MACABASE (NIG.) v. UNION BANK (NIG.) PLC & ANOR
(2022)LCN/17041(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Friday, January 28, 2022
CA/K/231/2019
Before Our Lordships:
Raphael Chikwe Agbo Justice of the Court of Appeal
Abubakar Mahmud Talba Justice of the Court of Appeal
Peter Oyinkenimiemi Affen Justice of the Court of Appeal
Between
MACABASE (NIG.) APPELANT(S)
And
1. UNION BANK NIG. PLC 2. ALH. MOHAMMADU SALIHU RESPONDENT(S)
RATIO
However, this rule of Court has been interpreted by the Courts with liberal approach and not with rigidity. In other words, the Courts are loath to strike out a ground of appeal merely because its particulars are argumentative, narrative and conclusive. In terms of argumentative grounds, the Court of Appeal may hold that even though a ground or grounds are argumentative or narrative the ground or grounds have been able to convey the purport of the complaint in which case the ground may not be held to be invalid essentially, the purpose of the Rules of Court relating to formulation of grounds of appeal is to give sufficient notice and information to the other party, of the precise nature of the complaint of the Appellant, and the issues that are likely to appear on appeal. Once an appeal satisfied this purpose, it should not be struck out even though it did not confirm to a particular form. See Ehuluku v. NBE Plc (2004) 15 NWLR (Pt. 869) 370. In this instant appeal grounds 2 and 3 contain and incorporates the nature or particulars of the error or misdirection complained of and so they are competent despite the fact that the particulars are defective. See Abe v. University of Ilorin (Supra) where the Supreme Court per Muhammed JSC had cause to remind counsel that the grounds of appeal may stand on their own once they represent an Appellant’s complaint against the decision he is not satisfied with and in respect of which grouse he seeks the Appellate Courts intervention. Lack of or defective particulars in a ground of appeal would not necessarily render the ground itself incompetent. See the cases of Prince (Dr.) B. A. Onafowokan v. WEMA Bank Plc & 2 Ors NSCQCR Vol. 45 (2001) 181 (SC) B.W. Hodge (Nig.) Ltd & 2 Ors NSCQLR Vol. 45 (2011) 849. It is important to emphasis the fact that the ground of appeal must be framed in a way that both the Respondent and the Court can easily appreciate the nature and purpose of the complaint being made against the Judgment in order to prevent element of surprise. See Ayua v. Adasu (1992) 3 NWLR (Pt. 231) 596. The function of particulars in a ground of appeal is to bring to lime light or to the fore the specific complaint against the decision of the lower Court in order that the other party and the Court can easily identify and appreciate the complaint of the Appellant in the decision appealed against. Particulars in support of a ground of appeal it has been held, is to elucidate and elaborate on the grounds of appeal and to acquaint the Respondent with the issues involved in the appeal and help to show how the flows in the judgment or Ruling complained of, will be canvassed at the trial. See Ogbechie v. Onochie (1986) 2 NWLR (Pt. 23) 484. PER TALBA, J.C.A.
ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the Ruling of the High Court of Justice Kaduna State Coram Hon. Justice E. Y. B. Lolo delivered on the 12th day of February, 2019 in suit No. KDH/KAD/421/2018.
By a writ of summons and statement of claim dated 23rd day of April, 2018, the Appellant as Plaintiff sought for the following reliefs against the Respondents.
(a) A declaration that the 1st Defendant has no Legal Justification to charge compound interest on overdraft and loan accounts of the Plaintiff without her consent sought and obtained.
(b) An order that the Defendants are entitled to only simple interest as agreed upon with the Plaintiff.
(c) An order setting aside the claim of N33,652,244.61 (compound interest) on the overdraft and the loan accounts of the Plaintiff as same is without legal justification.
(d) An injunction restraining the Defendant or whoever represents them from selling any of her property including the one at Gora Street Kakuri Kaduna pending the determination of the substantive suit.
In response the Respondents filed a statement of defence with other accompanying processes dated the 28th day of June, 2018. The Respondent also filed a motion on notice seeking for an order dismissing the writ of summons and the statement of claim for disclosing no reasonable cause of action. And for being scandalous, frivolous and vexatious.
