OZOEMENA UGWOKEH-OMENE v. STANBIC IBTC BANK PLC & ANOR (2013)

OZOEMENA UGWOKEH-OMENE v. STANBIC IBTC BANK PLC & ANOR

(2013)LCN/6624(CA)

In The Court of Appeal of Nigeria

On Monday, the 9th day of December, 2013

CA/L/379M/2011

RATIO

JUDICIAL DISCRETION: CONDITIONS FOR THE EXERCISE OF JUDICIAL DISCRETION

The law is elementary. A judicial discretion must be exercised on fixed principles of equity and reason to both sides. Therefore, exercise of discretion must be justifiable – UBA v. STAIHABU GMBH & CO. K.G. (1985) 3 NWLR (Pt. 110) page 374/378. Acting judicially imports the consideration of the intents of both sides of the matter, and also weighing their intents in order to arrive at a just and fair decision – LEONARD ERONINI & 4 ORS v. FRANCIS IHEUKO (1989) 2 NWLR (pt. 1046) at 60.

Judicial discretion portends the power exercised in an official capacity, in a manner which appears to be just and proper under a given situation. There is no hard and fast rule as to the exercise of a judicial discretion by a court. If such happens, the discretion becomes fettered. ODUSOTE v. ODUSOTE (1971) 1 ALL NLR. 269 at 222; ANYAH v. AFRICAN NEWSPAPER OF NIG. LTD. (1992) 6 NWLR (Pt. 247) 317. That issues fall within a Judge’s discretion, is being governed by no Rule of Law. Its resolution depends on the individual Judge’s assessment of what is fair and just to do in a particular case.

However, where the situation is governed by a Rule of Law, where the interpretation of the provisions of a statute is in question, any discretion exercised must be exercised in accordance with the provisions of the statute. It is only upon known or undisputed facts, and disclosed facts that a Court setting to do what is fair and equitable may exercise its discretion.

Decidedly, facts must exist before discretion is exercised. In order to exercise a just and proper discretion, the facts of the case must be available and be reasonably appreciated – EZEIGWE & 2 ORS v. NWAWULU & 2 ORS (2010) 2-3 S.C. (Pt. 1) 35-36. PER RITA NOSAKHARE PEMU, J.C.A.

JUSTICES

AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

Between

OZOEMENA UGWOKEH-OMENE – Appellant(s)

AND

STANBIC IBTC BANK PLC & ANOR. – Respondent(s)

RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): The Claim, the subject matter of this appeal was commenced by Writ of Summons dated 16th of September 2008 shown at pages 1-2 of the Record of Appeal.

In it, the Appellant (Claimant in the Court below) claims against the Respondents (1st and 2nd Defendants in the Court below) jointly and severally as follows:

(i) Special Damages in the sum N5,026,039.23k (Five Million, Twenty-Six Thousand, Thirty-Nine Naira, Twenty-Three Kobo) against the 1st Defendant being the sum illegally debited to the Claimant’s Investment Margin Facility Account Number CA72200047843 on May 24, 2007.

(ii) Interest on the sum N5,026,039.23k (Five Million, Twenty-Six Thousand, Thirty-Nine Naira, Twenty-Three Kobo) from the 25th of May, 2007 at the rate of 18% per annum until Judgment.

(iii) General Damages in the sum of N200,000,000.00 (Two Hundred Million Naira Only) against the 1st and 2nd Defendants for breach of trust, fraud and misrepresentation.

(iv) Cost of this action.

But in an amended Statement of Claim filed on the 23rd of June 2009, Relief (iii) was substituted and a new relief was added as relief (IV).

They are:

Relief (iii) Exemplary Damages in the sum of N100,000,000.00 (One Hundred Million Naira Only) against the 1st and 2nd Defendants for fraudulent withdrawal of the sum of N5,026,039,23k (Five Million, Twenty-Six Thousand, Thirty-Nine Naira, Twenty-Three Kobo) from the Claimant’s Investment Margin Facility Account, fraudulent sale of Claimants’ Zenith International Bank Plc shares worth N3,000,000.00 (Three Million) and breach of trust.

(iv) Aggravated Damages in the sum of N100,000,00.00 (One Hundred Million Naira Only) against the 1st and 2nd Defendants for fraudulent representation; dishonest concealment of material facts, manipulation and falsification of Claimants’ Investment Margin Facility Account statement and Claimant’s stocks broking account – pages 18-20 of the Record of Appeal.

