AMMAX (NIG.) LTD & ANOR v. DIAMOND BANK PLC (2020)

AMMAX (NIG.) LTD & ANOR v. DIAMOND BANK PLC

(2020)LCN/14693(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, October 30, 2020

CA/C/86/2017

RATIO

APPEAL: EFFECT OF A GROUND OF APPEAL THAT DOES NOT ARISE FROM THE JUDGMENT APPEALED AGAINST

The law is settled that where the ground of appeal as formulated do not arise from the judgment and purport to raise an attack on issues not decided by the judgment appealed against, they are incompetent and liable to be struck out. SeeOKONKWO V. EZEAKU (2020) 5 NWLR (prt 1718) 477, ONAFOWOKAN V. WEMA BANK PLC. (2011) 12 NWLR (prt 1260) 24 and OJEMEN V. MOMODU (1983) SCNLR 188. PER SHUAIBU, J.C.A.

JUDGMENT: MEANING OF A CONSENT JUDGMENT

A consent judgment is a final decision since it finally determines the issues and disputes between the parties. Though, a final decision within the meaning of Section 241 (1) (a) of the Constitution but leave of High Court or Court of Appeal is required for the exercise of a right of appeal. See AFEGBAI V. A.G. EDO STATE 4 (2001) 14 NWLR (prt 732) 425. In FESTUS V. A.A.C. (2020) 4 NWLR (pt. 1714) 276 at 295, it was held that failure to obtain the mandatory leave amounts to constitutional transgressions which invariably affect the competence of an appeal as well as the jurisdiction of the Court to entertain same. PER SHUAIBU, J.C.A.
PRELIMINARY OBJECTION: DUTY OF THE COURT WHERE A NOTICE OF PRELIMINARY OBJECTION IS FILED AND MOVED IN COURT

It is pertinent to reiterate here that where a notice of preliminary objection is filed and moved before a Court of law, that Court is duty bound to consider the preliminary objection before venturing into the main suit. This is particularly so because the aim of a preliminary objection is to terminate a case in limine, without dissipating unnecessary energy in considering unworthy or fruitless matter in Court’s proceedings. See MUHAMMAD V. I.G.P. (2019) 4 NWLR (prt. 1663) 492. PER SHUAIBU, J.C.A.
APPEAL: AT WHAT STAGE CAN THE ISSUE OF JURISDICTION BE RAISED

The law is however settled that any issue concerning the jurisdiction of the Court can be raised at any stage of the proceedings or on appeal. PER SHUAIBU, J.C.A.

FAIR HEARING: PRINCIPLE OF FAIR HEARING

All applications properly brought before a Court must be heard. The reasoning behind this principle is well founded because it is only equitable that a party to a cause or matter should be entitled and ought to be given the opportunity to be heard on his application before a decision can be given either ways. This reiterates and affirms the principle of fair hearing as enshrined in our Constitution which demands and establishes that all parties must be heard for proper determination of their case. Any breach of the principle will naturally nullify the entire proceedings. See ENEBELI V. C.B.N. (2006) 9 NWLR (prt 984) 69 at 78. PER SHUAIBU, J.C.A.

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

1. AMMAX (NIGERIA) LIMITED 2. IME INYANG AKPAN APPELANT(S)

And

DIAMOND BANK PLC RESPONDENT(S)

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Cross River State, Calabar Judicial Division delivered on 12th July, 2016 wherein the lower Court entered judgment in favour of the claimant and dismissed the defendant’s counterclaim at page 261 of the record of appeal as follows:-
“In conclusion therefore, apart from the fact that there is no separate pleading in respect of the supposed counterclaim, the defendants also failed to prove the counter-claim.
The counter-claim is accordingly dismissed.
On the other hand, the claimant’s claim succeeds in part and I accordingly entered judgment for the claimant and against the defendants in the sum of N3,452,006.54 being the balance and amount representing the accrued interest on the loan facilities granted the 1st defendant by the claimant.
The defendants shall pay interest on the judgment sum at the rate of 100% per annum from today until the judgment sum is completely liquidated.”

Dissatisfied, appellants appealed to this Court through a notice of appeal filed on 29/9/206. Their initial notice of

appeal contains five grounds of appeal and by leave of this Court appellants amended their notice of appeal which was deemed filed on 28/11/2017. The said amended notice of appeal contains seven grounds of appeal.

Distilled from the amended notice of appeal, learned counsel for the appellants, Raymond D. Manga, Esq., formulated the following five issues for the determination of this appeal. These issues are:-
1. Whether the failure of the learned trial judge to consider and make a pronouncement on the preliminary objection of the appellants challenging the jurisdiction of the Court does not amount to the denial of appellants’ right to fair hearing.
2. Whether considering the coming into effect of the Asset Management Corporation of Nigeria Act, Cap A24A, 2010 and the facts and circumstances of this case the trial Court was not divested of its jurisdiction to continue to hear and determine this suit at the trial Court.
3. Whether considering the reliefs sought at the trial Court the facts and circumstances of this case, the trial Court was right in granting respondents reliefs (ii) claimed against the appellants.
4. Whether the

learned trial judge was right in striking out appellants’ motion on notice of 1/7/2014 seeking a further amendment of their statement of defence/counter claim.
5. Whether the learned trial judge was right in dismissing the counter claim of the appellants.

