MIGHTY JETS FC LTD v. A.G. OF PLATEAU STATE & ANOR
(2022)LCN/17102(CA)
In The Court Of Appeal
(JOS JUDICIAL DIVISION)
On Friday, February 18, 2022
CA/J/186/2021
Before Our Lordships:
James Shehu Abiriyi Justice of the Court of Appeal
Mudashiru Nasiru Oniyangi Justice of the Court of Appeal
Olasumbo Olanrewaju Goodluck Justice of the Court of Appeal
Between
MIGHTY JETS FOOTBALL CLUB LIMITED APPELANT(S)
And
1. THE ATTORNEY-GENERAL OF PLATEAU STATE 2. PLATEAU STATE GOVERNMENT RESPONDENT(S)
RATIO
THE POSITION OF THE LAW ON FAIR HEARING
Fair hearing envisages that both parties to a case be given an opportunity of presenting their respective cases without let or hindrance from beginning to end. It also envisages that the Court or Tribunal hearing the case of the parties should be fair and impartial without showing any degree of bias against any of the parties. See Alsthom S.A v Saraki (2005) LPELR–435 SC page 23.
Although, the right to fair hearing is a constitutional right, it is not taken seriously by Litigants as it is peddled by Litigants at the slightest opportunity. This is why Tobi, JSC (of blessed memory) in Magaji v Nigerian Army (2008) LPELR-1814 observed that it has become fashionable for litigants to resort to their right to fair hearing on appeal as if it has become a magic wand to cure all their inadequacies at the trial. Five years later, Chukwumah-Eneh, JSC in Ekunola v C.B.N (2013) LPELR 20391 SC also observed that “fair hearing” has become a whipping principle for counsel trying to catch at a straw to sustain a modicum of standing in a hopeless case where the case is as dead as dodo. Fair hearing he said should be invoked with every sense of seriousness. PER ABIRYI, J.C.A.
WHETHER OR NOT PHOTOCOPIES OF PUBLIC DOCUMENTS MUST BE CERTIFIED
Photocopies of public documents annexed to an affidavit must be certified. See Section 104 of the Evidence Act, 2011; Daniel Tayar Transport Enterprises Company Nigeria Ltd & Ors v Busari & Anor (2000) LPELR-5541 CA, Fawehinmi v Inspector General of Police (2000) FWLR (Pt 12) 1952 at 2023, Onyali v Okpala (2001) 1 NWLR (Pt. 694) 282 at 303, Ministry of Lands v Azikiwe (1969)4 NSCC 31 AT 37–38, Araka v Egbue (2003) 33 WRNT and Emmanuel v Umana & Ors. (2016) LPLER–40037 SC. From the definition of public document in Section 102 (a) and (b) of the Evidence Act, 2011 it is not only exhibits A3, B1, B3, B4 and B5 that are photocopies of public documents, but exhibits A1, A2, B2, B6 and B7 as well. They were not certified. The Court cannot therefore look at them. If the Court closes its eyes to those documents, there is no way the claim of the Appellant can succeed even if the Court considers the claim as learned counsel for the Appellant urged the Court to do. PER ABIRYI, J.C.A.
THE FACTOR THAT MUST BE IN EXISTENCE BEFORE A CONTRACT OR AGREEMENT CAN COME INTO EXISTENCE
It is the law that before a contract or agreement can be said to have come into existence in law, there must be an unmistaken and precise offer and an unconditional acceptance of the terms mutually agreed upon by the parties thereto. This means that the parties to the agreement must be in consensus ad idem as regards the terms and conditions freely and voluntarily agreed upon by them. If the terms and conditions of the agreement are uncertain or vague, there can never be a valid agreement known to law which can be said to present itself for enforcement. See Odutola v Papersack (Nig) Ltd (2006) 18 NWLR (Pt. 1012) 470 and Okubule v Oyagbola (1990) 4 NWLR (Pt. 147) 723. As rightly pointed out by learned counsel for the Respondents there is no written agreement between the parties. There is therefore no evidence of any precise offer. There is no evidence of any unconditional acceptance of any agreed terms. PER ABIRYI, J.C.A.
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling/judgment delivered on 4th May 2021 in the High Court of Plateau State sitting in Jos. In the High Court (the Court below), the Appellant was the Plaintiff. The Respondents were the Defendants.
The claim of the Appellant against the Respondents brought under the Undefended List procedure was for the following:
(a) One Hundred and Seventy-Two Million, Six Hundred and Ninety-Eight Thousand, Seventy-Eight Naira (N172,698,078) being outstanding sum payable to the Appellant by the Respondents.
(b) 10% interest on the above sum from September, 2019 till judgment and thereafter until satisfaction of the judgment sum.