Pleadings were filed and exchanged and trial proceeded. However, at the point where the Respondents were to enter their defence, the Appellant applied for leave to discontinue proceedings in the court because of the statement of the learned trial Judge, to the effect that the suit will be better handled by the multi door court house, where experts will sit to consider the claims of both parties – pages 146, lines 7-8; 14 and 19-23 of the Record of Appeal.

Upon this application by the Appellant, the Respondents filed their respective written submission. On the 30th of September 2010, the lower court dismissed the suit – pages 183 to 184 of the Record of Appeal.

Dissatisfied, the Appellant has appealed that Ruling of the 30th of September 2010, delivered by O. A. Adefope Okogie J. of the High court of Justice, Lagos State.

Pursuant to the Practice Direction of this Honourable Court, the Appellant filed a Notice of Appeal on the 23rd of December 2010 within the stipulated time as required by the Rules of Court. The Notice of Appeal has just two Grounds of Appeal. They are:

GROUND ONE

MISDIRECTION

The learned trial Judge misdirected herself in dismissing this suit without a proper consideration and evaluation of the motion on notice dated 15th September 2010, the Written Address dated 15th September, 2010, and the Reply on Points of Law dated 27st September 2010.

GROUND TWO

MISDIRECTION

The learned trial Judge misdirected herself in dismissing this suit by placing reliance on the principles in THE YOUNG SHALL GROW MOTORS LTD v. OKONKWO & ANOR 2002 16 NWLR Part 794 page 536 and OBASI BROTHERS v. MERCHANT BANK OF AFRICA SECURITIES LTD 2005 7 NWLR Part 929 page 117.

The Record of Appeal was deemed properly compiled and transmitted to this Court on the 25th of October 2011.

Parties filed their respective briefs of argument.

The Appellant filed his Brief of Argument on the 6th of December 2011. It is settled by C. I. Nwanguma and a reply brief filed on the 26th of November 2012.

The Respondents’ Brief of Argument was filed on the 7th of June 2012, but was deemed filed on the 7th of November 2012. It is settled by Chief Wale Taiwo.

On the 20th of November 2013, the parties adopted their respective Briefs of Argument.

While the Appellant urged this Honourable court to allow the appeal, the Respondents urged Court to dismiss the appeal.

In the Appellant’s Brief of Argument, he had distilled three (3) Issues for determination from the two Grounds of Appeal. They are

(1) WHETHER THE DISMISSAL OF THIS SUIT BY THE COURT BELOW WAS A PROPER EXERCISE OF DISCRETION, REGARD BEING HAD TO ALL THE FACTS AND CIRCUMSTANCES OF THE SUIT.

(2) WHETHER THE COURT BELOW WAS RIGHT TO HAVE DISMISSED THE SUIT BY PLACING RELIANCE ON THE LITIS CONTESTANO PRINCIPLE ENUNCIATED IN THE CASE OF ERONINI v. IHEUKO (1989) 2 NWLR (PT. 101) 46, REFERRED TO IN:

(i) YOUNG SHALL GROW MOTORS v. OKONKWO & ANOR (Pt. 794) PAGE 536 AND

(ii) OBASI BROTHERS v. MERCHANT BANK OF AFRICA SECURITIES LTD (2005) 9 NWLR (PART 929) PAGE 117, THE TWO JUDICIAL AUTHORITIES CITED IN THE RULING OF THE COURT BELOW.

(3) WHETHER THE LEARNED TRIAL JUDGE AGAINST THE BACKDROP OF THE STATEMENT EXTANT ON THE RECORD AT PAGE 146 LINES 7 – 8, 14 AND 19 TO 23, DID NOT ERR IN LAW AND THEREBY DECLINED JURISDICTION TO HEAR AND DETERMINE THIS SUIT ON THE MERITS.

The Respondents had proffered one sore issue for determination and that is

“WHETHER THE ORDER OF COURT DISMISSING THE CASE OF THE CLAIMANT WAS NOT THE MOST APPROPRIATE AND CONVENIENT ORDER TO MAKE IN THE CIRCUMSTANCES OF THE CASE”

ISSUE NO 1

It is the contention of the Appellant that the learned trial Judge did not consider and evaluate the Appellant’s motion on notice for discontinuance dated 15th September 2010. He further contends that the learned trial Court did not consider the reasons proffered for the withdrawal of the suit. That the learned trial Judge made no reference to the contents of the Appellant’s affidavit in support of the application, with the attached documents marked as Exhibit 1, the Appellant’s written submission and the reply on points of law – referring to EKUDANO v. KEREGBE (2009) 4 NWLR (Pt. 1077) 422 @ 433-434.

