FORTUNE INTERNATIONAL BANK PLC. & ORS V. CITY EXPRESS BANK LTD (2012)

FORTUNE INTERNATIONAL BANK PLC. & ORS V. CITY EXPRESS BANK LTD

(2012)LCN/5284(CA)

In The Court of Appeal of Nigeria

On Friday, the 30th day of March, 2012

RATIO

APPEAL: IMPORTANCE OF NOTICE OF APPEAL

Let me state here that a Notice of Appeal in the process of appeal is a very important document as it is the foundation of the appeal. If it is defective, the appellate court cannot assume Jurisdiction and must be struck out on the ground that it is incompetent. See First Bank of Nigeria Plc v. TSA Industries Ltd. (2010) 15 N.W.L.R. (pt. 1216) 247; Amadi v. Okori (1972) 7 SC; Central Bank of Nigeria v. Okojie (2004) 10 N.W.L.R. (pt.882) 488; Olarenwaju v. BON Ltd. (1994) 8 N.W.L.R. (pt.364) 622. PER JOHN INYANG OKORO, J.C.A

APPEAL: RULE ON FILING SEVERAL NOTICES OF APPEAL

WORDS AND PHRASES: MEANING OF LIQUIDATED MONEY

A liquidated money demand is defined as a claim for an amount previously agreed by the parties or that can be precisely determined by operation of law or by terms of the parties. In Iwueke v. Imo Broadcasting corporation (2005) 17 N.W.L.R (pt.955) 447 at 484 – 485 paragraphs H – B, the Supreme Court per Ogbuagu, JSC held that:

“Since the learned trial Judge did not receive evidence in proof of the alleged libel, the lower court was justified and right, in holding that the trial court was in error to have entered Judgment for the Appellant. This is also because, as noted in the case of Odume & Ors. v. Nnachi & Ors. (1964) 1 All BLR 324 at 328 (which was a case in trespass), Idigbe, JSC stated inter alia, thus: “… a claim for damages a does not become one for “liquidated damages” merely because a specific amount of money is claimed”.

The learned Jurist referred to Odgers on the common Law (1927) 3rd Edition, Vol. 2, p.654 where the following appears:

“Whenever the amount to which the Plaintiff is entitled can be “ascertained by calculation or fixed by any scale or other positive data” it is said to be liquidated or ‘made clear’. But when the amount to be recovered depends on all the circumstances of the case and on the conduct of the parties and is fixed by opinion or by an estimate, the damages are said to unliquidated”.

EVIDENCE: NATURE OF ESTOPPEL

The Supreme Court in Jacob Oyerogba & Anor. V. Egbewole Olaopa (1998) 12 N.W.L.R. (pt.583) 509 at 519 paragraphs A – B has put the matter beyond doubt when it held that:-

“Estoppel is now more than rule of practice and it can rightly be described as substantive rule of law. There is estoppel where a party is precluded from saying a certain statement of fact is untrue whether in reality it is true or not. Estoppel, in nature, is a conclusion creating a disability whereby a party is precluded from contending or proving in any legal proceedings that a fact is otherwise than it has been made to appear by the matter giving rise to that disability”.

The Apex Court in paragraphs G – H in the same case on page 519 further states:-

JOHN INYANG OKORO, J.C.A (Delivering the Leading Judgment): This appeal is against the Ruling of the Federal High Court Lagos in Suit No. FHC/L/CS/58/02 delivered on 29th July, 2002 by A. A. Gumel, J. wherein the learned trial Judge entered Judgment in favour of the Respondent herein as per its claim dated 26th June, 2002. A synopsis of the facts giving birth to this appeal will suffice.

The Respondent/cross Appellant as plaintiff in the trial court, granted a Term Loan Facility of N500, 000,000.00 (five hundred million naira) through its offer letter dated 12th January, 2001 to the 2nd Appellant who accepted and utilized the same as encapsulated on pages 6 – 10 of the record of appeal. The 1st Appellant which shares the same ownership structure with the 2nd Appellant, further to its Board Resolution, executed a corporate Guarantee for the said facility in favour of the Respondent/cross Appellant. The 3rd, 4th and 5th Appellants also executed personal Guarantees in favour of the Respondent herein. Owing to the failure of the 2nd Appellant to honour its obligation i.e., the payment of agreed monthly rentals and further failure on the part of the 3rd – 5th Appellants, the Respondent/cross Appellant called in the corporate Guarantee of the Appellants who also defaulted in their, obligation.

With this state of affairs, the Respondent on 21/1/02 instituted an action by way of originating summons and claimed inter alia the sum of N254, 836,238.23 (two hundred and fifty four million, eight hundred and thirty six thousand, two hundred and thirty eight naira, twenty three kobo) being the 1st – 5th Appellants’ indebtedness to the Respondent/cross Appellant as at 15th January, 2002.

In a bid to secure the money, the court below granted an ex-parte application against the Central Bank of Nigeria, ordering it to set aside the said amount standing to the credit of the 1st Appellant. Upon service of the processes on the 1st – 5th Appellants, they filed a preliminary objection on 14/2/02 challenging the jurisdiction of the court and on that same date the court below extended the life span of the exparte order.