In the respondent’s brief of argument incorporating argument on the preliminary objection filed on 29/3/2018 but deemed properly filed on 12/4/2018, learned counsel Chuke Adebuah, Esq., formulated four issues for the determination of this appeal. They are:-
1. Whether the learned trial judge had jurisdiction to determine the suit and if not whether there was a deprivation of fair hearing occasioning miscarriage of justice in the failure to pronounce on the issue of jurisdiction.
2. Whether it was proper for the learned trial judge to enter judgment for the sum claimed by the respondent.
3. Whether the learned trial judge was right to have struck out appellants’ motion for amendment filed on 1/7/2014.
4. Whether the learned trial judge was right to dismiss appellants’ counter-claim.

The two sets of issues formulated by the respective parties are

similar even though couched differently. However, the four issues formulated by the respondent are apt and quite apposite. I shall adopt the respondent’s four issues in determining this appeal. I will first of all consider the respondent’s preliminary objection where as in this case, a preliminary objection is filed and moved before a Court of law, that Court is duty bound to consider the preliminary objection before venturing into the main appeal. This is so because the aim of a preliminary objection is to terminate a case in limine without dissipating unnecessary energy in considering unworthy or fruitless matter in the Court’s proceedings. See YARO V. AREWA CONSTRUCTION LTD (2007) 17 NWLR (prt 1063), ONYEKWULUJE V. ANIMASHAUN (1996) 3 NWLR (prt 439) 637 and EFET V. INEC (2011) 17 NWLR (prt 1247) 423.

The grounds upon which the respondent predicated his preliminary objection are as follows:-
(i) Failure to have served the respondent with originating notice of appeal deprives the Court of jurisdiction and same nullifies the entire appeal.
(ii) A fundamental defect in an action is not cured by amendment.

IN ALTERNATIVE, pursuant to Section 24(2) of the Court of Appeal Act, an Order striking out grounds 5 and 6 of the appellants’ amendment notice of appeal for being incompetent.

Arguing the preliminary objection, learned counsel for the respondent contends that she was not served with the originating notice of appeal and that there is no finding nor minutes in the record to show that the respondent was served. He submits that the failure constitutes a fundamental defect which goes to the root to the adjudication of this Court to entertain the appeal. He cited ADEGBOLA V. OSIYI & ORS (2017) LPELR – 42471 (SC) to the effect that notice of appeal is the substratum of the appeal and that it is only when a party has notice of proceedings that he can be in a position to place his own side of the case.

He also contends that ground 5 does not arise from the judgment of the lower Court while ground 6 arose from an interlocutory decision in which no leave was sought to appeal against same. In further contention, learned counsel argued that in the case of ground 5, the ground questions a decision on the total sum of N9,592,006.54 in which no such lump sum was given

in any decision of the trial Court that precipitated such a ground of appeal. It is an alien ground to the decision and this Court was urged to strike it out. He submits that the sum of N6,140.00 been a consent judgment, a party has only 14 days to appeal and without the requisite leave of Court ground 6 is invalid. The same argument according to the learned counsel applies to the ruling of the lower Court striking out appellants’ motion for amendment of their statement of defence delivered on 1/7/2014.

In response to the above, learned counsel for the appellants referred to Order 10 Rules 1 and 3 of the Court of Appeal Rules 2016 to contend that the procedure for raising a preliminary objection is by a formal and separately filed notice to be followed by filing a respondent’s brief of argument and the failure on the part of the respondent to file a separate notice of preliminary objection renders the preliminary objection unworthy of consideration. He referred to DADA V. DOSUNMU (2006) ALL FWLR (prt 343) 1605 and OGBONNAYA V. F.B.N. PLC (2015) ALL FWLR (prt 787) 751 at 764.

On the alleged non-service of the notice of appeal, counsel

argued that same issue ought to have been contained in an affidavit being a fact and functional circumstances and not in a counsel brief of argument. He cited ODUNEYE V. F.R.N. (2015) ALL FWLR (prt 776) 399 at 417 to buttress the point that if a preliminary objection is on facts then an affidavit is mandatory and where there is none, the preliminary is incompetent.

Respecting the incompetency of ground 5, he contends that the controversy between the parties in ground 5 is that the total amount ordered by the trial Court ought to have been such that if added to the N6,140,000.00 would amount to N7,961,131.18 demanded by the respondent. He submits that what is required in a ground of appeal is the remotest connection with the controversy between the parties. He relied on MTN(NIG) COMMUNICATION LTD V. ABUBAKAR (2015) ALL PWLR (prt 766) 414 at 432.