In a considered ruling the learned trial Judge struck out the writ of summons and dismissed the statement of claim. Aggrieved by the decision, the Appellant appealed to this Court vide a notice of appeal filed on 22nd of March, 2019. At the hearing of the appeal on the 2nd day of November, 2021. N. E. Onyegbusi appeared for the Appellant and S. Y. Ndasule appeared for the first Respondent. The Court Registrar informed the Court that the 2nd Respondent was served with a hearing notice on 29th of October, 2021. The 1st Respondent’s counsel informed the Court that he filed a notice of Preliminary Objection on the 11th of March, 2020. It is argued at pages 5 paragraph E to F of the 1st Respondent’s brief of argument filed on 11th of March, 2020. He urged the Court to uphold the Preliminary Objection and dismiss the appeal. The Appellant’s counsel informed the Court that he filed a reply to the Preliminary Objection on the 6th of July, 2020. It is at pages 1 to 6 of the reply brief. He urged the Court to dismiss the Preliminary Objection. The Appellant’s counsel adopted the Appellant’s brief of argument filed on 24th of July, 2019 and it was deemed properly filed on 25th of February, 2020. He also adopted the reply brief filed on 6th of July, 2020. He urged the Court to allow the appeal. The 1st Respondent’s counsel adopted the 1st Respondent’s brief of argument filed on 11th of March, 2020 and he urged the Court to dismiss the appeal and affirm the decision of the lower Court. He relied on the Judgment of this Court in Appeal No: CA/K/133/2012 Ambrose Akus Nnamdi v. Union Bank Plc delivered on 23rd of July, 2020.
The Notice of Appeal contains three (3) grounds of appeal. The grounds of appeal and their particulars are as follows:
“GROUND ONE – MISDIRECTION IN LAW
His Lordship, the learned trial Judge at the Court below misdirected himself in law and thereby came to a wrong conclusion to the effect that from the totality of the averments in the Appellant/Plaintiff statement of claim, no cause of action has been shown which will enable the Court inquire into the claims of the Plaintiff as set out in its statement of claim and that the suit is frivolous and to some extent vexatious.
PARTICULARS OF MISDIRECTION
(i) At the time the ruling complained of was delivered, the only process which the Court below ought to consider was the statement of claim filed by the Appellant. The conclusion reached by the learned trial Judge is not sustainable haven regard to the pleadings filed by the Appellant as Plaintiff, wherein the Appellant clearly stated that compound interest was charged on her account by the 1st Respondent without her notice and consent sought and obtained.
(ii) His Lordship at the Court below failed to appreciate the purport of the pleadings of the Appellant as Plaintiff wherein the Appellant made it clear that she had fully settled the principal sum of the money borrowed from the 1st Respondent and had paid part of the accrued simple interest as agreed from the onset of the transaction.
(iii) The Appellant as against her interest admitted the outstanding sum of the accrued simple interest which according to the Appellant was in the sum of N1,860,000.00.
GROUND 2 – ERROR IN LAW
The learned trial Judge at the Court below erred in law when he proceeded to make use of the Defendants’ affidavit and further affidavit in support of the motion to dismiss the suit, as basis for dismissing the suit in limine instead of allowing the matter to proceed to trial.
PARTICULARS OF ERROR
(i) It is trite law enunciated in a plethora of Supreme Court decisions including Okpozo v. Bendel Newspapers (1990) 5 NWLR (Pt. 153) 652 that at the stage of preliminary objection, only the statement of claim and not the defence or affidavit is to be considered.
(ii) In the circumstances of this case, it amounts to a breach of the Appellant’s right to fair hearing to dismiss the Appellant’s suit without a hearing on the issues raised in the Appellant’s statement of claim.
(iii) The learned trial Judge failed to appreciate that at the stage the ruling was delivered, the Defendants were deemed to have admitted the facts averred in the Appellant’s statement of claim coupled with the fact that the dismissal now amounts to the fact that the Appellant would be required to pay N33,652,244.61 when payment of same as threatened by the 1st Defendant was what provoked the suit the subject of this appeal.
GROUND 3 – ERROR IN LAW
The learned trial Judge at the Court below erred in law when he held thus:
From in totality of the averment in the statement of claim, no cause of action has been shown which will enable this Court inquire into the claims of the Plaintiff as set out in the its statement of claim.
PARTICULARS OF ERROR IN LAW
(i) The Appellant’s transactions with the Respondent were grounded in loan N2,000,000.00 overdraft facility N200,000.00 and working capital N500,000.00
(ii) The sum total of this money was N2,700,000.00 and this the Appellant had settled plus part payment of the outstanding agreed simple interest on the Appellant’s account.
(iii) The cause of action arose based on arbitrary and compound interest crafted into the Appellant’s account without his consent by the Respondent.