On 6/3/02, the 1st Appellant issued its cheque No. 000746370 in the sum of N259,796,792.50 (two hundred and fifty nine million, seven hundred and eighty six thousand, seven hundred and ninety two naira, fifty kobo) an amount over and above the sum claimed by the Respondent in its Originating Summons. The Respondent in acknowledging receipt of the said amount in a letter on page 471 of the record of appeal, reminded the Appellants that it was still being owed the sum of N50, 555,027.70 (fifty million, five hundred and fifty five thousand, twenty seven naira, seventy kobo) “being cumulative sum for interest, default and other charges”.

In consequence thereof, the Respondent/cross Appellant brought an application to amend the originating summons to reflect the sum owing, which it said ought to have been N310, 119,820.29 (three hundred and ten million, one hundred and nineteen thousand, eight hundred and twenty naira, twenty three kobo) as at the time the suit was filed originally and having paid the sum of N259,786,792.50 (two hundred and fifty nine million, seven hundred and eight six thousand, seven hundred and ninety two naira; fifty kobo), the unpaid balance was then the sum of N50, 021,114.94 (fifty million, twenty one thousand, one hundred and fourteen naira, ninety four kobo). On 27/5/02 when the motion for amendment came up for hearing, the court below made an order that the parties should file pleadings afresh in the new matter.

The Respondent/cross Appellant then filed a writ of summons with a statement of claim- The Respondent also filed a Motion Ex-parte dated 20/6/03 praying the court to enter the suit on the undefended list and the suit was accordingly entered on the undefended list. On receipt of this process, the Appellants, rather than file Notice of Intention to defend the suit, filed another preliminary objection challenging the Jurisdiction of the court. On 29/7/02, the learned trial Judge struck out the said preliminary objection for being an abuse of court process. He then proceeded to enter Judgment for the Respondent/cross Appellant in terms of his claim based on the undefended list procedure since the Appellants did not file Notice of Intention to defend.

Aggrieved by the Ruling of the court below, the Appellants filed Notice of Appeal on 1st August, 2002 which Notice contains five Grounds of Appeal. Also, by the leave of this court the Appellants filed one additional Ground of Appeal on 4th June, 2004. Out of the six Grounds of Appeal, the learned counsel for the Appellants has formulated three issues for the determination of this appeal. The issues are:-

“1. Whether or not the learned trial Judge was right to have awarded Judgment against the Appellants under an undefended list procedure in an action commenced by way of Originating Summons;

2. Whether or not an undefended list procedure under order 24 Rule 1 of the Federal High court (Civil Procedure) Rules 2000 can be used by the Respondent to recover legal charges, default charges and interest charges from the Appellant all of which are in the form of general damages without any evidence;

3. Whether or not the Respondent claim is caught by Doctrine of Estopel, having by his words or conduct made unambiguous promise or assurance to the Appellant which is intended to affect the relations between the Appellant and the Respondent and the Appellant having acted upon the said assurance altering his position to his detriment”.

On page 10 of the brief settled by Oluwakemi Balogun Esq. on behalf of the Respondent, the three issues distilled by the Appellants are repeated. Although the learned counsel for the Respondent did not expressly say they are adopting those issues, it may be safe to conclude that the Respondent has adopted the three issues distilled by the Appellants. I shall therefore determine this appeal based on the three issues distilled by the Appellants.

On issue one, the learned counsel for the Appellants, E. A. Oyebanji, Esq. contended that the Respondent failed to comply with the order of the lower court made on 27/5/02 which ordered it to file a statement of claim and serve same on the Appellants who should file their statement of Defence accordingly. That rather than comply with the said order, the Respondent filed writ of summons along with a statement of claim. He submitted that the filing of the writ of summons by the Respondent was without a valid order of the court and consequently the Judgment given in pursuance of such a writ is bad and invalid in law being null and void. He relies on the case of UAC v. Macfoy (1961) 3 All ER 1169.

Secondly, he submitted that the Respondent super imposed the writ of summons on the originating summons in order to enable it bring the suit under the undefended list procedure. He concluded argument on this issue by stating as follows:-

“It is humbly submitted that the learned trial Judge should have rightly identified the issues involved since a Judge exist (sic) to determine disputes and to examine with due case and microscope (six) senses all matters before him in his pursuit of justice. He is not there to trap any party. See Chief Horold Sodipo v. Lemminkainen OY & Anor. (1986) 1 SC 197 at 217. We urge the court to resolve issue No. 1 in favour of the Appellant”.

In his reply, the learned counsel for the Respondent submitted that the Appellants have created an impression in their argument that there were two suits and Judgment to which the lower court superimposed one on another but which the Appellants failed to show evidence of the two suits and Judgment to which the lower court superimposed one on another to this court. It is his contention that a trial court has Jurisdiction to convert an originating summons to a writ of summons and order pleadings in the matter. He relies on the cases of Anatogu v. Anatogu (1997) 9 N.W.L.R. (pt.519) 49 at 70 paragraphs C and National Bank of Nigeria v. Alakija (1978) 9 – 10 SC. 57.

Learned counsel for the Respondent further submitted that the Appellants having been served with all the processes had ample time and opportunity to controvert the facts but that they failed to do so and this in law amounts to an admission by the Appellants of which the trial court was right to act upon it. He cites and relies on the case of Okoebor v. Police Council (2003) 12 N.W.L.R. (pt.834) 444 at 473 paragraphs A.

Furthermore, it was learned counsel’s further contention that as the Appellants neither filed a Statement of Defence or an Affidavit disclosing intention to defend the suit, the court below had no choice than to enter Judgment for the Respondent. In support he cites the following cases: Okoli v. Morecab Finance Nig. Ltd. (2007) 14 N.W.L.R. (pt.1853) 37; Alagbe v. Abimbola (1978) 2 SC 39; Ajomale v. Yaduat (No.2) (1991) 5 N.W.L.R. (pt.191) 266 at 270.

