AVZAT INTERNATIONAL LIMITED & ANOR v. ECOBANK NIGERIA LIMITED
(2018)LCN/11783(CA)
In The Court of Appeal of Nigeria
On Thursday, the 28th day of June, 2018
CA/IL/118/2016
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
1. AVZAT INTERNATIONAL LIMITED
2. PRINCE IBRAHIM O. MORUFU Appellant(s)
AND
ECOBANK NIGERIA LTD Respondent(s)
RATIO
WHETHER OR NOT THE RULES OF COURT MUST BE COMPLIED WITH
In Duke vs. Akpabuyo Local Government (2005) 19 NWLR (pt. 959) 130, while restating the law that rules of Court must prima facie be obeyed and complied with, went further to state that it is not every noncompliance with the rules of Court that will nullify the proceedings. See Chief Eboh vs. Akpotu (1968) 1 ANLR 220 and Ezera vs. Ndukwe (1961) 1 ANLR 564. Moreover, as held by Belgore JSC in UTC (Nig) Ltd vs. Pamotei (1989) 2 NWLR (pt. 103) 244 @ 296:
?Rules of procedure are made for the convenience and orderly hearing of cases in Court. They are made to help the cause of justice and not to defeat justice. The rules are therefore aids to the Court and not masters of the Court. For Courts to read rules in the absolute without recourse to the justice of the cause will to my mind be making the Courts slavish to the rules. This certainly is not the raison d? etre of rules of Court. See Salami vs. Bunginimi & Anor (1998) 9NWLR (pt. 565) 235, Saude vs. Abdullahi (1989) 4 NWLR (pt. 116) 387, Izedonmwen vs. UBN Plc (2012) 6 NWLR (pt. 1295) 1, AG Bendel State vs. AG Federation (1982) 3 NCLR 1, Oloruntoba-Oju vs. Abdul-Rahman (2009) 13NWLR (pt. 1157) 83. PER BARKA, J.C.A.
TIMELINE FOR DELIVERING A COURT’S JUDGEMENT
By way of emphasis, I would add a few words. Pursuant to Section 295(5) of the 1999 Constitution a judgment, decision or order delivered or made after the stipulated period of ninety (90) days does not render the judgment or order invalid except the appellant can satisfy the Court that the non-delivery of the judgment (as has arisen in this case) has occasioned a miscarriage of justice to him. See, OWOYEMI VS. ADEKOYA (2003) 18 NWLR (PT. 852) 307 and DENNIS AKOMA & ANOR VS. OBI OSENWOKWU & ORS (2014) LPELR – 22885 -(2014) 11 NWLR (Pt 1419) P. 462. PER UWA, J.C.A.
HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): The Appeal is against the judgment of S. M. Akanbi J. of the High Court of Justice, Kwara State sitting in Ilorin and delivered on the 30th of September, 2016; dismissing the claimants? claims while granting the counter claimant?s reliefs.
The brief facts leading to the instant appeal as borne on the record of appeal appears straight forward to me. The 1st claimant, now the 1st appellant; Avzat International Limited a company incorporated under the Nigerian law deals in Petroleum products, while the 2nd claimant/appellant is the Chairman/Managing director of the 1st claimant/appellant.
The defendant/respondent on the other hand is a financial institution/Bank incorporated under the Nigerian law.
?As can be discerned from the records, it is stated therein that in the year 2008, the 1st claimant obtained an overdraft facility from the defendant (Oceanic Bank Plc., Ilorin Branch) in the sum of five million naira only (5,000,000.00) for a period of 180 days to finance her working capital. The loan was granted and accessed by the
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claimants. Evidently, the claimants were unable to repay their indebtedness at the expiry of the 180 days.
The claimants now state that, in May, 2010 officers of the Bank started mounting pressure on the 2nd claimant asking it to liquidate its indebtedness. Consequent upon that, the claimants negotiated with the defendants through its officers one Mr. Adetayo Adeleye and Mr. Kunle Masele whereof it was agreed that the total indebtedness of the appellants to the respondents, be liquidated by the paying of the principal sum of five million naira, which they paid in one swoop.
Claimants were now surprised when in November, 2010 the defendant still demanded the payment of outstanding indebtedness to the tune of five million two hundred and fifteen thousand eight hundred and seventy-five naira seventy-nine kobo; (5,215,875.79). It was also contended by the claimants that having paid their full indebtedness as agreed between them, they were no longer owing, and therefore demanded for their collateral deposited with the defendants, but were met with stiffer demands for payment by the respondents, which led to the institution of the claim before the lower Court.
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The defendants on their part and in their statement of defense filed on the 17/02/2015 disputes the claimants? claim, insisting that it never gave any authorization to anybody to negotiate the loan repayment, and also denied ever promising to abandon the interest charges on the facility; and though admitting that the sums of five million naira was paid to them by the claimants, states that as at the 28th of November, 2014 the debit balance against the claimants had grown to a whopping N11,478,393.32 (Eleven million four hundred and seventy-eight thousand three hundred and ninety-three naira thirty two kobo). The defendant now relying on the offer letter dated the 28th August 2008, to the effect:
?9 (b) At maturity, Avzat International Ltd. is bound to liquidate its total liability to the bank including fees, charges, interest etc., which in total will always remain a liability of Avzat International Ltd., until its final liquidation.
11. In the event of a default in the repayment of this facility and/or other interest accrued there on, the Bank shall dispose of the pledged assets on which it has a right of lien with or without recourse to the borrowers.
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Any excess or shortfall arising therein shall be for the account of the borrower.?
to justify its refusal to release the title documents deposited with them as collateral.
