ACCESS BANK PLC v. VIC-EZ ENERGY SERVICES LIMITED
(2019)LCN/13213(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 7th day of May, 2019
CA/PH/471/2014
RATIO
ISSUES: THE COURTS SHOULD BE RELUCTANT TO RAISE AN ISSUE SUO MOTU
The law is trite that in our adversary system of adjudication, our Courts should be reluctant to raise an issue suo motu, where they do, parties should be allowed to address the Court on the issue raised before a proper resolution on the issue can be made. See SHASI V. SMITH (2009) 18 NWLR (PT 1173) 330 and IGBEKE V. EMORDI (2010) 11 NWLR (PT 1204) 1.PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.
JUSTICES:
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
BITRUS GYARAZAMA SANGA Justice of The Court of Appeal of Nigeria
ABUBAKAR MUAZU LAMIDO Justice of The Court of Appeal of Nigeria
Between
ACCESS BANK PLC
(Substituted by Order of Court
on the 8th day of October, 2015) – Appellant(s)
AND
VIC-EZ ENERGY SERVICES LTD – Respondent(s)
ABUBAKAR MUAZU LAMIDO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of High Court of Rivers State, Port Harcourt Judicial Division delivered on 14th December, 2014 by T. S. OJI, J. By a writ of summon filed on 24/03/2014, the plaintiff claims against the defendant the following reliefs:-
1. A declaration of the Honourable Court that the undertaking to pay by the 1st Defendant to the plaintiff title MAVENSOFT LIMITED LETTER OF COMFORT and dated July 12, 2004 is valid, binding and enforceable against the 1st defendant.
2. A declaration of the Honourable Court that the 1st defendant is estopped from denying its liability as contained in the letter of comfort dated July 12, 2004 which it issued to the plaintiff.
3. An order of immediate payment of the sum of Eight Million, Four Hundred and Fifteen Thousand Naira (N8,415,000.00) being the value of 165,000 litres of AGO delivered by the plaintiff according to the instruction of the 1st defendant.
4. An order of the Honourable Court that the plaintiff is entitled to immediate payment of interest at the rate of 30% per annum
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from the date said N 8,415,000.00 is due until the date of judgment is given and thereafter at the rate of 20% per annum until Judgment debt if fully liquidated.
5. Cost of this action.
After filing and exchange of pleadings, the suit went to trial. The plaintiff called a total of 5 witnesses and tendered several exhibits. The defendant called a single witness. The brief facts of this case as can be seen from the record are that:-
The plaintiff was approached by one Benjack Okudinobi who is the Managing Director of the 2nd Defendant to supply its customer MCC (Nig) Ltd 165,000 litres of AGO on credit. The defendants purportedly claimed to have agreed to guarantee the said transaction by writing to the plaintiff a comforts letter based on their claim that they understood that the 2nd defendant will domicile its transaction with MCC Nig Ltd through its account with defendant. The plaintiff insisted on a bank guarantee before making any supply on credit to MCC Nig Ltd. the defendant were agreeable and made the comfort letter to the plaintiff and the plaintiff made the supplies of AGO to MCC Nig Ltd and their payment were withheld. However,
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the plaintiff filed a notice of discontinuance and discontinued the action against the 2nd defendant and consequently the name of the 2nd defendant was struck out. On 11/05/2009, the plaintiff filed a motion seeking to join Mavensoft Nigeria Limited and one Benjack Okudinobi as 2nd and 3rd defendants. It should be noted that Mavensoft Nigeria Limited was the initial 2nd defendant who the plaintiff discontinued the action with. The motion for Joinder was not heard by the trial Court. It was pending when the trial Court delivered its Judgment.
The trial Court at the conclusion of evidence and adoption of written address entered Judgment for the plaintiff as per its reliefs. Dissatisfied with the Judgment of the trial Court, the defendant appealed to this Court on 24/03/2014. The notice contained 6 grounds of appeal couched, these without their particulars are thus:-
1. The learned trial Judge erred in law when he held that the claimant have successfully established their claims at the trial Court and thereby entered Judgment for the claimant.
