MR. JOHN JOHN UDOTONG v. MR. GABRIEL OKON UDOH
(2019)LCN/13702(CA)
In The Court of Appeal of Nigeria
On Thursday, the 25th day of July, 2019
CA/C/158/2017
JUSTICES
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
Between
MR. JOHN JOHN UDOTONG – Appellant(s)
AND
MR. GABRIEL OKON UDOH – Respondent(s)
RATIO
MEANING OF AN APPEAL
An appeal on the other hand,is an invitation to a higher Court to review the decision of a lower Court to find out whether on the proper consideration of the facts placed before it and the applicable law, that Court arrived at a correct decision. SeeCIVIL SERVICE COMMISSION IMO STATE & ORS V. UKWEOZOR (2017) LPELR ? 42856.A party who has judgment in his favour and who has not cross-appealed and who has not taken out a respondent?s notice is not entitled to raise any adverse issue arising from the judgment. Thus, the only way to show grievance of a judgment, is by way of appeal and in certain cases by way of a respondent?s notice. A respondent?s notice denotes a judicial process filed by a respondent in an action, who, though conceding to the conclusion reached in the judgment appealed by the appellant, seeks that the judgment be varied or affirmed on other grounds. It is not designed to seek a reversal of a finding by the trial Court but seeks to correct errors in a judgment that he agrees with and which errors stand on his way in the main appeal. See SUBURBAN BROAD BAND LTD V. INTELSAT GLOBAL SALES & MARKETING LTD (2016) LPELR ? 40334. PER SHUAIBU, J.C.A.
WHETHER OR NOT WHERE AN ISSUE IS RAISED SUO MOTU, THE PARTIES SHOULD BE INVITED BY THE COURT TO ADDRESS ON IT
It is settled that issues must be joined by the parties and they should be heard upon those issues by the Court or when the issue is raised suo motu, the parties should be invited by the Court to address on it. See KUTI V. JIBOWU (1972) 6 SC 147, ODIASE V. AGHO (1972)1 ALL NLR (pt 1) 170, ADIMORA V. AJUFO (1988) 3 NWLR (pt 80)1, USMAN V. UMARU (1992) 7 NWLR (pt 254) 377, BADMUS V. ABEGUNDE (1999) 7 SC (pt 1) 78, MOJEKWU V. IWUCHUKWU (2004) 4 SC (pt 11) 1 at 12 ? 13 and IBRAHIM V. J.S.C, KADUNA STATE (1998) 12 SC 20 at 77. PER SHUAIBU,J.C.A.
MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Akwa Ibom State sitting at Abak, Corum Hon. Justice Ezekiel O. Enang delivered on the 4th of February, 2016 wherein the Court below entered judgment in favour of the appellant herein.
Facts leading to this appeal are simple and straight forward. By a motion Exparte filed on 23rd of July, 2015, appellant as plaintiff before the lower Court prayed and was granted leave for an order to issue and placed the writ of summons thereby exhibited on the undefended list and marked same accordingly. The matter was therefore adjourned to 24th November, 2015 for hearing.
By yet another motion Exparte filed on 3rd of November 2015, the appellant as plaintiff, sought and was granted leave to serve the defendant therein with Court order placing the suit on the undefended list and other processes vide substituted means by pasting same at the gate of the defendant?s house at No.3 Stadium Road, Abak, Abak Local Government Area being the property owned by the defendant. At the resumed date for hearing the suit being the 20th day
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of January, 2016 the defendant was neither in Court nor represented but the trial Court proceeded with hearing by taking the evidence of the plaintiffs and reserved judgment to 2nd of February, 2016. Judgment was however delivered on 4th of February, 2016 granting reliefs at pages 55 and 56 of the record of appeal as follows:
?I hold that since the plaintiff is not a licensed money lender it is unlawful for him to charge interest. Accordingly, I hold, that he is only entitled to recover the principal sum without any interest. I hereby find the defendant liable to the plaintiff to the sum of N519,300.00 (Five Hundred and Nineteen Thousand Three Hundred Naira only) and also liable in the sum of $14,187.00 (Fourteen Thousand One Hundred and Eighty Seven Dollars only) being loan granted by the plaintiff to the defendant as unlicensed money lender. The defendant shall pay the above amount to the plaintiff forthwith. The defendant shall pay the plaintiff N30,000 as cost of this action.?
