MUTUAL BENEFIT ASSURANCE v. ACCESS BANK (2021)

MUTUAL BENEFIT ASSURANCE v. ACCESS BANK

(2021)LCN/14925(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, January 29, 2021

CA/L/478/2016

RATIO

FAIR HEARING: EFFECT OF BREACH OF THE RIGHT TO FAIR HEARING

In law, the effect of a proved breach of the right to fair hearing is that it renders both the proceedings and resultant judgment a nullity. See Ekpenetu V. Ofegobi (2012) 15 NWLR (Pt. 1323) 276; Amadi V. INEC (2013) 4 NWLR (Pt. 1345) 595; Ovunwo & Anor. V. Woko & Ors (2011) 17 NWLR (Pt. 1277) 522; Pan African Incorporation & Ors. V. Shoreline Lifeboat Ltd & Anor. (2010) All FWLR (Pt. 524) 56; Acton Congress of Nigeria V. Sule Lamido & Ors (2012) 8 NWLR (Pt. 1303) 560 @ p. 593; Judicial Service Commission of Cross River State & Anor. V. Dr (Mrs) Asari Young (2013) 11 NWLR (Pt. 1364) 1. PER GEORGEWILL, J.C.A.

JUDGMENT: APPLICATION FOR SUMMARY JUDGMENT

Now, by Order 11(1) of the High Court of Lagos State (Civil Procedure) Rules 2012, it is provided thus:
“Where a Claimant believes that there is no defence to his claim, he may file with his Originating Process, the Statement of Claim, list of documents to be relied upon, the depositions of his witnesses and an application for summary judgment which application be supported by an affidavit stating the grounds for his belief, and a written brief in respect thereof.”

JUDGMENT: PURPOSE OF RULES OF COURT PROVIDING FOR SUMMARY JUDGMENT

It is now a well settled principle of law, that the Rules of Court providing for Summary Judgment are deliberately designed to allow for quick dispensation of justice to avoid unnecessary clogging of the legal system with proceedings which could otherwise have been easily and quickly disposed off. See Dala Air Services Ltd V. Sudan Airways Ltd (2004) All FWLR (Pt 238) 697; See also G.M.O Nworah & Sons Co Ltd V. Akputa (2010) All FWLR (Pt. 524) @ pp. 101 – 102; Nnabude BV. G.N.G. (W/A) Ltd (2012) All FWLR (pt. 619) @ p. 1198; Mat Holdings Ltd V. U.B.A Plc. (2003) 2 NWLR (Pt. 803) 71 @ p. 90. PER GEORGEWILL, J.C.A.

APPEAL: EFFECT OF WHERE NO GROUNDS OF APPEAL EXISTS CHALLENGING FINDING OF THE LOWER COURT

Suffice for me to simply refer to The Association of Senior Civil Servants of Nigerian & Ors V. Judiciary Staff Union of Nigeria & Ors(2014) LPELR-24185(CA), where Georgewill JCA, had reiterated inter alia thus:
“It is now well accepted and indeed indisputable that where no grounds of appeal exists challenging finding of the lower Court, the finding is valid and subsisting. It is deemed admitted and undisputed and it will remain binding on the parties. It is thus the law that without a ground of appeal challenging the finding of a lower Court, the appellate Court will lack the jurisdictional competence to interfere with such finding. It remains rightly or wrongly, regrettably though if wrongly, the settlement of the issue as between the parties to the appeal. See Olukoya V. Ashiru (2006) All FWLR (pt.322) 1479 @ P.1484; Institute of Health, A. B. U. H. M. B. v. ANYIP (2011) All FWLR (pt.586) 443; Onafowokan V. Wema Bank Plc (2011) All FWLR (pt.585) 201 @ P.205.” PER GEORGEWILL, J.C.A.

COURT: PRACTICE OF THE COURT WHEN A COUNSEL SPEAKS TO THE COURT FROM THE BAR

It has always been the practice in our Courts that when a counsel speaks to the Court from the Bar, it is his or her bond with which he or she is bound. I do not want to believe or even think that it is no longer so at the Bar! I hold firmly therefore, that the Appellant having through its counsel consented to be bound by whatever procedure adopted by the Court below on 21/10/2015 remains bound by that consent. SeeIbator V. Barakuro (2007) 9 NWLR (Pt. 1040) 475 @ p. 493 where Supreme Court succinctly stated inter alia thus:
“The law is trite that when a party has adopted a procedure by consent, he will not be heard on appeal that the procedure he adopted is prejudicial to him or had occasioned a miscarriage of justice”

See also in Lodibia V. Nigeria Cement Company limited (1997) 7 NWL (Pt. 512) 174 @ p. 190, where Supreme Court had reiterated inter alia thus:
“Where a party has adopted a procedure by consent, he will not be heard of appeal that the procedure he adopted is prejudicial to him” PER GEORGEWILL, J.C.A.

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Ibrahim Shata Bdliya Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Between

MUTUAL BENEFIT ASSURANCE PLC APPELANT(S)

And

ACCESS BANK PLC RESPONDENT(S)

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of Lagos State; Coram: O.A. Adamson J., in Suit No: ID/726/2007: Access Bank Plc V. Mutual Benefit Assurance Plc, headed 27/11/2015,and dated 5/12/2015 and delivered on 4/12/2015, in which the claims of the Respondent as Claimant against the Appellant as Defendant were granted under the Summary Judgment procedure of the Court below.

The Appellant was dissatisfied with the Judgment of the Court below and had appealed against it vide its Notice of Appeal filed on 5/1/2016 on four grounds of appeal at pages 1127 – 1130 in Volume 3 of the Record of Appeal. The Record of Appeal was transmitted to this Court on 3/5/2016 but was deemed properly transmitted on 22/11/2017. The Appellant’s brief was filed on 22/11/2018. The Respondent’s brief was filed on 23/9/2020. The Appellant’s Reply brief was filed on 16/11/2020.

At the hearing of the Appeal on 7/12/2020, Miss F. R. A. Williams, learned counsel for the Appellant, appearing with D. O. Adejobi Esq., adopted the Appellant’s brief and Reply brief as their

arguments and urged the Court to allow the appeal and set aside the Judgment of the Court below. On his part, Nick Omeye Esq., learned counsel for the Respondent adopted the Respondent’s brief as his arguments and urged the Court to dismiss the appeal for lacking in merit and to affirm the Judgment of the Court below.

By a Writ of Summons filed on 8/6/2007and Statement of Claim, which were amended and re – sealed on 7/2/2014, the Respondent as Claimant had claimed against the Appellant as Defendant the following reliefs, to wit:
1. The sum of N25,000,000 being the value ofthe Credit Guarantee Bond Policy No. CR810 2/2/00534/Z dated 29/3/2006, issued by the Defendant in favour of the Claimant to guarantee the repayment of the facility of 25M (Twenty Five Million Naira) granted A. R. Motors Limited for the financing of L. O. P. for the supply of Black Oil to Benue Cement Company Gboko which sum A.R. Rasaq Motors Limited has failed and refused to repay.
2. Interest on the sum above at the rate of 20% per annum (being the agreed interest rate) from 31/12/2006, till judgment and thereafter at the same rate till liquidation of the judgment sum.

See pages 1- 5 in Volume 1 of the Records of Appeal. See also pages 514 – 517 in Volume 2 of the Records of Appeal.

BRIEF STATEMENT OF FACTS
The gist of the case of the Respondent as Claimant before the Court below as can be gleaned from the averments in the Amended Statement of Claim, as in the Records of Appeal was that Appellant issued a Credit Guarantee in favour of the Respondent guaranteeing the repayment of a facility of N25,000,000 granted to one A. R. Rasaq Motors Ltd by the Respondent and at the expiration of the ‘Credit Guarantee’ bond issued by the Appellant, and upon the default of A. R. Rasaq Motors Ltd, to repay the facility, the Respondent demanded the Appellant to pay the N25,000,000 facility whose repayment was guaranteed by it. However, the Appellant refused to discharge its obligation under the Credit Guarantee to the Respondent and has failed or refused to repay the said sum of N25,000,000 despite repeated demands for payment by the Respondent. See pages 1- 5 in Volume 1 of the Records of Appeal. See also pages 514 – 517 in Volume 2 of the Records of Appeal.