The misunderstanding between the two hitherto amiable customers prompted the claimants to take out a writ of summons against the defendants on the 5th of December, 2014, and by paragraph 29 of the statement of claim thereof, the claimants? claimed as follows:
29. (i) A DECLARATION that the claimants are not indebted to the Defendant in anyway whatsoever, having settled their indebtedness with Oceanic Bank International Plc.
(ii) A DECLARATION that the continued detention and/or withholding of the claimant?s title documents of their property located along Kaima/Alapa Road, Oko Olowo consisting of a functioning Petroleum filling Station by the defendant is unlawful and therefore constitutes detinue of the title documents of the claimants.
(iii) A DECLARATION that the continued detention and/or withholding of the claimant?s title documents of their property located along Kaima/Alapa Road, Oko Olowo by the defendant constitutes a violation
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of the claimants? Fundamental Right to own property as enshrined in the Constitution of the Federal Republic of Nigeria 1999 (as amended).
(iv) AN ORDER of the Honorable Court directing, mandating, and/or compelling the defendant to release to the claimants, issue Deed of Release, the claimants? title document of their property located along Kaima/Alapa Road, Oko Olowo with immediate effect.
(v) AN ORDER of perpetual injunction restraining the defendant and anybody, person or authority deriving power or acting through her from selling, attaching, auctioning and/or dealing with the claimants? property located along Kaima/Alapa Road, Oko Olowo.
(vi) A sum of N50,000,000.00 (Fifty Million Naira) only as damages for detinue arising from the unlawful detention of the claimants? title documents of their property located along Kaima/Alapa Road, Oko Olowo.
(vii) A sum of N50,000,000.00 (Fifty Million Naira) only as damages for violation of the claimants? Fundamental Right to own and acquire property arising from the unlawful detention of the claimants? title documents of their property located along Kaima/Alapa Road, Oko Olowo.
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Apart from denying the claimants? claim, in the statement of defense filed on the 17/02/2015, the defendant, now Ecobank Nigeria Ltd, counterclaimed as follows:
39 (a). A declaration that the five Million Naira paid by the Claimants/Defendants to Counter-claim, to the Defendant/Counter Claimant on 26 January, 2011 was not in full and final settlement of their indebtedness over the overdraft facility.
(b) A declaration that the refusal by the Claimants and Defendants to Counter Claim to pay the balance of N11,478,393.32 as at 28th November, 2014 is illegal and constitute a breach of terms and conditions of the Offer of over draft facility dated 28th August 2008.
(c) Payment of the sum of N11,478,393.32 being the balance outstanding as at 28th November, 2014 on the overdraft facility granted to the Claimants and Defendants to Counter Claim on August 28th 2008.
(d) Interest at the rate of 18% per annum and floating from 28th November, 2014 till judgment and at 10% per annum from judgment date till the debt is finally liquidated.
(e) An Order of Court granting the Defendant/Counter Claimant the right to exercise
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her power of sale of the mortgaged properties pledged as collateral security for the banking facility granted by the Defendant/Counter Claimant to the Claimants and Defendants to the Counter Claim.
(f) Cost of this action and Counter Claim.
At the trial before the lower Court, the 2nd claimant gave evidence and tendered nine documents and closed its case. The respondent on the other hand called one Mr. Fakunle Abdulwahab, who gave evidence on its behalf, and tendered 11 documents. At the close of trial, addresses were ordered, filed and adopted on the 2nd of March 2016. The Court still invited counsel to re-argue an issue on the 27th of June 2016, while the vexed judgment was delivered on the 30th of September, 2016 dismissing the appellants? claims and granting the respondent?s counterclaim.
Dissatisfied with the judgment of the lower Court, the claimants appealed the said decision when it filed a Notice of Appeal on the 4th of October, 2016 predicated on ten grounds of appeal. The appeal having been entered to this Court on the 22nd December, 2016, parties proceeded to file in their respective briefs of argument.
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The appellants filed in their brief of argument on the 19th of September, 2017 but deemed filed on the 9/10/17. The respondent also filed in its brief on the 17/4/2018 and deemed filed on the 18/4/2018. The appellant upon receipt of the respondent?s brief filed a reply brief on the 23/4/2018.
When the appeal eventually came up for hearing on the 3rd of May, 2018, the learned counsel for the appellants identified the appellants? brief and the reply brief in urging the Court to allow the appeal, set aside the decision of the lower Court and to enter judgment for the appellants.
The learned counsel for the respondent on his part identified the respondent?s brief filed, and urged the Court to dismiss the appeal in its entirety and to affirm the decision of the lower Court.
In the appellants? brief, settled by Dr. D. A. Ariyoosu, with Kayode Oni, Ibrahim Shuaib, A. O. Saka, Halima Jimada and M. A. Oladepo, a total of four issues were identified for the resolution of the appeal which are as follows:
1) Whether the learned trial judge was wrong in considering and giving effect to the respondent?s final written address, when same was grossly incompetent
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for being filed out of time while refusing to consider, pronounce upon and give effect to vital issues and/or points raised in the appellants? case.
2) Whether the learned trial judge was not wrong in failing to rely on, apply and give effect to the decision of this Honorable Court, and as affirmed by the Supreme Court, in INTEGRATED DIMENSIONAL SYSTEMS LTD & 2 ORS V. AFRICAN INTERNATIONAL BANK LTD (2000) 4 NWLR (Pt. 758) 660 on whether a bank can charge interest after the maturity date.
3) Regards being had to the facts and circumstances of this case, what is the effect of the judgment delivered outside the constitutionally prescribed period of delivery of judgment on the judgment of the learned trial judge.
4) Whether on the preponderance of evidence and the entire circumstances of this case, the learned trial judge was not wrong in dismissing the appellants? case.