He submits that the Appellant’s application for the withdrawal of this suit was predicated upon the statement made by the learned trial Judge in the course of trial – refers to paragraph 3(c) and (d) of the Appellant’s affidavit in support of the application to discontinue proceedings in this suit, dated 17th September 2010 – pages 109 – 110 of the Record of Appeal.

He submits that the affidavit in support of the Appellant’s application to withdrawal this suit, and the fact deposed to therein were neither denied nor controverted by the Respondents.

The Respondents sole issue is whether the Order of Court dismissing the case of the Claimant was not the most appropriate and convenient order to make in the circumstances of the case. He argues that in the determination of whether or not to strike out a suit or dismiss same upon an application by the Plaintiff, particularly at the stage where evidence had been led in the matter, the Court concerned is being called upon to exercise its discretion one way or the other, based on the facts and circumstances of the case. That the Court has to examine the reason offered by the Plaintiff for the withdrawal or discontinuance of the suit – EKUDANO v. KEREGBE (2008) 4 NWLR (pt. 1077) pg.422 @ 439-434.

The Appellant in his brief of argument at page 3 seems to have agreed with the proposition that the trial Court had an obligation to consider the application to determine the reasons offered by the Applicant for the withdrawal of the suit. And that it is upon consideration of the reason for the withdrawal that the trial Court can correctly arrive at the proper order to make.

The Appellant submits that the learned trial Judge did not however consider and evaluate the Appellant’s Motion on Notice for discontinuance dated 15th September 2010, against the backdrop of the Respondents’ written submission dated 21st September 2010.

It is necessary to take a look at the circumstances leading to the dismissal of the suit by the learned trial Judge. This can be aptly gleaned from the Record of Appeal.

At page 108 of the Record of Appeal is the Appellant’s Application for leave to discontinue proceedings in this suit, predicated upon the statement of the trial Court. It is dated 15th September 2010.

To this application, the 1st and 2nd Respondents filed written submission – pages 123-126 of the Record of Appeal. The Appellant filed a reply on point of law dated 24th September 2010 – pages 127 to 131 of the Record of Appeal.

On the 30th of September 2010, the trial Court dismissed the suit.

It would be necessary to look at the affidavit in support of the motion to discontinue proceedings in this suit – particularly paragraphs 3 (a) (b) (c) (d) 4 and 5 thereof. I shall reproduce same verbatim.

Paragraph 3: That I was informed by the Claimant/Applicant whom I verily believe to be true and correct as follows:

(a) That the Claimant applicant’s solicitors wrote a letter of complaint dated 28 September 2009, to the Securities and Exchange Commission against the criminal, fraudulent and unethical conduct of the 1st and 2nd Defendant Respondent, the content of which letter is the subject matter of this suit.

(b) That the Security and Exchange Commission informed the Claimant/Applicant vide a letter dated 29, December, 2009 (to which was attached a letter addressed to it by the 2nd Defendant Respondent dated 25 November, 2009) that in view of the instant suit before this Honourable Court, it will be subjudice for it to act on the Claimant/Applicant’s complaint. A copy of the letter dated 29th December, 2009 together with the attachment dated 25th November, 2009 is herein attached and marked Exhibit 1.

(c) That the Claimant/Applicant s counsel had informed the Claimant/Applicant that the latter’s claims are of such a complex and technical nature that it requires the expertise and professional input of the Securities and Exchange Commission, for purposes of conduct of inquiry and audit of the 1st and 2nd Defendant/Respondents books pertaining to the Margin Facility, with a view to determining and/or resolving issues in contention as between the parties.

(d) That the Claimant/Applicant’s counsel for the reasons stated in paragraph 3(c) above had formed the opinion that it will be in the interest of the Claimant/Applicant to discontinue proceedings I this suit.

(4) That it will he in the overall interest of justice to consider and grant this application.

(5) That the Respondent’s will not be prejudice if this application is granted.

Order 23 Rule 3 of the High Court of Lagos State (Civil Procedure) Rules 2004 stipulates that

“Where a defence has been fired the Claimant may, with the leave of a Judge, discontinue the proceedings or any part thereof on such terms and conditions as the Judge may order”

At the proceedings of the Court on the 3rd of July 2009, the Court proposed reference of the suit to Multidoor Court H.S.C while G. Ibekwe Esq. for the Defendant did not oppose this proposal C. I. Nwanguma Esq. for the Claimant told court that they wish to consult their clients – page 132 of the Record of Appeal.

The Ruling of the lower court spans only two pages – 183-184 of the Record of Appeal. I shall reproduce some portions of this Ruling.

“…. The contention of the Defendant, in brief, as submitted in his Written Submission is that the case be dismissed, and not struck out, the claimant having closed his case, for Defence to open.