On the other hand, the gist of the case of the Appellant as Defendant before the Court below as can be gleaned from the averments in the Statement of Defense as in the Records of Appeal was that the Appellant and one A.R. Rasag Motors Limited entered into a Commercial Insurance Agreement for N25,000,000 made in favour of the Respondent in the event that A.R. Rasaq Motors Limited was unable to conclude the contract to finance LPO for Benue Cement Company Plc. However, the said N25,000,000 was issued as an Insurance Policy for which A.R. Rasaq Motors Limited paid a non- refundable premium and that the Appellant never at any time concluded any contract of guarantee with the Respondent neither did the Respondent ever paid any premium nor consideration to the Appellant for the transaction. It was also its case that neither A.R. Rasaq Motors Limited nor the Respondent ever disclosed at any time to the Appellant the full extent of A.R. Rasaq Motors Limited’s liabilities or the fact that they were already owing the Respondent any money and that if the Appellant had at anytime been made aware of such liability it would not have concluded the Contract of Insurance with A.R. Rasaq Motors. See pages 1132 -1135 in Volume 3 of the Record of Appeal).

In addition to its Writ of Summons and Statement of Claim, the Respondent also filed an Application for Summary Judgment on 9/3/2007. Upon service of the Writ of Summons and Statement of Claim, the Appellant filed its Statement of Defense and Counter – Claim on 7/9/2007. On 7/2/2014, the Respondent sought and obtained the leave of the Court below and amended the Writ of Summons and Statement of Claim. After a series of unsuccessful preliminary objections and applications by the Appellant challenging the competence of the Respondent’s suit on several grounds, including lack of reasonable cause of action, lack of locus standi, lack of jurisdiction and stay of proceedings, the Respondent’s application for Summary Judgment against the Appellant on the ground that in its belief the Appellant has no defense to the Respondent’s claims was heard and in its considered Judgment, headed on 27/11/2015, dated 5/12/2015 and delivered on 4/12/2015, the Court below granted the Respondent’s claim against the Appellant under its Summary Judgment procedure Rules, hence this appeal. See pages 1118 – 1126, 1127 – 1130 in Volume 3 of the Records of Appeal.

ISSUES FOR DETERMINATION
In the Appellant’s brief, three issues were distilled as arising for determination from three of the four grounds of appeal, namely:
1. Whether the Court below was right when he proceeded to enter a final judgment without hearing the Appellant’s pending Application dated 21/10/2015 in breach of the Appellant’s right to fair hearing as guaranteed by the 1999 Constitution (as amended)? (Distilled from Ground 1).
2. Whether the Court below was right when it set aside the decision of A. O. Opesanwo J., dated 19/1/2009 and gave final Summary Judgment against the Appellant without addressing the issues which she had postponed to be heard at the trial? (Distilled from Ground 2).
3. Whether the Court below was right when it delivered a decision with inconsistent dates which was not in compliance with Order 35 Rule 2 of the High Court of Lagos State (Civil Procedure)Rules 2004 (now 2012)? (Distilled from Ground 4)

In the Respondent’s brief, three issues were distilled as arising for determination in this appeal, namely:
1. Whether the Court below in proceeding with the motion for summary judgment on the date the said motion was fixed for hearing, in any way violated the Appellants’ right of fair hearing? (Distilled from Ground 1)
2. Whether the Summary Judgment entered by the Court below did in any way affect or set aside the ruling of A.O. Opesanwo J., delivered on 19/1/2009? (Distilled from Ground 2)
3. Whether the typography errors as to dates in the judgment affected the validity of the Summary Judgment? (Distilled from ground 4)

My lords, I have given due considerations to the surrounding facts, the issues joined by the parties, circumstances and the grounds of the Respondent’s application for Summary Judgment against the Appellant and the submissions of counsel for the parties in the light of the Judgment of the Court below. I am of the view that the three issues for determination as distilled in the Appellant’s brief best represent the real issues for determination in this appeal. In my view, a consideration of these issues would invariably involve a consideration of the three issues distilled in the Respondent’s brief. However, since

these three issues are clearly interwoven, in my view, I shall consider them together and resolved them in one fell swoop. Since, there is no issue distilled from Ground three of the Notice of Appeal, the said Ground three is hereby, without much ado, struck out as having been abandoned by the Appellant.

ISSUES ONE, TWO AND THREE (TAKEN TOGETHER)
Whether the Court below was right when he proceeded to enter a final judgment without hearing the Appellant’s pending Application dated 21/10/2015 in breach of the Appellant’s right to fair hearing as guaranteed by the 1999 Constitution (as amended), AND Whether the Court below was right when it set aside the decision of A. O. Opesanwo J., dated 19/1/2009 and gave final Summary Judgment against the Appellant without addressing the issues which she had postponed to be heard at the trial, AND Whether the Court below was right when it delivered a decision with inconsistent dates which was not in compliance with Order 35 Rule 2 of the High Court of Lagos State (Civil Procedure)Rules 2004 (now 2012)?

APPELLANT’S COUNSEL SUBMISSIONS
On issue one, learned counsel for the Appellant had submitted that a clear-cut breach of the Appellant’s right to fair hearing occurred when the Court below entered a Final Summary Judgment in favour of the Respondent without hearing or considering the Appellant’s application filed on 21/10/2015 despite being aware of its pendency and contended that in law, the Court below was under a legal duty to hear all applications pending before it and make pronouncement thereon and urged the Court to hold that the failure of the Court below to hear and determine the Appellant’s Motion on Notice for stay proceedings pending appeal occasioned a grave miscarriage of justice to the Appellant and to allow the appeal and set aside the null Judgment of the Court below. Still on effect of breach of fair hearing, Counsel relied on Oteju V. Magma Maritime Services Ltd. (2000) 1 NWLR (Pt. 640)331 @ p. 344; Gitto Construzioni Generali Limited v. Mr. Okon Philip Inua (2017) LPELR-43649 (CA); Adeboanu Manufacturing Ind. (Nig.) Limited V. Adedeji & Anor (2000) LPELR-10721(CA); Prince Biyi Poroye & Ors V. Senator A.M. Makarfi & Ors(2017) LPELR -42738 (SC);

On issue two, learned counsel for the Appellant had submitted that the Court below was wrong when it jettisoned and refused to consider any of the issues which the Court below per A.O. Opesanwo J, had deferred for trial in the Ruling delivered on 19/1/2009 and contended that the Court below was under a duty to hear every application filed before it regardless of how unmeritorious or useless such application may be, including the Appellant’s application for stay of proceedings pending appeal and urged the Court to hold that the Judgment of the Court below had by its failure to consider the issues deferred for trial in the earlier Ruling of the same Court impliedly set aside the said ruling in breach of the right of the Appellant, to be heard in its application for stay proceedings pending its appeal against the said earlier Ruling with which it was dissatisfied and to allow the appeal and set aside the null Judgment of the Court below. Counsel relied on Ayoola Adetoyi Dasofunjo V. Alhaja Rukayat Titilayo Ajiboye (2017 ) LPELR – (CA); Odedo V. Oguebego (2015) 13 NWLR (Pt.1476) 229 @ pp.251 – 257 HITECH Construction Company Limited V. Ude & Ors (2016) LPELR-40066 (CA); Okonji V. Njokanma

(1991) 7 NWLR (Pt.202) 131; Charles Odedo V. Peoples Democratic Party &Ors (2015) LPELR–24738(SC); CCB (Nig) Plc V. Ozobu (1998) 3 NWLR 290 @ P. 312; Harrods led V. Anifalaje & Anor (1986) 5 NWLR (Pt. 43) 603; Otapo V. Sunmonu (1987) 2 NWLR (Pt.58) 605; Nnamani V. Nnamani (1996) 3 NWLR (Pt. 438) 591 @ p. 597; Nalsa and Team Associates V. N.N.P.C (1991) 8 NWLR (Pt.212) 652.