Learned counsel drew the attention of the court to the fact that the amendment sought by the Respondent at the court below was to correct the mistake of counsel which should not be visited on the Respondent to which the learned trial Judge rather ordered parties to file pleadings. Though the learned counsel does not contest the order of the court in this regard, he submitted that amendment can be granted at any stage of the proceedings relying on the case of Nwankwo v. Nwankwo (1993) 5 N.W.L.R. (pt.293) 281 at 294; Osunrinde v. Ajamogun (1992) 6 N.W.L.R. (pt.246) 156 at 192 and Ogidi v. Egba (1991) 10 N.W.L.R. (pt.621) 71.

The Respondents’ counsel, in furtherance of his argument, submitted that the processes filed by the Respondent/cross Appellant pursuant to the trial ‘court’s order of 27th May, 2003 to wit: Writ of Summons, Statement of Claim, Motion Ex-parte and verifying Affidavit and attached Exhibits are the processes that are material to this court as opposed to those processes filed before the order was made to wit: Originating Summons, Motion for Amendment etc. He relies on the case of Katto v. Central Bank of Nigeria (1999) 6 N.W.L.R. (pt.607) 390 at 412. Furthermore, that as the Appellants did not deny the existence of the agreement exhibited on pages 310 and 346 of the Record of Appeal, nor did they deny the fact that they are owing the said balance of N57, 021,114.94 (fifty seven million, twenty one thousand, one hundred and fourteen naira, ninety four kobo), they are deemed to have admitted the debt. He urged this court to hold that the undefended suit leading to the Judgment of 29th July, 2002 was proper before the lower court.

I wish to observe at this point in time that the learned counsel for the Appellants, apart from distilling issue one for the determination of this appeal, there is scarcely any argument in support thereof. The barely one paragraph argument is largely dominated by the facts of the case which has not brought out the real issue in controversy. Counsel has to be reminded that appeals are not won by merely distilling issues but by putting forward cogent and convincing arguments backed up by the law and judicial authorities or precedents where available. I dare say that the argument on this issue is a “let my people go’ argument which does not bring out the real issue in controversy. Be that as it may, this court has a duty to do justice between the parties based on the state of the law vis–vis the facts of this case.

Order 24 Rule 1 of the Federal High Court (Civil Procedure) Rules 2000, states:-

“1. Whenever application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt or liquidated money demand and the application is supported by an affidavit setting forth the grounds upon which the claim is based, and stating that in the deponent’s belief there is no defence thereto, the court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the “undefended list”, and mark the Writ of Summons accordingly and enter thereon a date for hearing suitable to the circumstances of the particular case”.

Let me state here that the undefended list procedure is designed to enable a Plaintiff to obtain summary Judgment without lengthy trial in such cases where the Plaintiff’s case is unassailable and the Defendant cannot show a defence which will lead to a trial of the case on its merits. The procedure is not intended to deny a Defendant fair hearing; rather it is a way of speeding up trial and entering Judgment without unnecessary waste of time where the conditions for it are available. See UTC v. Pamotei (1989) 2 N.W.L.R. (pt.103) 244; Okoli v. Morecab Finance Nigeria Ltd. (2007) 14 N.W.L.R. (pt.1053) 32.

Thus, a Defendant in an undefended suit proceedings must show in his affidavit in support of his notice of intention to defend the suit not only that he intends to defend the suit, but also that the affidavit discloses a real defence on the merit. It is not enough for such a Defendant to merely assert that he has a good defence to the action without deposing to the relevant facts disclosing such defence. See ACB Ltd. v. Gwagwada (1994) 5 N.W.L.R. (pt.342) 25. For a court to let the Defendant defend the suit, it must be satisfied that the Defendant has deposed to facts which disclose a prima facie or reasonable defence. See UNN v. Orazulike Trading Co, (1989) 5 N.W.L.R. (pt.119) 19; Agwuneme v. Eze (1990) 3 N.W.L.R. (pt.137) 242; Okambah Ltd. V. State (1990) 7 N.W.L.R. (pt.160) 1.

Needless to say, and it is trite law that when, in a situation in which facts are provable by affidavit, one of the parties deposes to certain facts, his adversary has a duty to swear to an affidavit to the contrary if he disputes the facts. Where such a party fails to swear to an affidavit to controvert such facts, the facts may be regarded as duty established. See Ajomale v. Yaduat (No.2) (1991) 15 N.W.L.R. (pt.191) 266 at 282.In the instant appeal, the Appellants herein, upon the receipt of the original processes in the suit at the court below, filed a Notice of Preliminary objection to the Jurisdiction of the court to entertain the suit on the grounds that the originating summons disclosed no cause of action to warrant the court’s determination. But before all pending applications and the Notice of Preliminary objection could be heard, the Appellants forwarded a cheque in the sum of N259,786,792.50 (two hundred and fifty nine million, seven hundred and eighty six thousand, seven hundred and ninety two naira, fifty kobo) to the Respondent, an amount higher than the sum of N254,836,238.23 (two hundred and fifty four million, eight hundred and thirty six thousand, two hundred and thirty eight naira, twenty three kobo) claimed by the Respondent. In other words the Appellants admitted liability and paid an amount higher than that which was claimed. Upon receipt of the said cheque, the Respondent wrote to the Appellants intimating them of a mistake made by its counsel in the calculation of the amount. Thereafter, the Respondent filed an application to amend the originating summons to reflect the sum owing which was put at N310, 199,820.23 (three hundred and ten million, one hundred and ninety nine thousand, eight hundred and twenty naira, twenty three kobo). When this application came up for hearing, the learned trial Judge ordered the Respondent to file a fresh suit instead of an amendment. Pursuant to the said order of court, made on 27/5/02, the Respondent filed a Writ of summons, statement of claim, Motion Ex-parte and a verifying Affidavit and attached Exhibits praying the court to place the suit on the undefended list, which claimed the sum of N57,021,114.94 (fifty seven million, twenty one thousand, one hundred and fourteen naira, ninety four kobo), being the outstanding sum from the N500 million Term Loan made available by the Plaintiff (now Respondent) to the Appellants. The learned trial Judge granted the application and placed the suit on the undefended list. Upon receipt of these processes, the Appellants, as they did before, filed a Notice of Preliminary objection to the Jurisdiction of the court. The learned trial Judge struck out the preliminary objection and heard the case as an undefended suit.

