GTB v. DASHUWAR
(2020)LCN/14852(CA)
In The Court Of Appeal
(JOS JUDICIAL DIVISION)
On Thursday, December 17, 2020
CA/J/427/2018
RATIO
JURISDICTION: AT WHAT TIME CAN THE ISSUE OF JURISDICTION BE RAISED
I wish to state straight away that the settled position of the law is that issue of jurisdiction can be raised at any time even at the apex Court because it goes to the root of a case. Issue of jurisdiction is a very radical and crucial thing in the adjudication of any matter. See Seagull Oil Ltd & Ors v Moni Pulo Ltd & Ors (2011) LPELR – 4935 (CA), Nnonye v Anyichie(2005)1 (SC) (Pt.11) 96; Uzamere v Urhoghide & Ors (2009) LPELR -5082 (CA); Emeka v Okadigbo & Ors (2012) LPELR – 938 (SC) and Usman Dan Fodio University v Kraus Thomson Organization Ltd (2001) 15 NWLR (pt.736) 305. No leave of Court is required before an issue of jurisdiction may be raised. See Alhaji Oloyede Ishola v Mekude Ajiboye (1994) 6 NWLR (Pt.352) 589. The argument canvassed in respect of this issue by Respondent cannot hold water. PER GANA MSHELIA, J.C.A.
ACTION: WHO IS A NECESSARY PARTY
A necessary party to an action is one whose absence the question submitted for determination cannot be completely and effectively settled. A necessary party is one who is bound by the decision in the matter someone whose presence is necessary as a party. See Babayeju v Ashamu (1998) 9 NWLR (Pt.567) 546 at 555 SC, Union Beverages Ltd v. Pepsicola Int’l Ltd (1994) 3 NWLR (Pt.330) 1 at 17 SC; ANPP & Anor v Faruk & Ors (2008) LPELR -3783 (CA); Mobil Oil Plc v Drexel Energy and Natural Resources Ltd & Ors (2004) 1 NWLR (Pt.853) 42 and Green v Green (2001) FWLR (Pt.75) 795. PER GANA MSHELIA, J.C.A.
EVIDENCE: STANDARD OF PROOF IN CIVIL CASES
In civil cases, the burden is on the plaintiff to prove his case on the balance of probabilities or preponderance of evidence. Plaintiff is to rely on the strength of his case and not on the weakness of the defence. PER GANA MSHELIA, J.C.A.
EVIDENCE: ON WHOM LIES THE ONUS OF PROOF WHERE THERE IS AN ALLLEGATION
It is settled law that he who alleges or makes an allegation has the onus of proof. See Ibeneme v Awolabi & Ors (2014) LPELR – 2354 (CA), Sections 131, 132 and 133 of the Evidence Act,Abdulrahman v Kadiri (2012) LPELR – 8001 (CA), Obi v Onyemiukwe (2011) NWLR (Pt.1228) 400, Onah v Okenwa & Ors (2010) LPELR – 4781 (CA), Famfa Oil Ltd v A.G. Federation & Anor (2003) LPELR -1239 (2003)18 NWLR (Pt.852) 453 and CPC v INEC & Ors (2011) LPELR – 8257 (SC). PER GANA MSHELIA, J.C.A.
Before Our Lordships:
Adzira Gana Mshelia Justice of the Court of Appeal
Mudashiru Nasiru Oniyangi Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Between
GUARANTY TRUST BANK, PLC APPELANT(S)
And
NANTOK PAUL DASHUWAR RESPONDENT(S)
ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Plateau State High Court delivered on 19th day of July, 2018 by Hon. Justice N.L. Musa in Suit No. PLD/J134/2017.
The Respondent as plaintiff commenced an action before the Plateau State High Court, Jos Judicial Division (hereinafter referred to as ‘lower Court’) on the 1st day of March, 2019, via a Writ of Summons against the Appellant (as defendant) seeking the following reliefs:
1. A DECLARATION that the unauthorized debiting of the account of the plaintiff by the defendant and/or its agents on the 2nd December, 2016 is a breach of the defendant’s duty of care over the plaintiff’s account and therefore amounted to negligence on the part of the defendant.