Mrs. Oluyemisi Abimbola, the learned counsel for the respondent at pages 3 ? 4 of her brief, identified two issues for resolution. They are as follows:
1. Whether counsel?s final written address was filed
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out of time, and if so, is that fact materially fatal to the case and does the address constitute evidence before the Court.
2. Whether on the preponderance of evidence and the entire circumstance of this case, the learned trial judge was not right in dismissing the appellants? case and allowing the counter claim.
Having clinically examined the record of proceedings and arguments of the learned counsel on both sides, I elect to be guided by the issues distilled by the appellants.
Issue one
Whether the learned trial judge was not wrong in considering and giving effect to the respondent?s final written address, when same was grossly incompetent for being filed out of time while refusing to consider, pronounce upon and give effect to vital issues/or points raised in the appellants? case.
The learned counsel for the appellant with regards to this issue argued from pages 6 – 11 of the brief, complained about the competence of the respondent?s final written address, contending that same was filed out of time and further that vital issues enumerated by them in the brief were not addressed by the Court. In urging the Court to
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resolve the issue in its favour, counsel sought to place reliance on the cases of Ovunwo & Anor vs. Woko & 2 ors (2011) 6-7 SC (pt. 1) 1 at 20-21, Brawal Shopping (Nig.) Ltd vs. Onwadike Co. Ltd & Anor. (2000) 6 SC (pt. 11) 133 at 140, Agu vs. Nnadi (2002) 12 SCNJ 238 at 249 and Alh. Saidu Sanusi vs. Alh. Saheed Sa?anun (unreported) Appeal No. CA/IL/52/2013 to posit that it is the duty of every Court to pronounce on every issue properly placed before it for consideration and failure to do that amounts to a miscarriage of justice.
In response, the learned counsel for the respondent referred to the ruling of the lower Court to the effect that respondent?s final written address was competent, further submitting that addresses are designed to assist the Court and not to take the place of evidence. He also submitted in response to the appellants? complaint that vital issues were not considered or determined by the trial Court, that the lower Court by its judgment located at pages 196 – 215 of the record dealt with all fundamental issues raised, thereby urging the Court to resolve the issue against the appellants.
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Dealing with the appellants? complaint with regards to whether the respondents final written address was competent or not, the lower Court at page 207 of the record was of the view that by Order 41 (1) and Order 11 (1), (3) and (4) of the rules of the lower Court, the defendant was within the time frame of filing the defense address and therefore competent. Indeed the reliance of the learned High Court judge on the aforementioned orders cannot be relied upon on the issue, same having been erroneously cited by the trial Court. Nonetheless, by Order 39 Rules (16) and (17) of the rules of the lower Court, the respondent had 21 days from the conclusion of evidence to file final written address.
It has been argued by the appellants, that failure by the respondents to file in their final written address within the time frame of 21 days, rendered the written address incompetent, the reason being that evidence having closed on the 17th of December, 2015 and the final written address filed on the 8th of January, 2016, a period of 22 days as against the 21 days allowed by law, the Court ought not to have considered the respondents written
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address in the consideration of the suit before it. I have noted upon a close look at the defendant/counterclaimants final written address, particularly by paragraph 1.04 thereof, that the late filing was occasioned by the industrial action embarked upon by the judiciary workers Union. But supposing the written address in contention was to have been filed out of time as contended, will that make the address incompetent, and therefore unusable? I do not think so. It must be noted also that the appellant by his own calculation concluded that the late filling was by one day. I am not in the least enthused by the complaint as made by the appellant on this score, for it has been held by the Apex court, which I fully subscribe to, that though rules of Court are meant prima facie to be obeyed, but where there has been noncompliance with the rules, and such noncompliance explained away, and of a minimal kind, then the indulgence of the Court can be granted in its favor. This is even so where the person affected by the non-compliance, acted on it by filing a reply address, and thereby failed to timeously raise the noncompliance but rather responded to the address thus taking a fresh step in the
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proceedings. See Chief Onwuka Kalu vs. Victor Odili & ors (1992) NWLR (pt. 340). In the instant case, not only is the lapse being complained of minimal, but that which was explained away, and the trial Court satisfied with the explanation offered in respect of the filing of the final address late in time by a day. Not only that, the appellant responded to the same address when it filed a response thereto. In Duke vs. Akpabuyo Local Government (2005) 19 NWLR (pt. 959) 130, while restating the law that rules of Court must prima facie be obeyed and complied with, went further to state that it is not every noncompliance with the rules of Court that will nullify the proceedings. See Chief Eboh vs. Akpotu (1968) 1 ANLR 220 and Ezera vs. Ndukwe (1961) 1 ANLR 564. Moreover, as held by Belgore JSC in UTC (Nig) Ltd vs. Pamotei (1989) 2 NWLR (pt. 103) 244 @ 296:
?Rules of procedure are made for the convenience and orderly hearing of cases in Court. They are made to help the cause of justice and not to defeat justice. The rules are therefore aids to the Court and not masters of the Court. For Courts to read rules in the absolute without recourse to the justice of the
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cause will to my mind be making the Courts slavish to the rules. This certainly is not the raison d? etre of rules of Court. See Salami vs. Bunginimi & Anor (1998) 9NWLR (pt. 565) 235, Saude vs. Abdullahi (1989) 4 NWLR (pt. 116) 387, Izedonmwen vs. UBN Plc (2012) 6 NWLR (pt. 1295) 1, AG Bendel State vs. AG Federation (1982) 3 NCLR 1, Oloruntoba-Oju vs. Abdul-Rahman (2009) 13NWLR (pt. 1157) 83.