The claimant in his Reply contends however that the proper order to make is one striking out the proceedings.

On the authority of Young Shall Grow Motors v. Okonkwo (2002) 16 NWLR Part 794 page 536, where issues have been joined and the case is set down for hearing and a party discontinues, the order is one of dismissal and operates as a bar to fresh action on the some subject matter.

The Supreme Court in the case of Obasi Brothers v. Merchant Bank of Africa Securities Ltd (2005) 9 NWLR Part 929 page 117 held that where a Claimant has commenced giving evidence and seeks to discontinue, the Court should dismiss the case.

In the present case, the Claimant has concluded his case. The case was adjourned to today for Defence. Thus not only have issues been joined, the case of the claimant, following his cross Examination, has been closed. The proper order to make, in the circumstances, is one of dismissal of the case…..”

In an application to discontinue made after the date fixed for hearing of the case, decidedly the Plaintiff may discontinue only with the leave of the Court and subject to conditions that may be imposed by the Court. In granting the request, the trial Judge may order that the case be struck out or make an order for outright dismissal of the suit. Whichever order the Court will make will depend on all the circumstances of the case and an appellate Court will not ordinarily tamper with the trial Courts’ decision of such judicial discretion – EKUDANO v. KEREGBE (2008) 4 NWLR (pt. 1077) 422 @ 433-434.

It is my view that the fulcrum of this matter is what order a Court ought to make, faced with an application for leave to discontinue a suit where parties have issues, and indeed where the defence has been filed.

The Respondents at page 7 of 10 paragraph 3:07 of his Brief of Argument had argued that it was not because the Appellant wanted to pursue its case at the Securities and Exchange Commission, that was the reason for applying to discontinue the suit at that point in time. If that was the case, the response of the Securities and Exchange Commission came months before trial the Claimant would have righty applied to discontinue the suit before trial.

He refers to the affidavit evidence of the Claimant viz:

(i) The Claimants Solicitors letter to the Securities and Exchange Commission against the 2nd Defendant was made on the 28th of September 2009.

(ii) The response by the Securities and Exchange Commission to Claimant that it will not be able to act on the petition because the issue raised in the petition is subjudiced was made by a letter of 29th December 2009.

(iii) Trial in the suit commenced at the trial Court on the 9th of June 2010, more than 6 months since the response from Securities and Exchange Commission.

He submits that the Claimant who had the benefit of the letter from Securities and Exchange Commission in December 2009, but who decided to proceed to trial in June 2010 and after close of his case, and the matter adjourned for the defence to open their case in September 2010, then brought an application to discontinue, can only do so because he had perceived the obvious lack of merit in his case and accepted defeat.

Perhaps it is pertinent to find out what operated on the mind of the learned trial Judge in terms of surrounding circumstances that made him exercise his discretion the way he did, in considering the application to discontinue the suit.

First and foremost, I am of the view of the fact that the learned trial Judge proposed reference of the suit to a Multi-door court H.S.C.

The learned trial Judge cited Supreme Court cases where the proper order to make in the circumstances before him was that of dismissal.

This brings to focus the issue of the “DISCRETION” of a court of competent jurisdiction.

The provisions of the Lagos State High Court (Civil Procedure) Rules 2004 – Order 23 Rule 3, enables the learned trial Judge to exercise his discretion to dismiss the suit as he did, having been seised of the surrounding circumstances.

The parties having filed and exchanged pleadings, the decision of the Claimant to ventilate his grievances at the Securities and Exchange Commission is without doubt a good one, but it will amount to forum shopping, if he is given the liberty to come back to the courts for trial in the event of failure at the commission which they chose.

If the learned trial Court had indicated and or suggested as it did, that the parties approach the Multi-door Court house, this does not mean that the suit be left hanging indefinitely, or allow the Claimant (Appellant) to engage in forum shopping.

Where a matter has started by way of commencement of hearing in a Court of Law, the proper order to make, upon an applicantion for discontinuance of the suit is that of dismissal and the learned trial court was right to have dismissed the suit as he did.

This issue is resolved in favour of the Respondent and against the Appellant.

A consideration of Issue No. 2 would amount to a repetition of facts addressed in Issue No. 1. That issue has been subsumed in Issue No. 1 and the answer to it is that addressed in my consideration of Issue No. 1.

The learned trial Judge was right to have dismissed this suit by placing reliance on the litis contestatio principle enunciated in the case of ERONINI v. IHEUKO (1989) 2 NWLR (Pt. 101) 46 referred to in YOUNG SHALL GROW MOTORS v. OKONKWO & ANOR (pt. 794) page 536 and OBASI BROTHERS v. MERCHANT BANK OF AFRICA SECURITIES LTD (2005) 9 NWLR (Part 929) pg. 117.