2. AN ORDER COMPELLING the defendant to pay the plaintiff the sum of N109,000.00 (One Hundred and Nine Thousand Naira) unlawfully debited from the account of the plaintiff without his prior authority and consent.
3. AN ORDER COMPELLING the defendant to pay the plaintiff the sum of N5,000.00 (Five Thousand Naira only) being
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general damages for its negligence.
4. N200,000.00 (Two Hundred Thousand only) specific damages legal fees paid for this suit.
5. 100% interest monthly on the sum unlawfully withdrawn from the date of the withdrawal till the said sum is liquidated.
6. 10% interest annually on the Judgment sum from the date of Judgment.
Parties joined issues on pleadings and each led evidence in support of its case. The lower Court, upon evaluating and ascribing probative value to the evidence adduced entered Judgment in favour of the Respondent.
Dissatisfied with the Judgment, Appellant lodged an appeal to this Court via its Notice of Appeal dated 24th July, 2018, containing two grounds of appeal.
In compliance with the rules of Court parties exchanged their respective briefs of argument. Appellant’s amended brief of argument settled by Nsikak Udoh Esq, Khamagam Faruk K, Esq. Domshak J. Gusen Esq. was filed on 10/07/2020 and deemed properly filed on 13/09/2020. While the Respondent’s amended brief of argument settled by Nantok Dashuwar Esq was filed on 14/09/2020 but deemed properly filed on 16/09/2020. Also Respondent’s brief of
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argument in respect of his notice was filed on 25/10/2019 but deemed properly filed on 28/10/2019. Appellant filed an amended reply brief of argument on 09/10/2020 but deemed properly filed on 12/10/2020.
When the appeal came up for hearing, both counsel adopted their respective briefs of argument. Appellant urged the Court to allow the appeal, while Respondent urged the Court to dismiss the appeal. Respondent at the hearing withdrew the Notice of Preliminary Objection filed. Same was struck out on 12/10/2020 along with the arguments canvassed in respect of same. Respondent intimated the Court that he filed Notice of Intention to Contend that the Decision of Court below be varied. Same is contained at pages 97-99 of the original record. I will revisit it in the course of the Judgment. A Respondent’s Brief in support of the Notice was also filed on 25/10/2020 but deemed properly filed on 12/10/2020 with leave of Court made on 13/07/2020. The Notice of Appeal was amended and same deemed properly filed and served. The Notice still contained two grounds of appeal.
In the Appellant’s Brief of Argument, one issue was distilled for determination
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as follows:
“Whether the learned trial Judge was right in law to assume jurisdiction and adjudge the Respondent’s suit as complaint, even to the extent of holding that Respondent was entitled to relief 1,2,4,5 and 6 sought in the statement of claim given the evidence placed before the Honourable Court and peculiar circumstances of the suit especially taking into cognizance the fact that necessary parties were not joined. (Culled from Ground One and Two).”
On the other hand, Respondent submits a lone issue for determination as follows:
“Considering the evidence on record adduced by both parties, whether the lower Court properly assumed jurisdiction and evaluated the evidence before it to entitle the respondent to grant of reliefs sought.”
I have examined the issues formulated by parties. I will adopt the Appellant’s issue in determining the Appeal as same is similar to that of the Respondent.