I fail to agree with the learned counsel for the appellant that the failure of the respondent to abide with the stipulations of Order 39 Rule 16 of the rules of the lower Court, in the filing of the defendant?s final written address by a day, rendered the address incompetent in the circumstance, and the reliance of the lower Court on same to be damnified in the circumstance. It does not matter the fact that the lower Court relied on wrong provisions of the law. The Apex Court in the case of Thomas vs FJSC (2016) 11 NWLR (pt. 1523) 312 @ 325 ? 326, in clearing the state of the law, in situations similar to the one at hand, opined that:
?the requirement that parties state the rule of Court
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by virtue of which they assert a relief is technical and merely prescribes procedural steps for the guidance of the parties. The essence of a Court is to do substantial justice. Once a remedy is provided for by any written law, and it is properly claimed by a party, the remedy cannot be denied the party simply because he has wrongly stated the rule of Court under which the relief is sought. See also Falobi vs. Falobi (1976) NMLR 169 amongst many others.
The argument to my mind is untenable, and hereby discountenanced for the reasons pointed out.
The second arm of the appellants complaint in the issue is anchored on what he termed the refusal of the lower Court to consider and to give effect to vital issues raised in the trial of the case. He enumerated areas which he raised in his written address, but which the lower Court allegedly failed to consider. It is the position of the law, that a Court of law properly so called, is duty bound to pronounce on every issue properly placed before it for consideration and determination before arriving at a decision, and failure to do so amounts to a miscarriage of justice. The cases of Ovunwo & Anor vs. Woko & 2 ors(2011) 6-7 SC (pt.
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1) 1 @ 20 ? 21, Brawal Shopping (NIG) Ltd vs. Onwadike Co. Ltd (2000) 6 SC (pt. 11) 133 @ 140, Goodwill & Trust Investment Ltd & Anor vs. Witt and Busch Ltd (2011) 2-3 SC (pt. 1) 176 @ 208, Alhaji Saidu Sanusi vs. Alhaji Saheed Sa?anun (unreported) Appeal No. CA/IL/52/2013, all cited by the appellant are apposite. It was contended in that regard that the trial Court failed to consider the following issues raised by the appellants before it.
1. The various deposits made by the Appellants to their Oceanic Bank International PLC Account which is glaringly shown in exhibit 20.
2. The issue of how the respondent arrived at the figure she counter claimed was also made an issue.
3. The issue whether interests are chargeable when the appellant had already paid the principal or whether it is proper to calculate interest on compound interest.
4. The issue whether there was any valid mortgage transaction, rather than a mere loan transaction, and,
5. The palpable and many contradictions in the case/evidence of the respondent which remained unresolved, which were all raised but were not considered.
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The respondents terse response to the complaint by the appellant, is that the lower Court in its judgment dealt with all the issues highlighted. It must never be forgotten that the instant case was mainly fought on affidavit evidence before the lower Court. This issue to me boils down to the crux of the appeal raised by issue four in this appeal. I will therefore consider the issue raised in the consideration of the issue anon.
ISSUE TWO.
Whether the learned trial Judge was not wrong in failing to rely on, apply and give effect to the decision of this honorable Court and as affirmed by the Supreme Court in Integrated Dimensional Systems Ltd & 2 ors vs. African International Bank Ltd (2002) 4 NWLR (pt. 758) 660 on whether a bank can charge interest after the maturity date.
The argument of the learned counsel with respect to the issue, is anchored on the perceived non application of the principle in the case cited, to the effect that where an expiry date is fixed for a loan, the contract expires on that day, and interest cannot be calculated beyond that date, rather damages could be claimed. He argued further that the case was copiously cited to the Court, but
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the Court failed or refused to rely on same. He states on the authority of Nwangwu vs. Ukachukwu (2000) 6 NWLR (pt. 662) 674 @ 695 that the lower Courts conduct in refusing to follow the above cited decision, amounted to judicial impertinence.
The holding of this Court referred to is to the effect that:
?applying the above principle of the law, to the facts of the instant case?. As the indebtedness cannot be treated as an overdraft after 30/11/87 since such was not provided for in the agreement. It is therefore not open to the Court to award the applicable interest rate of 19 and half per cent interest per annum to cover from 1/12/87 up to the date of the judgment on 27/10/97 and the same rate of interest from the date of judgment until the amount is fully settled. This is because what the respondent was entitled to after the debt became due is damages for breach. See Airoe Construction Ltd vs. University of Benin (1985) 1 NWLR (pt. 2) 287?. The purport of the instant judgment admits of two situations. Firstly, where there is a written agreement, in that case, it is the terms and conditions embodied in the
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agreement, that is intended to govern the transaction between them, and where there is no express agreement, the bank is entitled to charge compound interest on the basis of the bank custom to do so. Indeed the terms of the facility granted the appellant were set out in an agreement entered between them evidenced by exhibit 1. Of particular interest are the following terms contained therein :-
Facility type overdraft.
Amount..Five Million Naira
Purpose?To finance working capital
Tenor..180 days (90 days clean-up cycle)
Effective date from booking date
Maturity Date 180 days from maturity.
Pricinginterest rate @ 21% per Annum
Management fee 1.50 % flat.
Commitment fee 0.50% flat.
Advisory/consultancy fee 0.75%
Processing fee 0.25%
COT @ N2/mille.
?The appellants complaint with regards to this issue is anchored on the principle laid down in the case of
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Integrated Dimensional system (supra) allegedly not applied by the lower Court. At page 209 of the records, bearing page 14 of the judgment, the trial Court in passing, alluded to the case under discussion when he said,
?the decision cited in Integrated Dimensional System cited a Court of Appeal decision on the Court did not sink the interest with the principal. It rather awarded 19% per annum simple interest and etc. How then can the interest in this case swim or sink down the line clause 11 of the operating conditions in exhibit 1 clause 9 give the bank the right to liquidation total liability to the bank including fees charges, interest etc. till final liquidation?.