(iv) The Court by dismissing the suit is saying that the Appellant must have to pay the accrued interest without the right of challenging such outrageous interest.
(v) The Court by dismissing the Appellant’s case as it did, did not want the Respondent to explain how it came about the sum of N33,650,244.61 being the claimed exposure in the Appellant’s account.
(vi) Charging compound interest on the overdraft facility, there are conditions precedent to that and this was complied with by the Respondent.”
The Appellant’s counsel distilled a sole issue for determination from grounds two and three thus:
“Whether this suit as constituted challenging a claim of N33,650,244.61 (accumulation of compound and arbitrary interest charged) by the Respondent against the Appellant did not disclose a reasonable cause of action and if it did whether dismissal of the statement of claim as done by Court without allowing the suit to proceed to trial did not amount to miscarriage of justice and denial of fair hearing to the Appellant.”
The 1st Respondent on its part also distilled a sole issue for determination thus:
“Whether the learned trial Judge was right to have struck out the Appellant’s statement of claim for non-disclosure of a reasonable cause of action and dismissing the entire suit brought against the 1st Respondent for being frivolous, vexatious and without merit.”
An issue for determination should bring into clear focus and precision the main points involved in the appeal. See Coker v. Olukoga (1994) 2 NWLR (Pt.329) 648.
It is on the strength of the above settled principle, I adopt the sole issue distilled by the Respondents’ counsel, which if resolved it will decide this appeal. However, it is prudent to consider the preliminary objection raised by the 1st Respondent. And in the event the preliminary objection did not succeed, then I will consider the issue for determination. The 1st Respondent is contesting the competence of the appeal by a notice of preliminary objection filed on the 11th of March, 2020 to wit:
1. The competence of grounds 1, 2 and 3 together with their respective particulars contained in the Notice and Grounds of Appeal dated 21st February, 2019 and the competence of the entire Notice and Grounds of Appeal filed by the Appellant located at pages 121 -125 of the record, and
2. The competence of the Appellant’s brief as a whole and argued on the basis of a sole issue which was formulated from the incompetent grounds of appeal.
It is apt to mention that in the Appellant’s brief of argument no issue was formulated in relation to ground one. It is settled law that a ground of appeal on which no issue is raised is deemed abandoned. The consequence of the abandoned ground of appeal is striking out. See Major Shehu Ibrahim v. Dr. Junaid Salik Mohammed (2003) FWLR (Pt. 156) 902 AT 925. Accordingly therefore ground one is hereby struck out.
While submitting on ground two the Respondents’ counsel contended that from the totality of the ruling contained at pages 110 to 120 of the printed record where ground 2 relates to, there is nowhere in the entire ruling of the trial Court that it can be deduced or inferred that ground 2 complained that the learned trial Judge only made use of the Respondents’ affidavit and further affidavit in support of the motion to dismiss the suit in arriving at the decision to dismiss the suit which is in complete contradiction to the Appellant’s ground three. Learned counsel submitted that a ground of appeal must relate to the judgment appealed against. He cited the case of Mustapha Fannami v. Alhaji Gaji Bulama Bukar & 19 Ors. (2004) All FWLR (Pt. 198) 1210 at 1237 to buttress his submission. See Alhaji Musa Alubankudi v. Attorney General of the Federation & 1 Or. (2002) 17 NWLR (Pt. 796) 338 at 360 – 361. Learned counsel submitted further that the three particulars of ground two are incompetent and the Appellant sought to argue its appeal in the said ground and the particulars in contravention of the provision of Order 7 Rule 2 (2) of the Court of appeal Rules 2016. He relied on the case of Omowo Ogun v. Chief J. O. Asemah & 3 Ors (2002) 4 NWLR (Pt. 756) 208 at 236. Learned counsel submitted that where one or more of the particulars are adjudged to be defective they ought to be struck out along with the ground of appeal. See Abe v. Unilorin & Anor. (2013) LPELR – 20643 (SC) and Maimasa Farms Ltd v. Mainstream Bank Ltd (2015) LPELR – 40875.
Learned counsel urged the Court to strike out ground two and the three particulars for being incompetent.
On ground three the learned counsel submitted that it is incompetent for non-compliance with the provisions of Order 7 Rules 2 (3) of the Court of Appeal Rules, 2016 as most of the particulars are argumentative. He relied on the case of Amico Construction Co. Ltd v. Actel Int’l Ltd (2015) 17 NWLR (Pt. 1487) 146 at 162 paras B – C where the Court of appeal stated as follows:
“A ground of appeal with copious argumentative particulars is contrary to Order 6 Rule 3 of the Court of Appeal Rules, 2011.”