(c) Seventeen Million, Two Hundred and Sixty-Nine Thousand, Eight Hundred and Seven Naira Eighty kobo (N17,269,807,80) being professional fees charged by the Appellant’s solicitors.
(d) Costs of the action.
In summary, the case of the Appellant in the Court below as can be made out from the affidavit in support of the claim is as follows:
The Appellant is a registered company that carries out sports businesses particularly football. In 2012, it approached the 2nd Respondent for sponsorship in the Nigerian National League. The 2nd Respondent agreed to sponsor the Appellant on the condition that the Appellant qualified to play in the Nigerian National League.
Following the understanding reached between the Appellant and the 2nd Respondent, the latter made several financial approvals in support of the Appellant for 2012/2013, 2013/2014, 2014/2015 and 2015/2016 football seasons.
Although the approvals were made, not all payments were made. The total amount that remained unpaid was N172,698, 078.00.
Although the Respondents filed a notice of intention to defend the suit, it nevertheless raised a preliminary objection to the hearing of the suit.
In the notice of preliminary objection, the Respondent challenged the competence of the suit on the ground that it did not disclose a cause of action and that the Appellant had no capacity to institute the action.
The defence of the Respondent as can be made out from the affidavit in support of the notice of intention to defend is as follows:
That there was no contract relationship between the parties regarding the sponsorship of the activities of the Appellant as no documents were signed between the parties to that effect. Rather, the Appellant regularly approached the 2nd Respondent for financial assistance to run its affairs. That various sums of money released by the 2nd Respondent to the Appellant in aid of its footballing activities were done as a gesture of goodwill and not in fulfilment of any contractual obligation towards the Appellant.
In the affidavit in support of the preliminary objection, the Respondent averred that apart from the non-disclosure of cause of action, the suit was not instituted by the true representatives of the Appellant as Mr. Godfrey Sanusi Hamza was never authorized to institute the action.
In the counter-affidavit in opposition to the notice of preliminary objection, the Appellant averred that Mr. Godfrey Sanusi Hamza was duly authorized by the Board of Directors to institute this suit. The resolution of the Board of Directors was annexed to the counter-affidavit and marked Exhibit 11.
The Court below considered the preliminary objection and held that the person who instituted the action did so on the authority of the Board of Directors but that no cause of action was disclosed.
Although the Court below held that no cause of action was disclosed, it nevertheless proceeded to consider the suit on the merit and dismissed the claim of the Appellant.
The Appellant has proceeded to this Court by a notice of appeal filed on 30th June, 2021. The Notice of Appeal contains three grounds of appeal. From the three grounds of appeal the Appellants presented the following two issues for determination in the Appellants’ brief filed on 2nd November, 2021:
1. Whether there was a miscarriage of justice and denial of fair hearing and fair trial against the Appellant – Distilled from ground 1.
2. Whether a valid and enforceable contract exists between the Appellant and the 2nd Respondent warranting the Appellant to make a claim against the Respondent in the sum of N172,698,078.00 (One Hundred and Seventy-Two Million, Six Hundred and Ninety-Eight Thousand and Seventy-Eight Naira) – Distilled from grounds 2 and 3.
The Respondents also formulated two issues for determination in the Respondents’ Brief filed on 26th November, 2021. They are reproduced below:
1. “Whether the Appellant was afforded a fair hearing before the lower Court.
2. Whether the lower Court was right in dismissing the Appellant’s claim.”
Arguing issue 1, learned counsel for the Appellant contended that the Court below did not consider the reply on points of law filed by the Appellant. It was further contended that had the Court below considered the reply on points of law it would not have come to the conclusion it came to. This, it was submitted, amounted to denial of fair hearing which vitiated the whole proceedings requiring the judgment of the Court below to be set aside. The Court was referred to Ogunsanya v The State (2011) LPELR – 2349 SC.
Although, learned counsel for the Appellant had submitted on issue 1 that the alleged violation of the right to fair hearing rendered the proceedings a nullity, by an unexpected twist on issue 2, he contended that the Court can rehear an aspect of the case that the Court below omitted to consider pursuant to Section 15 of the Court of Appeal Act. Learned counsel for the Appellant therefore urged the Court to re-hear the suit at least the aspect of whether there was in existence a contract between the parties.
Arguing the merit of the Appellant’s suit, the learned counsel for the Appellant contended that the averments in paragraphs 4, 5, 7 and 8 particularly 8(g) of the affidavits in support of the originating process were not controverted by the Respondents. These averments, it was submitted, are deemed admitted.
It therefore means that the Respondents are deemed to have admitted the sum of N172,698,078 which remains unpaid. That the consideration for making the approvals was to avoid a breach of peace and that a condition precedent to be fulfilled for the approval was that the Appellant must qualify for the Nigerian National League which it did.