On her issue three, learned counsel for the Appellant had submitted that the Court below erred when it entered a final Summary Judgement in favour of the Respondent in the Judgment delivered on 27/11/2015 but dated 5/12/2015 and yet, signed on 4/12/2015, which error the Court below glossed over even when it was brought to its attention and contended that in law such a Judgment with no clearly discernible date but with inconsistent dates of its delivery is a nullity and urged the Court to so hold and to allow the Appeal and set aside the null Judgment of the Court below. Counsel referred to Order 35 Rule 2 of the High Court of Lagos State (Civil Procedure) Rules 2004 (now 2012) and relied on the unreported Judgment of this Court per Pemu JCA in Appeal No. CA/L/619/2012: Ake Properties Limited & 3 Ors. V. Mrs. Adebisi George.

RESPONDENT’S COUNSEL SUBMISSIONS
On his issue one, whether the Court below in proceeding with the Motion for Summary Judgment on the date the said Motion was fixed for hearing, in any way violated the Appellant’s right of fair hearing, learned counsel for the Respondent had submitted that the Court below in proceeding with the Motion for Summary Judgment did not in any way violate the Appellants’ right of fair hearing in that not only was the said application filed after the Court below had dismissed the Appellant’s similar application filed on 17/3/2014 leaving only the Motion for Summary Judgment as pending but that more importantly by consent of both counsel for the parties on 8/7/2015 the Respondent’s Motion for Summary Judgment was adjourned by the Court below for hearing on 21/10/2015 and urged the Court to hold that the Appellant having consented to the hearing of the Respondent’s Motion for Summary Judgment on 21/10/2115 and who had the months of July, August and September to raise any issue of stay of proceedings but did not do so until the date of

21/10/2015 when the Respondent’s Motion for Summary Judgment had been adjourned to for hearing, and which said Appellant’s Motion for stay of proceedings was not even in the record of the Court file on 21/10/2015, had suffered no miscarriage of justice having consented to the procedure adopted by the Court below on 21/10/2015 and to dismiss the appeal for lacking in merit. Counsel relied onIbator V. Barakuro (2007) 9 NWLR (Pt. 1040) 475 @ p. 493; Lodibia V. Nigeria Cement Company Limited (1997) 7 NWLR (PT. 512) 174 @ p. 190; Ekpeto V. Wanogho (2004) 18 NWLR (Pt. 905) 394 @ p. 412; Lodibia V. Nigeria Cement Company Limited (1997) 7 NWLR (Pt. 512) 174 @ p. 190,

It was also submitted that as at the date of 21/10/2015, the Appellant who had refused to pay cost awarded against it by the Court below in favor of the Respondent and being in contempt of the Orders of the Court below was in law not entitled to be heard in its application seeking the discretion of the Court below and contended that since the Appellant’s Motion for stay of proceedings filed on 21/10/2015 was not filed in the Court’s file during the proceedings conducted on

21/10/2015, the Court below was right to proceed with the hearing of the Respondent’s Motion for Summary Judgment and urged the Court to so hold and to dismiss the Appeal for lacking in merit and affirm the Judgment of the Court below. Counsel relied on Uwazuruike V. Attorney General of The Federation (2013) 10 NWLR (PT. 1361) 105 @ p. 123; Ngere V. Okuruket ‘Xiv’ (2014) 11 NWLR (PT. 1417) 147 @ p. 173; Minister, Federal Capital Territory V. Mononia Hotel Nigeria Limited (2011) 9 NWLR (Pt. 1252) 272 @ pp. 300- 301.

It was further submitted that based on the combination of the three factors, namely: that the Appellant’s application of 21/10/2015, that the Appellant was in contempt of Court having not paid cost awarded against it by the Court below; and that the Appellant had agreed to be bound by the procedure adopted by the Court below, the Appellant was not denied any fair hearing by the Court below and contended that in law the Appellant cannot complain that it was denied any fair hearing in the circumstances of this appeal and urged the Court to so hold and to dismiss the appeal for lacking in merit and affirm the Judgment of the Court below.

On his issue two, whether the Summary Judgment entered by the Court below did in any way affected or set aside the ruling of A.O. Opesanwo J., delivered on 19/1/2009, learned counsel for the Respondent had submitted that the Summary Judgment entered by the Court below did not in any way affect or set aside the ruling of A.O. Opesanwo J, delivered on 19/1/2009, in that, the said ruling was merely in respect of Appellant’s Notice of Preliminary Objection challenging the competence of the Respondent’s suit on grounds of lack of reasonable cause of action and lack of locus standi and contended that the decision in that Ruling to dismiss the Appellant’s application and not to consider the merit of the Respondent’s claims at such an interlocutory stage did not in any way preclude the Court below from hearing and determining the Respondent’s Motion for Summary Judgment and to dismiss the appeal for lacking in merit.

On his issue three, whether the typography errors as to dates in the judgment affected the validity of the Summary Judgment, learned counsel for the Respondent had submitted that in law, it is not

every mistake or error in a judgment that necessarily vitiates it in that for a mistake or error in a judgment to do so it must be substantial in the sense that it had occasioned or is likely to have occasioned some miscarriage of justice and contended that the Appellant failed to show any injustice it has suffered by reason of the different dates in the judgment and urged the Court to hold that the different dates did not occasion any miscarriage of justice to the Appellant in that, in law, in so far as the Appellant has not suffered any injustice, the judgment delivered by the Court below on 4/12/2015 remains valid since the relevant date in a judgment is the date of delivery and the Appellant is not confused or misled as to that date having been represented by Counsel in Court on 4/12/2015 and to dismiss the appeal for lacking in merit. Counsel relied on Eyiboh V. Abia (2012) 16 NWLR (Pt. 1325) 51 @ pp. 82 -83; Opa V. Attorney General Of The Federation (2017) 9 NWLR (Pt. 1569) 61 @ p. 115; Ogboru V. Okowa (2016) 11 NWLR (Pt. 1522) 84 @ p. 123; Godwin Ohuabunwa V. Basil Duru & Ors (2008) LPELR – 4699 (CA); Ge International Operations (Nig) Ltd V. O-Oil & Gas Services Ltd (2016) 10 NWLR (PT. 1520) 304 @ p. 330.

APPELLANT’S COUNSEL REPLY SUBMISSIONS
In her reply submissions, learned counsel for the Appellant had formulated three issues for determination and proceeded to address the Court extensively on these three issues but before proceeding to review the submissions on these new two issues, I deem it pertinent to reiterate the principles of law governing reply briefs in this Court.

The formulation of three issues for determination in a Reply brief is, in my view, clearly outside the purpose of a Reply brief, which must be succinct and respond to new points or fresh issues raised in the Respondent’s brief. Thus, it is not and cannot be an avenue for an Appellant to re – argue his appeal or merely to have a second bite at the cherry. The Reply brief is for the serious business of answering to new points or fresh issues raised in the Respondent’s brief, which were not covered by the submissions in the Appellant’s brief. It need not and ought not to be filed just as a matter of course even where there is nothing new or fresh in the Respondent’s brief to respond to by

the Appellant. This is clearly the intendment of Order 19 Rules 5 (1) of the Court of Appeal Rules 2016, which provides thus:
“The Appellant may also, if necessary, within fourteen days of service on him of the Respondent’s brief, file and serve or cause to be served on the Respondent a reply brief which shall deal with all new points arising from the Respondent’s brief”
See also Olafisoye V. FRN 2004 1SC Pt. 11 27; Ikine V. Edjerode (2001) 12 SC (Pt. 11) 94; Longe V. FBN (2010) 2 – 3 SC 61; Okpala V. Ibeme (1989) 2 NWLR (Pt. 102) 208; Ajileye V. Fakayode (1998) 4 NWLR (Pt. 545) 184; Agwasim V. Ejivumerwerhaye (2001) 9 NWLR (Pt. 718) 395; Registered Trustees, Ikoyi Club 1938 V. Mr. Timothy Ikujuni (2019) LPELR – 47373 (CA)
My lords, the pervading thinking amongst many practitioners of the law that unless a Reply brief is filed, even where it is completely unnecessary, it would mean that the Respondent has had the last word is not true and must therefore, be discouraged. The appeal process is not just about who had the last word but in whose favor is the evidence and the law relevant to the issues in contention between the parties in the appeal.