In arguing the sole issue, learned counsel to the Appellant submitted that the learned trial judge failed to properly appreciate the nature of the Respondent’s case. That the fulcrum of Respondent’s
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case is that he suffered loss of the sum of N109,000.00 (One Hundred and Nine Thousand) due to alleged breach of a duty of care owed to him by the Appellant. That Appellant’s grievance is encapsulated in reliefs 1 and 2 of the statement of claim. According to counsel, Respondent agreed with the Appellant that the amount debited from his account was precisely the exact amount that was also paid into his account by a business associate. Counsel urged the Court to hold that this clearly points to the fact that the debit was reversal made in favour of the Respondent’s business associate. Counsel was of the view that Respondent presented his case in a most evasive manner and consistently used the word ‘debit’ throughout his claim, when the evidence before the Court made it quite obvious that the nature of the transaction complained of was an automated electronic reversal in favour of his business associate. That Respondent deliberately refused to present his business associate’s statement of account so as to afford the Court the opportunity of verifying the exact location of the funds which he claimed to have lost. He argued that the
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credibility of the Respondent’s testimony collapsed under cross-examination. (See pages 22-23 of the record). Cited in aid Abdullahi Idris Oseku & Ors v The Minister Federal Capital Territory, Abuja & Ors (2007) LPELR-3560 (CA). He urged the Court to invoke its Appellate jurisdiction to properly evaluate or re-evaluate the evidence before the lower Court. See Njoku v Registered Trustees C.H.G.H (2006) 18 NWLR (Pt.1011) 239, 262-203, H-C, learned counsel argued that the lower Court had no basis to conclude that the Respondent had suffered loss of sum of N109,000.00. That there is evidence to show that the said funds had merely been recalled by his associate or at worst, same may have been reversed due to a network glitch but certainly not lost. Counsel relied on Section 167 of the Evidence Act to hold that Respondent failed to produce the statement of account of his business associate because if produced it would indicate the exact location of the funds. Counsel also referred to the case of Dana Impex Ltd v Aderotoye (2005) 3 NWLR (Pt.966) 78 at 102-103 para E-A and Section 133 (1) of the Evidence Act, 2011 to argue that the initial burden of proof
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lies on the Respondent to establish his case. Counsel was also of the view that since Respondent failed to prove his principal reliefs’ i.e reliefs 1 and 2, there is no basis for learned trial Judge to grant ancillary reliefs to the Respondent. That the most effective evidence to show that Respondent actually incurred loss would have to be documentary evidence other than his oral evidence. Reliance placed on Larmie v D.P.M.S Ltd (2005)18 NWLR (Pt.958) 438 paras H-B.
On the issue of non-joinder of Respondent’s business associate the transferor of the funds, counsel posed a question as to why the transferor was not joined as a party to the suit to enable Appellant an opportunity to join issues with him. Reliance placed on Jurrasic Communications (Nig.) Ltd v Adeyeye (LPELR) 46498, Babayeju & Anor v Ashamu (1998) LPELR (700) SC, Green v Green (2001) FWLR (Pt.76) 795 at 814 and Gasol v Tutare & Ors. (2013) LPELR – 20232.
Applying the principles set out in the cases cited above, counsel submitted that Mr. Johnson Sam whom Respondent mentioned under Cross-examination as the person who transferred the funds in issue to him would have
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to be joined in such action to have a complete and effective determination of the matter. He commends the case of Jurrassic Communications (Nig.) Ltd v Adeyeye (supra) to the Court and urged us to hold that the suit is incompetent for failure to join necessary parties.
In response learned counsel for the Respondent submitted that the competence of the Respondent’s suit was never challenged at the lower Court by the appellant. That this is the first time the issue is coming up and no leave was sought or obtained by appellant to raise the issue. Counsel argued that the issue is incompetent and desire to be struck out.
In arguing the issue on merit, learned counsel for the Respondent submitted that the Appellant’s main contention is that the trial Judge failed in his duty of properly evaluating the evidence before it. Counsel agreed with the appellant’s counsel in paragraph 2.1.1 that a plaintiff will win or lose on the strength of his case and more particularly on the preponderance of evidence. That Respondent before the lower Court proved his case on the preponderance of evidence and presented his case consistently. Counsel argued
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that the gravamen of the Respondent’s case is to the effect that the Appellant breached the duty of care owed to the Respondent in handling the funds in the Respondent’s account domiciled with the Appellant. According to counsel, the complaint of the respondent was that the sum of N109,000.00 was deposited in favour of the Respondent by a third party (his business associate) and was later debited from his account by the appellant without the due authorization and consent of the respondent and this act by Appellant occasioned injury to the Respondent. According to counsel all that Respondent needed to prove before the lower Court was that there was indeed a credit/deposit in his account domiciled with the Appellant by his business associate and that the funds were taken away from the account without the Respondent’s consent and due authorization. That Respondent backed up his evidence with Exhibits P1, P2, P4, and P5 respectively. That the lone witness of the Appellant confirmed under cross-examination before the lower Court that there was an actual deposit of the sum of N109,000.00 in the account of the Respondent domiciled with the Appellant.
