GLOBAL SERVICES CONSULTING LTD & ANOR v. RIOK (NIG) LTD & ORS
(2022)LCN/16737(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Wednesday, January 19, 2022
CA/A/346/2019
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Mohammed Mustapha Justice of the Court of Appeal
Kenneth Ikechukwu Amadi Justice of the Court of Appeal
Between
1. GLOBAL SERVICES CONSULTING LIMITED 2. BIZ PLUS CONSULTING SERVICES LIMITED APPELANT(S)
And
1. RIOK NIGERIA LIMITED 2. DR. TED ISEGHOHI EDWARDS 3. ATTORNEY GENERAL OF THE FEDERATION 4. UNITED BANK OF AFRICA (UBA) 5. CENTRAL BANK OF NIGERIA (CBN) RESPONDENT(S)
RATIO
WHETHER OR NOT AN ORDER CAN BE MADE AGAINST A PERSON WHO IS NOT A PARTY TO THE PROCEEDINGS
It is clear from all the processes filed that the Nigeria governors’ forum, against whom relief 3 is sought is not a party to the suit, and was not joined while the suit lasted; It is elementary that an order cannot be made against a person who is not a party to the proceedings, see OKOLI & ORS V ONWUGBUFOR (2018) LPELR-46660 (CA) and DEPUTY SHERIFF, KADUNA STATE HIGH COURT V KEYSTONE BANK LTD & ANR (2015)- LPELR-25876-CA. PER MUSTAPHA, J.C.A.
THE FUNDAMENTAL PRINCIPLE OF FAIR HEARING
The crux of the matter is that where the right to fair hearing of a party is breached, the procedure followed in the determination of the case nullifies whatever decision arrived at, regardless of the effort put into it; see TUKUR V. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR part 117 page 517. Now, it is the law and a fundamental principle of the administration of justice that, no decision of a Court no matter how well conducted, can be allowed to stand, unless where the trial Court has heard both sides to the dispute. Thus, a violation of the rule of audi alteram partem results in the breach of the fundamental right to fair hearing. Such denial is a violation of the Constitution and therefore cannot be countenanced in the adjudication process; see VICTINO FIXED ODDS LTD V. OJO (2010) & NWLR (PT.1197) P.486; AMADI V. THOMAS APLIN CO. LTD. (1972) SC 228; KANO N. A. V. OBIORA (1959) SCNLR. 577; DINGYADI V. I.N.E.C. (NO. 2) (2010) 18 NWLR (PT. 1224) P.154; AMOO V. ALABI (2003) 12 NWLR (PT. 835) P.537 and OGED OVUNWO & ANOR V. IHEANYICHUKWU WOKO & ORS (2011) LPELR- 2841 (SC). PER MUSTAPHA, J.C.A.
WHETHER OR NOT A COURT THAT DOESN’T HAVE JURISDICTION TO DETERMINE A PRINCIPLE RELIEF, WILL HAVE JURISDICTION TO ENTERTAIN THE ANCILLARY RELIEF
The law is clearly settled that where a Court has no jurisdiction to determine the principal relief, it will also have no jurisdiction to entertain the ancillary relief. The absence of jurisdiction to adjudicate on ancillary reliefs immediately robs the Court of jurisdiction to entertain the main or principal claim especially where the ancillary claim must necessarily involve the consideration of the main claim. It is only where the Court can entertain both the main and ancillary reliefs that the Court can safely go ahead to assume jurisdiction. See ADU V LAGOS STATE TASK FORCE ON ENVIRONMENTAL AND SPECIAL OFFENCES UNIT (2017) 11 NWLR (Part 1575) 32 and TUKUR V GOVT. OF GONGOLA STATE also reported in (1989) 9 SC 1 at 34. PER MUSTAPHA, J.C.A.
THE POSITION OF LAW WHERE A DECISION OF THE COURT BREACHES THE CONSTITUTIONAL RIGHT TO FAIR HEARING
Once the decision of a Court breaches the constitutional right to fair hearing under Section 36 (1), it cannot be condoned; and reasons for the breach are immaterial. It is in fact as though there has been no hearing at all.
It is apparent that the Nigeria governors’ forum were neither heard nor given the opportunity to be heard before the claim against them was heard and determined. Throughout the commencement of hearing till judgment, they were not in Court for the simple reason that they were not parties to the suit. The proceedings of the trial Court was therefore conducted in breach of the Appellants’ Fundamental Rights to fair hearing as guaranteed them by Section 36(1) of the Constitution of the Federal Republic of Nigeria. Where the proceedings of a Court are conducted in breach of the right to fair hearing, the proceedings and any decision thereon will be a nullity and liable to be set aside. This is so because the decision of the Court based on that null judgment would have the effect of robbing the Court of the jurisdiction to have heard and determined the matter; SEE A.G. RIVERS STATE V. UDE (2006) 17 NWLR (PT.1008) 436; BAKOSHI V. CHIEF OF NAVAL STAFF (2004) 15 NWLR (PT.896) 268 AT 293; PDP & ORS V. EZEONWUKA & ORS (2017) LPELR-42563 (SC); CHITRA KNITTING AND WEAVING MANUFACTURING COMPANY LIMITED V. F.O. AKINGBADE (2016) LPELR – 40437 (SC) AND NWABUEZE V. THE PEOPLE OF LAGOS STATE (2018) LPELR – 44113 (SC). PER MUSTAPHA, J.C.A.