I have carefully gone through the gamut of the Reply brief of the Appellant and I find that it failed to meet the requirements of a Reply brief. Indeed, it brought nothing worth anything to the table in this Appeal that has not already been submitted upon in the Appellant’s brief. In the circumstances therefore, I hereby un-hesitantly discountenance the Appellant’s Reply brief in its entirety as going to no issue in this Appeal.

However, having stated as above, and having held that it was grossly improper for an Appellant to formulate three issues in the Reply brief, let me for the purpose of completeness in this judgment proceed to review the submissions of the Appellant in the Reply brief, albeit briefly.

On her issue one, whether the Court below was right to hear and determine the Respondent’s motion for Summary Judgement after being informed by both Counsel on 21/10/2015 of the pendency of the Appellant’s Motion for stay of proceedings pending appeal, learned counsel for the Appellant had submitted that the Court below was wrong to have heard the Respondent’s Motion for Summary Judgment on

21/10/2015 in that the Appellant having filed its Motion for stay of proceedings on 21/10/2015 at the Registry of the Court below it was the duty of the Registry to ensure that the application is placed in the Court’s file and contended that in law once a litigant has creditably followed the rules in filing his processes the error, mistake, inadvertence, negligence, omission of the Court or its Registry cannot be visited on the litigant and urged the Court to hold that the failure to put the Appellant’s application in the file of the Court below was not the fault of the Appellant and or his counsel but rather the failure of the Registry of the Court below resulting into the none hearing of the Appellant’s duly filed application in breach of its Constitutionally guaranteed right to fair hearing and to allow the appeal and set aside the null Judgment of the Court below. Counsel relied onKangnaan V. Kangnaan (2019) LPELR-46502 (CA); Ogli Oko Memorial Farms Ltd & Anor V. NACB LTD & ANOR (2008) LPELR-2306(SC).

It was further submitted that although the Appellant’s application forstay of proceedings was not in the file of the Court below on 21/10/215, the Court below has the inherent discretion to be exercised judicially and judiciously in the interest of justice and equity in favor of the Appellant by accepting and hearing the Appellant’s application in the interest of justice and contended that on 21/10/2015 the Appellant’s Counsel simply conceded to the proceedings of that day as a minister in the temple of justice who is subject to the Court’s discretion and urged the Court to hold that at no time did the Appellant’s Counsel conceded to the decision of the Court below as to restrict the Appellant from exercising its Constitutional right of appeal. Counsel relied on United Spinners (Nig) Ltd V. Chartered Bank Ltd (2001) LPELR-3410(SC); Okafor V. Nnaife (1987) 4 NWLR (Pt. 64) 129; Lijadu V. Lijadu(1991) 1 NWLR (Pt. 169) 627; Kigo (Nig.) Ltd. V. Holman Bros(Nig.) Ltd. (1980) 5 -7 SC 60.

On her issue two, whether the effect of the Judgment on Summary Judgment set aside the earlier ruling of Opesanwo J, delivered on 19/1/2009 and also nullifies the substance of appeal in CA/L/335/2009, learned counsel for the Appellant had submitted that the final Order of Summary

Judgment divesting the Court below of any further jurisdiction in the matter and contended that the effect of the Judgment of the Court below was to set aside the earlier decision of Opesanwo J, delivered on 19/1/2009 reserving decision on the substance of the Respondent’s suit to trial and final written address stage and urged the Court to hold that the Court below, being a Court of coordinate jurisdiction, lacked the powers to set aside the earlier decision of Opesanwo J, and also ought to have stayed its proceedings in deference to the appeal pending before the Court of Appeal and to allow the appeal and set aside the null Judgment of the Court below. Counsel relied onAbia State Co- Operative Federation Ltd V. Imo State Co-operative Produce Marketing Association Ltd (2006) LPELR-5182(CA); Adeyemi V. Ike Oluwa & Sons Ltd (1993) 8 NWLR (Pt.309) 27; Re: Jaja (1995)2 NWLR (Pt. 375) 65; Mohammed V. Olawunmi (1993) 1 NWLR (Pt. 287) 254; Adeoye Adejobi Trading Stores Ltd V. Aina (1986) 3 NWLR (Pt. 29) 506; Achebe V. Mbanefo & Anor (2007)LPELR-8250(CA); Mohammed V. Olawunmi (1993) 4 NWLR (Pt. 287) 254; Unipetrol Nigeria Plc. V. Alhaji B.M. Abubakar (1997) 6 NWLR (Pt. 509) 470; Ivory Merchant Bank Ltd. V. Partnership Investment Ltd. (1996) 5 NWLR (Pt. 448);

On her issue three, whether inconsistencies in the dates contained in the judgment of the Court below nullifies the said judgment, learned counsel for the Appellant had submitted that in law inconsistencies in the dates contained in a judgment is not a clerical error or omission which can be waived off but rather is a substantial error that nullifies the judgment and urged the Court to hold that the Judgment of the Court below was a nullity and to allow the appeal and set aside the null judgment of the Court below. Counsel relied on Ake Properties Limited & 3 Ors V. Mrs. Adebisi George, Appeal no: CA/L/619/2012 (unreported) @ pp. 5 – 6.

RESOLUTION OF ISSUES ONE, TWO AND THREE
My Lords, the fulcrum of this appeal, which is aptly encapsulated in the Appellant’s issue one for determination, is the vexed issue of when in law can a proceedings of a Court and the resultant judgment be said to be in breach of the right to fair hearing of a party as Constitutionally guaranteed in the determination of his civil rights and obligations before a

Court of law? In law, the effect of a proved breach of the right to fair hearing is that it renders both the proceedings and resultant judgment a nullity. See Ekpenetu V. Ofegobi (2012) 15 NWLR (Pt. 1323) 276; Amadi V. INEC (2013) 4 NWLR (Pt. 1345) 595; Ovunwo & Anor. V. Woko & Ors (2011) 17 NWLR (Pt. 1277) 522; Pan African Incorporation & Ors. V. Shoreline Lifeboat Ltd & Anor. (2010) All FWLR (Pt. 524) 56; Acton Congress of Nigeria V. Sule Lamido & Ors (2012) 8 NWLR (Pt. 1303) 560 @ p. 593; Judicial Service Commission of Cross River State & Anor. V. Dr (Mrs) Asari Young (2013) 11 NWLR (Pt. 1364) 1.

The other salient issues, forming the basis of the Appellant’s issues two and three, are the effect of earlier decisions of Courts of Coordinate jurisdiction on their latter decisions and the issue of the legal effect of wrong or inconsistent dates in the judgment of a Court of law. I shall consider and resolve, as earlier noted in this judgment, all these three issues arising in this appeal together in one fell swoop!

Now, going by the grounds 1, 2 and 4 of the Grounds of Appeal and the three issues distilled therefrom, and with Ground 3 of the Grounds of Appeal having been earlier deem abandoned and consequently struck out in this Judgment, it seems to me that the Appellant is not challenging the merit of the findings of the Court below entering judgment for the Respondent. I shall therefore, confine my consideration of the three issues dealing with the procedures adopted by the Court below leading to the delivery of the Judgment, as well as the issue of the alleged inconsistent dates of the Judgment of the Court below and the purport of the said judgment on the earlier Ruling of A. O. Opensanwo J, delivered in the same suit on 19/1/2009.

By a Motion on Notice filed on 19/3/2007, the Respondent had prayed for the followings Reliefs, namely:
1. An Order entering final judgment for the Claimant/Applicant against the Defendant for the sum of N25,000,000 being the value of the Credit Guarantee Bond, Policy No: CRB/02/2/00534/Z dated 29/3/2006, issued by the Defendant in favor of the Claimant to guarantee the repayment of the facility of N25,000,000 granted to A.R. Rasaq Motors Limited for the financing of L.P.O for the supply of Black Oil to Benue Cement Company, Gboko which sum A.R Rasaq Motors Limited has failed and/or refused to repay.