Aggrieved, appellant appealed to this Court vide an amended notice of appeal filed on 22/9/2017. The said amended notice of appeal contains four grounds of
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appeal.
At the hearing of the appeal on 14/5/2019, Okpongette Etim Akpan, Esq. on behalf of the appellant adopted and relied on the appellant?s brief of argument filed on 31/1/18 but deemed on 27/3/2018 in urging this Court to allow the appeal.
The respondent did not file any brief of argument and will therefore not be heard on this appeal.
Distilled from the four amended grounds of appeal, learned appellant?s counsel formulated two issues for the determination of this appeal as follows:-
1. Whether the learned trial High Court Judge was right to have raised the issue of illegality of parties transaction suo motu to find and hold that the appellant was only entitled to the sum of N510,300.00 and $14,187.00 being loan granted by the plaintiff (appellant) to the defendant (respondent) as an unlicensed money lender. (Distilled from grounds 2, 3, and 4).
2. Whether the learned trial judge was not in error when he refused to grant all the claims of the appellant, having due regards to the welter of evidence on record. (Distilled from ground 1).
?Proffering argument on issue No.1, learned counsel for the appellant
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submitted that there is no evidence on record before the lower Court to suggest that the appellant held himself out or even transacted with the respondent, as a money lender within the purview of the law. He referred to paragraph 1 of the affidavit of the claimant?s claim and the appellant?s oral evidence before the lower Court to contend that the issue of money lenders law was raised suo motu without affording parties to address it. Thus it was submitted that the parties right to fair hearing was breached. He referred to TOTAL ENGINEERING SERVICES TEA. INC. V. CHEVRON NIGERIA LTD (2011) 8 NWLR (pt 1250) 464 at 488 KUTI V. BALOGUN (1978) ISC 53 UGO V. OBIEKWE (1989) 1 NWLR (pt 99) 566 at 581 and OJE V. BABALOLA (1991) 4 NLR (pt 185) 267 and 267 at 280.
In further contention, learned counsel argued that assuming (without conceding) that the issue of the appellant not being a money lender was properly raised by the lower Court, it was submitted that the appellant not being a registered money lender and not also, holding himself out as one when he transacted with respondent, cannot be
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justifiably held to have offended any provisions of the money lenders law of Akwa Ibom State. He referred to Section 39 of the relevant money lenders law and the cases of BENE CHIDOKA V. FIRST CITY FINANCE COMPANY LTD (2013) ALL FWLR (pt 659) 1024 at 1038 ? 1039 on the meaning and application of money lenders law.
On issue No.2, learned counsel contends that vide the Exhibit tendered during the trial at the lower Court, a loan agreement on 30/5/2014 which agreement the respondent flagrantly breached but instead of construing the terms, the lower Court read into it matters that were not contemplated by the parties. He referred to Section 128 (1) of the Evidence Act and the cases of ENEMCHUKWU V. OKOYE & ORS (2016) LPELR ? 40027 MAX CLEAN BECAL VENTURES LTD & ANOR V. ABUJA ENVIRONMENTAL PROTECTION BOARD (2016) LPELR 41204 and NATIONAL SALT CO. OF NIGERIA LTD V. MRS. M.J. INNIS ? PALMER (1992) 1 NWLR (pt 218) 422 at 426 to the effect that once there is an agreement between the parties, the Court will always without any hesitation enforce the terms of the agreement as the
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law recognizes and respects the sanctity of agreements of the parties.
He further submitted that the appellant had furnished the lower Court with credible oral and documentary evidence which were neither challenged nor controverted to ground the grant of his claims by the lower Court. And whereas in the instant case, the lower Court abdicated its responsibility this Court was urged to invoke its powers under Section 15 of the Court of Appeal Act, Cap. C.36 laws of the Federation of Nigeria 2004. He referred to A.G., KWARA STATE & ANOR V. LAWAL & ORS (2017) LPELR ? 42347.
He finally urged this Court to resolve all the two issues in favour of the appellant and to allow the appeal.