2. The learned trial Judge erred in law when he admitted and relied heavily on Exhibit D and E both in
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admissible documentary evidence in interpreting Exhibit B and entered Judgment for the claimant and thereby occasioned a miscarriage of Justice.
3. The learned trial Judge misdirected himself on the facts and thereupon arrived at a wrong conclusion in law when he held as follow I have gone through the statement of defence of defendant, it is not the case presented by the defendant that claimant never supplied AGO to MCC. At no time did defendant deny that claimant never supplied AGO to MCC. I have also reviewed that evidence of DW1 both in chief and under cross examination. At no time was the supply of AGO denied anyway and also that it is therefore established that claimant supplied AGO to MCC on behalf of Benjack Okudinobi’s Company Mavensoft when the defendant denied all material averments in the statement of claim and the claimant never established supply of the AGO.
4. The learned trial Judge misdirected himself on the facts and thereupon arrived at a wrong conclusion in law when he held as follows:-
it is very apparent that the value of the contract to the defendant as contained in Exhibit B is the AGO to be supplied by
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claimant because where same is not supplied there is no contract and/or the agreement has broken down; and if this happen there will be no obligation to pay. Payment is subject to the supply of AGO therefore the value from the contract or agreement is the supply of the AGO and if value for the contract on the face of Exhibit B refers to the Supply of AGO, it follows that defendant are liable to fulfill their own side of the agreement which is payment of the sum of N8,415,000.00 upon the supply of the AGO by claimant to MCC as agreed in Exhibit B
5. The learned trial Judge erred in law when the learned trial Judge suo motu raised the issue of fraud and went ahead to consider it without giving the parties the opportunity to address the Court on the issue to raised and thereby occasioned a miscarriage of Justice.
6. The learned trial Judge erred in law when the trial Court went ahead to deliver judgment in this suit without determining the pending motion on notice filed by the claimant/respondent to join Mavensoft Nigeria Limited and Benjack Okudinobi as 2nd and 3rd defendants respectively and without Joining parties in this suit.
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In line with the rule of this Court, the appellant filed his brief of argument on 01/12/2015 but deemed filed on 16/10/2018 and reply brief on 25/07/2018. The respondent filed his brief of argument on 19/07/18 but deemed filed on 16/10/2018.
Learned counsel for the appellant, G. I. Abibo, SAN formulated 6 issues for determination on behalf of the appellant. The issues are:-
1. Whether the learned trial Judge rightly held that the respondent supplied AGO to MCC on behalf of Benjack Okudinobi’s company Mavensoft. (Distilled from Grounds 3).
2. Whether the learned trial Judge was right when he held that receipt of value by the defendant/appellant means supply of AGO at MCC by the claimant/respondent. (Ground 4).
3. Whether having regard to the pleadings and the evidence in support thereof the learned trial Judge was right in entering Judgment for the respondent against the appellant. (Ground 1).
4. Whether the learned trial Judge was right when he delivered Judgment without determining a pending motion for Joinder of necessary Parties (Ground 6).
5. Whether the learned trial Judge was right when he raised the issue of fraud suo
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motu and proceeded to consider it without giving the parties the opportunity to address the Court on the issue. (Ground 5).
6. Whether the admission of Exhibit D and E and reliance on the same by the learned trial Judge was wrongful and occasioned a miscarriage of Justice to the Appellant. (Ground 2).
The respondent adopted all the issues for determination formulated by the appellant. In the same breadth, the Court will also adopt the appellant issues for determination. However, in the resolution of the issues for determination, this Court will choose to resolve issues four and five before a resolution of other issues. This is so because where the issues succeed, then that success has the effect of terminating the appeal in limine.
The issues for determination adopted by the Court are:-
1. Whether the learned trial Judge was right when he delivered Judgment without determining a pending motion for Joinder of necessary parties (Ground 6)
2. Whether the learned trial Judge was right when he raised the issue of fraud suo motu and proceeded to consider it without giving the parties the opportunity to address the court (Ground 5).
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3. Whether the learned trial Judge rightly held that the respondent supplied AGO to MCC on behalf of Benjack Okudinobi’s Company Mavensoft. (Grounds 3).
4. Whether the learned trial Judge was right when he held that receipt of value by the defendant/appellant means supply of AGO at MCC by the claimant/respondent.