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That upon being confronted with Exhibit P1, witness confirmed that indeed the account of the respondent was credited. Counsel also referred to the testimony of DW1 at page 26 of the supplementary record. That the lone witness of the Appellant also confirmed when confronted with Exhibit P2 that there was a credit in the account of the Respondent. According to counsel, Exhibit P4 was also shown to the Appellant and he confirmed that there was indeed a deposit of funds into the Respondent’s account and the email tendered as Exhibit P2 confirmed that the funds are available for the use of the Respondent. Reference made to pages 26 and 27 of the printed supplementary record. Learned counsel also referred to Exhibit P5 and contended that Appellant’s lone witness confirmed under cross-examination the contents of Exhibit P5A. He said, there is also a debit of N109,000.00 in Exhibit P5A. Respondent’s counsel further contended that Exhibits P1, P2, P3A, P3B, P4A, P5A, P5B and P7 were tendered without objection as such the evidence must be accepted as unchallenged. Reliance placed on Kwande v Mohammed (2014) LPELR – 22575 CA. That upon all the
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evidence marshaled out in proof of the pleadings of the Respondent, the burden of proof shifted on the Appellant to produce evidence in support of its pleadings. Counsel argued that the email – Exhibit P4 confirmed the pleadings of the Respondent.
Learned counsel further submitted that the Appellant having alleged in its pleadings that the funds of the plaintiff reversed back to the third party who sent it and quick teller is liable for the alleged reversal, it was the duty of the Appellant to prove these averments. Counsel contended that it is trite law that facts not backed up by evidence goes to no issue. Cited in aid Access Bank Plc v Trilo Nigeria Company Ltd & Ors. (2013) LPELR 22945 (CA). Counsel maintained that Appellant led no evidence at all in support of its defence. That Respondent proved its case before the lower Court on pleaded facts backed up by credible evidence. That Appellant failed to tender any document before the lower Court evidencing a reversal transaction and did not invite quick teller to testify in support of its position. That there was no evidence whatsoever before the lower Court showing a reversal by quick teller as
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opposed to a debit by the Appellant. That it is trite law that he who asserts must prove. Reliance placed on Community Development Organization & Anor v Mohammed (2014) LPELR -23598 (CA), Tallen & Ors. v Jang & Ors. (2011) LPELR – 9231 (CA). That the lower Court appreciated the Respondent’s case which is to the effect that he suffered loss of funds from the negligence of the Appellant. According to counsel, it is the Appellant whose duty is to keep the money that he should explain what happened to the money. That Appellant failed to do thereby bringing it within the firm application of the doctrine of res ipsa liquitor. That the legal presumption of negligence has not been rebutted. See United Cement Company of Nigeria Ltd & Ors v Isidor & Ors (2016) LPELR -41148 (CA), British Airways v Atoyebi (2014) LPELR – 23120 (SC). Counsel submitted that the learned trial Judge properly evaluated the pieces of evidence placed before the Court before coming to the conclusion it did. Reference made to pages 63-67 of the additional record of appeal.
On the issue of joinder, counsel submitted that it would yield no useful purpose to
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the case of the respondent to have joined the person who had paid the debited funds. That Appellant failed to prove its assertion that the funds in dispute was transferred back to the transferor. That the statement of account is clearer on the question of whether the funds was lost or not. That it showed the money was taken away and its destination did not even reflect on the statement of account. See Exhibit P1. Learned counsel argued that it is trite that a party who ought to be joined in an action as a necessary party is that party who has and even though has no interest, the decision of the Court will be binding on such a party. See The Registered Trustees of NACHPN & Ors v MHWUN & Ors (2008) LPELR – 3196 (SC). That in the case at hand, the transferor of the funds has no interest to defend in the suit of the Respondent having discharged his duty of paying for a service rendered. That there is no way the suit of the Respondent affects the transferor of the funds. That it would have been useful to the Appellant or in its interest to join the business associate of the Respondent to seek to recover the money they admitted they failed to secure
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which they alleged had been received back by the transferor. Counsel contended that it will set a dangerous precedent and endanger depositors if this appeal is allowed as it would have the effect that banks would no longer be in a position to guarantee the safety and protection of funds of depositors. He urged the Court to resolve the issue in favour of the Respondent.