Learned counsel for the Appellant dwelt at length on the requirements of a valid contract. It was the contention of Appellant’s counsel that the requests made by the Appellant were offers while the endorsement of approvals by the 2nd Respondent were the acceptances. By not approving the amount requested it was contended, the 2nd Respondent made counter offers.
It was contended that the qualification of the Appellant for the Nigeria National League amounted to a valuable consideration. That another consideration the Appellant furnished was that it was a route to peace in Jos.
On issue 1, learned counsel for the Respondents argued that the Appellant was afforded the opportunity to present its case. That the judgment/ruling of the Court below shows that all processes filed and arguments on the preliminary objection were duly considered as well as the affidavit evidence which formed the bulk of the Appellant’s case.
The Appellant, it was argued, is not challenging the holding of the Court below that failure to debunk material depositions and arguments by the Respondent on the preliminary objection amounted to admission of the substance of the objection.
On Issue 2, it was contended that on the face the material contradictions in the affidavit evidence, the only order the Court can make if necessary is an order remitting the claim back to the Chief Judge of Plateau State for re-assignment to a different Judge for re-hearing.
It was contended that the Appellant failed to controvert the deposition of the Respondents to the effect that the Respondents did not owe any contractual obligation to pay the monetary sum claimed by the Appellant but only addressed the issue of the Appellant’s capacity to sue.
It was contended that a look at the total depositions in support of the claim of the Appellant and the exhibits annexed thereto will reveal a stark absence of a valid cause of action against the Respondents.
In the absence of any contract document or written agreement between the parties the Appellant it was contended, was attempting to substitute concrete evidence with his address and therefore made heavy whether of what they argued to be admissions of fact on the part of the Respondents.
It was contended that the Respondents not only effectively controverted every material deposition in the Appellant’s supporting affidavit but also went further to attack the foundation upon which the Appellant’s claim was built upon. That the Appellant resorted to trying to use its address as contained in its reply on points of law as a substitute for further evidence.
It was contended that the Appellant’s depositions were vague and did not support the documentary evidence and ought not to be acted upon.
It was contended that after examining paragraphs 4 and 5 of the affidavit in support of the writ the following questions arise:
(1) Who did the Appellant approach with the purported proposal? Was it the Governor of Plateau State in person or any agency of Government as represented by whom?
(2) Where is documentary evidence of the purported proposal?
(3) Who accepted the proposal and where is the documentary evidence of such acceptance.
(4) Where is the contract document in which the terms and conditions to which parties intended to be bound are stated?
(5) Who signed any contract (if any) on behalf of the parties and where is the evidence of such signature?
It was contended that no document(s) was attached evidencing the above posers. It was further argued that none of the exhibits attached to the affidavit in support of the writ supports or lends credence to the claim of the Appellant. Rather, some of the exhibits actually lend credence to the Respondents’ contention that the money was released to the Appellant as a gesture of goodwill and no more. The Court was referred to Exhibits ‘A1’ and ‘A2’ attached to the Affidavit in Support of the Writ at pages 33 and 36 of the record.
It was submitted that Exhibits A3, B1, B3, B4 and B5 at pages 37, 39, 44, 51 and 53 of record were not certified even though they were official communications between Government Agencies and therefore public documents.
Exhibit ‘B’ it was argued, was not an admission of the claim as contended by the Appellant’s counsel. Exhibit B it was contended, shows that financial assistance is still being rendered or extended to several football clubs in the state and not as a matter of contractual obligation.
In the reply brief apart from the submission that Exhibits A3, B1, B3, B4 and B5 having been annexed to affidavit and did not need to be certified, the reply brief was a re-argument of the appeal. A reply brief shall deal with new points arising from the Respondents brief. See Order 19 Rule 5(1) of the Court of Appeal Rules 2021. Appellant’s counsel is not permitted to re-argue the appeal in the reply brief as he did.
Fair hearing envisages that both parties to a case be given an opportunity of presenting their respective cases without let or hindrance from beginning to end. It also envisages that the Court or Tribunal hearing the case of the parties should be fair and impartial without showing any degree of bias against any of the parties. See Alsthom S.A v Saraki (2005) LPELR–435 SC page 23.
Although, the right to fair hearing is a constitutional right, it is not taken seriously by Litigants as it is peddled by Litigants at the slightest opportunity. This is why Tobi, JSC (of blessed memory) in Magaji v Nigerian Army (2008) LPELR-1814 observed that it has become fashionable for litigants to resort to their right to fair hearing on appeal as if it has become a magic wand to cure all their inadequacies at the trial. Five years later, Chukwumah-Eneh, JSC in Ekunola v C.B.N (2013) LPELR 20391 SC also observed that “fair hearing” has become a whipping principle for counsel trying to catch at a straw to sustain a modicum of standing in a hopeless case where the case is as dead as dodo. Fair hearing he said should be invoked with every sense of seriousness.