WHETHER OR NOT A COURT CAN RAISE AN ISSUE SUO MOTU
Generally speaking, Courts should be reluctant to raise issues suo motu; because doing so has the potential of enmeshing them in a matter that is better left for the parties; except it is for good reason. Where a Court raises an issue suo motu it has removed itself from the position of an independent arbiter to be “soiled in the litigation”. For the avoidance of doubt, this is not to say that a Court should not raise an in issue suo moto, for good reason. A Court can raise an issue suo motu, if it is in the interest of justice to do so. Where the issue raised will determine the case one way or the other, the Court has every right to raise it. Though a Court has the jurisdiction to raise an issue suo motu, it must not resolve the issue suo motu. It has to give an opportunity to the parties to react to the issue; see CHIEF OJE V. CHIEF BABALOLA (1991) 4 NWLR (PT. 185) 267. PER MUSTAPHA, J.C.A.
MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of the Federal Capital Territory, Abuja of the 3rd of April, 2019, delivered by Honorable Justice H.B. Yusuf granting the reliefs sought by the 1st and 2nd Respondent in the Amended Originating Summons.
The reliefs sought are as follows:
“1. A DECLARATION that 1st and 2nd Defendants are not entitled to share in the sum of $350,000,000.00 (Three Hundred and Fifty Million Dollars) approved for payment of legal/consultancy fee etc. owed to the Plaintiffs relating to the Paris London club debt buy back over deduction refunds as per Exhibit A, B, and C.
2. A DECLARATION that Linas International Limited (consultants) having been paid the sum of $224,000,000.00 (Two Hundred and Twenty- Four Million US Dollars) or its Naira equivalent plus $17,000,000.00 (Seventeen Million US Dollars) paid to is counsel out of the said sum $350,000,000.00 (Three Hundred and fifty Million Dollars) the balance thereof shall be shared between the Plaintiffs to the exclusion of any other person.
3. A DECLARATION that the instruction giving by the 3rd Defendant to the 5th defendant to pay the sum of $100,000,000.00 (One Hundred Million US Dollars) to the Nigerian Governors Forums is in error and contrary to Exhibit A, B and C.”
Dissatisfied, the Appellants appealed first by a notice of appeal dated and filed on the 5th of April, 2019, and another notice of appeal filed on the 8th of April, 2019 on eight grounds, on which they now rely. The record of appeal was transmitted to the registry of this Court on 24th April, 2019. The Appellants’ brief was filed on the 24th April, 2019 and the 1st and 2nd Respondents’ brief on the 24th of April 2019; the reply brief was filed on the 27th August, 2019. The 3rd, 4th and 5th Respondents did not file any process.
The grounds of appeal shorn of the particulars is as follows:
GROUND ONE: ERROR IN LAW
The learned trial Court erred in law and thereby reached a perverse decision by adjudicating on this suit when it lacked the jurisdiction to entertain the suit.
GROUND TWO: ERROR IN LAW
The learned Trial Court erred in law and thereby reached a perverse decision when it granted reliefs not claimed by any of this parties.
GROUND THREE: ERROR IN LAW
The learned trial Court erred in law and thereby reached a wrong conclusion when it referred to paragraphs 4(v) to 7 of the Affidavit in support of the Originating Summons and determined that “from the above averments the Plaintiffs have disclosed their entitlement to the disputed fund and the responsibility of the 3rd and 5th Defendants to ensue payment to the Plaintiffs as prescribed by Exhibits A, B and C attached to the affidavit in support.”
GROUND FOUR: ERROR IN LAW
The learned trial Court erred in law and thereby reached a wrong conclusion when it determined that the 3rd Defendant failed to adhere to the payment instructions.
GROUND FIVE: ERROR IN LAW
The learned trial Court erred in law and thereby reached a wrong conclusion when it held “now it is my view that the foregoing facts from the 3rd Defendant is highly definitive in the resolution of this case”.
Quite contrary to the claims of the 1st and 2nd Defendants that the payment of the disputed funds has nothing to do with Exhibits A, B and C, it has become clear from the evidence supplied in the Counter Affidavit of the 3rd Defendant that the fund was meant for the settlement of the Plaintiffs Legal/Consultancy Fees.
GROUND SIX: ERROR IN LAW
The learned trial Court erred in law and thereby reached a perverse decision when it completely misconstrued the case before it and thereby failed to appreciate the Plaintiffs/Respondents non-disclosure/lack of cause of action.
GROUND SEVEN: ERROR IN LAW
The learned trial Court erred in law and thereby reached a perverse conclusion when it determined that “from the facts of this case the payment of the disputed sum to the Governors Forum is as a result of collusion between the 1st, 2nd, 4th, and 5th Defendants. “
GROUND EIGHT: ERROR IN LA W
The learned trial Court erroneously determined that the instruction given by the 3rd Defendant vide Exhibit 10 (letter dated 19 November 2018) attached to the Appellants’ Counter Affidavit to the Amended Originating Summons was wrong.
From these grounds the following issues were formulated on behalf of the Appellants:
“a. Having regard to the substantive claims in the suit and particularly in the light of relief No (iii) in the Amended Originating Summons, whether the learned trial Court had the jurisdiction to adjudicate on the suit. (Distilled from Grounds 1 and 7).
b. Whether the learned trial Court rightly determined that the 1st and 2nd Respondents disclosed any cause of action to be entitled to the principal reliefs sought in the Amended Originating summons (Distilled from Grounds 3, 4 and 5).
c. Whether the learned trial Court acted on the correct principles when it suo motu devised a sharing formula on the basis of which it awarded relies not claimed by the parties (Distilled from Ground 2).
d. Whether the learned trial Court misconstrued the case before it by ignoring the documentary evidence including Judgments of Courts filed before it (distilled from Grounds 6 and 8.