I would start with the argument touching on the jurisdiction of the Court. Learned counsel for the Appellant is of the view that Respondent’s business associate is a necessary party and ought to have been joined as party by the Respondent. Learned counsel for the Respondent argued that the competence of the Respondent’s suit at the lower Court was never challenged by the Appellant. That this is the first time the issue is coming up and no leave was sought or obtained by the Appellant to raise this issue. I wish to state straight away that the settled position of the law is that issue of jurisdiction can be raised at any time even at the apex Court because it goes to the root of a case. Issue of jurisdiction is a very radical and crucial thing in the adjudication of any matter.
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See Seagull Oil Ltd & Ors v Moni Pulo Ltd & Ors (2011) LPELR – 4935 (CA), Nnonye v Anyichie(2005)1 (SC) (Pt.11) 96; Uzamere v Urhoghide & Ors (2009) LPELR -5082 (CA); Emeka v Okadigbo & Ors (2012) LPELR – 938 (SC) and Usman Dan Fodio University v Kraus Thomson Organization Ltd (2001) 15 NWLR (pt.736) 305. No leave of Court is required before an issue of jurisdiction may be raised. See Alhaji Oloyede Ishola v Mekude Ajiboye (1994) 6 NWLR (Pt.352) 589. The argument canvassed in respect of this issue by Respondent cannot hold water.
The question now is whether Quick Teller and Respondent’s business associate ought to have been joined as necessary parties? Who is a necessary party? A necessary party to an action is one whose absence the question submitted for determination cannot be completely and effectively settled. A necessary party is one who is bound by the decision in the matter someone whose presence is necessary as a party. See Babayeju v Ashamu (1998) 9 NWLR (Pt.567) 546 at 555 SC, Union Beverages Ltd v. Pepsicola Int’l Ltd (1994) 3 NWLR (Pt.330) 1 at 17 SC; ANPP & Anor v Faruk & Ors (2008) LPELR -3783 (CA);
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Mobil Oil Plc v Drexel Energy and Natural Resources Ltd & Ors (2004) 1 NWLR (Pt.853) 42 and Green v Green (2001) FWLR (Pt.75) 795. Having regard to the facts and circumstances of this case it is my humble view that the joinder of Quick Teller and Respondent’s business associate is not necessary as their absence will not affect the effectual and complete determination of the claim before the Court. I agree with Respondent’s counsel that Appellant failed to prove its assertion that the funds in dispute was transferred back to the transferor. It would have been needless joining the transferor of the funds as the evidence tendered before the Court in support of the Respondent’s case pointed to the fact that the funds were deposited and debited from the Respondent’s account without authorization. The statement of account showed that money was taken away and its destination did not even reflect on the statement of account. See Exhibit P1. In the instant case the transferor of the funds has no interest to defend the suit of the Respondent having discharged his duty of paying for a service tendered. Since he has no interest the decision of the Court will not be
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binding on him. I hold the view that the learned trial Judge rightly assumed jurisdiction and determined the claim before the Court. The suit filed before the lower Court was competent.
The complaint of the Appellant is that the learned trial Judge did not properly evaluate the evidence adduced before the Court.