Under the undefended list procedure as provided for in order 24 Rule 3(1) of the Federal High court (civil procedure) Rules 2000, if a party served with the writ of summons and Affidavit delivers to the Registrar, not later than five days before the day fixed for hearing, a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the court may give him leave to defend upon such terms as the court may think just. Under Rule 4 thereof, where any Defendant neglects to deriver the Notice of Defence and Affidavit prescribed by Rule 3(1) of the said order, or is not given leave to defend by the court, the suit shall be heard as an undefended suit, and Judgment given thereon, without calling upon the plaintiff to summon witnesses before the court to prove his case formally. See Ben Thomas Hoters Ltd. v. Sebi Furniture Co. Ltd. (1989) 5 N.W.L.R. (pt.123) 523; Ataguba & Co. v. Gura Nig. Ltd. (2005) 8 N.W.L.R. (pt.927) 429; Agro Millers Ltd. v. CMB Ltd. (1997) 10 N.W.L.R. (pt.525) 469.I need to emphasise that the procedure under order 24 Rule 1 of Federal High Court (Civil procedure) Rule 2000, is a special provision with its own rules which must be followed step by step to its logical conclusion. Whenever, a party is served with processes under the undefended suit, what is required of such a party is to file an Affidavit disclosing an intention to defend the suit and depose to facts that would assist the court to decide in his favour by giving him leave to defend the suit. He can also admit the debt if he so wishes.

The Appellants herein have in this issue asked this court to determine whether the learned trial Judge was right to have awarded Judgment against the Appellants under an Undefended List Procedure in an action commenced by way of Originating Summons. Quite surprisingly, in his argument in paragraph (b) on page 6 of his brief, the Appellant’s counsel clearly states that the Undefended List Proceedings was based on a Writ of Summons along with a Statement of Claim. This is contrary to the issue which states that the Undefended List Proceedings was based on an Originating Summons. Let me reproduce the said argument verbatim as follows:

“b. The Respondent rather than complying with the order of the court to file and exchange pleadings misconceived the order and filed a writ of summons along with a Statement of Claim. This is of course, a negation of the said order of the court. Therefore, the filing of the writ of summons by the Respondent was without a valid order of the court and consequently the Judgment given in pursuance of such a writ is bad and invalid. In law, an act which is void is a nullity, ineffectual and of no legal consequence”.

The Appellant has admitted that the Respondent filed a Writ of Summons and Statement of Claim which, as I can see, is in tandem with the order of the lower court. It is this Writ of Summons and Statement of Claim which the Respondent based his application to set down the matter for hearing on the undefended fist. Certainly, it was not based on an Originating Summons. It is my view that the pleading which the court below ordered the parties to file was the Statement of Claim filed by the Respondent. It is this Statement of Claim that has to be endorsed or attached to the Writ served upon a Defendant. See Chief Harold Sodipo v. Lemminkainen OY & Anor. (1986) 1 SC 197 at 207. The writ of Summons filed on 21/6/02 is on pages 381 – 382 of the record of appeal while the Statement of Claim filed on the same date is on pages 383 – 386 of the record. These are the processes upon which the undefended list proceedings were based. It has to be bourne in mind that these processes were filed on the orders of the lower court when it refused the Respondent’s application for amendment.

Although the Respondent filed an originating summons on 21/1/02, it was no longer relevant since the Appellants had paid to the Respondent the sum of N259, 786,79250 far above the N254, 836,298.23 claimed under it. It was when the Respondent sought to amend the originating summons that the lower court ordered that fresh process be filed in respect of the additional claim. Thus, the originating summons, having been spent upon the satisfactory payment of the Judgment sum under it is of no moment any more. The undefended list proceedings of which Judgment is being appealed against was based on the writ of summons and statement of claim ordered by the lower court and filed subsequently on 21/6/02. There is no superimposition of the writ of summons and statement of claim on the originating summons as submitted by learned counsel for the Appellants. This issue does not, in my opinion avail the Appellants as I resolve it against them.

