have to be refiled to reflect the change of parties. The known procedure is that from the date the order was made all subsequent process must reflect the new names and a caveat that it was substituted by Order of Court; which indeed was what the Appellant did. To this extent, the arguments of learned counsel to the Respondent on this ground is misdirected and is hereby discountenanced.
On Ground 2,
It is unfortunate that this ground as couched by learned counsel for the Respondent, is incomplete, but it could still be deciphered from the arguments in support of the ground; that the Respondents grouse is that the Appellant was under assessed while filing the Notice of Appeal at the Registry of Court. It cannot be over emphasized that the originating process in every
appeal is the Notice of appeal, and where it is defective it nullifies the entire Appeal as you cannot put something on nothing.
It is the duty of the Court Registrar to receive process, assess same, receive the assessed fees and endorse the process. Pages 301 to 304 of the Record of Appeal shows that the instant Notice of Appeal was assessed at N3,020.00 on 18/1/2011 which was paid by the Appellant. This takes the issue from non- payment of filling fee to may be under payment of filing fees. Under assessment of filing fees must necessarily be the mistake of the registrar and not that of the litigant whose duty or obligation is to pay exactly the assessed fees. It will therefore be unconscionable to punish the litigant for the fault of the Registry. See the case of Abeje V. Alade (2010) 24 WRN 138 at 158 and Omojuyigbe V. Nipost (2010) 24 WRN 61 at 110-111. It would have been a different kettle of fish had the Appellant paid a lesser amount than that assessed by the Registrar. That not being the case, the Respondent’s quarrel appears to be with the Registrar, and not the Appellant. On this note, this ground is also discountenanced.
On Ground 3, it is
obvious that although the Appellant in paragraph 2 (b) of the Notice of Appeal complained of the Ruling of the Lower Court delivered on 6/1/2011, made same Ground 3 of her Ground of Appeal and ostensibly raised issue No. 3 on Brief of Argument therefrom, it is noteworthy that no argument was advanced in support of that issue No. 3 in her Brief of Argument. The necessary implication is that both the ground 3 and the issue No. 3 raised on same has been abandoned by the Appellant and as such there was nothing to object to by the Respondent by way of preliminary objection. Ground No.3 on the Notice of Appeal together with issue No. 3 raised thereon is hereby struck out.
On grounds 4,5, 6 and 7 of the preliminary objection, the sum total of all legal principles and judicial precedents on the relationship between ground of appeal and supporting particulars is that on reading a ground of appeal and its particulars, the adverse party must be left in no doubt as to what the complaint of the Appellant is. In other words, a ground of appeal and its particulars go together. Where the particulars in support of ground are not related to the ground, the ground is
incompetent. See Hembe V. Hueze (2001) 2 SC 26; Aderounmu V. Olowu (2001) 2 SCNJ Kalejaiye (2010) 12 SC (pt111) 1. The poser in the instant case is this; can it really be concluded after a careful reading of the remaining two grounds of appeal as couched vis- a- vis the particulars in support that they are unrelated or that one is in doubt as to what the Appellants complaint is My humble answer is in the negative. A careful consideration of ground of Appeal No. 1 herein shows that the Appellant was complaining about the conclusion of the learned trial judge that the Appellant was unserious in prosecuting the case which ultimately led the Court below to enter default judgment against the Appellant. In the five supporting particulars, the Appellant, advanced steps he had taken in the matter so far and the status of the case at the material time the default judgment was entered against him. Therefore I find it difficult to hold that the ground of Appeal and particulars are unrelated or extraneous. In the same vien, Ground No. 2 cannot by any stretch of imagination be said to be unrelated to the particulars as the seven supporting particulars clearly highlighted
the content of paragraph 27 of the Respondent’s Statement of Claim the Appellant is complaining about on this ground of appeal. It cannot be said that the Respondent, upon reading the Grounds of Appeal and their supporting particulars does not understand the nature of the appellant’s complaints. To hold otherwise would amount to celebrating technicality over substantial Justice which must be highly deprecated with all seriousness.
On the strength of the above, these grounds 4,5,6 and 7 of the preliminary objection fail and are hereby struck out. On the whole the Respondent’s preliminary objection fails in toto and is hereby struck out.
I shall now turn to the remaining two issues for determination of the main appeal.
RESOLUTION OF ISSUE A
“Was the trial judge right in proceeding on the 29th day of October, 2010 to have entered a default judgment in favour of the Claimant/Respondent when in actual fact the case was for mention and not for pre- trial conference”.
It is elementary that default judgment is one given in default of appearance or pleading against a Defendant or in a cross action whose names appear as such Defendant or
plaintiff in the record of the trial Court. Further, it must be pointed out that the nature of default judgment is one that is given after the invocation of the coercive powers by the Court as a result of the default of the defendant to comply with the rules of Court, Court directives etc.