Before proceeding to consider the potency of the above argument, it is pertinent to recap even at the risk of repetition, that the action before the lower Court was brought pursuant to Order 11 Rule 8 (2), Order 39 Rule 1 of the High Court (Civil Procedure) Rules 2009 of the High Court of Akwa Ibom State titled ?summary Judgment. The rules in effect provides that where a plaintiff believes that there is no defence to his claim, he
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shall file an Exparte application directing the writ of summons to be issued and placed on the undefended list and to mark same as undefended accordingly. The application is to be supported by an affidavit to which the proposed claim against the defendant must be attached with any other document considered relevant and available to the applicant as an exhibit. The judge shall order that the writ of summons be issued by the Registrar and to be marked as ?undefended? after having taken the application and the Court upon consideration of all the bundle of documents filed, is satisfied that the case is one fit to be brought under the undefended list.
In an undefended list, the Court must first and foremost satisfy itself that the nature of the claim is for recovery of debt or liquidated money demand. Otherwise, it cannot be entertained under the undefended list procedure. Thus, the Court must not simply rush to judgment upon placing a suit on the undefended list. As soon as the suit is placed on the undefended list, the next step is for service of the said order along all the other originating process on the defendant to signify his intention to
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defend the suit by filing a notice of intention to defend supported by an affidavit disclosing a defence on the merit. The trial Court may only proceed to enter judgment on the undefended list if the defendant, after being served fails to file a notice of intention to defend the action or where the affidavit supporting the notice of intention to defend does not disclose a prima facie defence on merit.
The situation that played itself out in the Court below shortly after the substituted service of the originating processes together with the order of Court placing the suit on an undefended list was to proceed with the trial wherein, the appellant gave evidence as PW1. The lower Court thereafter entered judgment in favour of the appellant.
Order 1 Rule 5 of the Court of Appeal Rules 2016 defines an appellant as any person who appeals from a decision of a Court below while the respondent is described as any party in civil appeals directly affected by the appeal. Thus, the duty of the respondent is to defend the correctness of the judgment appealed against. See OKORO V. EGBUOH (2006) 15 NWLR (pt 1001) 21.
An appeal on the other hand,
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is an invitation to a higher Court to review the decision of a lower Court to find out whether on the proper consideration of the facts placed before it and the applicable law, that Court arrived at a correct decision. SeeCIVIL SERVICE COMMISSION IMO STATE & ORS V. UKWEOZOR (2017) LPELR ? 42856.
A party who has judgment in his favour and who has not cross-appealed and who has not taken out a respondent?s notice is not entitled to raise any adverse issue arising from the judgment. Thus, the only way to show grievance of a judgment, is by way of appeal and in certain cases by way of a respondent?s notice. A respondent?s notice denotes a judicial process filed by a respondent in an action, who, though conceding to the conclusion reached in the judgment appealed by the appellant, seeks that the judgment be varied or affirmed on other grounds. It is not designed to seek a reversal of a finding by the trial Court but seeks to correct errors in a judgment that he agrees with and which errors stand on his way in the main appeal. See SUBURBAN BROAD BAND LTD V. INTELSAT GLOBAL SALES & MARKETING LTD
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(2016) LPELR ? 40334.
In view of the fact that the appellant herein, had judgment in his favour at the lower Court all that he should have done if not satisfied with the judgment, was to commence a cross-appeal but then, the respondent did not appeal against the judgment of the lower Court.
Turning back to the appellant?s issue for determination No.1 which alleges that the issue of illegality in the parties? transaction was suo motu raised by the Court without affording parties opportunity to address it.
In the matter under controversy, it appears to me that the fulcrum of the matter is whether the appellant was a registered money lender was neither raised nor canvassed but same was suo motu raised and decided by the lower Court without any input from the parties. It is settled that issues must be joined by the parties and they should be heard upon those issues by the Court or when the issue is raised suo motu, the parties should be invited by the Court to address on it. See KUTI V. JIBOWU (1972) 6 SC 147, ODIASE V. AGHO (1972)1 ALL NLR (pt 1) 170, ADIMORA V. AJUFO (1988) 3 NWLR (pt
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80)1, USMAN V. UMARU (1992) 7 NWLR (pt 254) 377, BADMUS V. ABEGUNDE (1999) 7 SC (pt 1) 78, MOJEKWU V. IWUCHUKWU (2004) 4 SC (pt 11) 1 at 12 ? 13 and IBRAHIM V. J.S.C, KADUNA STATE (1998) 12 SC 20 at 77.