He submitted that where one or more of the particulars is/are adjudged to be defective they ought to be struck out along with the ground of appeal. See Abe v. Unilorin (supra) and Balonwu v. Obi (2007) 5 NWLR (Pt. 1028) 488 at 529.
Learned counsel urged the Court to strike out ground three for being defective. See Udoete v. Heil (2002) 13 NWLR (Pt. 783) 64 at 86.
On the second leg of the objection learned counsel submitted that an issue arising from incompetent ground(s) of appeal is also incompetent. He relied on the case of Njemanze v. Njemanze (2013) LPELR – 19885 (SC) 31 para D Ogunbiyi, JSC stated that:
“The law is settled that no incompetent issue can arise from an incompetent ground of appeal.” See Kano Textile Printers Plc v. Gloede & Hoff Nig. Ltd (2002) 2 NWLR (Pt. 751) 420 at 453.
Learned counsel urged the Court to strike out the Appellant’s brief of argument.
In response to the preliminary objection, the Appellants’ counsel submitted that grounds two and three of the notice of appeal are competent. Ground two is derived from live issues at the trial Court. The application that gave rise to this appeal was squarely on affidavit evidence. Paragraph 4 (ii) and (iii) and paragraphs 5(ii), (iii) and (v) of the affidavit in support of the motion based on which the Appellant suit was struck out, the Respondent made it clear that the Appellant claims were scandalous, frivolous and disclosed no reasonable cause of action. See pages 75, 76 and 78 of the records. And the learned trial Judge held thus:
“I hold the opinion that this suit is frivolous and to some extent it is vexatious.”
The trial Court made use of the affidavit evidence of the Respondent instead of restricting himself to the statement of claim. Learned counsel submitted that a ground of appeal which is distilled from the live issues at the trial Court is not defective and cannot be taken as an incompetent ground.
The Appellant further submitted that the Respondent also complained against the particulars of error of the said ground two. The basis of the complaint is that the grounds are argumentative. He contended that the particulars are not argumentative the Respondent being the technical observer woefully failed to establish what made the particulars argumentative for he who asserts must prove. He relied on the case of Oloruntoba – Oju v. Abdul-Raheem (2009) Vol. 39 NSCQR 105 at 137 – 138. Learned counsel submitted that the Respondent never said that the particulars of ground two are vague in nature. He urged the Court to discountenance the objection in respect of particulars of ground two.
Learned counsel submitted that Courts are set up to do substantial Justice and all technicalities must be shunned. Though rules of Court must be complied with by parties, it is in the interest of Justice that parties should be afforded the opportunity in appropriate circumstances for their claims to be adequately investigated and properly determined on merit.
On ground three, the Appellant submitted that the Respondent complained that ground three is defective because the particulars are argumentative but the Respondent never supplied what makes the grounds argumentative. He contended that ground three with the particulars is competent and not defective. He relied on the case of Aigbobahi v. Aifuwa (2006) Vol.26 (Pt. 1) NSCQR 122 at 137 and Aderounmu v. Olowu (supra). He urged the Court to discountenance the preliminary objection.
The crux of the issue in this preliminary objection is whether the particulars of ground 2 and 3 are argumentative narrative and conclusive and offends Order 7 Rule 2 (3) of the Court of Appeal Rules 2016, now Order 7 Rule 2 (3) of the Court of Appeal Rules 2021. The said Rule provides:
“The Notice of Appeal shall set forth concisely and under distinct heads, the grounds upon which the Appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.”
It is crystal clear that by the said rule the grounds of appeal must be clear concise and must not be argumentative, narrative or vague. A ground of appeal must contain precise, clear, unequivocal and direct statement of the decision attacked and must give the exact particulars of the mistake or misdirection alleged in the judgment or ruling appealed against.