In civil cases, the burden is on the plaintiff to prove his case on the balance of probabilities or preponderance of evidence. Plaintiff is to rely on the strength of his case and not on the weakness of the defence. In the instant case Plaintiff/Respondent testified in line with his pleadings and tendered Exhibits. The Plaintiff/Respondent is claiming the refund of sum of N109,000.00 which was paid into his account at the defendant bank by his business associate. The available evidence also disclosed that the same amount was withdrawn from his account without his authority. The Exhibits tendered attest to the fact the money was received through the account of the plaintiff at the defendant bank. There is no doubt that Exhibits P1, P2 and P5A confirms that money was credited to Respondent’s account and the same amount was withdrawn from
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the account. Respondent had established his case by adducing credible evidence through both oral and documentary evidence. The Appellant sole witness did not adduce evidence to controvert that of the Respondent. It was the Appellant who alleged that the funds were reversed to the transferor, the business associate of the respondent. Appellant attributed the disappearance of the funds to quick teller. The burden of proving this fact shifted to the Appellant. It is settled law that he who alleges or makes an allegation has the onus of proof. See Ibeneme v Awolabi & Ors (2014) LPELR – 2354 (CA), Sections 131, 132 and 133 of the Evidence Act,Abdulrahman v Kadiri (2012) LPELR – 8001 (CA), Obi v Onyemiukwe (2011) NWLR (Pt.1228) 400, Onah v Okenwa & Ors (2010) LPELR – 4781 (CA), Famfa Oil Ltd v A.G. Federation & Anor (2003) LPELR -1239 (2003)18 NWLR (Pt.852) 453 and CPC v INEC & Ors (2011) LPELR – 8257 (SC). The Appellant having alleged that the transaction on the Respondent’s account was a reversal transaction by Quick Teller, had the burden to adduce credible evidence to prove this fact. Appellant failed to discharge
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this burden placed on him by law.
The Appellant owes the Respondent a duty of care in managing the Respondent’s money. See UBN Plc v Chimaeze (2014) LPELR – 22699. This Court also in the case of U.B.A Plc v Yaro Bakiyau Yahuza (2014) LPELR -23926 had this to say:
“It is trite law that customers’ monies in the hands of the banker are not in the custody or under the control of the customer and such monies remain the property in the custody and control of the banker and payable when a demand is made. Thus if anything happens to the money thereafter e.g. theft of money or unauthorized withdrawal, it is the banker and not the customer that bears the loss.”
See also Wema Bank Plc v Osilaru (2008) 10 NWLR (Pt.1094) 150; Jukok Int’l Ltd v Diamond Bank (2016) 8 NWLR (Pt.1507) 55, 80 at 111 paras A-B.
There is no dispute as to the fact the learned trial Judge properly evaluated the evidence adduced by both parties and ascribed probative value to such evidence. It is to be made clear as held in many authorities that the evaluation of evidence and ascription of probative value to such evidence are the preserve of the
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trial Court which had the opportunity of hearing and assessing the evidence and demeanor of the witnesses. See FBN Plc. v Bam (2010) LPELR -4160 (CA), Aregbesola & Ors v Oyinlola & Ors (2010) LPELR – 3805 (CA) and Mogaji & Ors v. Odofin & Ors (1978) 3 SC 91.
Where a Court of trial has unquestionably evaluated the evidence and appraised the facts, it is not the business of a Court of Appeal to substitute its own views for the views of the trial Court. See Board of Customs Service v Bazuaye (2005) LPELR – 59118 (CA) (2005)3 NWLR (Pt.167) 303. The trial Court had properly evaluated the evidence adduced by parties as such the appellate Court has no business to interfere. I will accordingly resolve the sole issue in favour of the Respondent.
I now consider the Respondent Notice of Intention to contend that Decision of Court below be varied dated 28th day of September, 2016. The grounds on which the Respondent intended to rely without particulars are as follows:
GROUND ONE
The learned trial Judge erred in law when he refused to grant general damages in favour of the respondent despite the pleadings and evidence on the
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record.
GROUND TWO
The learned trial Judge erred in law when he failed to advance any reason for reaching its decision refusing to award general damages in favour of the respondent despite entering Judgment in favour of the respondent.
RELIEFS SOUGHT:
i. AN ORDER setting aside the part of the decision of the trial Court where it refused to grant general damages in favour of the Respondent.
ii. AN ORDER granting general damages in favour of the respondent in terms of relief 3 on the claims of the respondent.
iii. Cost of prosecuting this appeal
The Respondent filed a Respondent’s Brief in Support of Respondent’s Notice on 25th October, 2019 and same deemed properly filed and served on 28/10/2019.