The 1st and 2nd Respondents adopted the Appellant’s issues:
ISSUE ONE:
Having regard to the substantive claims in the suit and particularly in the light of relief No 3 in the amended originating summons, whether the learned trial Court had the jurisdiction to adjudicate on the suit.
It is submitted for the appellants that the Nigerian governor’s forum against whom relief 3 is sought is neither sued nor joined as a party; OLORIDODE V OYEBI (1984) VOL. 15 NSCC 286 at 297; that the law is settled that an order cannot be made against a person who is not a party to the proceedings; BABATOLA SHERIFF, KADUNA STATE HIGH COURT V KEYSTONE BANK LTD & ANR (2015) LPELR-25876-CA page 25.
That in this case, an allegation is made against a none party to the suit and the Court proceeded to hear and determine the allegation, thus rendering the decision of the Court in breach of the constitutional, leaving the Court with no option allow the appeal against the decision and treat it as though there was no hearing; ADIGUN & ORS V A.G.OYO STATE & ORS No 2 (1987) 1 NSCC Volume 18 page 346; AMADI V THOMAS APLIN CO. LTD (1972) 4 SC 228.
Learned senior counsel contends the trial Court ignored the protestations of the appellants made through their counter affidavit to the amended originating summons, that the NGF was not a party, and proceeded to omit any consideration to a matter that affected the right to fair hearing of the NGF.
It is the contention of learned senor counsel for the Appellants that the conclusion that the monies due as 1st and 2nd respondents entitlement ought not to have been paid to the NGF, as the forum has no business with the funds, was reached erroneously; and also that the finding that, the payment of the disputed funds to the NGF is as a result of collusion, without any hearing from the NGF amounts to a criminal finding; INCORPORATED TRUSTEES OF NIG GOVERNORS FORUM & ANR V RIOK NIG. LTD & ORS (2018) LPELR-44915-CA.
It is further submitted for the appellants that the trial Court lacked jurisdiction to determine ancillary reliefs when it lacked jurisdiction to determine the principal relief/claim in the first place; TUKUR V GOVERNMENT OF GONGOLA STATE (1989) 9 SCNJ 517 and JIMOH V JIMOH (2018) LPELR-43793-CA.
It is submitted for the 1st and 2nd Respondents in response that the trial Court is a High Court with statutory and constitutional jurisdiction to adjudicate on matters between legal persons; and that the claim before the Court at the first instance is not directly against the NGF; as the case of the 1st and 2nd respondents at the Court of first instance is simply that based on exhibits A, B and C the instruction given to the 5th respondent by the 1st and 2nd respondents was at variance with the directives of the president given pursuant to exhibits A and B.
That when relief 3 is read in conjunction with other reliefs it becomes clear that the rights and obligations of the NGF never fell for determination in the said suit.
Learned senior counsel further submits alternatively, that the appellants were heard by the trial Court, as such have no basis for complaining about denial of fair hearing, especially as the opportunity of being heard given to the appellants as agents of the NGF, over a subject matter which falls within the scope of their appointment can be deemed as fair hearing to the NGF; see BRAIMOH AKINOLA V VICE CHANCELLOR UNIVERSITY OF ILORIN (2004) 11 NWLR pat 585 page 616.
RESOLUTION OF ISSUE ONE:
Relief No 3 in the amended originating summons claims for “a declaration that the instruction given by the 3rd defendant to the 5th defendant to pay the sum of $100,000,000 to the Nigeria governors forum is an error and contrary to exhibits A, B and C.”
It is clear from all the processes filed that the Nigeria governors’ forum, against whom relief 3 is sought is not a party to the suit, and was not joined while the suit lasted; It is elementary that an order cannot be made against a person who is not a party to the proceedings, see OKOLI & ORS V ONWUGBUFOR (2018) LPELR-46660 (CA) and DEPUTY SHERIFF, KADUNA STATE HIGH COURT V KEYSTONE BANK LTD & ANR (2015)- LPELR-25876-CA.
The requirement that both sides of a dispute be heard fairly is a constitutional requirement, grounded in Section 36(1) of the 1999 Constitution, as amended. In this case the 1st and 2nd Respondents made allegations against the Nigeria governors’ forum, a non party to the proceedings, and yet the trial Court proceeded to hear and determine the allegation behind the non party, who was not joined to the proceedings either. The proceedings conducted behind the Nigeria Governors forum is in clear breach of the constitutional right to fair hearing and natural justice.
The crux of the matter is that where the right to fair hearing of a party is breached, the procedure followed in the determination of the case nullifies whatever decision arrived at, regardless of the effort put into it; see TUKUR V. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR part 117 page 517. Now, it is the law and a fundamental principle of the administration of justice that, no decision of a Court no matter how well conducted, can be allowed to stand, unless where the trial Court has heard both sides to the dispute. Thus, a violation of the rule of audi alteram partem results in the breach of the fundamental right to fair hearing. Such denial is a violation of the Constitution and therefore cannot be countenanced in the adjudication process; see VICTINO FIXED ODDS LTD V. OJO (2010) & NWLR (PT.1197) P.486; AMADI V. THOMAS APLIN CO. LTD. (1972) SC 228; KANO N. A. V. OBIORA (1959) SCNLR. 577; DINGYADI V. I.N.E.C. (NO. 2) (2010) 18 NWLR (PT. 1224) P.154; AMOO V. ALABI (2003) 12 NWLR (PT. 835) P.537 and OGED OVUNWO & ANOR V. IHEANYICHUKWU WOKO & ORS (2011) LPELR- 2841 (SC).