It is equally common place that for there to be a default of appearance, the case must be fixed in the Open Court by the Court for hearing or as in the instant case for the pre-trial conference. When a case is not fixed for a definite date for a definite action to be done in the Open Court, the Registrar is obligated to serve hearing notices on the parties as to when and what is to be done at the adjournment date. It is not in dispute between the parties herein that this matter came up for the first time before Hon. Justice Aderibigbe of the lower Court on 11/10/2010. I have gone through the record of proceedings of that 11/10/2010 at page 168 of the record of appeal. It is obvious from the record that neither the Appellant nor her counsel was present in Court on that day, albeit there was a letter her counsel wrote to the Court which the Respondent’s counsel said he
was not aware of. It is conspicuously clear on the proceedings of the said 11/10/2010, that the case was adjourned to 29/10/2010, but it was not stated whether it was adjourned for mention or for pre-trial conference. It is also not on record that a hearing notice was served on the parties in respect of the action to be taken on the said 29/10/2010. The letter seeking for adjournment by the Appellant’s counsel on 11/10/2010 at page 157 of the Record of Appeal did request for an adjournment to 29/10/2010, but did not state that, that date was going to be for pre-trial conference or not. It is curious that there is nothing on record to show what the matter was adjourned for on 11/10/2010. Given the far reaching powers vested on the Court by Order 25 Rule 6 (b) of the High Court of Osun State Amended Civil Procedure Rules 2008, it is only fair that there must be clear and unambiguous evidence that the matter was adjourned to 29/10/2010 for pre-trial conference. See Johason Triangle Ltd. VS. C.M. & partners LTD (1999) 1 NWLR (pt. 558) 555 at 574-575.
Again the record of proceeding of the trial Court on 29/10/2010 did not resolve this seeming puzzle as
the Respondent counsel merely informed the Court that the matter had been adjourned for pre-trial conference repeatedly for the last three adjournments without stating the dates or referring the Court to its records as to the veracity of what he informed the Court. Even the judgment of the trial Court on 29/10/2010 is bereft of the other dates the matter was fixed for pre-trial conference but could not hold due to the fault of the Appellant. (See pages 168-169 of the Record of Appeal). No other record should take pre-eminence over Court record as to the veracity of what transpired in the proceedings of Court especially when it became a contentious issue, See the case of Badejo V. Federal Ministry of Education (1996) 8 NWLR (pt. 464) 15 at 50. State V. Akaa (2002) 10 NWLR (pt. 774) 157 at 173.
It is notable that at paragraph 1.10 of the Respondents Brief of Argument, Respondent’s counsel admitted that the Appellants counsel put a phone call across to him at about 9.20am when the matter had not been called up, informing him that his vehicle broke down on his way to Court at Ikire. When the matter was finally called at after 10am that 29/10/2010, fairness
and spirit of friendship at the bar ordinarily would have made the respondent’s counsel to pass the information from the Appellants counsel to the Court for the Court to decide what step or direction to take. That would in no way have amounted to holding brief for the opposing side. Unfortunately that was not done. That I must say, was not fair enough. I cannot agree with the Respondents counsel that the absence of the Appellants counsel on that eventful 29/10/2010 is inexplicable since the Respondent’s counsel failed or refused to put the excuse of the Appellant’s counsel about the incident of his car before the Court for whatever it is worth; the learned trial judge would have independently given an informed direction as to what the next step to be taken.
Having said this much, I am constrained to and I do hold that this issue No. A is resolved for the Appellant against the Respondent.
RESOLUTION OF ISSUE B:
“Can the default judgment dated the 29th day of October, 2010 be sustained in law at all.”
Even a cursory look at the reliefs sought by the claimant/respondent at paragraphs 27 (a) and (b) and alternatively paragraph 27 (e) and (f),
shows clearly that they are declaratory reliefs. It is quite elementary in law that given the nature of declaratory reliefs, it cannot be given just for the asking, even in default of appearance or pleadings. The Court must be satisfied by credible evidence before it make a declaration of right to a party. This underscores why the grant or refusal of declaratory reliefs is subject to the discretion of the Court. See Congress for Progressive Change V. Independent National Electoral Commission (INEC) (2011) 18 NWLR (pt. 1279) 493, Nwokidu V. Okanu (2010) 3 NWLR (pt. 1181) 362, Ekundayo V. Baruwa (1955) 2 ALL NLR 211. Indeed in the case of the C.P.C. V. INEC & Ors. (supra), the Supreme Court had this to say on grant or refusal of declaratory reliefs, at page 538 paragraphs D – E, thus:
“It is trite that in a claim for declaration the onus is on the plaintiff to establish his claim upon the strength of his own case and not upon the weakness of the case of the Defendant. The plaintiff must therefore satisfy the Court that upon the pleadings and cogent and credible evidence adduced by him that he is entitled to the declaration of right in his favour”
Furthering at page 554 paragraphs E – G, the Supreme Court reiterated the position as follows:
“It is elementary law that in a claim for a declaration such as the instant one, the onus is on who alleges to establish his case and not rely on the weakness of the defence. A plaintiff in such a situation must satisfy the Court with cogent and compellable evidence properly pleaded that he is entitled to the declaration, even admissions by the defendant may not do. See Bello V. Magnus Eweka (1981) 1 SC 101″.