See Ade Coker v. UBA (1997) 2 NWLR (Pt. 409) 641 and Dakolo v. Dakolo (2011) LPELR – 915 (SC). A perusal of the particulars of ground two and three of the Notice of Appeal at pages 123 – 125 of the record of appeal, shows that the particulars are argumentative, narrative and conclusive. The said particulars are contrary to the requirements of the law as decided in Major Shehu Ibrahim v. Dr. Junaid Salik Mohammed (Supra) and Mustapha Fannami v. Alhaji Gaji Bulama Bukar & 19 Ors (supra). See Also Alhaji Musa Alubankudi v. Attorney General of the Federation & 1 Or. (supra). The particulars do not arise from any specific reasoning findings or observation in the Ruling of the lower Court relating to the error complained of, but are arguments or narrative and conclusion that would be proffered at the hearing of the appeal to establish that the errors or misdirections were in fact committed by the learned trial Judge. Certainly, the said particulars are argumentative and conclusive.
However, this rule of Court has been interpreted by the Courts with liberal approach and not with rigidity. In other words, the Courts are loath to strike out a ground of appeal merely because its particulars are argumentative, narrative and conclusive. In terms of argumentative grounds, the Court of Appeal may hold that even though a ground or grounds are argumentative or narrative the ground or grounds have been able to convey the purport of the complaint in which case the ground may not be held to be invalid essentially, the purpose of the Rules of Court relating to formulation of grounds of appeal is to give sufficient notice and information to the other party, of the precise nature of the complaint of the Appellant, and the issues that are likely to appear on appeal. Once an appeal satisfied this purpose, it should not be struck out even though it did not confirm to a particular form. See Ehuluku v. NBE Plc (2004) 15 NWLR (Pt. 869) 370. In this instant appeal grounds 2 and 3 contain and incorporates the nature or particulars of the error or misdirection complained of and so they are competent despite the fact that the particulars are defective. See Abe v. University of Ilorin (Supra) where the Supreme Court per Muhammed JSC had cause to remind counsel that the grounds of appeal may stand on their own once they represent an Appellant’s complaint against the decision he is not satisfied with and in respect of which grouse he seeks the Appellate Courts intervention. Lack of or defective particulars in a ground of appeal would not necessarily render the ground itself incompetent. See the cases of Prince (Dr.) B. A. Onafowokan v. WEMA Bank Plc & 2 Ors NSCQCR Vol. 45 (2001) 181 (SC) B.W. Hodge (Nig.) Ltd & 2 Ors NSCQLR Vol. 45 (2011) 849. It is important to emphasis the fact that the ground of appeal must be framed in a way that both the Respondent and the Court can easily appreciate the nature and purpose of the complaint being made against the Judgment in order to prevent element of surprise. See Ayua v. Adasu (1992) 3 NWLR (Pt. 231) 596. The function of particulars in a ground of appeal is to bring to lime light or to the fore the specific complaint against the decision of the lower Court in order that the other party and the Court can easily identify and appreciate the complaint of the Appellant in the decision appealed against. Particulars in support of a ground of appeal it has been held, is to elucidate and elaborate on the grounds of appeal and to acquaint the Respondent with the issues involved in the appeal and help to show how the flows in the judgment or Ruling complained of, will be canvassed at the trial. See Ogbechie v. Onochie (1986) 2 NWLR (Pt. 23) 484.
In other words, the particulars to the ground of appeal are only meant to highlight or further explain the complaints against the decision and its meant to throw more light as well on the alleged error or misdirection with a view to further clarify the complaint which must have already been clearly and concisely stated in the ground of appeal. Once this purpose is achieved, the ground of appeal cannot be seen as defective. See Abe v. University of Ilorin (supra) Onafowokan & Ors v. WEMA Bank Plc & 2 Ors (supra) Oloruntoba Oju v. Abdul-Raheem (supra) for more emphasis, the particulars only particularizes in a specific and clear language, the grounds of appeal and assist to fill in the gap by providing the specific details to the ground of appeal. They are supportive to the grounds of appeal and not to be seen as grounds of appeal in themselves. It is therefore logical that a defect in any of the particulars to the ground of appeal cannot be the basis of declaring the whole ground incompetent except where the ground itself is argumentative, narrative and not clear and concise. See Haruna v. KSHA (2010) 7 NWLR (Pt. 1194) 604 at 615-616.
Consequently, grounds 2 and 3 of the grounds of appeal are competent. In the end the preliminary objection succeeds in part with respect to ground 1 of the grounds of appeal but it fails with respect to grounds 2 and 3. To that extent the preliminary objection is dismissed. Ground 1 is struck out having been abandoned.
I now come to the main appeal. Earlier I had adopted the sole issue submitted by the 1st Respondent counsel thus:
Whether the learned trial judge was right to have struck out the Appellants statement of claim for non-disclosure of a reasonable cause of action and dismissing the entire suit brought against the 1st Respondent for being frivolous, vexatious and without merit.