The trial Court had no excuse, to hear claims against a non party, much less proceed to determine the claim, especially when it is clear that the fact of the absence of the non party was sufficiently brought to the attention of the trial Court, from the appellants’ counter affidavit to the amended originating summons at paragraphs 27 and 28. The error in the proceedings was not as a result of an oversight, because the trial Court had the presence of mind to observe at page 10 that:
“The plaintiffs are also seeking in their relief 3 a declaration that the instruction given by the Yd defendant to the 5th Defendant to pay the sum of $100,000,000 to the Nigeria governors’ forum is in error and contrary to exhibits A, B and C.”
I have dispassionately examined the facts of the matter on which the 1st and 2nd respondents lay claim to entitlement to the sum of $100,000,000 in this suit, and cannot help but agree with learned senior counsel for the appellants that, the principal relief is clearly anchored on relief No 3, sought against the Nigeria governors’ forum. Now, that being the case, it is only by a determination of the instruction given by the 3rd respondent to the 5th respondent, to pay the sum of $100,000,000 to the Nigeria governors’ forum as an error that the trial Court can make any order for the payment of the sum to the 1st and 2nd respondents.
The law is clearly settled that where a Court has no jurisdiction to determine the principal relief, it will also have no jurisdiction to entertain the ancillary relief. The absence of jurisdiction to adjudicate on ancillary reliefs immediately robs the Court of jurisdiction to entertain the main or principal claim especially where the ancillary claim must necessarily involve the consideration of the main claim. It is only where the Court can entertain both the main and ancillary reliefs that the Court can safely go ahead to assume jurisdiction. See ADU V LAGOS STATE TASK FORCE ON ENVIRONMENTAL AND SPECIAL OFFENCES UNIT (2017) 11 NWLR (Part 1575) 32 and TUKUR V GOVT. OF GONGOLA STATE also reported in (1989) 9 SC 1 at 34.
Once the decision of a Court breaches the constitutional right to fair hearing under Section 36 (1), it cannot be condoned; and reasons for the breach are immaterial. It is in fact as though there has been no hearing at all.
It is apparent that the Nigeria governors’ forum were neither heard nor given the opportunity to be heard before the claim against them was heard and determined. Throughout the commencement of hearing till judgment, they were not in Court for the simple reason that they were not parties to the suit. The proceedings of the trial Court was therefore conducted in breach of the Appellants’ Fundamental Rights to fair hearing as guaranteed them by Section 36(1) of the Constitution of the Federal Republic of Nigeria. Where the proceedings of a Court are conducted in breach of the right to fair hearing, the proceedings and any decision thereon will be a nullity and liable to be set aside. This is so because the decision of the Court based on that null judgment would have the effect of robbing the Court of the jurisdiction to have heard and determined the matter; SEE A.G. RIVERS STATE V. UDE (2006) 17 NWLR (PT.1008) 436; BAKOSHI V. CHIEF OF NAVAL STAFF (2004) 15 NWLR (PT.896) 268 AT 293; PDP & ORS V. EZEONWUKA & ORS (2017) LPELR-42563 (SC); CHITRA KNITTING AND WEAVING MANUFACTURING COMPANY LIMITED V. F.O. AKINGBADE (2016) LPELR – 40437 (SC) AND NWABUEZE V. THE PEOPLE OF LAGOS STATE (2018) LPELR – 44113 (SC).
With all due respect, I fail to see the logic or common sense, much less the law, in the contention that the appellants’ appointment to act as consultants to the Nigeria governors’ forum, over the Paris/London club debt buy back refund, be a justification for denial of fair hearing to them, on account of being agents of the NGF. To contend that the right to fair hearing afforded the NGF is sufficient for the Appellants who acted as agents or consultants simply turns both logic and common sense on their respective heads. This to my mind is so, because the constitutional right to fair hearing cannot be satisfied by proxy, for the simple reason that it is not transferable.
It follows, therefore, that once an Appellate Court finds, as in this case, that there is a breach of the right of fair hearing in the proceedings in issue, it is needless to proceed.
It is for these reasons that I now resolve this issue in favour of the appellants, against the respondent; and having done so, it should all stop here, but just in case I am wrong, I will proceed to determine the other issues.
ISSUE TWO:
Whether the learned trial Court rightly determined that the 1st and 2nd Respondents disclosed any cause of action to be entitled to the principal reliefs sought in the amended originating summons.
It is submitted for the appellants that neither the legal opinion by the 3rd Respondent, exhibit A, nor the acknowledgment in exhibit B can qualify as instruments creating entitlements to the funds, the subject matter of this suit in favour of the 1st respondent and the 2nd respondent, especially as there was no legal basis for claiming to be entitled to the $100,000,000, which according to them was meant for them but was paid to the Nigeria governors’ forum.
That the terms of the Riok and Ted judgments obtained by the 1st and 2nd Respondents, which are clear and unambiguous cannot be abandoned; OLANLEGE V AFRO CONTINENTAL NIG. LTD (1996) 7 NWLR part 458 page 29; that also having obtained the Ted and Riok judgments, the 1st and 2nd respondents cannot abandon the specific terms of this judgments and seek entitlements of money approved for non parties to this suit.