Again, in the case of Mrs. Olufunmilayo Akinboye & Anr. V. Ishola Adeko (2011) 6 NWLR (pt.1244) 415 at 444, paragraph E, I had the opportunity to put the position succinctly thus:
“It is also trite that no declaration against a person or authority can be made without affording him the benefit of a hearing. See Section 36 of the 1999 Constitution, F. R. N.”
On the strength of the above judicial authorities, and a plethora of others, it is beyond doubt that declaratory reliefs cannot be granted without credible and compelling evidence led and same evaluated by the trial judge satisfactorily enough to activate the exercise of its
discretionary power in favour of the claimant. This is so notwithstanding the express provisions of Order 1 Rule 2 and Order 25 Rule 6 of the High Court of Osun State Amended Civil Procedure Rules 2008, given the elementary fact that it is the Court’s duty to interprete the rules of Court. A perusal of paragraph 27 of the claimants statement of claim at pages 14 – 16 of the record of appeal show that the claimant has a main claim and an alternative claim.
At page 169 of the record, it is also clear that the learned trial judge did not specify which of the two alternative claims he granted in the judgment. This is as imprecise as it is confusing, to say the least.
The only possible understanding of the said judgment is that both the main claim and the alternative claim were granted. It is trite in law that a main claim and alternative relief cannot be granted at the same time. In the case of G. K. Investment Nigeria Limited V. Nigeria Telecommunications Plc . (2009) 7 SCNJ 92 at 116 paragraphs 5 – 10, the Supreme Court, per Ogbuagu J. S. C, had this to say:
“Where a claim is in the alternative the Court should first consider whether the
principal or main claim ought to have succeeded. It is only after the Court may have found that it could not for any reason, grant the principal or main claim that it would then consider the alternative claim”
Expounding further at paragraph 20 of the same page 116, the eludite jurist put paid to the issue thus:
“In other words again, an alternative award is an award that can be made instead of another. It is a separate claim and a separate award. It is not an additional award. Otherwise it would amount to double compensation which must be avoided”
It is elementary that both law and common sense frown at double compensation. In the case of Arisons Trading & Engineering Company Ltd. V. The Military Governor of Ogun State & Anor. (2009) 6 SCNJ 141 at 178, the same Supreme Court at paragraphs 15-20 per Ogbuagu JSC, opined thus:
“It is now firmly settled that in a claim for damages for breach of contract, the Court is concerned only with damages which are natural and probable consequences of the breach or damages within the contemplation of the parties at the time of the contract. See the case of Mobil Oil Nigeria Ltd. V. Akinfosile
(1969) 1 NMLR 227.
However in such a claim the Court, must be careful not to compensate a party twice for the same wrong. By the law against double compensation, a party who has been fully compensated under one head of damages for particular injury, cannot be awarded damages in respect of the same injury another head as appears to be the intention of the Appellant”.
An award of both the principal or main claim together with the alternative claim is an award at large and at best inchoate.
Damages mean monetary compensation obtainable by a party that succeeded in an action for a wrong which is either a tort or breach of contract. This is trite in law. But inherent in this definition is the fact that for a party to qualify or be entitled to damages he must have proved his case or in other word be a successful party in the case. Damages therefore flows from the wrong already established to the satisfaction of the Court. In the case of Anambra State Environmental Sanitation Authority & Anr. V. Raymond Ekwenem (2009) 7 SCNJ 1 at 19, 20 paragraphs 30 – 35, the Apex Court, per Adekeye J. S. C. opined thus:
“Damages mean the pecuniary
compensation obtainable by a successful party in an action for a wrong which is either a tort or a breach of contract. The purpose of an award of damages is to compensate the plaintiff for damages, injury or loss suffered. The guiding principle is restitutio in intergrum. Where a Court is called upon to access that, a party which has been damnified by the act which is in issue must be put in the position in which he would have been if he had not suffered the damaged for which is in issue must be put in the position he is being compensated”
It is equally pertinent to reiterate that award of any specie of damages be it general, aggravated, special etc. is no doubt at the discretion of the trial Court and like all discretionary powers of the Court, must be exercised judicially and judiciously. See Anambra State Environmental Sanitation Authority & Anr. V. Raymond Ekwenem (Supra) at 23 paragraph 30.