In the instant case, I agree entirely with the appellant that the Court below was in error to have suo motu raised the issue of illegality of the parties transaction on the premise that the appellant was not a registered money lender within the contemplation of the money lenders law Cap. 86 Vol.4 of the Laws of Akwa Ibom State of Nigeria, 2000 without hearing the parties on it.
The appellant?s grouse on issue No.2 is that inspite of avalanche of evidence he presented to support his claim, the lower Court only granted the principal claim and thereby refusing the pre-judgment interest contrary to the mercantile custom.
?I need to stress the point that the undefended list procedure is fashioned to take care of cases relating to simple uncontested debt or liquidated money demand or monetary claims. Where however serious disputes arose in the affidavits on points of law relating to
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the claim(s) the trial Court ought to exercise caution in entering judgment under the undefended list procedure and should transfer the matter from the undefended list to the General Cause list to be dealt with by pleadings etc. See MASSKEN (NIG) LTD V. AMAKA & ANOR (2017) LPELR ? 42360.
In matters brought under the undefended list procedure, the Court has a duty to consider the notice of intention to defend as well as the affidavit filed in support of the writ of summons. Even where there is no notice of intention to defend, the Court still has to inquire or examine whether the plaintiff has made out his claim in the affidavit accompanying the writ. In the case of INTERCONTINENTAL BANK LTD V. BRIFINA LTD (2012) 13 NWLR (pt 1316)1 ARIWOOLA J.S.C. at page 27 paras. A-D said:-
“?the Court owes it a duty to scrutinize the claims and the verifying affidavit with the attached document if any; to ensure that there is indeed suitable to be heard under undefended list procedure.
Otherwise, it should be transferred to the general cause list.?
From the evidence placed before the lower
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Court (both oral and documentary), the plaintiff (now appellant) was claiming pre-judgment interest. The law requires a person claiming such right to pre-judgment interest to so plead and prove at the trial. In FERRERO & COMPANY LTD V. HENKEL CHEMICALS (NIG) LTD (2011) LPELR ? 12, ONNOGHEN JSC (as he then was) had expatiated on the rationale behind this principle of law thus:-
?It follows that before a party can claim pre-judgment interest he has to plead not only his entitlement to the interest but the basis of the entitlement to the interest either by statute or contract/agreement between the parties, or mercantile custom or principle of equity, such as breach of fiduciary relationship. It is not for the Court to speculate or conjecture or assume the facts relevant to the claim. The relevant facts must be pleaded as fact not pleaded goes to no issue. In addition to the requirement of pleading the relevant facts, the plaintiff must adduce evidence at the trial in proof of the facts.?”
Where the actual indebtedness of the defendant cannot be ascertained from the evidence available without a resort to
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other extrinsic aid, that would operate as a defence which is good enough to justify the transfer of the suit to the general cause list to enable it to be tried on the merit regardless of the fact that the defendant did not give notice of intention to defend. See INTERCONTINENTAL BANK LTD V BRIFINA LTD (supra). Thus, in an action for recovery of debt where the actual indebtedness of the defendant cannot be ascertained or where the debt involved contentious issue of pre-judgment interest such kind of claims cannot be brought under the undefended list procedure.
In the instant case the claim of pre-judgment interest by the plaintiff automatically take away the suit from the undefended list to the general cause list as the foundation of the claim was no longer for the recovery of a debt or liquidated money demand. I am therefore of the view that the lower Court was right in calling oral evidence and granting only the principal claim as there was no justification for granting the pre-judgment interest.
?
On the whole, there is totally no merit in this appeal. It is accordingly dismissed. There shall be no order as to costs.
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OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to read, in draft, the leading judgment delivered by my learned brother: Muhammed Lawal Shuaibu, JCA. I endorse, in toto, the reasoning and conclusion in it. I, too, penalise the appeal with a deserved dismissal. I abide by the consequential orders decreed in it.
YARGATA BYENCHIT NIMPAR, J.C.A.: My learned brother, MUHAMMED LAWAL SHUAIBU, JCA afforded me the privilege of reading in advance a copy of the judgment just delivered. I agree with my learned brother in the manner the appeal was resolved. I too dismiss the appeal for lacking in merit and abide by the other orders made there in the lead judgment.
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Appearances:
Etim Akpan, Esq.For Appellant(s)
AbsentFor Respondent(s)
Appearances
Etim Akpan, Esq.For Appellant
AND
AbsentFor Respondent