Interest on the sum in “1” above at the rate of 20% per annum (being the agreed interest rate) from 31/12/2006 till judgment and thereafter at the same rate till liquidation of the judgment sum.The Motion of Notice was supported by an Affidavit of 23 paragraphs deposed to by one Yinka Olorunsola, a Staff of the Respondent, annexed to which are nine documents marked as Exhibit 1- 9. In response to the Respondent’s Motion on Notice for Summary Judgment, the Appellant filed a Counter – Affidavit of 49 paragraphs deposed to by one Ramon Odukale, a Zonal Manager of the Appellant, annexed to which are four documents marked as Exhibit RO1 – Exhibit RO4. The Respondent also filed a Further Affidavit deposed to by one Ugochukwu Aneke, annexed to which is the Statement of Account of A. R. Rasaq Motors. Interestingly, in Exhibit 8, the letter dated 17/11/2006 and written by the Appellant to the Respondent, it was stated inter alia as follows:”Since the guarantee period expires on 30th December, 2006 we put it to you that there is no ground for charging of interest as contained

in your letter dated 1/11/2006. Charging of interest can only commence from 31st December, against any unsettled amount. Even though, we are making all efforts to meet our obligations under this policy, we wish to register in strong terms our displeasure over the way and manner your Bank has handled the transaction in respect of this guarantee…Finally, as a responsible company, we honour our promises and play by the rule. We shall ensure that you receive your N25 Million before the expiration of the period of extension…”

It was on the strength of the above facts and issues as joined by the parties, and their pleadings as duly filed and already before the Court below, as well as the written submissions of the respective counsel to the parties, that the Court below had in its judgment found for the Respondent as per its claim against the Appellant, stating and holding inter alia thus:
“It is the law that an application for summary judgment will only be allowed where the sum claimed is liquidated…The Credit Guarantee is so clear as to the rights as between parties and the liability of the Defendant herein was well spelt out in the

said agreement. The liability of the Defendant was demonstrated in Exhibit 8 attached to affidavit in support of the application, that is, the Defendant/Respondent letter dated 17/11/2006, wherein it acknowledged the indebtedness to the Claimant /Applicant herein…Flowing from the content of this Exhibit 8 and others exhibits, most especially the Credit Guarantee issued by the Defendant, coupled with the averments in the Statement of Defence, this Court is of the considered opinion that since the claim is liquidated and the amount is certain and admitted by the Defendant/Respondent, then there is no defence and no triable issue raised in the pleadings that will sway this Court to allow for plenary session…” See pages 1118 – 1126 in Volume 3 of the Records of Appeal.

The above Rule of the Court below, going by the several judicial authorities is principally geared towards the attainment of speedy but substantial justice in cases in which a Defendant really has no defence to the claim of the Claimant against him and there is nothing worth being further investigated by the Court. It is now a well settled principle of law, that the Rules of Court providing for Summary Judgment are deliberately designed to allow for quick dispensation of justice to avoid unnecessary clogging of the legal system with proceedings which could otherwise have been easily and quickly disposed off. See Dala Air Services Ltd V. Sudan Airways Ltd (2004) All FWLR (Pt 238) 697; See also G.M.O Nworah & Sons Co Ltd V. Akputa (2010) All FWLR (Pt. 524) @ pp. 101 – 102; Nnabude BV. G.N.G. (W/A) Ltd (2012) All FWLR (pt. 619) @ p. 1198; Mat Holdings Ltd V. U.B.A Plc. (2003) 2 NWLR (Pt. 803) 71 @ p. 90.

I had earlier observed that there is neither any valid ground of appeal nor any issue for determination relating to and or challenging

the above findings of the Court below that the Appellant has no defense and since in law findings not appealed against are taken as valid, subsisting and binding on both the parties as well as the Court, I take these findings of the Court below as binding on the Appellant, as well as the Respondent and thus, requiring no further comment thereon in this Judgment. Suffice for me to simply refer to The Association of Senior Civil Servants of Nigerian & Ors V. Judiciary Staff Union of Nigeria & Ors(2014) LPELR-24185(CA), where Georgewill JCA, had reiterated inter alia thus:
“It is now well accepted and indeed indisputable that where no grounds of appeal exists challenging finding of the lower Court, the finding is valid and subsisting. It is deemed admitted and undisputed and it will remain binding on the parties. It is thus the law that without a ground of appeal challenging the finding of a lower Court, the appellate Court will lack the jurisdictional competence to interfere with such finding. It remains rightly or wrongly, regrettably though if wrongly, the settlement of the issue as between the parties to the appeal. See Olukoya V. Ashiru

(2006) All FWLR (pt.322) 1479 @ P.1484; Institute of Health, A. B. U. H. M. B. v. ANYIP (2011) All FWLR (pt.586) 443; Onafowokan V. Wema Bank Plc (2011) All FWLR (pt.585) 201 @ P.205.”

On 21/10/2015, which was the date the Respondent’s suit, had with the consent of both parties through their Counsel on 8/7/2015, been adjourned for the hearing of the Respondent’s Motion for Summary Judgment, the Appellant filed a Motion for stay of the Proceedings, which Motion though served on the Respondent’s Counsel was not yet in the case file of the Court below and was thus not yet fixed for hearing. The Appellant’s counsel informed the Court below of the above state of facts and after some back and forth arguments, the Appellant’s counsel conceded to the hearing of the Respondent’s Motion for Summary Judgment to proceed. The Court below proceeded to hear the said Motion for Summary Judgment and in its ruling entered judgment against the Appellant on the Respondent’s claims.
My lords, the pertinent question under issue one is, whether the Court below in proceeding with the hearing of the Respondent’s Motion

for Summary Judgment, whilst the Appellant’s Motion for stay of proceedings, though not yet in the Court’s case file, was pending amounted to a breach of the Constitutional right of the Appellant to fair hearing, including the hearing and determination of its Motion for stay of proceedings pending appeal before final judgment is entered against it by the Court below?
Now, having taken time to review the proceedings of the Court below on both 8/7/2015 and 21/10/2015, and bearing in mind the undisputed fact of consent by both counsel for the parties on both of these dates, I am of the firm view that the Appellant’s counsel cannot be allowed to approbate and reprobate at the same time on the same issue of the none hearing of the Appellant’s Motion for stay of proceedings to which she consented to before the Court below. The issue is not and has never been, whether by that consent, the Appellant is precluded from exercising its Constitutional right of appeal against the Judgment of the Court below.
Thus, the Appellant having through its counsel conceded to the procedure adopted by the Court below on 21/10/2015, cannot in good

conscience and in equity and indeed even in law be allowed to withdraw the consent given simply because the outcome was unfavorable. In other words, while the Appellant was perfectly free to challenge the judgment, the result of the proceedings, it cannot use the procedure adopted with the consent of its counsel as a basis for the challenge of the judgment of the Court below. It has always been the practice in our Courts that when a counsel speaks to the Court from the Bar, it is his or her bond with which he or she is bound. I do not want to believe or even think that it is no longer so at the Bar! I hold firmly therefore, that the Appellant having through its counsel consented to be bound by whatever procedure adopted by the Court below on 21/10/2015 remains bound by that consent. SeeIbator V. Barakuro (2007) 9 NWLR (Pt. 1040) 475 @ p. 493 where Supreme Court succinctly stated inter alia thus:
“The law is trite that when a party has adopted a procedure by consent, he will not be heard on appeal that the procedure he adopted is prejudicial to him or had occasioned a miscarriage of justice”

It was also not in any dispute that the Appellant’s Motion for stay of proceedings filed only in the same morning of 21/10/2015, when the Respondent’s motion for Summary Judgment slated since 8/7/2015 for hearing, was not yet in the Court’s case file. In the contention of the Appellant, even in such a scenario, the only way the Court below would have exercised its discretion judicially and judiciously was to have bent backward to hear and grant the Appellant’s application to stay its proceedings in deference to the appeal already pending before this Court. Honestly, I had thought the least charitable position would have been that to offer the Respondent an opportunity to respond to the Motion for stay of proceedings just filed, the Court below ought to have exercised its discretion to adjourn the matter to a further date to enable the parties join issues on the Appellant’s

Motion for stay of proceeding, but to suggest that the Court below ought to have rather proceeded to take and grant the Applicant’s application seems rather odd and appears to be a very strange proposition of law to me!