Finally on ground 6, he relied on Order 4 Rule 5 of the Court of Appeal Rules 2016 and the cases of DAGGASH V. BULAMA (2004) 14 NWLR (prt. 892)144, F.B.N. PLC. V. TSOKWA (2004) 5 NWLR (prt 866) 271 and ARAKA V. HON EGBUE (2003) 15 NSCQR 150 to contend that the right of the appellants is not lost as

same could taken at the end of the case together with any ground of appeal at the end. He submits that the failure to appeal against an interlocutory judgment does not prevent appellant from appealing against the whole judgment at its conclusion including the interlocutory order.

I have stated that the purpose of preliminary objection is to terminate the appeal in limine. Order 10 Rules 1 and 3 of the Court of Appeal Rules 2016 provides that a respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies with the registry. But where the respondent fails to comply with this rule, the Court may refuse to entertain the objection or may adjourn the hearing at the costs of the respondent or may make such other order as it thinks fit.

The appellants’ contention is that lumping the preliminary objection together with the respondent’s brief as done in the present case is inappropriate. Arguing a preliminary objection in the respondent’s brief has become an

accepted practice. It obviates the need to file a separate notice of preliminary objection. When the respondent argues his preliminary objection in the respondent’s brief, the appellant is expected to respond by filing a reply brief. In the instant case, the respondent argued his preliminary objection in his brief and the appellants responded in their reply brief and since the practice has become a norm, the preliminary objection is competent. See ONAH V. SCHLUMBERGER (NIG) LTD (2018) 17 NWLR (prt 1647) 84 AT 95.

Turning back to the preliminary objection, the respondent attacked the appeal on many points, the first being the issue of non-service appeal on him. Service of originating process on the adverse party is no doubt fundamental and goes to the root of the adjudicating processes and to a larger extent even to the jurisdiction of the adjudicating bodies. The question as to whether the respondent was served or not is a fact which ought to be appropriately placed before the Court as argued by the appellants. What however stand out in this case is that the appellants’ initial notice of appeal is contained at pages 263 – 267 of the

record of appeal. The respondent is however not contesting the fact that he was not served with the record and thus his argument of non-service of the original notice of appeal is of no moment.

Next is the contention that ground 5 is alien to the decision of the lower Court as it questions the sum of N9,592.006.54 claimed and granted. The law is settled that where the ground of appeal as formulated do not arise from the judgment and purport to raise an attack on issues not decided by the judgment appealed against, they are incompetent and liable to be struck out. SeeOKONKWO V. EZEAKU (2020) 5 NWLR (prt 1718) 477, ONAFOWOKAN V. WEMA BANK PLC. (2011) 12 NWLR (prt 1260) 24 and OJEMEN V. MOMODU (1983) SCNLR 188.

To determine whether or not ground 5 has any connection with the judgment now on appeal, one needs to examine same and the said ground 5 is reproduced hereunder as follows:-
“GROUND 5 – The learned trial judge erred in law when he entered judgment against the appellants in the total sum of N9,592,006.54 (Nine Million Five Hundred and Nine Two Thousand, Six Naira and Fifty Kobo) when the respondent demanded for N7,961,131.18

(Seven Million Nine Hundred and Sixty One Thousand One Hundred and Thirty One Naira, Eighteen Kobo from the 2nd appellants.
PARTICULARS OF ERROR
(i) Notice of demand was a term in the loan agreement.
(ii) The respondent through its letters of 27th May, 2009 and 2nd April, 2009 issued demand notices for a liquidated sum of N7,691,131.18 as the debt owed plus interest accrued.
(iii) The respondent in their reliefs sought claimed a contrary sum of N9,592,006.54 which was not demanded by any notice of demand.
(iv) The trial Court erred in granting the said sum total sum of N9,592,006.50 not demanded since demand notice was a term in the loan agreement.
(v) The respondent breached a fundamental term of the loan agreement, when it did not issue a demand notice for the sum of N9,592,006.50 claimed.

The question here is, did the above ground arise from the decision of the lower Court now on appeal? There was a disputation as regards the total amount ordered such that if added to the N6,140,000.00 would amount to N7,961,131.18 demanded by the respondent and therefore ground 5 is connected with controversy between the parties.

Thus, ground 5 in my view has an affinity to the judgment of the lower Court in view of its remotest connection with the controversy between the parties.