Learned senior counsel contends that if the cause of action in a suit is the entire set of circumstances giving rise to enforceable claim, then, there is no basis for the 1st and 2nd Respondents claim to the $100,000,000 approved for payment to the NGF for the settlement of consultancy/legal fees; EGBE V ADEFARASIN (1987) 1 NWLR part 47 page 1.
That if the trial Court had read exhibits A, B C attached to the affidavit in support of the amended originating summons as well as exhibits OL3 and OL4 (the Ted judgment), it would have come to the conclusion that there are no circumstances giving rise to any enforceable claim by the 1st and 2nd respondents against the appellants as well as the rest of the parties to this suit.
It is submitted in response that the facts which gave rise to the claim of the 1st and 2nd respondents are clearly stated in paragraphs 4 (v), (vi), (vii), 5, 6 and 7 of the affidavit in support of the amended originating summons. That these paragraphs referenced the injury done to the 1st and 2nd Respondents for which they sought judicial remedy in line with stipulations of exhibits A, B, and C, because the Yd and 5th Respondents erroneously transferred the consultancy fees due to them to strangers who are not beneficiaries under exhibits A, B and C. learned senior counsel called in aid PDP V SYLVA (2012) 13 NWLR part 1316 page 127 to support the submission that in determining cause of action the Court is enjoined to consider the processes filed.
That the entitlements of the 1st and 2nd Respondents to a percentage fees of $100,000,000 from the lump sum of made available to satisfy fees due on claims from the Paris London club debt buy back was decided by the Courts in LINAS INTERNATIONAL LTD & 235 ORS V FEDERAL REPUBLIC OF NIGERIA & 3 ORS; RIOK NIGERIA LTD & 3 ORS V INCORPORATED TRUSTEES OF ASSOCIATION OF LOCAL GOVTS OF NIG.; DR. TED ISEGHOHI-EDWARS V INCORPORATED TRUSTEES OF ASSOCIATION OF LOCAL GOVTS OF NIG.; AND THE REGISTERED INCORPORATED TRUSTEES OF ASSOCIATION LOCAL GOVTS OF NIG. & DR. TED ISEGHOHI-EDWARDS V FED GOVT OF NIG. & 10 ORS.
It is further submitted that the 1st and 2nd Respondents consulted not only for ALGON, but all the 774 Local Governments of Nigeria, for whom the refunds were made through the state governments; and that fact is buttressed by exhibits 2A-2JJ, attached to the counter affidavit to the amended originating summons of the Appellants.
RESOLUTION OF ISSUE TWO:
It is contended for the 1st and 2nd Respondents that paragraphs 4(v), (vi), (vii), 5, 6 and 7 of the affidavit in support of the amended originating summons clearly stated the facts giving rise to their claim. The trial Court agreed with the contention and held to the effect that the averments in those paragraphs shed enough facts to establish obligations of the 3rd and 5th defendants to the plaintiffs, as well as their right to the funds. For the avoidance of doubt the said paragraphs are reproduced hereunder verbatim:
“4(v) That following the said Litigations series of meetings were called by the Hon, Attorney General of the Federation, the 3rd Defendant during which meetings the Hon. Attorney general agreed to do a memo to Mr. President advising the settlement of the Judgment Debts.
4(vi) Following 5 above a memo dated 11/07/2018 was made to the President through the Chief of Staff. The memo is delivered as Exhibit “A”.
4(vii) In response to exhibit “A” Mr. President advising that parties in litigation be paid by deducting the judgment debts from the balance of $2,725,704.118 accruing to the States, Local Governments from the Paris London club Debt buy back over deduction. Memo from Mr. President to Hon, Attorney General is delivered as exhibit B.
5. Following Exhibits A and B the Hon. Attorney General of the Federation made a proposal as to how these debts could be settled.
6. That following the proposals Mr. President approved the sum of $350,000,000.00 (Three Hundred and Fifty Million US Dollars) for the settlement of the debts which gave rise to the litigations. Memo of the Hon. Minister of Finance authorizing the warehousing of the said sum in the Central Bank of Nigeria is delivered as exhibit C.
7. That rather that distributing the fund in proportion to the Judgment of each of the three litigants. i.e. Linas International Limited, Riok Nigeria Limited and Dr. Ted Edwards the Hon. Attorney General of the Federation only paid Linas International Limited the sum of N224,000,000.00 as his consultancy service and the sum of $100,000,000.00 which is part of the $350,000,000.00 approved by the President and from Linas was paid which ought to be distributed between the 1st and 2nd Plaintiffs was paid to the 1st and 2nd Defendants who were total strangers to the $350,000,000.00 approved by Mr. President per Exhibit A, B and C.
It is also contended that Exhibits A, B and C on the other hand stipulated the 1st and 2nd respondents’ share of consultancy fees. Exhibit A for the avoidance of doubt is the legal opinion submitted by the 3rd respondent, sequel to the letter dated 28th June, 2018, exhibit B on the other hand is a letter dated 24th of July, 2018 emanating from the chief of staff to the president, acknowledging exhibit A, while exhibit C is a letter from the minister of finance dated the 14th of September, 2018 to the Central Bank of Nigeria authorizing payment to states and setting aside $350 million for settling legal and consultancy fees.