I must confess that I have not been able to comprehend what his lordship is trying to say on the issue. With respects to him, it appears as if he is writing under stress. Suffice to say none the less that, the terms of interest are clearly set out in the agreement between the present parties and Courts? are in the circumstance enjoined to give effect to such agreements voluntarily entered. I am unable to understand the grouse of the appellants in that
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regard. Clearly the principle laid down in the case cited cannot be said to apply to the case at hand. I would also determine this issue against the appellant.
ISSUE THREE.
Regards had to the facts and circumstances of this case, what is the effect of the judgment delivered outside the constitutionally prescribed period of delivery of judgment on the judgment of the learned trial judge.
Learned counsel referred to the records of the Court before the lower Court to the effect that evidence was closed on the 17th of December, 2015, and final addresses adopted on the 2nd of March, 2016. The judgment was delivered on the 30th of September, 2016. Its argued that the judgment was delivered 35 days after the conclusion of evidence, in violent breach of the provisions of Section 294 (1) of the Constitution. Counsel also referred to the provisions of Section 294(5) of the same Constitution and some decisions of the superior Courts, contending that the delay in the delivery of the judgment affected the trial Court’s perception, appreciation and evaluation of the case. He further contended that the failure of the learned
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trial judge to deliver judgment within the prescribed period occasioned a miscarriage of justice.
On the validity of the judgment of the lower Court delivered outside the constitutionally prescribed period, it has been argued for the respondent that the fact that the judgment was delivered outside the 90 days stipulated by law, was explained by the trial judge. Learned counsel then alluded to the provision of Section 294 (5) which provides that the decision of the Court shall not be set aside or treated as a nullity, unless the Court is satisfied that the party complaining suffered a miscarriage of justice, by reason thereof. He argued relying on the case of BCC PLC vs. Sky Insp. (Nig) ltd (2002) 17 NWLR (pt. 795) 86 @ 114, to the effect that a judgment delivered outside the 90 days limit is not fatal, and that in any case, the appellants failed to show that the short delay occasioned any miscarriage of justice.
It is apparent that the judgment under reference was delivered by the lower Court outside the 90 days limit in disobedience to the provisions of Section 294 (1) of the Constitution of the Federal Republic of Nigeria 1999. The simple answer to the question posed by the
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appellant can be found under the provisions of Section 294 (5) of the same Constitution of the Federal Republic of Nigeria 1999, which provides;
?the decision of a Court shall not be set aside or treated as a nullity solely on the ground of noncompliance with the provisions of Subsection (1) of this section, unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof?.
Sections 294 (1) and (5) of the Constitution has been given interpretation in a host of cases. While it is true that the fear expressed by the appellant, are some of the reasons behind the spirit for the 90 days limit stipulated in the Constitution, Ngwuta JCA, as he then was, in Ene Adim Okon vs. Roseline Ekpo Ita 2010 LPELR-9010 CA reiterated that ?the spirit behind the ninety days period is to ensure that the decision of the Court is written and delivered when the facts of the case, the inference from the facts and the impression created by the witnesses are still fresh in the mind of the Judge?, and a delay in the delivery
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of judgment creates the presumption that the trial Court may not have made good use of the advantage of seeing and observing the demeanor of the witnesses that testified, which presumption can be rebutted. See Ayinke Stores Limited vs. Mrs S.A. Ola Adebogun (2008) LPELR 3831 (CA).
In the instant case, parties are on common ground on the fact that final written addresses were adopted on the 2nd of March, 2016, re-argued on the 27th of June, 2016 and judgment delivered on the 30th of September, 2016. Going by the position of the law, which is to the effect that the re-adoption of addresses by a Court cannot be an excuse for not delivering the judgment within the stipulated time, and cannot reopen the computation of the period within which judgment is to be delivered, see Idowu & ors vs. Segun Koya Investments Ltd (2017) LPELR-43580 (CA), Olusanya vs. Uba (2017) LPELR 42348 1 @ 10 ? 12 and Okon vs. Ita (2011) ALL FWLR (pt. 569) 1209 @ 1218 per Nimpar JCA, and going by the date the judgment was reserved, the 90 days period expired on the 31st day of May, 2016, thus making nonsense the lower Courts excuse that judgment could not be delivered because of the
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vacation period. Indeed the period taken, i.e. from the 31st of May, 2016, the last day for the delivery of the judgment, to the 30th of September, 2016 when judgment was eventually delivered, a period of four months is inexcusable, and violently runs against the spirit of Subsection (1) of the Constitution. The contention by the respondent that time ought to be computed from the time the Court asked parties to re-argue their case, is unfounded, for as held in Olubukola vs. AG Lagos State (2017) ALL FWLR (pt. 867) 507 @ 555, there is no provision in the rules permitting for the re-adoption of final written addresses, but the practice most a times employed by Courts to have the computation of time to start from the new date in order to defeat the provisions of Section 294 (1) of the Constitution.
Evidently the respondents cannot contend the fact that the judgment was delivered outside the prescribed period of 90 days, but rather argued that appellants had not shown that by the delay, a miscarriage of justice had been occasioned or that injustice has been done to them, and cited for support the case of BCC PLC vs. Sky Insp. (Nig.)
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Ltd (2002) 17 NWLR (pt. 795) 86 @ 114. In the recent case of Atungwu & anor vs. Ada Ochekwu (2013) LPELR-20935 (SC), Galadima JSC on the import of Subsection (5) of Section 294 of the Constitution, reaffirmed the position of the apex Court that for the delay in the delivery of the judgment to lead to the judgment being vitiated, it must be established that the delay occasioned a miscarriage of justice, in that the trial judge did not take a proper advantage of having seen or heard the witnesses testify or that he had lost the impressions of the trial due to such inordinate delay. See also Alh Usman Sharu Baban-Lungu vs. Alh. Ahmed Abubakar Zarewa & ors (2013) LPELR ? 20726 (CA), Pat Onegbedan vs. Unity Bank Plc (2014) LPELR ? 22186 (CA).