Before I proceed on the second issue, I wish to observe that the learned counsel for the Respondent had made much weather on the fact that the Appellants filed several Notices of Appeal and that some of the issues were not distilled from certain Grounds of Appeal. Let me state here that a Notice of Appeal in the process of appeal is a very important document as it is the foundation of the appeal. If it is defective, the appellate court cannot assume Jurisdiction and must be struck out on the ground that it is incompetent. See First Bank of Nigeria Plc v. TSA Industries Ltd. (2010) 15 N.W.L.R. (pt. 1216) 247; Amadi v. Okori (1972) 7 SC; Central Bank of Nigeria v. Okojie (2004) 10 N.W.L.R. (pt.882) 488; Olarenwaju v. BON Ltd. (1994) 8 N.W.L.R. (pt.364) 622.

It is trite that an Appellant can file several Notices of Appeal within the time allowed by law but at the hearing of the appeal, an Appellant will only rely on one of these notices and not on all the Notices unless he applies to consolidate them. See Tukur v. Government of Gongola State (1988) 1 N.W.L.R. (pt.68) 39. In the instant appeal, although the learned counsel for the Appellant did not inform the court that he had filed several Notices of Appeal, he specifically told the court that the Notice of Appeal upon which the appeal is anchored, is the one filed on 1st August, 2002 which to my mind was filed within time. No other Notice was referred to. All the argument of the Appellant in this matter goes to no issue, moreso, as he did not file any Notice of Preliminary Objection.

On issue two, the learned counsel for the Appellants submitted that the Respondents’ claim as endorsed on the Writ of Summons and Statement of Claim is not a liquidated money demand but a form of special damages allegedly suffered by the Respondent as a result of the Appellants’ default and this claim ought to be strictly proved, citing the case of Otaru v. Idris (1999) 4 SC (pt.2) 87; Dumex Nig. Ltd. v. Patrick Nwaka Ogboli (1972)3 SC, 196.

In his reply, the learned counsel for the Respondent submitted that the claim of the Respondent was for liquidated sum which is ascertainable and clear and which has been agreed by the parties. He relies on these cases: Befareen pharmacy Ltd. v. African International Bank Ltd. (2005) 17 N.W.L.R. (pt.954) 230 at 235; Iwueke v. Imo Broadcasting Corporation (2005) 17 N.W.L.R. (pt.955) 447 at 459; African International Bank Ltd. v. Packoplast Nig. Ltd. (2003) 1 N.W.L.R. (pt.802) 502.

ISSUE 2

As l had earlier stated in this Judgment, the purport of order 24 Rule 1 of the Federal High Court (Civil Procedure) Rules 2000 is that whenever application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt or liquidated money demand and the application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the Deponent’s belief there is no defence thereo, the court shall, if satisfied that there is no defence thereto, enter the suit for hearing in what shall be called the “Undefended List”, and mark the Writ of Summons accordingly, and enter thereon a date for hearing suitable to the circumstances of the particular case. It has to be noted that the Undefended List procedure as provided for under the Rules of Court, though aimed at speeding disposition of a certain category cases, especially the recovery of a liquidated sum, is not designed to shut out a Defendant from being heard. This procedure is not for all manner of claims but specifically “in respect of a claim to recover a debt or liquidated money demand”.

The learned Jurist referred to Odgers on the common Law (1927) 3rd Edition, Vol. 2, p.654 where the following appears:

See also Befareen Pharmacy Ltd. v. African International Bank Ltd. (2005) 17 N.W.L.R. (pt.954) 230; African International Bank Ltd. V. Packoplast Nig. Ltd. (2003) 1 N.W.L.R. (pt.802) 502.In the instant case, the Respondent’s claim against the Appellants at the court below is legal fees, default charges and interest charges. I seem to agree with the submission of the learned counsel for the Appellants that the Respondent’s claim as endorsed on the Writ of Summons and Statement of Claim is not a liquidated money demand but a form of special damages allegedly suffered by the Respondent as a result of the Appellants’ default. It is my view that this type of claim ought to be strictly proved by the Respondent unless there is evidence to show that the parties had agreed on a particular amount to be paid as legal fees or default charges. Any amount claimed by the plaintiff ought to be proved before the court as to how he came about the said sum. It is trite law that special damages must be proved strictly. It is not a claim which can be dumped on the court as a liquidated claim. Legal fees, unless previously agreed upon, and that on a particular sum, cannot be claimed under the Undefended List procedure. See Otaru v. Onu (1999) 4 SC (pt.2) 87; Dumez Nig. Ltd. v. Patrick Nwaka Ogboli (1972) 3 SC 196 at 204-205.In the final analysis, I hold the view that it was wrong to use the Undefended List procedure to claim or recover legal charges and default charges when the scale of such calculation was not ascertained or ascertainable. This issue is accordingly resolved in favour of the Appellants.

ISSUE 3

On issue 3, the learned counsel for the Appellant submitted that the Respondent had originally claimed the sum of N254, 836,238.23 against the Appellants but while the matter was still pending in court, the Respondent updated the said amount to N258, 200,679.05 through a letter by its solicitor. According to him, the updated amount took into consideration further interest and charges. Learned counsel submitted that although the Appellants disputed the said sum however changed its position and on 6th March, 2005, by a Draft, paid the Respondent the sum of N259, 786, 792.50 as full and final settlement of the credit facility of which the Respondent acknowledged the receipt of payment. It is his contention that the Respondent is estopped from further asking for more money after, by his conduct, had caused the Appellants to change their position. He cites and relies on Section 151 of the Evidence Act 1990 and the case of Oyerogba V. Olaopa (1998) 13 N.W.L.R. (pt.583) 509 at 519.