The Appellant responded in its reply brief to arguments in support of the (Respondent’s Notice) see pages 10-13 of Appellant’s Amended Reply brief of Argument filed on the 1st October, 2020 and deemed properly filed on 12/10/2020.
Before I resolve the issue raised in the Respondent’s Notice to contend, I find it necessary to first determine the competency of the notice. Whether the procedure
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adopted is proper?
The essence of a respondent’s notice of intention, is to urge on the Court that the Judgment being appealed against should be affirmed, albeit on grounds other than the ones upon which the appeal is predicated. See American Cyanamid Company V Vitality Pharmaceuticals Ltd (1991)2 NWLR (PT.171)15 wherein the Supreme Court aptly Per Olatawura JSC (of blessed memory) stated thus: “In my view invocation of the rule postulates that the Judgment are based on wrong premise when there is enough evidence on record which can sustain the Judgment on grounds other than those relied upon by the trial Court. The respondent’s notice postulates the correctness of the Judgment notwithstanding the grounds of appeal by the Appellant to set it aside. See also Government of Imo State v Gree Coy Construction and Engineering Associate Ltd (1985)3 NWLR (Pt.11) 71. The law is well settled that where a respondent seeks to set aside a decision of a lower Court on any crucial material aspect, a respondent’s notice as envisaged under Order 9 of the Court of Appeal Rules, 2016 would be most inappropriate. In such a circumstance, the logically
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appropriate procedure to be adopted by the respondent would be to file a substantive Cross-Appeal, not a Respondent’s Notice. See Summonu v Achinota (1975)1 NWLR (Pt.16), Anyaduba v Nigerian Renowned Trading Co. ltd(1990)1 NWLR (Pt.127), Eliochin Nig. Ltd v Mbadiwe (1986)1 NWLR (Pt.14) 47, African Continental Seaways Ltd v Nigerian Dredging Road and General Works Ltd (1977) 5 SC 235.
On the other hand, a respondent’s notice becomes applicable only in a situation where a Respondent intends to obtain the Judgment of the lower Court but at the same time seeks to vary it. See Ogunbadejo v Owoyemi (1993)1 NWLR (Pt.271) 517, Delta State Govt v Okon (2002) 2 NWLR (Pt.752) 662, Baker Marina (Nig.) Ltd v Daross Curole Marina Contractors Inc. (2001)7 NWLR (Pt.712) 337 and Ndubisi Nwadibia v The State (2009) LPELR -8756 (CA).
I have carefully examined the Respondent’s Notice of Contention and the grounds relied upon. The two grounds stated in the notice reproduced supra are based on the errors of law allegedly committed by the learned trial Judge. Respondent wants to set aside the part of the decision of the trial Court where it refused to
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grant general damages in favour of the respondent and not to vary it. The Respondent’s notice is inappropriate since the finding is crucial or fundamental. Respondent ought to have filed a Cross-Appeal. The Respondent’s Notice as couched is incompetent. Accordingly, same is struck out.
In the result, I hold that the appeal is unmeritorious and same is hereby dismissed. Appeal Dismissed. The Judgment of the High Court of Justice Plateau State delivered on 19th July, 2019 by Hon. Justice M.L. Musa in Suit No. PLD/J134/2017 is hereby affirmed. Parties to bear their respective costs.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I read before now the lead judgment just delivered by my learned brother ADZIRA GANA MSHELIA, PJCA.
I agree with the reasoning and conclusion arrived thereat and I abide by the consequential orders.
BOLOUKUROMO MOSES UGO, J.C.A.: I was privileged to read before now the lead judgment of my learned brother and Presiding Justice ADZIRA GANA MSHELIA, J.C.A., (PJ) and I am in agreement with his reasoning and conclusion. I also dismiss the appeal and order that
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parties bear their costs.
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Appearances:
L.C. Dabish For Appellant(s)
Nantok Dashuwar in person For Respondent(s)