As regards to ground 6, the contention is that the sum of N6,140.000.00 been a consent judgment, a party has 14 days to appeal or else, the leave of Court is imperative. A consent judgment is a final decision since it finally determines the issues and disputes between the parties. Though, a final decision within the meaning of Section 241 (1) (a) of the Constitution but leave of High Court or Court of Appeal is required for the exercise of a right of appeal. See AFEGBAI V. A.G. EDO STATE 4 (2001) 14 NWLR (prt 732) 425. In FESTUS V. A.A.C. (2020) 4 NWLR (pt. 1714) 276 at 295, it was held that failure to obtain the mandatory leave amounts to constitutional transgressions which invariably affect the competence of an appeal as well as the jurisdiction of the Court to entertain same.
In the instant case, there are seven grounds of appeal and the preliminary objection are against two grounds of appeal which means there are other grounds that can sustain the appeal. Thus, a preliminary objection should not have

been filed but instead, a notice of motion seeking to strike out the defective grounds of appeal should have been filed. Also in the absence of leave of the lower Court and/or this Court as required by Section 241 (2) (c) of the Constitution of the Federal Republic of Nigeria, 1999 as amended and Section 24 (2) (a) of the Court of Appeal Act, 2004 ground 6 of the notice of appeal is incompetent and also issue No. 4 distilled therefrom.

On issue one in the substantive appeal, learned counsel for the appellants submits that the issue of jurisdiction goes directly to the root of action and failure of the learned trial judge to consider and make a definite pronouncement on the appellants’ notice of preliminary objection filed on 9/11/2015 amounts to denial of fair hearing entrenched under Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria. He referred to OKOROCHA V. PDP & ORS (2014) 2 MJSC (prt 111) at 22, EKULO FARMS & ANOR V. U.B.N PLC (2006) 6 SCM 78 at 91-92 and NNPC & ORS V. ORHIOWASELE & ORS (2013) 4 MJSC at 14-15. He submits further that the right to be heard is a Fundamental and indispensable requirement of

law and any proceedings conducted in breach of a party’s right to fair hearing, no matter how well conducted would be rendered a nullity. Counsel cited TSOKWA MOTORS (NIG) LTD. V. U.B.A. PLC (2008) ALL FWLR (prt 413) 1240 at 1255 and UKACHUKWU V. PDP & ORS (2014) 1 MJSC (prt 11) 128 at 148 – 149.

In response to the above, learned counsel to the respondent concede that an issue of jurisdiction can be raised at any stage of the proceeding even by the Court suo-motu. He however contend that the lower and intermediate Courts are enjoined as a duty to pronounce on all issues placed before it. Unless where a retrial is considered desirable and necessary which would not arise in an issue of jurisdiction. He submits that the issue at the lower Court was whether it was seised with jurisdiction upon the commencement of AMCON ACT, 2010, and hence not a matter that a retrial would be necessary and the lower Court was right in dealing with it based on the material placed before it. He referred to EBONYI STATE UNIVERSITY V. ETENG (2012) LPELR 19973 (CA), EDEM V. CANON BALLS LTD (2005) ALL FWLR (prt 276) 693 at 714 and

OWNERS OF MV ARABELLA V. NIGERIAN AGRICULTURAL INSURANCE CORPORATION (2008) ALL FWLR (prt 443) 1708 at 1238.

Counsel submits further that the said AMCON Act was not enacted with any retrospective effect and in the absence of any retrospective clause; an action is bound to be governed by the law at the time of the cause of action. Accordingly, the operative law at the time of the respondents action for the recovery of the loan facility in 2009 was on the High Court of the state, same been excluded from the jurisdiction of the Federal High Court under Section 251 (1) of the 1999 Constitution. He referred to UNIVERSITY OF CALABAR V. ODUOK (2007) LPELR 5070.

The grouse of the appellants relates to the failure of the lower Court to pronounce on the issue of jurisdiction placed before it through a notice of preliminary objection contending that with the promulgation of AMCON ACT, 2010, the lower Court was divested of jurisdiction to hear and determine the subject matter of the respondent’s suit. Thus, the failure of the trial judge to first of all determine the issue of jurisdiction through the appellant’s notice of preliminary objection of 9/11/2015 before proceeding to

determine the substantive claim breaches the appellants’ right to fair hearing.
It is pertinent to reiterate here that where a notice of preliminary objection is filed and moved before a Court of law, that Court is duty bound to consider the preliminary objection before venturing into the main suit. This is particularly so because the aim of a preliminary objection is to terminate a case in limine, without dissipating unnecessary energy in considering unworthy or fruitless matter in Court’s proceedings. See MUHAMMAD V. I.G.P. (2019) 4 NWLR (prt. 1663) 492.
The appellants’ notice of preliminary objection in the instant case was filed on 9/11/2015 whereas judgment was hitherto entered in favour of the respondent for the amount admitted by the appellants since on 24/6/2010. In other words, the preliminary objection was filed when the lower Court had ventured and indeed pronounced on the substantial part of the claim and adjourned for hearing on the balance claimed and the counter-claimed. The law is however settled that any issue concerning the jurisdiction of the Court can be raised at any stage of the proceedings or on appeal.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The next germane question is whether the failure of the trial judge to hear the appellants’ preliminary objection amount to denial of fair hearing. The principle of fair hearing can apply only in a case where a party has the right to be heard on a Court process but was denied a hearing. So if a party has his right to be heard in respect of a process because it did not comply with the rules of Court, the party cannot be heard to invoke the principles of fair hearing. In this case, the appellants have already admitted indebtedness to the respondent in the sum of N6,140,000.00 and the lower Court had entered a consent judgment based on the appellants’ admission. In OGUNSEINDE V. SOCIETE GENERALE BANK LTD (2018) 9 NWLR (prt 1624) 230 at 241 – 242, it was held that it is not every decision where a Court refuses to hear an application that amounts to a breach of fair hearing. It all depends on the facts and circumstances of a given case. In the instant case, the learned trial judge was duty bound to have considered and pronounced on the appellants’ preliminary objection. Where a Court direct that it shall consider a particular