Learned counsel further takes the court through the record of proceedings on the various acts of representation made by the Respondent which were intended to be acted upon by the Appellants and urged this court not to allow the Respondent to resile from their promise after the Appellants had acted upon it. He relies on the cases of Oladimeji v. Trans Nigeria Assurance Company Limited (1998) 12 N.W.L.R. (pt.576) 44 at 50 – 51; Temco Engineering and Company Limited v. Savannah Bank of Nigeria Limited (1995) 5 N.W.L.R. (pt.397) 607. The learned counsel for the Appellants urged this court to resolve this issue in favour of the Appellants.

In his reply, the learned counsel for the Respondent submitted that the doctrine of estoppel does not apply in this case. It is his contention that no promise or assurance whatsoever was made by the Respondent to the Appellants which prompted them to act upon to their detriment. He opined that for the doctrine to apply there must be a promise and assurance made by one party to another which said promise must have been acted upon by the other party. He relies on these cases, that is: – Ude v. Osuji (1998) 13 N.W.L.R. (pt.580) 11 and Oyerogba v. Ofaopa (1998) 13 N.W.L.R. (pt.583) 509.

Learned counsel further submitted that the Appellants’ position has not been in any way altered to their detriment since they only paid their debt and were timeously notified of the mistake and error of counsel to the Respondent. That the said error did not in any way discharge the Appellants from their obligation to liquidate their indebtedness to the Respondent. He urged this court to resolve this issue against the Appellants.

The crux of this issue has to do with the Respondent’s insatiable demand for money it alleges is being owed by the Appellants even after paying over and above the amount claimed by it. The Respondent started by issuing a Demand Letter dated 15/1/2002 and addressed to the Appellants for the sum of N254, 836,238.23 being the outstanding debt of the Appellants to the Respondent even before the commencement of the case at the lower court and that was the amount claimed in the Originating Summons filed on 21st January, 2002. The Company Secretary/Legal Adviser of the Respondent swore to an affidavit in support of the summons stating that the Appellants were indebted to the Respondent in the aforementioned amount. The Respondent applied and was granted an ex-parted order restraining the central Bank of Nigeria from releasing the said sum to the Appellants. It is on record that while the matter was pending in court, the Respondent’s counsel wrote a letter dated 4/3/02 to the Appellants wherein he demanded for the payment of N258, 300,679.05 being debit balance on the account as at 28/2/02. This new amount actually took into account interest elements after the filing of the claim. The Respondent received from the Appellants and accepted a cheque in the sum of N259, 796,792.50 dated 6th March, 2002, cleared same in the clearing House and obtained value for it. In other words, the Appellants acted on the representations made by the Respondent to them. It is after collecting an amount clearly above the sum claimed that the Respondent seeks to increase the debt profile of the Appellants.

In his brief, the learned counsel for the Appellants stated that the Appellants, before the payment, had appeared to this court against the Ex-parte order granted in favour of the Respondent and obtained an interim order staying the Ex-parte order of the rower court. That the Appellants paid this money notwithstanding the order of interim stay by this court. It was his contention that the Appellants could have continued to hold on to the money by virtue of the interim order of stay but they altered their position by making the payment.

It is a fact that if the Appellants had allowed the case to be heard as filed, they would have paid the sum of N254, 836,238.23 as claimed by the Respondent. Alternatively, the Appellants could have pursued their objection which they filed to its logical conclusion. But they changed their position and decided to pay not only the amount claimed but a sum higher than that claimed in this court. One would have thought that this would be the end of the matter. But like Oliver Twist, the Respondent still asked for more’ can it be allowed to do this? Will it not be estopped from changing its position at will to the detriment of the Appellants? I think this is a proper situation where the doctrine of Estoppel will intervene.

I am aware that the payment of a sum less than the full amount of a debt is not a consideration to forego the balance but where by words or conduct, one party to a transaction makes to the other an unambiguous promise, or assurance or representation which is intended to affect the legal relations between them, whether contractual or otherwise, and the other party acts upon it, altering his position to his detriment, the party making the promise or assurance or representation will not be allowed to act inconsistently with it. See Lanre Oladimeji v. Trans Nigeria Assurance Company Limited (1998) 12 N.W.L.R. (pt.576) 44: Ajide v. Kelani (1985) N.W.L.R. (pt.12) 248.

The Respondent herein had made a representation to the Appellants by the various letters of demand and the case filed in this court which in my opinion was intended to be acted upon by the Appellants for which they actually acted upon far above the representation made. It is trite that when a promise is made which was intended to be acted upon and was indeed acted upon to bring about some change in the position of the promise capable of putting him in some disadvantage – a detriment of sort, it would be inequitable if the promise was simply resiled from by the promisor. See Temco Engineering Company Limited V. Savannah Bank of Nigeria Limited (1995) 5 N.W.L.R. (pt.397) 607.