It is therefore incumbent on the appellant to not only establish that the judgment was delivered outside the period prescribed by the Constitution, but must go further to establish that the non-compliance occasioned a miscarriage of justice. In contending that the failure of the learned trial judge to deliver the judgment within the prescribed period occasioned a miscarriage of justice,
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learned counsel for the appellant relied on the entire circumstance of the case in arguing that without a doubt the perception, appreciation and evaluation of the case must have been affected by the entire circumstance of the delivery of the judgment.
I have been referred to the case of Oguntayo vs. Adelaja (2009) ALL FWLR (pt. 495) 1626 @ 1661 per Ogebe JSC to the effect that miscarriage of justice occurs when the Court fails or refuses to follow its rules and arrives at a decision which is prejudicial or inconsistent with the legal right of a party. In the same vein the Apex Court in Irolo vs. Uka (2002) 14 NWLR (pt. 786) 195, held that to constitute miscarriage of justice, there must be such departure from the rules which permeate all judicial procedure as to make what happened not in the proper sense of the word judicial procedure at all. It went further to hold that what will constitute a miscarriage of justice may vary not only on the particular facts, but also with regard to the jurisdiction which has been invoked in the proceedings in question and to reach the conclusion that but for the miscarriage of justice a different decision might have been reached. It
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involves the violation of some principle of law, or procedure or an erroneous proposition of law, the findings of which cannot be supported, see M. O. Kanu, Sons & Company Ltd vs. First Bank of Nigeria Plc (2006) 5 SC (pt.111) 80. I have keenly taken into consideration the state of the law, vis a vis the proceedings before me. I have earlier pointed out that the judgment is principally based on documents laid before it, and in the absence of any clear departure therefrom hold the view that no clear miscarriage of evidence was shown to have been occasioned. Indeed the conduct of the trial Judge is reprehensible, and clearly calls for sanctions against him, but I will be slow in holding that such vitiated the judgment, and I so hold.
ISSUE FOUR.
Whether on the preponderance of evidence and the entire circumstances of this case, the learned trial judge was not wrong in dismissing the appellants case while granting the respondent?s counterclaim.
It is the submission of the learned counsel for the appellant that the lower Court was wrong in dismissing the appellant?s case, while granting respondent?s counterclaim.
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He referred to exhibit one evidencing the facility granted to the appellants by the Oceanic Bank, and narrates how the principal sum of five million naira was eventually paid, having agreed with the alleged agents of the bank, that the sums paid is in full satisfaction of the debt owed. Counsel alluded to the testimony of the PW 1 the 2nd appellant, and that of the Dw1, contending that from the evidence adduced, it was for the respondents to have given evidence in rebuttal of the fact that the sums paid were not for the settlement of the entire debt as agreed. He referred to the case of Dr. Useni Uwah & anor vs. Dr Edmunson T. Akpabio & anor (2014) 2-3 SC 1 to the effect that the acts of the agent, binds a disclosed principal. He argued also that despite the fact that the status of Kunle Mesele and Adetayo Adekeye was raised in the pleadings, deposition and written addresses, the trial Court failed to make any specific finding on it. He argued also that the implication of the respondent?s failure to call the two mentioned persons raised a strong presumption of withholding evidence contrary to Section 167 (d) of the Evidence Act, as interpreted in the case of
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Onah vs. The State (1985) 3NWLR (pt. 12) 236 @ 245 and others. He alluded to the holding of the lower Court, which he states is a misplacement of the burden of proof on the fact that five million naira was paid on the understanding that the interest would be waived.
On the other leg of the issue, counsel submits that by the authority of Labode vs. Otubu (2001) 3 SC 15 @ 41, the case of detinue was established against the respondent. He referred to the ingredients of the offence of detinue enumerated in the case of Nigerian Bottling Company Plc. vs. Okafor (2012) ALL FWLR (pt. 647) 766 @ 776, submitting that all the elements were established.
Further still counsel submits that the respondent failed to establish the fact that it acquired the Oceanic Bank, and the Court cannot take judicial notice of such acquisition. He argued still further that the respondent is estopped from denying the agency of the said staff of Oceanic Bank, and the oral agreement entered constituted a variation to the contents of exhibit 1. Further submitting, counsel argued that the respondents failed to establish how the amount claimed came about, including the claim for interest.
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Relying on the case of Abacha Foundation for Peace and Unity vs. UBA Plc (2010) 1 SC (pt. II) 72 @ 79; where the Supreme Court held that;
?A plaintiff in order to succeed in a claim for interest must show how the entitlement for such interest arose, i.e whether by law, by contract or agreement, or plead facts showing the claim is part of the loss or special damages which the defendants wrong doing imposed on him?.
He referred to the case of Integrated Dimentional Systems Ltd & 2 ors vs. African International Bank Ltd (supra) on when the interest rate agreed upon should expire.