application along with it final decision on the merit of the substantive suit and that it shall determine that application and that if it fails then it would proceed to render its final judgment on the merit of the substantive suit; it must comply with its own directive, by first determining the application and reach a decision that it has failed before it proceeds to deliver its final judgment on the merit of the substantive suit. The record of proceedings of the trial Court must show the trial Court’s determination of that application and its decision that it has failed before it rendered its judgment on the merit of the substantive suit. It is absurd to argue that in the absence of any record of the determination of that application and decision that it has failed the trial Court’s delivery of the judgment on the merit of the substantive suit meant that the application had failed. See CHIDOKA V. UGOKWE & ORS.
All applications properly brought before a Court must be heard. The reasoning behind this principle is well founded because it is only equitable that a party to a cause or matter should be entitled and ought to be given the

opportunity to be heard on his application before a decision can be given either ways. This reiterates and affirms the principle of fair hearing as enshrined in our Constitution which demands and establishes that all parties must be heard for proper determination of their case. Any breach of the principle will naturally nullify the entire proceedings. See ENEBELI V. C.B.N. (2006) 9 NWLR (prt 984) 69 at 78.
Learned counsel for the respondent has submitted and I agree with his submission that even if the lower Court had considered and pronounced on the appellants’ preliminary objection, it still has a corresponding duty to proceed to give decision on the merit so that if it turns out that it was wrong the appellate Court would have the benefit of a judgment on the merits from that Court. In IKPEKPE V W.R. & P. CO. LTD (2018) 17 NWLR (pt 1648) 280 EKO, JSC at page 297 paras E – G said:-
“The lower Court having struck out the suit did not decide or resolve the question. They should have resolved it in case they may be wrong as an intermediate Court, on the issue of jurisdiction. The appeal before the lower Court was not an

interlocutory appeal but an appeal against final decision. It therefore behoved the lower Court, an intermediate Court to resolve all issues before it or express an opinion on the merits of the case.”
In the light of the peculiar circumstances of this case, the mistake is not fatal as the same issue of jurisdiction is now been raised and canvassed before us. Whereas in this case, the trial Court fails to consider an issue, the appeal Court is in as much a position as the trial Court to determine such issue particularly where no further evidence is required or where such issue is purely question of law.IMONIKHE V. A.G. BENDEL STATE (1992) 6 NWLR (prt 248) 296.

On whether the promulgation of AMCON Act 2010 has divested the lower Court of its jurisdiction as contended also in the preliminary objection, the Courts have always leaned against giving statutes retrospective effect and usually regard them as applying to facts or matter which comes into existence after the statutes were passed. Thus, a statute does not retrospectively abrogate vested rights or take away proprietary rights without making provisions for compensation. See AFOLABI V GOV. OF OYO STATE

(1985) 2 NWLR (prt 9) 734. In the instant case, the respondent as plaintiff before the lower Court has averred in paragraph 7 of the statement of claim that its cause of action arose in May, 2009 while the suit that gave rise to this appeal was filed on 6th August, 2009. Therefore in the absence of any retrospective clause in the AMCON Act 2010, the State High Court has the requisite jurisdiction to hear and determine matters pertaining to individual banker customer relationship pursuant to the provisions of Section 251 (1) (d) of the 1999 Constitution. See N.D.I.C. V. OKEM ENT. LTD (2004) 10 NWLR (pt. 880) 107. Issue one is therefore resolved against the appellants.

On issue two, learned counsel for the appellants contend that reliefs (ii) of the respondent upon which judgment was entered was dependant on relief (i) and that same cannot stand without a precise, definite and valid pronouncement in executory judgment. He submits that the trial Court having failed to make a pronouncement on the legal position as regards the state of affairs as claimed in relief (i), it was therefore wrong to order consequential relief such as relief (ii) in the

absence of a declaratory relief. He referred to BIDA V. ABUBAKAR (2011) ALL FWLR (prt 362) 1653, MACFOY V. U.A.C. (1962) AC 150 and AKPELU V. CHUKWU (2005) ALL FWLR (pt. 269) 1852 at 1877 to the effect that a Court cannot make a case different from the one made by the parties and that the sum of N3,452.006 upon which judgment was entered for the respondent was the interest accrued on the loan facilities which was not proved as required by law.