The Respondent, after receiving the N259, 786,792.50, is now saying that the figure was not so. I think this is too rate in the day. Estopper is intended to preclude the Respondent from saying that the representation it made to the Appellants was untrue after the Appellants had acted on the said representation to their detriment. The Supreme Court in Jacob Oyerogba & Anor. V. Egbewole Olaopa (1998) 12 N.W.L.R. (pt.583) 509 at 519 paragraphs A – B has put the matter beyond doubt when it held that:-

The Apex Court in paragraphs G – H in the same case on page 519 further states:-

“Where a person by words and or deeds or by conduct made to another a clear and unequivocal representation of a fact either with knowledge of its falsehood or with the intention that it should be acted upon, or has so conducted himself that another would, as a reasonable man in his full faculties, understand that a certain representation of fact was intended to be acted upon, and that other person in fact acted upon that representation whereby his position was thereby altered to his detriment, an estoppel arises against that person who made the representation and he will not be allowed to aver that the representation is not what he presented it to be”.Applying the above principle as espoused by the Supreme Court to the facts of this case, it is my well considered opinion that the Respondent, having made the Appellants to act upon the representation made to them in respect of the sum already paid and received, will be estopped from resiling from that representation. Having received the sum of N259, 786,792.50, which is far above the amount claimed by the Respondent, it cannot be allowed to say that the amount was more than that considering the fact that the Respondent had enough time to rectify its position if it made any mistake before the Appellants acted on the representation. This is much more so where the Respondent, while this matter was pending in court wrote a letter dated 4th March, 2002 to the Appellants stating a higher amount of N258, 300,679.05 as against N254, 836,238.29 originally claimed. Public policy demands that there must be an end to litigation. The Respondent should not be allowed to dribble the Appellants at large. It is on this note that I resolve this issue in favour of the Appellants.

Having resolved issues two and three in favour of the Appellants, I hold that this appeal has merit and is hereby allowed. The Judgment of the Federal High Court, which entered Judgment for the Respondent in the sum of N57, 021,114.94 is hereby set aside. Both parties shall bear their respective costs.

CROSS APPEAL

The facts leading to this cross appeal are the same as those in the main appeal. Thus the facts enunciated in the main appeal are hereby adopted. Dissatisfied with the failure of the learned trial Judge to grant some of the reliefs sought for, the Cross Appellant filed Notice of Cross Appeal on 13th September 2002 though dated 12th September, 2002. Two Grounds of Appeal are contained therein out of which the Cross Appellant has distilled two issues as follows:

“i. Whether the learned trial Judge was right, when he failed to consider other reliefs in the Plaintiff/Judgment Creditor/Cross Appellant’s Statement of Claim since there was documentary evidence in proof thereof and given lack of opposition by the Defendant/Appellant.

ii. If answer to (1) is in the negative, whether the said Judgment of the lower court ought not to be varied forthwith.”

In the Cross Respondent’s brief filed on 7/10/11 by E.A. Oyebanji Esq. and adopted in this court, the learned counsel raised a Preliminary Objection on two Grounds to wit:

“(i) The cross Appellant formulated 5 issues for determination which is more than the Ground of Appeal filed by the Gross Appellant. The cross Appellant filed two Grounds of Appeal. See page 525-526 of the Record.

(ii) Issues No. 1, 2, 3 are not formulated from the Ground of Appeal.”

The Learned Counsel for the Cross Respondents then listed the two Grounds in the Notice of Cross Appeal and the alleged five issues distilled from the two Grounds of Appeal. I have perused the brief of the Cross Appellant, particularly page 29 thereof and I can only see two issues for determination which I have reproduced above. There are no five issues as alleged by the learned counsel for the Cross Respondents in their brief.

Unfortunately, the Cross Respondents have not referred us to the particular brief which they found the five issues. Certainly not in the Cross Appellants’ brief filed on 13/1/11 but deemed filed on 12-9-11 and adopted at the hearing of this appeal on 30th January, 2012. Accordingly, the Preliminary Objection and the argument thereof are baseless and are hereby discountenanced and struck out.

I wish to observe that in arguing this appeal, the Cross Appellant makes reference to a 6th respondent on which certain orders were to be directed and that is the crux of the cross appeal before this court. Looking at the brief of the Cross Appellant and that of the Cross Respondents, there is no 6th Respondent listed which gave the impression that it was no longer relevant in the cross appeal and that was the reason why this court did not bother to ask for its representation at the hearing of this cross appeal. Having excluded the said 6th Respondent from their briefs but thereafter profer arguments which will have effect of making orders on the 6th Respondent is a clear indication that the cross appeal was not ready for hearing at the time it was taken. First, the name of the 6th Respondent was excluded from the briefs and secondly, the 6th Respondent was not in court on the date the cross appeal was heard and it appears it was not notified. The 6th Respondent’s head cannot be shaved in its absence. Without the presence of the 6th Respondent, this cross appeal cannot be determined on its merit. Accordingly, the cross appeal is hereby struck out.

K.B. AKAAHS J.C.A: I was privileged to read in draft the judgment of my learned brother, Okoro JCA. The basis upon which the respondent claimed the sum of N50, 555,027.70 was that their Solicitor wrongly calculated the total amount the Appellant was owing but the appellant had paid N259,786,792.50 which was in excess of what it was said to be owing. It does not lie in the mouth of the respondent to claim that it was their Solicitors that made the mistake in calculating the amount due. The respondent is bound by the representation made to the Appellants which they acted upon.

It is for this and the more explicit reasons contained in the leading judgment that I too allow the main appeal and strike out the cross – appeal.

MOHAMMED AMBI-USI DANJUMA J.C.A: I had the privilege of reading in draft the lead Judgment just delivered by my lord, Okoro, JCA and I agree entirely that the appeal herein has merit and should succeed. The now trite principle of the law relating to estopel has aptly been appreciated by his lordship in this matter before us and that issue of estopel is, to the, the pivot and the life gunpowder that has in law and justice met the facts of this case. It is such that the Respondent who had, from inception, and before the institution of the suit at the trial made a demand for a lesser sum as due, was estopped from claiming a higher sum to the contrary.