A summary of the facts which led to the commencement of the suit at the lower Court is that the Appellant was granted N2Million loan, N500,000 working capital and N200,000 overdraft facility by the 1st Respondent in the year 2008. The total sum of facility granted to the Appellant was N2,700,000.00. In the course of servicing the loan and overdraft facility, the Appellant wrote a letter to the Respondent dated 19th August 2015 wherein the Appellant proposed to settle the Respondent with N5Million for the sum of N2,700,000:00 and the accrued simple interest charges. In its reply to the letter the Respondent told the Appellant to pay the sum of N7,031,813 as full and final settlement as against N5 Million earlier proposed. When the Appellant could not make the payment as requested by the Respondent, the Respondent wrote a letter to the Appellant dated 19th April, 2016 and requested the Appellant to pay the sum of N33,650,244:61 within 14 days upon receipt of the letter. And failure to pay the said sum of N33,650,244:61, the Respondent will take legal steps to recover the money. The Appellant stated that the amount was an accumulated compound interest unilaterally charged by the Respondent on its account without its consent. The Appellant also stated that as at 19th April, 2016 when the Respondent wrote the letter, the Appellant had settled the principal sum of N2,700,00:00. And a part payment of N300,000:00 for the accrued simple interest. Due to these happenings the Appellant instituted the suit at the lower Court to establish that the Respondent was over reaching the Appellant on interest charges on the loan and overdraft account. The reliefs are as contended in the writ of summons and statement of claim. See pages 2-6 of the record of appeal. The crux of the Appellants case is that there is unilateral variation from simple to compound interest by the Respondent on the loan and overdraft account without same being communicated to the Appellant. See paragraphs 23, 24 and 25 of the statement of claim at page 9 of the record. And in paragraph 6-10 of the 1st Respondent’s statement of defence at page 61 of the record, the 1st Respondent admitted that interest was charged on the Appellants account, but the type of interest charged on the account was not stated. The Appellant contended that this suit as constituted disclosed a reasonable cause of action and that the trial Court by so dismissing the suit after pleading had been filed and exchanged without allowing same to proceed to trial denied the Appellant fair hearing in the suit. On the meaning of cause of action the learned counsel referred to the Supreme Court case of Okafor v. B.D.U (2017) 5 NWLR (Pt. 1559) 385 where the Court held that cause of action means the fact or combination of facts which gives rise to a right to complain and the damages consequent to the wrongful act.
It is that particular act of the defendant which gives the plaintiff his cause of complaint, every fact which is material to be proved to entitle the plaintiff to succeed and every fact which the defendant would have the right to traverse. See also Chevron (Nig) Ltd v. Lonestar Drilling (Nig) Ltd (2007) 7 SCNJ 245. The learned counsel submitted that this suit constitutes and it gave rise to aggregate and bundle of facts which had given the Appellant the right to make claim against the Respondent. It cannot be an offence or civil wrong for a customer of a bank to challenge arbitrary billing of interest on his or her loan or overdraft account, especially when it is obvious on the face of the customers statement of account. He submitted further that in determining whether or not a reasonable cause of action has been disclosed only the facts pleaded in the statement of claim have to be examined. The nature of the defence which may be put up by the defendant is not relevant. See Chevron (Nig.) Ltd. v. Lonestar Drilling (Nig.) Ltd. (supra). And that so long as the statement of claim discloses some cause of action or raises some questions to be decided by a judge a reasonable cause of action is disclosed. See Yusuf v. Akindipe (2000) 8 NWLR (Pt. 669) 386. The learned counsel submitted that it is not permissible where the interest rate is fixed as in the instant case, that is 20% interest per annum, the banker cannot after it unilaterally without an agreement, with the borrowed. Hence it is Mandatory on the banker to communicate such increase and get the consent of the customer. See Union Bank Ltd v. Ozigi (1991) 2 NWLR (Pt. 176) 677, Ricket v. B.W.A Ltd (1960) 5 FSC 113 at 188.
On the denial of fair hearing the Appellant counsel referred to the case of Alhaji Raufu Gbadamosi v. Olaitan Dairo & 1 Or (2007) NSCOR VOL 29 page 137. Learned counsel submitted that even if the Appellant had nothing before the Court as at the date the suit was dismissed, the Appellant still had the opportunity to amend her pleadings so as to reposition her case, but the lower Court terminated the suit without giving room for that opportunity.