I have meticulously gone through exhibits A, B and C, but fail to see how they can be said to have established the 1st and 2nd Respondents claim to entitlement of the $100,000,000.
Exhibits A, B and C on their own amount to little, they have to be read alongside the Riok and Ted judgments referred to earlier for proper context. The terms of these judgments obtained by the 1st and 2nd Respondent are very important because therein lie the entitlement of the appellants as well as the 1st and 2nd Respondents, and clearly what the 1st and 2nd Respondents seek to lay claim to is the monies paid to the NGF.
The entitlement of the 1st Respondent in the Riok judgment is 25% of the proceeds to be paid in the debt in FHC/ABJ/CS/130/2013, as settlement for consultancy on behalf of ALGON; while the 2nd Respondent is entitled to 10% of the proceeds of the judgment in FHC/ABJ/CS/130/2013.
Exhibit A and B did not create the instrument entitling the 1st and 2nd respondents to the funds. It is not just enough to contend that the money paid to the NGF is meant for us. The 1st and 2nd Respondents have to establish some legal basis for that claim, and clearly exhibits A and B touted as such basis have failed to live up to their billing; bearing in mind that the terms and conditions of judgment cannot be altered by external factors; see Section 28 (1) of the Evidence Act, 2011 and OLANLEGE V AFRO CONTINENTAL NIG LTD (1996) 7 NWLR part 458 page 29.
It is not conceivable for the 1st and 2nd Respondents who obtained judgments with clearly spelt out terms in the RIOK and Ted judgment to abandon those terms, only to cling to what they feel they should be entitled to, just for the sake of it, only by reason of exhibit A.
It is clear from the evidence on record that neither exhibits 2A-2JJ so much relied on nor exhibits A or B qualifies the 1st and 2nd Respondents to the payment of $100,000,000 clearly meant for the NGF. There is no basis for the conclusion that exhibits A, B and C prescribed payment to the 1st and 2nd respondents, neither was there any justification for holding that “failure of the 3rd respondent to adhere to the payment instruction which led to the wrongful payment to the 1st and 2nd defendants.” There was simply no payment instruction for any entitlement to the 1st and 2nd respondents in exhibits A, B or C as portrayed by the trial Court.
Not only did the 1st and 2nd Respondents fail to establish any entitlement, there is no cause of action disclosed; there is basically nothing to hold onto in justifying an enforceable claim. The 1st and 2nd Respondents’ claim of being entitled to the sum of $100,000.00 meant for the NGF is hollow; see: OSHOBOJA vs. AMUDA & ORS (1992) LPELR – 2804 (SC); UTIH & ORS VS. ONOYIVWE & ORS (1991) 1 NWLR (pt. 166) 166.
It is for these reasons that I now resolve this issue in favour of the appellant, against the 1st and 2nd respondents.
ISSUE THREE:
Whether the learned trial Court acted on the correct principles when it suo moto devised a sharing formula on the basis of which it awarded reliefs not claimed by the parties.
It is submitted for the appellant that the trial Court suo moto shared the $100,000,000 to the 1st and 2nd respondents into a sharing ratio of 28.62% and 71.38% without any explanation as to where the figures were derived from. That the percentage and figures devised and deployed by the trial Court were not part of the claim made by the 1st and 2nd respondents in the amended originating summons; BORNU HOLDING COMPANY LTD V ALH HASSAN BOGOCO (1971) ALL NLR 324.
That the trial Court proceeded to further distribute the money by ordering the 4th defendant to pay the 1st plaintiff, Riok Nig. Ltd the sum of $28,620,000; the 2nd plaintiff, Dr. Ted the sum of $71,380,000 and awarded a post judgment interest of 10%; none of which is part of the 1st and 2nd Respondents’ claim; EKPENYONG & ORS V NYONG (1975) 2 SC 71.
That also in view of the fact that there was no claim for the award of interest the trial Court had no power to award interest; CHROME INSURANCE BROKERS LTD & ORS V EFCC & ORS (2018) LPELR- 44818-CA and EAGLE SUPER PACK NIG LTD V ACB PLC (2018) 19 NWLR part 1013 page 20.
It is submitted in response that the trial Court acted on the correct principles of law when it ordered consequential relief on the sharing formula to be adopted between the 1st Respondent and the 2nd Respondent; AKAPO V HAKEEM HABEEB (1992) 6 NWLR part 247 page 266 and OGBAHON V REGISTERED TRUSTEES OF CHRISTCHOSEN CHURCH OF GOD (2002) 1 NWLR part 749 page 675.
That a party need not seek consequential order, the Court can suo motu make orders depending on the circumstances of the case, and the instant case is one such case. That once the Court found that the fund was meant for settlement of the plaintiffs it became expedient for the Court to give effect to its judgment, and the consequential order is not extraneous to the main relief, as such proper; especially as Order 39 Rule 4 of the High Court of the Federal Capital Territory, Civil Procedure Rules 2018 vests discretion in the trial Court; AMAECHI V INEC & ORS (2008) VOL 158 LRCN 1.
RESOLUTION OF ISSUE THREE:
Generally speaking, Courts should be reluctant to raise issues suo motu; because doing so has the potential of enmeshing them in a matter that is better left for the parties; except it is for good reason. Where a Court raises an issue suo motu it has removed itself from the position of an independent arbiter to be “soiled in the litigation”. For the avoidance of doubt, this is not to say that a Court should not raise an in issue suo moto, for good reason. A Court can raise an issue suo motu, if it is in the interest of justice to do so. Where the issue raised will determine the case one way or the other, the Court has every right to raise it. Though a Court has the jurisdiction to raise an issue suo motu, it must not resolve the issue suo motu. It has to give an opportunity to the parties to react to the issue; see CHIEF OJE V. CHIEF BABALOLA (1991) 4 NWLR (PT. 185) 267.