5. Whether having regard to the pleadings and the evidence in support thereof, the learned trial Judge was right in entering Judgment for the respondent against the appellant. (Ground 1).
6. Whether the admission of Exhibit D and E and reliance on the same by the learned trial Judge was wrongful and occasioned a miscarriage of Justice to the Appellant. (Ground 2).
ISSUE ONE
Whether the learned trial Judge was right when he delivered Judgment without determining a pending motion for Joinder of necessary parties.
Learned senior counsel for the appellant argued that the trial Court was wrong to proceed to deliver Judgment in the suit without determining a pending motion for Joinder of Benjack Okudunobi and Mavensoft Nigeria Limited as defendants. He further stated that it is an elementary and
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fundamental principle of our administration of Justice to hear all applications filed before the Court and hearing the application accords with the principle of fair hearing. He referred to NALSA & TEAM ASSOCIATES V. NNPC (1991) 8 NWLR (PT 212) 652; ONYEKWULUJE V. ANIMASHAUN (1996)3 NWLR (PT 439) 637; OTAPO V. SUNMONU (1987) 2 NWLR (PT 58) 587 and SAVANNAH BANK NIG LTD V. S. I. O. CORP (2001)1 NWLR (PT 693)194. Learned counsel stated that failure of the trial Court to hear and determine the motion occasioned a miscarriage of Justice. Counsel urged the Court to resolve this issue in favour of the appellant and against the respondent.
Learned counsel for the respondent submitted that the trial Court was right to deliver its Judgment without hearing the motion for Joinder of parties and assuming that the trial Court was wrong to have delivered its Judgment without hearing and determination of the motion for Joinder, failure to determine the motion did not occasion any miscarriage of justice. Counsel argued that by Order 13 Rule 4 of the High Court (Civil procedure) Rules of 2010, the only condition upon which a person may be joined as a defendant is the
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allegation of or existence of the right of any relief and in this case the statement of, claim did not disclose that there is any allegation of the existence of any relief against the person sought to be Joined. The law is well settled that where there is no reasonable cause of action against a person, the suit is liable to be struck out. He referred to YARE V. NSW & INC. COM. (2013) 5-7-MJSC (PT 1)3; UNION BANK PLC V. UMEODUAGU (2004)11 MJSC 129 and CAPITAL BANCORP LTD V. SHELTER SAVINGS AND LOANS LTD (2007) 3 MJSC 112.
Learned counsel added that the hearing and determination of the motion is a pure academic exercise in view of the fact that no relief has been sought against any of them. He referred to SHETTIMA V. GONI (2011) 10 MJSC; ODEDO V. INEC (2008) 10 MJSC 1; NDULUE V. IBEZIM (2002) 12 MJSC 150 and NKWOCHA V. GOVERNOR ANAMBRA STATE (1984)6SC 302.
The law is trite that all applications filed before delivery of Judgment in a case must be heard and determined by the trial Court. This is so because where a trial Court disregards a pending application before it and proceeds to deliver a Judgment in the case, the right to be heard has been
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breached by the Court. See NITEL PLC V. MAYAKI (2007) 4 NWLR (PT 1023) 173 and ABIARA V. REGD. TRUSTEES OF THE METHODIST CHURCH OF NIGERIA (2007)11 NWLR (PT 1045)280.
On 11/05/2009, the respondent filed a motion on notice for Joinder of Mavensoft Nig Ltd and Benjack Okudonobi as the 2nd and 3rd defendant in the suit, though this motion was filed after the hearing in the case has commenced, there is no evidence before the Court that the motion was moved and determined by the trial Court. Judgment was subsequently entered. The respondent who filed the said motion was the beneficiary of the trial Courts Judgment therefore, it is the appellant who lost at the trial Court that raised the issue of the trial Courts refusal to hear and determine the said motion. It is to be noted that, the motion was filed by the respondent.
Though failure to hear and determine a particular motion before delivery of a Judgment amounts to breach of a fair hearing of a party, it is to be understood that it is not in every circumstance that a refusal by a trial Court to hear a pending motion before Judgment will amount to a breach of right of fair hearing. Where
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