The payment by the Appellants or tender of a higher sum than that demanded initially would not confer a right on the Respondent to recoil or resile on his words or conduct in search of a higher sum, to the greater or increased detriment of the said Appellants. This representation, which continued even after the institution of the suit at the trial court re enforces the contention that the challenge to the Judgment had an anchor. It is for the above, that I adopt the most lucidly put views in the read Judgment as contained at pages 24 – 29 thereof and agree that the appeal has merit and should succeed. This is more so in this case where the Respondent has not been consistent in the presentation of its case. The Respondent had claimed varied sums at the trial court. The law is that a party shall not blow hot and cold nor be allowed to set up inconsistent cases even as a defence. See Gombe V. P.W. Nigeria Ltd, (1995) 6 NWLR (Pt.402) page 402; Chikwe Ilo V. Nwali (1998) 8 NWLR (pt 696) 187; Stallion Nigeria Ltd, V. EFCC (2008) 7 NWLR (pt 1087) p. 94. See also my decision in Appeal No. CA/L/916/2007 Nigerian Aviation Handling Company Limited V. Yinka World Investment Ltd. And Salaudeen Ambali delivered on 5th March, 2012 (unreported).

If I may re emphasis my agreement with the read Judgment, I would say that the Judgment delivered upon an undefended cause list procedure for claims that were not ascertainable or agreed upon was obviously an exercise in want of jurisdiction as firstly, substantively a court of law cannot award what had not been proved in evidence and secondly it was a procedural infraction of the Rules of court as rerating to the hearing of cases on the undefended cause list.

The trial court could be rightly held to have acted without jurisdiction in proceeding to grant the retief as he did.

Even if the Judgment could be said to be based on an undefended cause list, which as the learned trial Federal High court Judge (Gumel J as he then was) righty held that the Judge’s only obligation on the return date was to enter Judgment if no defence on Affidavit disclosing a the merit is filed, there is in law, in any case, an obligation to enter Judgment on its merit only as the party is entitled to in law, and per proven claim. See my decision in Mrs., Glory J, Jella V. Sardauna Local Government – case No. TRSJ/147m/06 delivered on 19th October, 2006 (unreported).

In the said Judgment Danjuma, J (as he then was) held as follows: –

“It is clear from this law that it is only what the plaintiff is entitled to that shall be given as a Judgment in his favour. It is not the law as erroneously assumed (permit the tautology employed for emphasis by many a counsel including unfortunately even some Judges that a Plaintiff whose suit has been placed on the undefended list is automatically and as of right (by that exercise of the Court) entitled to all the claims or reliefs sought. Nothing can be further from the law than this. The non filing of a Notice to defend and an affidavit or memorandum only obviates the necessity of oral hearing unless otherwise ordered. Thus constituting and exception to the audi alterem partem Rule. It does not take away the need for the court to be satisfied of the merit of a case hence the requirement that ‘Judgment shall be delivered’. See A.I.B. V. PACKO PLASTICS (2001) 30 WRN 141 per Isa Ayo Salami JCA 159 – 160 lines 40 – 45. Also AGBI V. OGBEH (2006) 39 LRCN 17, 39. The Supreme Court said the only duty in a civil claim is to render unto a party as per his proven claim. Learned counsel E.D. Galumje Esq. rightly captured this position of the law when he concluded his address by urging me to enter Judgment ‘as the Plaintiff may be entitled to”

Flowing from the aforesaid view of mine, I hold that even on the merit of the suit, Judgment could not have been rightly given for the sum adjudged; and upon the earlier reasons stated in this Judgment.

Now to the Cross Appeal:-

The second issue raised in the Cross Appeal does not qualify as an issue for determination, as it does not arise from the Grounds of Cross Appeal. Secondly it does not arise from the ratio of the Judgment Cross Appealed against. What should constitute prayers or reliefs by parties to a suit or an appeal should not be made Issues for determination as done in this Cross-Appellant’s so called issue No. II.

The so called issue and consequently the argument based thereon are disregarded and expunged by me, therefore.

As if it was not enough, the Cross Appellant has made far reaching assertions that are not justified by the record of appeal, as clearly highlighted in the lead Judgment. Litigation is a sacrosanct pursuit and must be done or pursued with honesty and integrity in the temple of justice.

As the courts are to be Holy so also the players therein should be. The record of Appeal is the Bible of the case. The approbation and reprobation, earlier on alluded to in this Judgment as relating to the main Appeal has also reared its ugly head as relating to a sixth Respondent who was intended to be bound by the order of this court in respect of the Cross Appeal.

The Cross Appellant, who did not cite the said 6th Respondent in his Brief of Argument in the Cross Appeal nor raise any issue as to his obvious nonappearance and inclusion in the Cross Appeal processes is deemed to have abandoned any such claim or relief against him. To now make such an award against a person who was not heard or given the opportunity to be heard will be against the right of fair hearing. See Green V. Green. Even God, himself did not condemn Adam without first asking him if he had eaten of the prohibited fruit of the knowledge of life and death. Indeed to avoid a preemptive stand – Adam was first asked, “why doth thou hide thy sell from me?”

In the circumstance, I concur that the appeal be allowed; and the Cross Appeal on the other hand be struck out as it cannot be determined on its merit effectively and justly.

Appearances

E. A. Oyebanji Esq.For Appellant

AND

Oluwakemi Balogun Esq. with Obiora Ezekiel Esq.For Respondent