The trial Court in this case suo moto shared the funds meant for the NGF to the 1st and 2nd Respondents on the basis of Exhibit A, without so much explanation as to how it came by the figures. There is indeed no basis anywhere in the record for the ratio or rationale of the distribution of the funds to the 1st and 2nd Respondents in the way and manner the Court shared the funds out. The trial Court had no justifiable reason for sharing the funds in the way and manner it did; because the order was neither consequential nor ancillary as it did not flow naturally from the judgment; see OBAYAGBONA V. OBAZEE (1972) 5 S.C 247 AND FABIYI V. ADENIYI (2000) 6 NWLR PART (662) PAGE 532. The trial Court held that:
1. The 4th defendant is hereby ordered to pay the 1st plaintiff, Riok Nigeria Ltd the sum of $28,620,000 forthwith.
2. The 4th defendant is also ordered to pay the 2nd plaintiff, Dr. Ted Iseghohi Edwards, the sum of $71,380,000.
3. It is hereby further ordered that pursuant to order 39, Rule 4 of the Rules of this Court, the $100,000,000 shall attract post judgment interest of 10% from the date of judgment till the entire $100 million is paid.
One would have expected the trial Court to demonstrate or at least explain the rationale, especially in view of the fact that the percentages and figures were not part of the claim made by the 1st and 2nd Respondents.
It is trite that a Court has no power to make an order which has not been asked for and which the person against whom it is made had no opportunity for resisting. See OLADUNJOYE V. AKINTERINWA (2000) 4 SC (PT.1) 19; A.G. FEDERATION V. A.I.C LTD (2000) 6 SC (PT.1) 175; DYKTRADE LTD V. OMNIA NIGERIA LTD (2000) 7 SC (PT.1) 56; AFROTEC TECHNICAL SERVICES (NIG) LTD V. MIA & SONS LTD (2000) 12 SC (PT.11) 1; BADMUS V. ABEGUNDE (2001) 3 WRN 40; TUBONEMI V DIKIBO (2006) 5 NWLR (PT.974) 565; BORNU HOLDING COMPANY LTD V ALHAJI HASSAN BOGOCO (1971) ALL NLR 324 and CHIEF SHAIBU M. IDOGIERHIE V H.R.H CHIEF OARE II JPLPELR-7477-CA.
Order 39 Rule 7 of the FCT High Court Civil Procedure Rules clearly allows the trial Court to order for payment of interest at a rate not exceeding 10% to be paid on any judgment; that though applies only where there is a claim for the award of interest in the reliefs sought in the first place. There wasn’t any in the reliefs sought by the 1st and 2nd respondents in this case. This is in line with the trite position of the law that a Court is bound by the reliefs sought; a Court does not grant what is not sought. In OKAFOR V OKAFOR & ORS (2017) LPELR-43400 this Court Per IKYEGH, J.C.A held:
“Courts of law hardly grant orders not sought and/or orders contrary to the reliefs sought as they are not donors of charity and as parties are bound by the reliefs sought in their pleadings vide KALIO V, KALIO (SUPRA), UNION BEVERAGES LTD. V. OWOLABI (SUPRA), LIMAN V. MOHAMMED (SUPRA), OKOLO V. UBN LTD. (SUPRA), EKPENYONG V. NYONG (SUPRA), EGONU V. EGONU (1978) N.S.C.C. 575, EMEGOKWUE V. OKADIGBO (1973) 4 SC 113 OR (1973) 1 ALL NLR (PT.1) 379), GEORGE V. DOMINION FLOUR MILLS LTD, (1963) 1 ALL NLR 71, BUNGE V. GOVERNOR, RIVERS STATE AND ORS. (2006) 12 NWLR (PT.995) 573A -599, DAGACI OF DERE V. DAGACI OF EBWA (2006) 7 NWLR (PT.979) 382 AT 456.”
Unfortunately, in this case, having suo motu shared the funds to the 1st and 2nd Respondents the trial Court also failed to explain how the 10% interest awarded will be shared or spread.
It is a fundamental flaw in the considered opinion of this Court for the trial Court to share the funds Suo Moto; it is a breach of the rule of fair hearing; See CHUKWUMA OKWUDILI UGO V. AMAMCHUKWU OBIEKWE (1989) 1 NWLR PART 99 PAGE 566. The 1st and 2nd Respondents did not clearly raise this issue anywhere. The trial Court was in error in sharing the funds. It is not raising the issue suo motu that is frowned upon as such, it is the lack of involvement of the parties in the decision particularly the party adversely affected by the decision; See also SPASCO VEHICLE & PLANT HIRE CO. LTD. V. ALRAINE NIG LTD. (1995) 8 NWLR PART 416 PAGE 665.
It is for these reasons that I now resolve this issue in favour of the Appellants, against the 1st and 2nd Respondents.
ISSUE FOUR:
It is submitted for the appellants that where there are documents on which the parties rely, the Court must confine itself to the clear words of the document; ABALOGU V THE SHELL PETROLEUM DEV CO. NIG. LTD (2003) 13 NWLR part 837 page 308; the trial Court failed in its duty to properly examine the documents before it and thereby failed to see that the 1st and 2nd respondents’ claims are manifestly unsupportable, especially in view of the subsisting determination by this Court that the NGF has no obligation to any of the parties in the Linas and Riok judgments.