The respondent by his counsel, and in answer to the appellants contention on the placement of burden of proof, referred to the case of The State vs. Aibangbee (1988) 3 NWLR (pt. 84) 548 @ 577, to posit that trial Courts decide on evidence placed before it, and not on preferred or imagined facts. He argued that the appellants having not placed any credible evidence on the variation of exhibit 1, the Court was not bound to consider such extrinsic facts not placed before it. He reasoned that the appellant having asserted that exhibit 1 was varied, bears the
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evidential burden of proving the same, the case of Union Bank Of Nigeria vs. Ozigi (1994) 3NWLR (pt. 333) 385 @ 407 was cited on the point. He insists that no evidence was proffered by the appellants to assist their case, having failed to place material facts, evidence and documents to support the grant of the reliefs sought. Learned counsel also submitted that the appellants having admitted exhibit 1, cannot contend varying same without providing a document to that effect. On privity of contract, counsel referred to Section 31 (5), (6) and (7) of the Companies and Allied Matters Act 2004. He further referred to Section 124 (1) of the Evidence Act, which provides that ?proof shall not be required of a fact the knowledge of which is not reasonably open to question and which, (1a) common knowledge in the locality in which the proceedings is being held, or generally. On the issue of estoppel, learned counsel argued that the appellants failed to call the two respondent?s officers. On the appellant’s reliance on the case of IDS Ltd vs. AIB Ltd (supra), counsel submits that exhibit one was voluntarily made and entered by both
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parties without force or undue influence and therefore valid and enforceable. He urged the Court to give effect to the contract lawfully entered. On detinue, learned counsel’s position is that appellant can only maintain an action for the tort of detinue after satisfying that he has title, and the defendant who is in actual possession failed or refused to deliver the chattel. He states that in the instant case, the respondent has a lien on the property and therefore the right to hold on to the property.
By way of reply on points of law, appellants maintain that the appellant having adduced evidence with regard to the staff of the respondent, they are duty bound to call evidence in rebuttal.
The plank of the appellants case with regards to this issue centers on whether the appellant satisfied the evidential burden of establishing that the terms incorporated in exhibit 1, were indeed altered by agreement made between it and the alleged agents of the respondents. This is so because, the law places the burden of proving a fact asserted on that party that made the assertion. To that respect, Section 131 (1) and (2) of the Evidence Act 2011 provides that;
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131 (1) whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.
(2) when a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
The further provision of Section 132, of the same Evidence Act, provides that, the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. The burden of proof in civil cases as in the present case is not static, unlike in criminal proceedings, as provided by Sections 133, 136, 138 and 140 of the Act. SeeAdegoke vs. Adibi (1992) 5 NWLR (pt. 242) 410 per Nnaemeka Agu JSC.
?The fact that exhibit 1 was entered into by the appellant and Oceanic Bank Plc is not in dispute, nor is it in dispute that the terms therein were agreed initially between the two parties. The appellants now contend and argue that the agents of the stated bank entered into agreement with the appellants to vary the terms of the agreement, and that the principal sums of five million naira only be paid as
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full and final satisfaction of their indebtedness. The lower Court on the issue held that the claimant having refused to invite, summon or subpoena the two officers of the bank to assist him, how can he now shift the position to the bank to tell us whether the principal loan paid was in full satisfaction of other interest. The Court was of the view that the appellants as claimants ought to have called, summoned or subpoenaed the two officers to give evidence in support of their contention, failing which the Court had no option than to enforce the terms of the contract entered. I also hold the same view. As earlier stated, appellants are not disowning exhibits 1. It is trite that the contents of a document are enough proof of what it intends as documents speak by themselves. In the same vein a document executed by a party binds him. See Okoya vs. Santilli (1994) 4 NWLR (pt. 338) 256, SS GMBH vs. T.D. Ind. Ltd (2010) 11 NWLR (pt. 1206) 589 @ 596. The appellants claim that one Kunle Mesele and Tayo Adekeye acting as agents of the bank purportedly entered an agreement with them varying the contents of exhibit 1, can only be ascertained when the said officers are called. This
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duty falls squarely on the claimants, and as rightly contended by the respondent, they are under no obligation to call them, the appellants having failed to prove their case. I do agree that appellants totally failed in proving their case having not placed any materials, material facts or adduced credible and acceptable evidence to back their claim. their claim was therefore rightly rejected. Having failed to prove their case, their claim for detinue must equally fail. For as posited by the respondent, by the contents of exhibit 1, the respondents who are still yet to be paid have a lien on the property and therefore the cases of Labode vs. Otubu (supra), Isa vs. Saje (2012) ALL FWLR (pt. 644) 127 @ 143, Julius Berger Nig. Vs. Omogui (2001) 6 SC 185 and Nigerian Bottling Company Plc vs. Okafor (supra) are inapplicable.
The other argument as to whether the respondent is entitled to the counterclaim or not, appellants having not entered into the agreement with them in the initial stage, the lower Court is right in asserting that the issue of the respondent acquiring Oceanic bank is of common knowledge, and as rightly contended, by the provisions of Section 31 (6) of the Companies and Matters Act, 2004,
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which provides that; the change of name shall not affect any rights or obligations of the company or render defective any legal proceedings by or against the company, and any legal proceedings that could have been continued or commenced against it or by it in its former name may be continued or commenced against it or by it in its new name, and moreover Section 124 of the Evidence act, 2011 makes provision to the effect that proof shall not be required of a fact the knowledge of which is not reasonably open to question and of common knowledge. The appellants contention to that regard is of no moment. The two English cases of Central London Property Trust Ltd vs. High Trees House Ltd (1956) 1 ALL ER 256, and Hughs vs. Metropolitan Rail Co (1874 ? 80) ALL ER Rep. 187 @ 191 cited by the appellants, are inapplicable to the case at hand. It must be clearly understood that the argument is not the fact that parties cannot agree to waive interest, and thereby accept a lesser sum in satisfaction of the sums due, but that such agreement never took place, and the appellants who claimed that such happened failed to
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adduce acceptable evidence in that regard. There is in fact no evidence to the effect that exhibit 1 was varied, so the case of Idufueko vs. Pfizer Products Ltd & ors (2014) 5 ? 6 SC (pt.III) 33 @ 58 is of no moment. It holds true therefore that by the terms of exhibit 1, which appellants gladly entered into with their eyes wide open, and which contains terms mortgaging his property, with the terms on interest clearly spelt out, cannot at this stage complain. Having earlier resolved the issue of the application of the case of AIB Ltd vs. IDS ltd (supra), I do agree with the respondent that all the issues raised before the lower Court were amply considered and resolved. I also resolve this issue in favor of the respondent.