Still in argument, counsel submits that the failure of the respondent to separate the principal debt from the interest on the debt claimed is fatal relying on FAYEMI V. ONI (2011) ALL FWLR (prt 554) 66-67 to the effect that for a claim to be considered, it must be unequivocal and not vague. Counsel contend that the suit was pre-mature as the respondent demanded for the sum of N7,961,131.18 and not N9,592,006.54 which was awarded by the trial Court. He submits that debt is payable either on demand or on notice given upon any condition agreed by the parties and therefore, there is no right of action for repayment of the loan until there have been a demand or notice given. He cited ISHOLA V S.G.B (NIG) LTD

(1997) 2 NWLR (pt. 488) 405 and N.D.I.C. V. ORANU (2001) 18 WLR (prt. 744).

He submits further that the pre-trial jurisdiction of the trial Court was not properly invoked relying on Order 20 Rule 1(1) of the Cross River State High Court (Civil Procedure) Rules 2008 which provides for applying for the issuance of a pretrial conference hearing notices as in Forms 18 and 19.

Reacting to the above, the respondent’s counsel submits that pretrial form 18 was issued by the Registrar pursuant to Order 20 Rule 1(1) & (2) of the extant Rules and that same was duly signed by the said Registrar. Thus, the pretrial proceeding was well founded and the jurisdiction of the trial Court was properly invoked.

On the finding of the trial Court wherein the claimant (now respondent was granted to the sum of N3,452,006.54 being the balance after deducting the admitted sum of N6,140,000.00 from N9,592,006.54, learned counsel submits that specific finding or decision of the lower Court not challenged at the appeal, remains binding on the parties. He cited IYOHO V EFFIONG (2007) ALL FWLR (prt 374) 204 at 223 to buttress the point that the appellants not

having appealed against the findings of the Court of the material point, cannot make any meaningful case out of the same.

Still in argument, counsel submits that besides the appellants admission, the respondent has successfully proved its entitlement for the balance through Exhibits G and G1 being an undertakings at various times for payments of the outstanding loan facilities which embodied the principal sum and interest vide Exhibits H, J, & F. He referred to NUBA FARMS LTD V. NAL MERCHANT BANK LTD (2003) FWLR (prt 145) 661 at 676 to the effect that interest on Bank’s loan continue to run until the case is submitted to the Court for adjudication. And that demand notice does not terminate the bank’s interest when the case is not yet submitted to the Court. Counsel finally submits that Exhibits C and D covered the total outstanding indebtedness of the appellants to the respondents.

The provisions of Order 20 Rule 1 (1) of the High Court of Cross River State (Civil Procedure) Rules 2008 provides that within 14 days after close of pleadings, the claimant shall apply for the issuance of a pre-trial conference Hearing Notice as in Form

Sub-rule (3) thereof, provides that if the claimant does not make the application in accordance with Sub-rule (1), the defendant(s) may do so or apply for an order striking out the action within 7 days after time limited for the claimant. Page 54-55 of the record of appeal contains Hearing Notice for pre-trial conference while pages 56 is a claimant’s pre-trial conference information Form 18. The extant rules of Court is in pari materia with Paragraph 18 (i) of the First Schedule to the Electoral Act, 2010 (As amended). In FESTUS V. A.A.C (2020) 4 NWLR (prt 1714) 274 at 311, this Court has held that an application for the issuance of a pre-hearing notice can be made in any form that will bring to the notice of the Tribunal secretary that it is time for him to issue the pre-hearing notice. And that the application could be by letter, or even orally. What is necessary and of paramount importance is that a formal application has been made within the contemplation of the said Paragraph 18(1) of the First Schedule to the Electoral Act. The appellants’ contention that the pre-trial notice was unsigned is of no moment as the Registrar of the Court has

duly signed the Hearing Notice for pre-trial conference while the claimant’s counsel, Ekpedeme Nelson Iyoho endorsed the claimant’s pre-trial conference information. In effect, there was substantial compliance with the provision of Order 20 Rule 1(1) and (2) of the High Court of Cross River State (Civil Procedure) Rules 2008.