Learned senior counsel further submitted that the conclusion reached by the trial Court was imported into the documents in disregard of the clear terms of these documents; INCORPORATED TRUSTEES OF NIG. GOVS FORUM & ANR V RIOK NIG. LTD (supra) and CHIEF NYA EDIM EKONG V CHIEF ASUQUO OTOP & ORS (2014) 11 NWLR part 1419 page 549.
It is submitted in response that the evaluation of documentary evidence at trial was proper and the conclusion reached was just; especially as the case before the trial Court was clear and straight forward.
That the Linas, Riok and Ted judgments all affirmed the entitlement of the 1st and 2nd Respondents to percentage payments of the recovered funds; it is contended that this case has no connection with the appeal in the INCORPORATED TRUSTEES OF NIG GOVS FORUM & ANR V RIOK NIG LTD supra, the gravamen of this case being funds which had been set out to pay the consultancy fees of the 1st and 2nd Respondents which was erroneously directed by the respondent to be transferred to the NGF in trust on behalf of the yet to be verified beneficiaries at the time, pending the conclusion of investigations and verification of claims.
It is further submitted that the Appellants have not demonstrated that the decision reached by the trial Court was perverse; that being so, this Court should not disturb the findings of the trial Court; and that the 1st and 2nd Respondents proved by preponderance of evidence that they were entitled to the reliefs granted, and the trial Court was right in both law and fact to have arrived at the conclusion it did.
RESOLUTION OF ISSUE FOUR:
In spite of the strenuous contentions a careful look at exhibits A, B and C reveals that neither the 1st and 2nd Respondents claims to entitlement to the funds nor the trial Courts findings in support of those claims are borne out by these exhibits. The trial Court held rather erroneously that:
“The focal point of the plaintiffs claims is that based on exhibits A, B and C attached to the originating summons, they are the ones entitled to the $100,000,000 paid to the 1st and 2nd respondents to the exclusion of any other persons.”
As stated in earlier parts of this judgment neither exhibit A, B or C attached to the originating summons support the claim that the 1st and 2nd Respondents are entitled to be paid the $100,000,000 in issue; and contrary to the submissions of learned senior counsel for the 1st and 2nd Respondents the Linas, Riok and Ted judgments did not affirm the entitlement of the 1st and 2nd respondents to the payment of percentages of the amount in issue. If anything, the Riok and Ted judgments awarded 25% of the judgment debt in the Linas judgment for consultancy fees executed on behalf of the ALGON and 10% of the proceeds of the judgment debt in the Linas judgment to Dr Ted as consultancy fees for services executed for ALGON. This Court determined in THE INCORPORATED TRUSTEES OF NIG. GOVS FORUM & ANR V RIOK NIG. LTD & ORS (2018) LPELR-4415-CA that:
“…the judgment of the FCT High Court in FCT/HC/CV/2129/2014 had already prescribed mode of enforcement of the judgment sum in favour 1st Respondent (Riok Nig. Ltd), as co plaintiff against the 5th Respondent (Algon) and not against any other person.”
At the risk of prolixity I would once again point out that exhibit A is merely a legal opinion expressed and submitted by the 3rd Respondent on the direction of approval letter, exhibit AA1; exhibit B on the other hand is simply an acknowledgment of exhibit A, and therefore did not create any entitlements in favour of the 1st or 2nd Respondent, contrary to the conclusion of the trial Court; while exhibit C is merely a letter by the minister of finance to the 5th Respondent, Central Bank of Nigeria.
Contrary to the vehement submission of learned senior counsel it does not appear that the trial Court “juxtaposed” the judgments obtained by the 1st and 2nd Respondents against the federal government and the Central Bank with Exhibits A, B and C, the record does not bear that out; and it in fact it did, it would have found that the 1st and 2nd Respondents who alleged without proof contractual arrangements with ALGON, are entitled to be paid from the judgment debt in the Linas judgment.
It is for these reasons that I resolved this issue in favour of the Appellants, against the 1st and 2nd Respondents; and having resolved all the issues that call for determination in favour of the Appellants, against the Respondents, the appeal succeeds and it is accordingly allowed.
Parties to bear their respective costs.
STEPHEN JONAH ADAH, J.C.A.: I read the draft copy of the judgment just delivered by my learned brother MOHAMMED MUSTAPHA, JCA.
I agree with the reasoning and the conclusion that the appeal is meritorious. The appeal is therefore allowed and I abide by the consequential Orders.
KENNETH IKECHUKWU AMADI, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother, Mohammed Mustapha, JCA. I agree with the reasoning therein and the conclusion reached. The judgment of the lower Court is also set aside by me. This appeal is allowed.
Appearances:
P. I. N. Ikwueto, SAN, with him, Alex Ukwueze and C. C. Emekekwe For Appellant(s)
Ifeanyi Okpor, with him, Oliver Eya – for 1st and 2nd Respondent
Sulaiman Salihu, Esq. – for 3rd Respondent
G. Ofodile Okafor, SAN, with him, Emmanuel C. Ike, Esq. and Peace Ofodile Okafor – for 4th Respondent
Zekeri Garba, Esq., with him, M. S. Dan Musa – for 5th Respondent For Respondent(s)