My lords, in the adversarial system of administration of justice which we operate a Court, is under a duty to determine every application brought before it one way or the other, before proceeding to deliver its judgment, notwithstanding, whether such an application was brought at a very late stage of the proceedings or patently irregular on its face or even frivolous or that the Court had already written its judgment and ready to deliver it. See Federal Airport Authority of Nigeria V. Wamal Express Services (Nig.) Ltd. (2011) 8 NWLR (1249) 219 @ p. 237. See also Dingyadi V. INEC (2010) 18 NWLR (Pt. 1224) 1; FAAN V. WES (Nig.) Ltd (2011) 8 NWLR (Pt. 1249) 219 @ p. 237; Ani V. Nna & Ors. (1996) 4 NWLR (Pt.440) 101 @ p. 120.
However, it must be pointed out at once that there are some excepted circumstances in which failure to determine a pending application would not ipso facto amount to a breach of the right to fair hearing.

These exceptions include cases in which an Applicant is himself in contempt of the Orders of the Court, See Mobil Producing Unlimited V. Simeon Monokpo (2003) 18 NWLR (Pt. 852) 346; cases in which an Applicant fails or neglects to draw the attention of the Court to the pending application and is thus deemed to have abandoned same, see Elemchukwu Ibator V. Chief Bali Barakuro (2007) 9 NWLR (Pt. 1040) 475; cases in which, though the application was not formally heard but the issues raised therein are ruled upon in the judgment, see Newswatch Communications Limited V. Alhaji Ibrahim Atta (2006) 12 NWLR (Pt. 993) 144 @ p. 170; cases in which an Applicant is in breach of the Rules of the Court in filing the application, see Abia State Transport Corporation &Ors. V. Quorum Consortium Limited (2009) 3 – 4 SC 187.
InElephant Group Plc V. National Security Adviser & Anor (2018) LPELR -45528(CA), where this Court per Georgewill JCA, had reiterated inter alia thus:
“It is the law that though a Court is enjoined to hear and determine every application before it, notwithstanding how out rightly frivolous or patently irritating to the Court it may be,

yet it is also the law that it is not in all cases that failure of a Court to hear and determine every application before delivering its judgment is fatal to the proceedings and the judgment delivered therein. The real essence of this principle of law is to ensure that by the failure to hear and determine the pending application, the Court has not occasioned any breach of the right to fair hearing of the party or miscarriage of justice to the party. Thus, where either both or any of these twin elements are absent, a failure to hear and determine a pending application before delivery of judgment would not render the judgment a nullity.”
I still and fully subscribe to the above view of the trite position of the law and accept it to represent the extant position of the law on this vexed issue of when failure to hear an application would amount to a breach of the right to fair hearing and when in excepted circumstances it would not amount to denial of fair hearing. I think I should add at once that, in all cases the issue of fair hearing must be raised with all seriousness and in good faith. It must never be raised in bad faith or merely intended as a red

herring to raise a storm in a tea cup without any factual basis. See Adebesin V. The State (2014) 9 NWLR (Pt. 1413) 609 @ pp. 641 – 642.

My lords, in considering whether or not a proceeding of a Court was in breach of the right to fair hearing of a party, it is the law that each case of allegation of breach of the right to fair hearing must be scrutinized and decided on the peculiar facts and circumstances of each case. This is so because, fair hearing is primarily a matter of fact. It is only when the facts are ascertained that the law would be applied to the facts so established to see whether or not such established facts constituted a breach of the party’s right to fair hearing. See Newswatch Communications Limited V. Alhaji Ibrahim Attah (2006) 12 NWLR (Pt. 993) 144.
So, in the circumstances of the proved facts before the Court below on 21/10/2015, was the Court below wrong when it proceeded to hear and determine the Respondent’s Motion for Summary Judgment? I think not! Now, if the Court below was not wrong in proceeding to hear and determine the Respondent’s Motion for Summary Judgment on 21/10/2015, did that proceedings

constitute a breach of the Appellant’s right to fair hearing, in view of pendency of the Appellant’s Motion for stay of proceedings, though filed on the same date? In other words, did the non-hearing of the Appellant’s Motion for stay of proceedings on 21/10/2015 while proceeding to hear and determine the Respondent’s Motion for Summary Judgment amount to a breach of the Appellant’s right to fair hearing? I certainly do not think so!
Truly, in the peculiar circumstances of this appeal, the Court below, in my view, was on 21/10/2015 not under any duty to hear and determine the Appellant’s Motion for stay of proceedings, which was not yet in its case file having just been filed on the same morning the Court below had, with the consent of both parties on 8/7/20215, scheduled to hear the Respondent’s Motion for Summary judgment, which is over three months of its adjournment from 8/7/2015 to 21/10/2015. See Ekpeto V. Wanogho (2004) 18 NWLR (Pt. 905) 394 @ p. 412, where the Supreme Court had succinctly stated inter alia thus:

“The Court, like any sensible human being, deals with only issues and matters that are before it. It does not speculate or assume things that have not appeared before it for consideration when for example, documents are filed in the registry of the Court but not been filed in the relevant Court files and brought to the attention of the Judge, such documents cannot by any stretch imagination be deemed to be within the knowledge of the Court or Judge. The Judge or Court concerned is fully entitled to proceed without them since their existence was not known.”
In law, the issue of fair hearing is a two – way traffic as well as a two – edged sword since both parties are equally entitled to the protection of the law affording them their guaranteed right to fair hearing. It is never meant to aid an indolent, lazy and/or cunning litigant who is merely interested in and bent on frustrating the other party and distracting the Court. It is also not available to a party who relies on it merely for the sole purpose of delaying the ends of justice or postponing the day of reckoning or judgment. See Newswatch Communications Limited V. Alhaji Ibrahim Atta (2006) 12 NWLR (Pt. 993) 144 @ p. 151.

In the circumstances, therefore and based on all the findings above, I hold that the non-hearing of the Appellant’s Motion for stay of proceedings pending appeal by the Court below on 21/10/2015 when the Respondent’s Motion for Summary Judgment was heard did not amount to a breach of the Appellant’s right to fair hearing. Consequently, issue one is hereby resolved against the Appellant in favour of the Respondent.

Let me now consider issue two dealing with, whether in the light of the earlier Ruling of the Court below per Opesanwo J, on 19/1/2009 that at the stage of the determination of the Appellant’s Notice of Preliminary Objection issues touching on the substantive claims of the Respondent need not be considered and or resolved, the Judgment of the Court below, being a Court of Coordinate jurisdiction, amounted to setting aside, or more aptly put, overreached, the earlier decision of the Court below? In the earlier Ruling of the Court below per A. O. Opesanwo J, on 19/1/2009, it was stated inter alia thus:
“In deciding on locus standi, like in determining the existence of a cause of action, the Statement of Claim is of paramount consideration…What the

Claimant is required to show are the facts establishing his rights and obligations in respect of the subject matter of the suit…The issue has nothing whatsoever to do with the success or merit of the case but rather on whether a Claimant has sufficient interest in the subject-matter of the dispute…” See pages 771 – 775 in Volume 2 of the Record of Appeal

Honestly, I had tried all my best possible to even understand and fathom the rationale for issue two as vehemently canvassed by the Appellant in this appeal to situate it within the purview of any known principles of law in our jurisprudence. The Court below per Opesanwo J, had while ruling on an earlier application brought by the Appellant, challenging the competence of the Respondent’s suit on grounds of lack of reasonable cause of action and lack of locus standi, advised itself, and quite commendably too, to and did refrained from considering the merit of the Respondent’s claim. However, subsequently, the Respondent’s suit was reassigned to the Court below per Adamson J, before whom the Respondent’s Motion for Summary Judgment came up and was duly heard and judgment entered for the Respondent against the Appellant.