In his response the Respondent counsel submitted that in order to determine whether a cause of action has been disclosed in a suit the Court will look into the statement of claim and the originating process. He cited the case of Adesokan v. Adegorolu (1997) 3 SCNJ Page… On the meaning of cause of action the Respondents counsel cited a plethora of authorities thus:
C. A Savage & 2 Ors v. M. O Uwaechia (1972) 3 SC 214 at 221. See also Ogar & Ors v. Igbe & Ors (2019) LPELR-48988 (SC); Barbus & Co (Nig) Ltd & Anor v. Okafor Udeji (2018) LPELR-44501 (SC). On the accrual of cause of action learned counsel cited the case of Samuel Osigwe v. PSPLS Management Consortium Ltd & Ors (2009) 3 NWLR (Pt. 1129) 378. The Respondents counsel paused a question thus; what is the infraction or wrongful act of the creditor (1st Respondent) which gives a debtor (the Appellant) a cause of complain to seek the trial Court to declare that he is owing his creditor a certain amount and not a particular amount? The learned counsel submitted that what the Appellant ought to have done was to pay to his creditor what he considers to be his indebtedness and if the creditor disputes this, it would then Constitute a right on the part of the creditor to sue the debtor for what he considers to be the balance. At that stage the debtor can set up the facts on which he has based his calculation as a shield to the creditors action and not a sword as the Appellant attempted to do at the trial Court. He relied on the case of Union Bank of Nigeria Ltd v. Penny-Mart Ltd (1992) 5 NWLR (Pt. 240) 228.
The Respondent counsel submitted that the claims of the Appellant at the trial Court were merely set up as a sword and the learned trial judge was right in striking out the statement of claim and dismissing the suit. He relied on Order 17 Rule 17(1) (a), (b), (c) & (d) of the Kaduna State High Court (Civil Procedure) Rules 2007. The Appellant is seeking for a declaration that it is not indebted to the 1st Respondent to a particular amount and not that it is not indebted to the 1st Respondent at all. As such no question is raised as to his civil rights and obligations. And when no question as to the civil rights and obligations of the plaintiff is raised in the statement of claim, it will be struck out and the action dismissed. He relied on the case of Chief (Dr) Irene Thomas & Ors v. The Most Reverend Timothy Omotayo Olufosoye (1986) 1 ALL WLR (Pt. 1) 224-225.
The crux of this appeal is that the learned trial judge has struck out the Appellant’s statement of claim and consequently dismissed the suit for non-disclosure of reasonable cause of action. What a cause of action means has received Judicial definitions in plethora of case. A cause of action simply put is a fact which when proved would entitle a plaintiff to a remedy against a defendant. See Bello v. A.G Oyo State (1986) 5 NWLR (Pt. 45) 828; Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1 at 20; Akilu v. Fawehinmi (No. 2) (1989) 2 NWLR (Pt. 102) 122; Oshoboja v. Amuda (1992) 6 NWLR (Pt. 250) 690.
There must be a cause of action before an intending litigant can initiate any legitimate proceedings. A suit is aimed at vindicating some legal right or claim and such legal right can only arise when certain material facts arise. It is only when facts establishing a civil right or obligation and facts establishing infraction or trespass on that right and obligation exist side by side, a cause of action is said to accrue. See Samuel Osigwe v. PMCL & 13 Ors (2009) 1-2 SC (Pt. 1) 80; Mrs. O. Adekoya v. F.H.A (2008) 4 SCNJ 151 Capital Bancorp Ltd v. Shelter Savings & Loans Ltd & Anor (2007) 1 SCNJ 236; Alhaji Madim Abubakar v. Bebeji Oil & Allied Product Ltd & Ors (2007) 2 SCNJ 170.
In order to determine whether a cause of action is disclosed in a suit, the statement of claim, which is the process filed by the plaintiff is examined. See Chukwu v. Akpelu (2014) 13 NWLR (Pt. 1424) 359 at 380; Nissan (Nig) Ltd v. Yaganathan (2010) 4 NWLR (Pt. 1183) 135.
At this juncture it is apt to look at the statement of claim, particularly paragraphs 19-27 at page 5 of the record it reads:
“19. The Plaintiff avers that apart from N723,000 paid between 2008 and 2010 the Plaintiff had further paid N400,000 on 11th November, 2015, N300,000 on the 12th August, 2016, N132,000 on the 14th September, 2016 and N157,000 and N100,000 respectively on the 23rd November, 2016 thereby bringing the total sum so far paid to Three Million Naira (N3,000,000).