Having therefore resolved all the issues against the appellant, the inevitable conclusion is that the appeal fails for want of merit and it is hereby dismissed by me. The decision of S. M. Akanbi in suit no. KWS/453/2014 between Avzat international and 1 or vs. Ecobank Nigeria Ltd, delivered on the 30th of September, 2016 is hereby affirmed.
Costs of N20,000 only awarded to the respondent.
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CHIDI NWAOMA UWA, J.C.A.: I read in advance the draft of the judgment delivered by my learned brother, HAMMA AKAWU BARKA, JCA. My learned brother has comprehensibly resolved the issues that arose in the appeal, I adopt same as mine. By way of emphasis, I would add a few words. Pursuant to Section 295(5) of the 1999 Constitution a judgment, decision or order delivered or made after the stipulated period of ninety (90) days does not render the judgment or order invalid except the appellant can satisfy the Court that the non-delivery of the judgment (as has arisen in this case) has occasioned a miscarriage of justice to him. See, OWOYEMI VS. ADEKOYA (2003) 18 NWLR (PT. 852) 307 and DENNIS AKOMA & ANOR VS. OBI OSENWOKWU & ORS (2014) LPELR – 22885 -(2014) 11 NWLR (Pt 1419) P. 462.
The appellant has the onerous task of establishing that the delay occasioned a miscarriage of justice in that the trial judge did not take a proper advantage of having seen or heard the witnesses, testify or that he had lost his impression of the trial due to inordinate delay. This, the appellants failed to do. See, AKPAN VS. UMOH (1999) 7 SC (PT. 11).
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I am of the view that it is better and advisable that an appellant focuses more on the contents of the grounds of appeal rather than such a trivial challenge of the entire judgment on appeal for the reason that it was not delivered within the stipulated ninety (90) days. This is no excuse though for the trial Court to have unnecessarily. delayed the judgment on appeal for the flimsy reason it gave.
For the fuller and comprehensive reasoning of my learned brother, I also dismiss the appeal and abide by the order made as to costs in the leading judgment.
BOLOUKUROMO MOSES UGO, J.C.A.: I was privileged to read in advance the lead judgment of my learned brother HAMMA AKAWU BARKA, JCA, and I am in complete agreement with him on his reasoning and conclusion. I only want to add, as regards the complaint of appellant about the alleged incompetence of the final address of respondent which was ‘filed at the lower Court a day outside the time fixed by the rules of that Court that the provision of the rules of Courts relating to time for service of processes between parties is purely technical in nature and for the convenience of parties so any failure in that
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regard is mere irregularity, and not nullity, which the Court can overlook, just like parties can also waive it: see Atanda v. Ajani (1989) 3 NWLR (PT 111) 511 @ 541 – 546 (Nnaemeka-Agu, J.S.C); Nduka v. Chiejina (2002) FWLR (PT 117) 1178 @ 1198, B-D; SPDCN Ltd v. Egweaja (2016) 10 NWLR (PT 1519) 1 @10 -11 F-S (relating to a brief of argument filed out of time); F.S.B. v. Imana Ltd (2000) 7 SCNJ 65 @ 79:
See also E. B. Ukiri v. Geko Prakla (Nig.) Ltd (2010) 16 NWLR (PT 1220) 554 where Musdapher, J.S.C., as he then was (with the concurrence of his learned brothers Onnoghen, Tabai, Muntaka-Coommassie and Adekeye JJ.SC.) said (at @ 558 para A-F):
“It is settled law that the Courts are enjoined in the adjudication of disputes between the parties to do substantial justice and not to have an undue regard to technicalities. This Court in the case of United Bank for Africa Ltd V Dike Nwora (1978) 11 – 12 SC 1 at 6- 7 held that a statement of defence filed out of time and in contravention of the rules of Court was not a void document and remain “a valid document until set aside” Fatayi Williams JSC (as he then was) stated in that case:-
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‘….. If a defence has been put in, though irregularly. the Court will not disregard it, but will see whether it set up grounds of defence which, if proved, will be material and if so will deal with the case in such manner that justice can be done.’
“Similarly, in this case where the respondent complied with the conditions of appeal and even if out of time is of no moment. See also Nofiu Surakatu v. Nigeria Housing Development Society Limited (1981) 4 SC 26 where it was held that, the Court has a duty to do substantial justice between the parties hence it would not allow any irregularity which does not affect the real justice of the matter to affect an otherwise just decision. This case has overruled the earlier decisions in Adesina Moses v. Ogunlabi (1 975) 4 SC 81 and Addis Ababa v. Adeyemi (1976) 12 SC 51 which voided appeals for failure to execute bonds. In my view the complaints of the appellant are misconceived.”
For this little bit and the fuller reasons in the judgment of my learned brother Barka, J.C.A., which I here adopt as mine, I also dismiss this appeal with costs as ordered by my brother.
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Appearances:
Dr. D. A. Ariyoosu with him, Kayode Oni Esq., Halima Jimada Esq. and M. A. Oladepo Esq.For Appellant(s)
Abayomi Idowu Esq.For Respondent(s)
Appearances
Dr. D. A. Ariyoosu with him, Kayode Oni Esq., Halima Jimada Esq. and M. A. Oladepo Esq.For Appellant
AND
Abayomi Idowu Esq.For Respondent