On the attack of the judgment of the lower Court granting the respondent’s claim, I have stated that upon the admission of the appellants at pre-trial hearing on 24th June, 2010, judgment was entered in favour of the respondent for the sum of N6,140,000.00, leaving the balance of N3,452,006.54 out of the N9,592,006.54 claimed. The appellants main contention here is that the sum of N3,452,006.54 represented the interest accrued on the loan facilities and that same was not proved. It was also alleged that the respondent demanded for N7,961,131.18 and not N9,592.006.54 which was awarded by the trial Court. In other words, the trial Court erred in granting the total sum of N9,592,006.54 when the demand notices, Exhibits C and D fell short of that amount.
The general rule is that a debt is repayable in any of the

following situations, that is either:
(a) on demand,
(b) on notice given, or
(c) upon any other condition agreed upon by parties.
Thus, it is an implied term in the relationship between a banker and his customer that there should be no right for the repayment of an overdraft until there has been a demand or notice given. The cause of action does not arise until there has been a demand made or notice given. See UZOR V. DAEWOO (NIG) LTD (2019) 10 NWLR (pt 1680) 207, AGBABIAKA V. F.B.N. PLC. (2020)6 NWLR (prt 1719) 77 at 101 and N.D.I.C V. ORANU (supra).

In the instant case, the appellants are not denying the demand letters and or notice given prior to the commencement of the action at the lower Court. Their grouse centred on the amount been demanded. However, the rational of arriving at the sum of N9,592,006.54 been granted to the respondent was provided at the page 255 of the record of appeal thus:-
“The demand letters were tendered as Exhibits “C” and “D”. The unpaid cheques were tendered as Exhibit “A” and “J” and the first defendant’s statement of the loan account with

the claimant is tendered as Exhibit “F”. The Bank statement of account shows that the outstanding balance in the 1st defendant’s account with the claimant was N9,592,006.54 and that is the amount claimed at 31st July, 2009. Counsel for the defendants did not as much as cross-examined the claimant’s witness on any of the documents tendered by the claimant’s witness or question the computation of the accrued interest. The computation of accrued interest in Exhibit “F” not having been challenged or controverted, I am entitled to accept same as correct and that the debit balance standing in the account of the 1st defendant with the claimant as at the 31st of July, 2009 is correct.”

Flowing from the above and considering the appellants’ undertakings made at various times for payment of the outstanding loan facilities with accrued interest in Exhibits “G” and “H” and “J”, the respondent has proved its entitlement to the balance of N3,452,006.54 claimed. The appellants having not challenged the finding of the lower Court on the computation of interest, same is deemed

correct and accepted. Issue two is also resolved against the appellant.

Learned counsel for the appellants in relation to issue three contend that striking out of its motion seeking to Further amend their statement of defence/counter-claim was wrongful and occasioned a miscarriage of justice. He submits that an amendment of pleadings ought to be allowed at any stage of the proceedings to determine real issue in controversy between the parties unless such amendment will entail injustice. He relied on BANK OF BARODA V. IYALABANI (2002) 13 NWLR (prt 785) 551 at 593.

On its part, the respondent argued that the motion for amendment was properly struck out on grounds of abuse of Court process as same motion was previously struck out on 9/5/2014. Counsel submits that granting the motion when the judgment on the substantive loan had already been delivered before the promulgation of AMCON ACT amounts to an academic exercise. He cited ADEOGUN V. FASHOGBON (2009) ALL FWLR (prt 449) 531 at 552 – 553. He submits further that there been no appeal against the said interlocutory decision which was delivered 2 years before the final judgment and also the issue

having arising from an incompetent ground of appeal is bound to be struck out.

The aim of an amendment is usually to prevent the manifest justice of a cause from being defeated or delayed by formal steps arising from the mistake of counsel which is wrong to visit on a litigant. Thus, an amendment no matter how late it is sought ought to be allowed if it will not amount to injustice to the other side. This is because a step taken to ensure justice cannot at the same time and in the same breath be used to perpetuate an injustice on the opposite party. See ADEKEYE V. AKIN-OLUGBADE (1987) 3 NWLR (prt 60) 214.
The question of granting or refusing leave to amend pleading is dependent on the exact facts of a particular situation and a Court seised of the proceedings ought generally before granting or refusing any application give the whole matter a holistic overview in its bid to do justice. This is because, what applies to one case, may not necessarily apply in another as no two cases are similar in all parameters. What is applicable in one case may wreak havoc and injustice in another case. See EQUITY BANK (NIG) LTD V. DAURA (1999) 10 NWLR (prt 621) 147.

It was rightly posited that the purpose of amendment of proceedings is to determine real issue in controversy between the parties which ought to be allowed at any stage of the proceedings unless such amendment will spring surprises to the adversary and or bring injustice.

The appellants in this case applied through a motion on notice filed on 1/7/2014 to amend their statement of defence/counter-claim but when the said motion came up for hearing on 30/6/2014, it was discovered that same was not accompanied by the relevant processes and hence adjourned to 1/7/2014 for continuation of hearing. At the resumed sitting of the lower Court on 1/7/2014, the said motion on notice was struck out on the ground that it constituted an abuse of the process of the Court. In C.B.N V AHMED (2001) 11 NWLR (pt 724) 369 at 372, the Supreme Court while considering the issue of abuse of Court process said:-
“Abuse of the Court process is a term generally applied to a proceedings which is wanting in bona fide and is frivolous vexations or oppressive. Abuse of process can also mean abuse of legal procedure or improper use of legal process.”