By necessary implication, a Court must be duly satisfied and /or convinced by a probable evidence led that a wrong has been committed before it can exercise its discretion to ascertain the quantum of damages that would reasonably assuage the wrong done
and award same.
In the same case of Anambra State Environmental Sanitation Authority & Anr. V. Ekwenem (Supra) at 24 paragraph 5, 10, the Apex Court put the matter poignantly, thus:
“I have to confirm that an award of damages either special or general are not awarded as a matter of course but on sound and solid legal principles and not on speculations or sentiment. Neither is it awarded at large or out of sympathy borne out of extraneous considerations but rather on legal evidence of probative value adduced for the establishment of an actionable wrong or injury.”
The rationality for this level of conviction is underscored by the fact that a claim for damages is peculiar to wrongs such as tort and breach of contract that more often than not, involves issue of fact than law.
It is not in dispute that the principal or main claim and the alternative claim of Claimant/Respondent at the trial Court are predicated on tort of negligence and breach of contract which basically involves issues of fact.
It is equally not in dispute that the Respondent did not led any oral or documentary evidence before the trial Court. The
Claimant/Respondent’s written statement on oath was not adopted before the trial Court. In the absence of any evidence led before Court, one is at a loss as to what parameter the learned trial judge assessed the quantum of damages to be N10,000.000.00 (Ten Million Naira)
At this juncture, it is pertinent to correct the impression of the learned Respondent’s counsel that the Provision of Order 25 Rule (6) of Osun State Amended High Court Civil procedure Rules 2008 is sacrosanct or inviolable. The position is that while a Claimant or Defendant is at liberty to invoke the Provision of Order 25 Rule 6 of the Osun State Amended High Court Civil Procedure Rules 2008, that does not in any way absolve such a party from fulfilling any other obligation the law or judicial procedure placed on him by virtue of the reliefs he was seeking. Order 25 Rule 6 is hereby reproduced for ease of reference:
“6. If a party or his legal practitioner fails to attend the pretrial conference or obey a scheduling or pre-trial order or is substantially unprepared to participate in the conference or fails to participate in good faith the judge shall:
(a) In the case of the
plaintiff dismiss the claim
(b) In the case of a Defendant enter final judgment against him.
Any judgment given under this rule may be set aside upon an application made within 7 days of judgment or such other period as the pre-trial judge may allow not exceeding the pre-trial conference period. The application shall be accompanied by an under taking to participate effectively in the pre-trial conference.”
I have gone through the gamut of the above provisions of the Rules, and I am unable to see where it precluded any party availing himself of same from fulfilling other obligations the law placed on him. It will not be judicious to hold otherwise.
It is pertinent to note that the Respondent’s counsel while emphasizing the import of Order 1 Rule 2 of Osun State Amended High Court Civil procedure Rules 2008 at paragraph 9.03 of his Brief of Argument played down the efficacy of the word “just” and emphasized the phrase “expeditious and economical disposal of the suit”. For whatever he intends to achieve by that, it is trite in law and I dare say, needs no citation of judicial authority that justice cannot be sacrificed on the altar of speed. That would be wrong and against
all known tenets of justice.
On the strength of the above, I am constrained to hold and I so hold that the default judgment dated 29th day of October, 2010 cannot be sustained in law.
This issue B is therefore resolved against the Respondent.
Having resolved the two issues canvassed in this appeal against the Respondent, this appeal succeeds. The default judgment of Hon Justice A. A. Aderibigbe of the High Court of Osun State, Osogbo Division in Suit No. HOS/4/2010, delivered on 29th day of October, 2010 is hereby set aside.
I order that the case file be remitted back to the Chief Judge of Osun State for trial on the merit by another judge of Osun State High Court of Justice.
I make no order as to costs.
MOJEED ADEKUNLE OWOADE, J.C.A.: I had a preview of the lead judgment of my learned brother, Mohammed Ambi-Usi Danjuma, JCA, just delivered and I agree with his reasoning and conclusion.
Accordingly, I also allow the appeal. I remit the Suit No. HOS/4/2010 to Honourable Chief Judge of Osun State for trial on the merit by another Judge of Osun State High Court of Justice, other than Hon. Justice A. A.
Aderibigbe. I abide by the order as to costs.
JAMES SHEHU ABIRIYI, J.C.A.: I had the privilege of reading in advance in draft, the judgment just delivered by my learned brother Mohammed A. Danjuma, JCA.
For the reasons contained in the lead judgment, I too allow the appeal.
The judgment of the High Court of Osun State, Osogbo Judicial Division in Suit No HOS/4/2010 delivered on 29th October, 2010 is also set aside by me.
I abide by the consequential orders in the lead judgment including the order as to costs.
Appearances
J.B. Olaoye For Appellant
AND
Otunba Bolanle Olayinka For Respondent