Now, the contention of the Appellant seems to me to be that the Court below in its earlier ruling, having refrained from touching on the substantive claims of the Respondent, the Court below was thereby bound not to consider the claims of the Respondent in any manner other than by trial at plenary. This contention, with due deference to learned counsel for the Appellant, seems to me to be so far – off the mark and is not supported by any known principles of law. I have taken time to review the earlier Ruling of the Court below per Opesanwo J, delivered on 1/1/2009 as well as the Judgment of the Court below appealed against. I have also reviewed the submissions of counsel for the parties in the light of the decisions in the Ruling and the Judgment of the Court below. The Court below, faced with an application for Summary Judgment was perfectly right to hear and determined same and if it finds, as it did, that the Appellant as Defendant has no defense to the claims of the Respondent as Claimant then to proceed to enter judgment as it did against the Appellant. It is my firm view, and I do hold, that there was

in law no inhibition whatsoever on the powers of the Court below to apply its Summary Judgment Procedure Rules as it correctly did, merely because it had in its earlier Ruling on an interlocutory application challenging its jurisdiction refrained from considering the merit of the Respondent’s claim.
I have calmly and carefully reviewed the entirety of the facts and circumstances of this appeal, particularly the decisions reached in the earlier ruling of Opesanwo J, on 19/1/2009 and the decisions reached in the Judgment of the Court below and I do not see or find in any way in which the Judgment of the Court below overreached and or set aside any of the decisions reached in the earlier ruling of Opesanwo J, delivered on 19/1/2009 on the Appellant’s interlocutory application challenging the competence of the Respondent’s suit. In the circumstances therefore, I have no difficulty resolving issue two against the Appellant in favor of the Respondent.

Let me now consider issue three dealing with the legal effect of the alleged inconsistent dates in the judgment of the Court below. The contention of the Appellant under this issue is that

the Judgment of the Court below is a nullity in that it carries on it inconsistent dates, as it was headed on 27/11/2015, but dated on 5/12/2015 and delivered on 4/12/2015. I have calmly and carefully reviewed the entirety of the facts and circumstances of this appeal, particularly, the delivery of the Judgment of the Court below on 4/12/2015 in the open Court and in the presence of the counsel for the parties, including the learned counsel for the Appellant and I do not find or see, as no attempt was even made by the Appellant in that regard to show or even merely allude to, any miscarriage or likelihood of miscarriage of justice by reason only of the inconsistent dates in the Judgment of the Court below. In law, it is not enough to merely allege an error or mistake in a Judgment, it must be shown that the error or mistake was substantial and had occasioned a miscarriage of justice or was likely to occasion a miscarriage of justice to the Appellant, and failing which such an error or mistake will not warrant the overturning of the Judgment appealed against. See Eyiboh V. Abia (2012) 16 NWLR (Pt. 1325) 51 @ pp. 82 -83.

See also Opa V. Attorney General of The Federation (2017) 9 NWLR (Pt. 1569) 61 @ p. 115; Ogboru V. Okowa (2016) 11 NWLR (Pt. 1522) 84 @ p. 123; Ge International Operations (Nig) Ltd V. O-Oil & Gas Services Ltd (2016) 10 NWLR (PT. 1520) 304 @ p. 330.
In Godwin Ohuabunwa V. Basil Duru & Ors (2008) LPELR – 4699 (CA), this Court per Abdullahi JCA, had succinctly stated inter alia thus:
“It is only where such error or mistake is so fundamental as to occasion a miscarriage of justice. It is my view and I also hold that the mistake of dating the judgment 31/10/2007 has not occasioned a miscarriage of justice; far from it, particularly when the Tribunal stated on record that the judgment was read on 1/11/2007”
There is no doubt in my mind that the contention by the Appellant used to be the position of the law in years gone by, which is now gone for good, when technicality held sway over and above substantial justice. See Adis Ababa V. Adeyemi (1976) 12 SC 51.
However, nowadays, Courts of law do not concern themselves with trifles but with the substance and justice of the case which are weightier matters. Thus, a wrong date of judgment alone is not of such a

serious nature that should bug down the Court and be allowed to become a clog in the wheels of rendering substantial justice to the parties, more so when the judgment was delivered in the open Court and in the presence of counsel to the parties. The long accepted Latin maxim is ‘de minimis non curat lex.’ In Nigeria today, substantial justice is king as was so admirably demonstrated by the Supreme Court in 1981, when its earlier decision in Adis Ababa V. Adeyemi (1976) 12 SC 51 was overruled by its decision in Nofi Surakat V. Nigeria Development Society Ltd & Anor (1981) 4 SC. 26. See also Jeric Nigeria Ltd V. Union Bank Nig Plc. (2000) 15 NWLR (Pt. 691) 477; Chief Adebisi Adegbuyi V. All Progressive Congress & Ors (2013) LPELR – 22799 (CA).
I think this challenge by the Appellant leans completely on mere form than on any substance. It is technicality taken too far. These days, the Courts do conserve their energies to be expended on matters of substance and on real and substantial issues in contention between the parties. Long gone are the heydays of technicality riding roughshod over substantial justice! The Courts have since charted

a new path aimed at consolidating substantial justice between the parties and would sparingly accord technicality any pride of place except in very well deserving cases, where the alleged incompetence is fundamental and goes to the root of the jurisdiction of the Court itself to hear and determine such a matter on the merit. Thus, the stand of the Appellant under issue three resonates more with undue technicality than with substance and sincerity. The law nowadays, lays more emphasis on the overriding need to render substantial justice over and above technical justice by the Courts. See Yusuf V. Adegoke (2007) LPELR – 3534 (SC). See also Dangote General Textile Products Ltd & Ors V. Hascon Associates Nig. Ltd. & Anor. (2013) LPELR – 20665 (SC); Duke V. Akpabuyo L.G. (2005) 19 NWLR (Pt. 959) 130 @ pp. 142-1 43; U.TC. (Nig.) Ltd V. Pamotei (1989) 2 NWLR (Pt.103) 244.
It is for the above reasons, and in the light of the extant position of the law, that I hold firmly that the alleged inconsistencies in the dates of the Judgment of Court below, incidentally delivered on 4/12/2015 in the open Court and in the presence of both counsel for the parties, did

not in any legal manner vitiate the validity of or render as null the Judgment of the Court below. See Nofi Surakat V. Nigeria Development Society Ltd & Anor (1981) 4 SC. 26. See also Joseph Afolabi & Ors V. John Adekunle & Anor (1983) 2 SCNLR 141; Ekereke V. The State (1981) NSCC 79.
In my finding therefore, the Appellant was neither misled as to the Judgment of the Court delivered on 4/12/2015 in the open Court in the very presence of its counsel nor has it shown to have suffered any injustice or miscarriage of the justice or likely to suffer any miscarriage of justice by reason only of the alleged inconsistent dates in the judgment delivered by the Court below. Thus, in law the Judgment of the Court below delivered on 4/12/2015 remains, in my finding and I so hold, valid. The Appellant in my finding was not and still is not confused or misled as to the date the Judgment of the Court below, which was delivered in the open Court and in the presence of its Counsel on 4/12/2015.