The said motion on notice having been struck out earlier by the trial Court, filing yet another application seeking for the same relief is a recipe of abuse of Court’s process. In ARUBO V AIYELERU (1993)3 NWLR (prt 280) 126, it was emphatically held that the relitigation of already decided issue is an abuse of Court’s process, even if the matter is not strictly res judicata. The lower Court was therefore right in striking out the appellants’ motion on notice of 1/7/2014 seeking to further amend the statement of defence/counter-claim. Issue three is resolved against the appellants.

Finally on issue four, learned counsel for the appellants copiously quoted the findings of the trial judge in relation to the confiscation of the 2nd appellant’s car which he argued was not in tandem with the evidence adduced at the trial and that the trial judge misconceived the thrust of DW1 evidence. He submits that the end result of the various findings and decision of the trial Court was perverse and occasioned a miscarriage of justice.

In response, counsel to the respondent contend that the appellants had no competent counter-claim before

the trial Court as all what the appellants did was to make a relief for counter-claim as paragraph 214 in their statement of claim. He submits that the defect was fundamental and goes to the root of the action. He referred to OSAGIEDE V UWABOR (2014) LPELR 22664 to the buttress the point that the counter-claimant must plead the facts he raised upon in resisting the claims of the respondent and also set up facts he relied upon in respect of this case on the counter-claim in his pleadings.

He submits further that the appellants also failed to lead any credible evidence in prove of their purported counter-claim of false imprisonment and damages before the trial Court.

A counter-claim is not a merely a defence to the plaintiff’s claim. It is an independent action and not part of the original action, although for convenience the two are tried together, the defendant in the counter-claim assumes the position of a plaintiff and the plaintiff in the original action assumes the position of the defendant in the counter claim. Thus, a counter-claim is a separate action demanding the same respect as the original action, and the same constitutional

right to fair hearing that the original claimant is entitled to, should not be denied to the counter-claimant, who is also a claimant in his own right. See GOWON V. IKE –OKONGWU (2003)6 NWLR (prt 815) 38.
The appellants in this case merely incorporated their claims to the counter claim as paragraph 24 of their amended statement of defence/counter claim without pleading any facts to support the said counter-claim. I have stated that a counter-claim is a cross-action and where the plaintiff fails in proving his claim the defendant on his counter-claim may succeed. In proof which lies on the plaintiff to prove his claim is also on the defendant to prove the averments in his counter-claim against the plaintiff or he will fail in his claim and the standard of proof appropriate to be attained in order to give judgment on a counter-claim of the defendant is of the type required of the plaintiff in every civil claim, that is, proof based on preponderance of evidence. See UNOKAN LTD V. OMUVWIE (2005) 1 NWLR (prt 907) 293.
In the absence of any averment in support of the appellants counter-claim, whatever evidence adduced goes to no issue. At any rate,

the plank of the appellants counter-claim was that the 2nd appellant Mercedes Benz 200 Car was impounded by the respondent and hence claimed false imprisonment and damages therefrom. However, the trial judge found at page 259 of the record of appeal as follows:-
“The 2nd defendant did not deny the averment that he drove the car to the bank premises himself and abandoned same there under lock and left with the keys. He did not challenge or controvert these facts in cross-examination. So if the 2nd defendant went away with the car keys after locking same himself, how can he say that the claimant impounded or confiscated the car? And here is a man who claimed that his car was confiscated and detained on 18/11/2008, it was only on the 23rd of February, 2009 (over 3 months after) that he deemed it necessary to consult a Solicitor to write to demand for a return of the car. Incredible.”

In the light of the above, the appellants did not led credible evidence in prove of that purported counter-claim and issue four is resolved against the appellants.

Having resolved all the four issues against the appellants, the lower Court’s

impeccable judgment must persist consequently, I find no merit in this appeal, which I hereby dismiss with costs which I assessed at N50,000 in favour of the respondent against the appellants.

MOJEED ADEKUNLE OWOADE, J.C.A.: I read in advance the judgment delivered by my learned brother, Muhammed L. Shuaibu. JCA. My learned brother has painstakingly dealt with the four(4) issues nominated for the determination of the appeal.

I agree with the reasoning and conclusion reached in the judgment. I also find no merit in the appeal which is accordingly dismissed.

HAMMA AKAWU BARKA, J.C.A.: I agree with the reasoning and conclusion reached in the judgment Just delivered by my Learned brother Muhammed Lawal Shuaibu, JCA, to the conclusive effect that the present appeal is devoid of merit. Having adopted the said reasoning and conclusion as mine, I too dismiss the appeal and thereby affirm the decision of the Cross River State High Court Calabar Judicial division delivered on thy 12th of July, 2016. I also award costs of N50,000 to the Respondent.

Appearances:

ALICE EWA, ESQ. For Appellant(s)

EKPEDEME IYOHO, ESQ. For Respondent(s)