The “reply on points of law to the defendants written address in support of notice of intention to defend” which, the Appellant argued vigorously that was not considered by the Court below is at page 243–251 of the record and not page 282 to 287 of the record as he claims in the Appellant’s Brief at page 6. It is clear from that address that the Appellant is parsimonious or economical with the truth when he calls that process a reply on points of law to the address of the Respondent in the Court below. It was a re-address; this time at great length and more copious. It was not a reply on points of law. The process is unknown to law. The Appellant cannot file a process unknown to the Plateau State High Court (Civil Procedure) Rules, 1987 and proceed to this Court to complain that he was denied fair hearing. Fair hearing has not been invoked in the circumstances with any sense of seriousness. Fair hearing is not a magic wand and counsel should desist from whipping it unnecessarily. In a hopeless case, no matter the amount of beating it takes it will not cure any inadequacies in the case.
In the instant case, the parties were given the opportunity of presenting their respective cases without let or hindrance from the beginning to the end. It has not been shown that the Court below was unfair or partial or showed any degree of bias against any of the parties. The Appellant was not denied fair hearing when the Court below failed to make any special mention of the purported reply on points of law which was merely a more lengthy and copious re-argument by Appellant’s counsel which is unknown to the Plateau State High Court (Civil Procedure) Rules, 1987.
Issue 1 is therefore resolved against the Appellant and in favour of the Respondents.
Photocopies of public documents annexed to an affidavit must be certified. See Section 104 of the Evidence Act, 2011; Daniel Tayar Transport Enterprises Company Nigeria Ltd & Ors v Busari & Anor (2000) LPELR-5541 CA, Fawehinmi v Inspector General of Police (2000) FWLR (Pt 12) 1952 at 2023, Onyali v Okpala (2001) 1 NWLR (Pt. 694) 282 at 303, Ministry of Lands v Azikiwe (1969)4 NSCC 31 AT 37–38, Araka v Egbue (2003) 33 WRNT and Emmanuel v Umana & Ors. (2016) LPLER–40037 SC. From the definition of public document in Section 102 (a) and (b) of the Evidence Act, 2011 it is not only exhibits A3, B1, B3, B4 and B5 that are photocopies of public documents, but exhibits A1, A2, B2, B6 and B7 as well. They were not certified. The Court cannot therefore look at them. If the Court closes its eyes to those documents, there is no way the claim of the Appellant can succeed even if the Court considers the claim as learned counsel for the Appellant urged the Court to do.
It is the law that before a contract or agreement can be said to have come into existence in law, there must be an unmistaken and precise offer and an unconditional acceptance of the terms mutually agreed upon by the parties thereto. This means that the parties to the agreement must be in consensus ad idem as regards the terms and conditions freely and voluntarily agreed upon by them. If the terms and conditions of the agreement are uncertain or vague, there can never be a valid agreement known to law which can be said to present itself for enforcement. See Odutola v Papersack (Nig) Ltd (2006) 18 NWLR (Pt. 1012) 470 and Okubule v Oyagbola (1990) 4 NWLR (Pt. 147) 723. As rightly pointed out by learned counsel for the Respondents there is no written agreement between the parties. There is therefore no evidence of any precise offer. There is no evidence of any unconditional acceptance of any agreed terms.
Apart from this, Exhibits A3, B4 and B5 at pages 37, 51 and 53 of the record relied upon by the Appellant in his affidavit if considered would do violence to the claim of the Appellant. These exhibits clearly state that what the Appellant was receiving from the State Government was yearly financial assistance. Respondents would not therefore be sued for not rendering the assistance they promised to render. They had no contractual obligation to the Appellant.
Issue 2 is also resolved against the Appellant and in favour of the Respondents.
Both issues having been resolved against the Appellant and in favour of the Respondents, the appeal should be dismissed for want of merit.
It is accordingly dismissed by me.
Parties shall bear their respective costs of the appeal.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I have had the advantage of reading in advance, the copy of the lead judgment just delivered by my learned brother JAMES SHEHU ABIRIYI JCA, (PJCA).
I agree with the reasoning and conclusion reached thereat.
I also dismiss the appeal for want of merit and abide by the orders made therein.
OLASUMBO OLANREWAJU GOODLUCK, J.C.A.: I have read the advance copy of the judgment delivered by His Lordship, Hon. Justice James Shehu Abiriyi, PJCA, I associate myself with the resolution of the all issues for determination espoused by his Lordship. For the fuller reasons given in the judgment, I align with the orders of dismissal of the appeal.
Appearances:
L.C. Dabish, Esq. For Appellant(s)
Joel Tahran, D.D.P.P, with him, K.D. Kyentu P.S.C. Ministry of Justice, Plateau State. For Respondent(s)