I now come to the purport and effect of Order 35 Rule 2 of the High Court of Lagos State (Civil Procedure) Rules 2004 (now 2012), which provides thus:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“Where any judgment is pronounced by a Judge the Judgment shall be dated as of the day on which such Judgment is pronounced and shall take effect from that date unless the Judge otherwise orders.”
My lords, in contending that the above Rules of the Court below was mandatory and thus renders any ruling or judgment delivered in breach thereof a nullity, our attention was drawn by the learned counsel for the Appellant to the unreported decision of this Court delivered on 20/2/2014 in CA/L/619/2012: Ake Properties Limited & 3 Ors V. Mrs. Adebisi George, Appeal no: CA/L/619/2012 (unreported) @ pp. 5 – 6, per Rita Nosakhare Pemu JCA.
Now, whilst I subscribe fully to the fundamental prerequisites on the place of Rules of Court as essential for orderly conduct of matters in the litigation process and are thus not made for the fun of it but should be obeyed, I remain convinced that Rules of Court are mere hand maid of the Court and must remain so. The Court is the master of the Rules and not the other way round. Therefore, whenever strict adherence to a Rule of Court is likely to result into injustice, the Court will refuse to be slavishly

bound to such a Rule of Court, being the master of the Rules and will rather move on to cast its lot on the side of rendering substantial justice to the parties as dictated by the circumstances of the particular case. The Court, most especially the one in whose hallowed Chambers I sit to render substantial justice to all manner of persons without fear or favor, ill-will or affection, should never or ought not to, raise its hands as hopeless and or helpless or even tied on the face of any Rules of Court engendering injustice in the peculiar circumstances of any given case and thereby surrendering its mastership to the Rules of Court to endanger the rendering at all times of substantial justice to the parties by the Courts.
In the proved circumstances of this appeal, in which there is no iota or any atom of any miscarriage of justice, and none was neither alleged nor proved by the Appellant, I refuse to bow slavishly to the Rules of the Court below to aid in the occasioning of injustice. It is thus in this sense, of my firm and unshakeable belief in substantial justice rather than mere technical justice to the parties in this appeal, that I am unable to

follow the earlier decision of this Court in CA/L/619/2012: Ake Properties Limited & 3 Ors V. Mrs. Adebisi George, Appeal No. CA/L/619/2012 (unreported). I shall say no more on this!
Now, looking at the totality of the detailed history of the proceedings in this case before the Court below, as in the Records of Appeal, it is apparent that the Appellant had clearly inundated the Court below with several applications, including those for stay of proceedings pending appeal, one of which has been duly heard and dismissed by the Court below. See pages 337- 741 of Volume 1 of the Record of Appeal.
It is my view that on 21/10/2015, the Appellant’s Application for stay of proceedings pending appeal was completely extrinsic to the issues of the rights and liabilities of the parties to be determined in the substantive suit. Consequently, a failure to determine it, even if the counsel for the Appellant had not consented to be bound by the whatever procedure adopted by Court below, either to proceed with the hearing of the Respondent’s Motion for Summary Judgment or to first hear and determine the Appellant’s Motion for stay of

proceedings, does not and indeed did not, in my finding, amounted in any way to a denial of the Appellant’s right to fair hearing.

As I bring this Judgment to a close, I have pondered once again on the issue of inconsistent dates in the Judgment of the Court below, and it does appear to me that truly this issue of inconsistent dates is not even borne out by the Records of Appeal. I say so because on 21/10/2015, the Respondent’s Motion for summary judgment was duly heard by the Court below and the matter was adjourned to 27/11/2015 for ruling. On 27/11/2015, the matter came up before the Court below but the ruling was not ready because the copies of the counter affidavit had just been made available to the Court below the day before. The matter was then further adjourned to 4/12/2015 for ruling. On 4/12/2015, the Judgment of the Court below was duly delivered in the presence of counsel for the parties. See pages 1095 – 1101 in Volume 3 of the Record of Appeal
So, what is so serious about the alleged inconsistent dates of the judgment of the Court below merely because in the judgment the date at the top was written as 27/11/2015, the

original date it was fixed for delivery, whilst at the bottom it was written signed 4/12/2015, the date it was actually delivered in the open Court in the presence of both counsel for the parties, and which dates are completely in line with the history of adjournments in the case between 21/10/2015, 27/1/2015 and 4/12/2015. It is my view, therefore, that the most crucial date in the circumstances of this appeal is the date on which the Court below delivered the judgment appealed against in the open Court on 4/12/2015 in the presence of counsel to the parties, including the Appellant’s counsel. Thus, I find that the Appellant was in no way misled and as it knew fully well, through its counsel, of all the dates indicating the chronology of the dates the matter was heard on 21/10/2015, to the date the matter was originally adjourned to for ruling on 27/11/2015, and the date the judgment was eventually delivered on 4/12/2015. See pages 1095 – 1101 in Volume 3 of the Record of Appeal.

In the circumstances therefore, and in the light of all my findings above, issue three is hereby resolved against the Appellant in favor of the Respondent.

My lords, in the battle for justice in the litigation process in the Courts, it is of paramount public interest that there should be an end to endless litigations, so that the parties would know expeditiously their Court determined rights and obligations as the end result of the litigation processes, more particularly those cases in which the Appellant as a Defendant really had no defence to the claims made against it by the Respondent as Claimant.

So, sadly, this was a commercial transaction conducted way back in 2006 and as at 2021 still in the Court for the final determination of the rights, obligations and liabilities of the parties at least at the level of the Court below and this Court, with one more level of Court, the Apex Court still in view. This no doubt discourages commercial transactions which require expedient, effective and efficient system of dispute resolutions. I shall say no more on this.

Having therefore, resolved all the three issues for determination against the Appellant in favour of the Respondent, I hold that this appeal is bereft of any merit and is thus liable to be dismissed. Consequently, it is hereby so dismissed.

In the result, the judgment of the High Court State of Lagos State; Coram: O.A. Adamson J., in Suit No: ID/726/2007: Access Bank Plc V. Mutual Benefit Assurance Plc, headed 27/11/2015, and dated 5/12/2015 and delivered on 4/12/2015, in which the Claims of the Respondent as Claimant against the Appellant as Defendant were granted under the Summary Judgment procedure of the Court below, is hereby affirmed.
There shall be no order as to cost.

JIMI OLUKAYODE BADA, J.C.A.: I read before now the lead judgment of my Lord BIOBELE ABRAHAM GEORGEWILL, JCA just delivered.

A perusal of the record of appeal and the briefs of argument filed on behalf of the parties revealed that there is nothing serious about the alleged inconsistent dates of the judgment of the lower Court except that the Court was careless. The truth of the matter is that the Judgment was delivered in the open Court on 4/12/2015 in the presence of Counsel for the parties. The Appellant was in no way misled and the said inconsistent dates could not be said to have affected the validity of the judgment. To set aside the judgment on that basis will lead to technical Justice. Courts in this Country

(Nigeria) have been enjoined in plethora of cases that technicality should not and must not be used in arriving at a just, fair and equitable decision.
InADEBESIN VS STATE (2014) LPELR – 22694 (SC) PAGE 25; (2014) 9 NWLR PART 1413 PAGE 609 PARAGRAPHS B – E, the Supreme Court held among others thus:-
“…this is a minor technical point that has no effect on the Judgment of the Court below. At this stage in our jurisprudence, technicality must …yield place to reality. See – BROAD BANK NIG LTD VS ALHAJI S. OLAYIWOLA & SONS LTD & ANOTHER (2005) ALL FWLR PART 251 PAGE 235 AT 249 – 251 (SC). Appellant cannot be allowed to boost his case to the detriment of substantial justice…“

In view of the foregoing and for the fuller reasons in the lead judgment, I am also of the view that this appeal lacks merit and it is dismissed by me.
I abide by the consequential orders including the order as to cost made in the lead Judgment.

IBRAHIM SHATA BDLIYA, J.C.A.: I read in advance, the lead judgment of my learned brother, BIOBELE ABRAHAM GEORGEWILL, JCA, just delivered. I am in agreement with

the lucid reasons marshaled to reach the conclusion that this appeal lacks merit, and ought to be dismissed. The issues submitted for the determination of the appeal have been ably resolved. I have nothing useful to add thereto, other than to adopt my Lord’s reasoning as mine, with profound gratitude, and to dismiss the appeal, it is unmeritorious. Appeal dismissed. The judgment of the Lagos State High Court in suit No. ID/726/2007, delivered on the 4th day of December, 2015, is hereby affirmed. I abide by the order made on costs.

Appearances:

Miss F. R. A. Williams, with him, D. O. Adejobi Esq. For Appellant(s)

Nick Omeye, Esq. For Respondent(s)