20. The Plaintiff avers that at the rate of 20% per annum the 1st defendant’s interest element on N2,700,000 between 2009 to 2016 would be N2,160,000 of which the Plaintiff had paid N300,000 remaining a balance of N1,860,000.
21. The Plaintiff avers that the 1st defendant without the Plaintiff consent lumped overdraft facility account No. 0020619108 with the loan account No. 3651020005417.
22. The Plaintiff avers that the statement of account was generated in course of the 1st defendant’s business and the machine was in good working condition when the statement of account was generated.
23. The Plaintiff avers that the 1st defendant following this imposition of compound interest is today compelling the plaintiff to pay Thirty-Three Million, Six Hundred and Fifty Thousand, two hundred and forty four naira sixty-one kobo (N33,652,244.61) as against the simple interest of 20%.
24. The Plaintiff avers that the 1st defendant did not adhere to the agreed lending rates.
25. The Plaintiff avers that the Defendants are today threatening to sell the property of one of the directors on the basis that the Plaintiff has not paid N33,652,244.60 which emanated from unauthorized compound interest charged by the 1st defendant.
26. That there is legal justification for such action the principal sum of N2,700,000 including N300,000 – part of interest having been paid remaining a balance of N1,860,000 to be settled as agreed simple interest.
27. The Plaintiff avers that the overdraft facility stretched from 9th December, 2005 to 20th November, 2009 when the overdraft account and loan account without the consent of the Plaintiff were consolidated/lumped into one account No. 3656280010818 to enable the 1st Defendant charge compound interest.”
From the averments in the statement of claim reproduced above, it is undisputed fact that the Appellant is indebted to the 1st Respondent. And the Appellant did not pay to the Respondent what it considers as its indebtedness to the Respondent. Then the Respondent is left with the option to sue the Appellant for what it considers as the balance yet unpaid by the Appellant. Then the facts relied upon by the Appellant which forms the basis of its calculation to arrive at the amount paid to the Respondent as its indebtedness would be used as a shield to the Respondents’ action. These facts cannot be used as a sword as it was done by the Appellant in this instant case. The law it is said is grounded on facts. “Ex facto jus Oritur” And unless a person suffers some damage he cannot have a cause of action, “action non datur non damnificato”. In the case of Union Bank of Nigeria Ltd v. Penny-Mart Ltd (supra) Ogundare, JCA stated thus:
“One would think that it is for the debtor to pay to his creditor what he considers to be his indebtedness and if the creditor disputes this, it is for the latter to sue for what he considers to be his balance. The debtor may then set up the facts on which he has based his calculation as a shield to the creditors action; these facts in my humble view cannot be a sword.”
The learned trial judge was right in his finding that “— from the totality of the averments in the statement of claim, no cause of action has been shown which will enable this Court inquire into the claims of the plaintiff as set out in its statement of claim. I have not identified from the averments of plaintiff, facts establishing any infraction of the right of the plaintiff as alleged”. It is settled law that where and when a Court comes to conclusion that a plaintiff has no cause of action, the proper order to make is to strike out the statement of claim and dismiss the action. See Oloriade & Ors v. Ojebi & Ors (1984) NSCC 286, Dim Odumagwu Ojukwu v. Musa Yar Adua & Anor (2009) 4-5 SC (Pt. 1) 13; Thomas & Ors v. Olufosoye (1986) 1 NSCC 323.
The learned trial judge was right when he struck out the statement of claim for non-disclosure of reasonable cause of action and dismissing the entire suit brought against the 1st Respondent. Accordingly, the lone issue is resolved against the Appellant.
The appeal lacks merit and it is liable to be dismissed. Same is hereby dismissed. The ruling of the High Court of Justice Kaduna State delivered on the 12th day of February, 2019 in Suit No: KDH/KAD/421/2018 is hereby affirmed.
No order as to cost.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree.
PETER OYINKENIMIEMI AFFEN, J.C.A.: I have had the benefit of a preview of the leading judgment delivered by my learned brother, ABUBAKAR MAHMUD TALBA, JCA wherein the facts and issues in contention are set out.
I affirm my agreement with the reasoning and conclusion reached in the leading judgment and abide by the consequential orders contained therein.
Appearances:
N. E. Onyegbusi Esq., For Appellant(s)
S. Y. Ndasule Esq For the 1st Respondent
No Appearance for the 2nd Respondent For Respondent(s)