This issue is resolved in favour of the Respondent and against the Appellant.

On Issue No. 3 – At page 146 of the Record of Appeal, lines 14 and 19-23, the learned trial Judge observed

Line 14 “COURT: Defendant has you tried to approach the multi door Court house?

Lines 19-23 “COURT: Because I am looking at the claim and I am wondering that is this not a claim that is better handled there? Number one it is faster and then you will have experts who will sit to consider the claims of both parties, because you are talking about margin facilities for shares and you are condescending on all kind of particulars, and I wonder if it is not better forum to see what can be done.”

This observation by the learned trial Judge, in my view, is without prejudice to any discretion he was poised to exercising, in the event of an application such as one for discontinuance of the suit. After all, it is the Appellant who sought that prayer to discontinue the suit. The learned trial Judge had a discretion in the matter, in considering the application, armed with the surrounding circumstances of the case, and indeed the provisions of Order 23 Rule 3 of the Lagos State High Court (Civil Procedure) Rules 2004 which enables him to wield the discretion it possessed.

In his reply brief filed on the 26th of November 2012, the Appellant submits that the inference deducible from the comment of the trial court is that the trial Court, as against the Multi Door Court House is not a better forum where Appellant’s suit would be heard and determined.

But, with respect, as at the time of the application for discontinuance of the suit, the Appellant had concluded his case as Claimant in the lower court, and the matter was adjourned for defence. Evidence had been adduced and about thirty documents tendered.

This alone is enough to make the learned trial court to DISMISS the case as it did. After all the quarrel of the Appellant is which order the Court ought to have made – STRIKING OUT ORDER OR THAT OF DISMISSAL.

I am of the view that the order of dismissal which he made was apt, and proper in the circumstances of the case.

The statements made by the learned trial Judge does not amount to him declining jurisdiction to entertain the suit. What the learned trial Judge did was to grant a prayer before the Court. And the order for dismissal was the correct one to make in an application to discontinue the suit.

The answer to Issue No. 3 is resolved in favour of the Respondent and against the Appellant.

The appeal is devoid of merit and same is hereby dismissed.

The Ruling of O. A. Adefope-Okojie J. of the High Court of Lagos State delivered on the 30th day of September 2010 in Suit No. LD/1201/2008 is hereby affirmed.

No order as to costs.

AMINA ADAMU AUGIE, J.C.A.: I have read in draft the lead Judgment just delivered by my learned brother, Pemu, J.C.A. and I agree with him that the appeal lacks merit. It is well settled that the dismissal of a suit in law puts an end to such suit; while a case that is struck out, is a temporal end to the suit due to some technicality or procedural defect – see Eleburuike v. Tawa (2010) LPELR-4098 (CA) and Onyekaonwu v. Udegbunam (2009) LPELR-8344CA where this Court per Sanusi, JCA, stated –

“An order striking out a matter clearly gives the parties the right to re-litigate the matter as such matter has not been properly determined on the merit – – On the other hand, dismissal of a case by a Court has a very serious consequence in that where a case/matter is dismissed by a Court, the party whose case is dismissed has no right to re-litigate on the same matter again”.

In this case, the issue is whether the lower Court was right to dismiss the Appellant’s suit at the point where the Respondents were to enter a defence, and this, after the Appellant had applied for leave to discontinue proceedings. My learned brother, Pemu, JCA, has said it all; and I agree with him that in the circumstances of this case, the lower Court was right to conclude as follows –

“- – The Claimant [Appellant] has concluded his case. The case was adjourned to today for defence. Thus, not only have issues been joined, the case of the Claimant, following his cross-examination, has been closed. The proper order to make, in the circumstances, is one of dismissal of the case”.

In other words, it was much too late in the day to merely strike out the matter. Besides, this court cannot question the lower’s court discretion to dismiss the suit in the light of the proceedings before it. Thus, I also dismiss the appeal, and I abide by the consequential orders in the lead Judgment including no cost.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have had the opportunity of reading before now the judgment just delivered by my learned brother Rita Nosakhare Pemu, JCA and I am also of the view that the appeal lacks merit and should fail. My learned brother covered the field in his reasoning and conclusion and I have nothing useful to add than to say that the appeal should be and is hereby dismissed. The Ruling of the lower court delivered on 30-09-10 is hereby affirmed.

I also abide by the consequential orders made in the lead judgment including that of costs.

Appearances

C. I. Nwanguma Esq.For Appellant

AND

Chief Wale Taiwo Esq.,

George Ibekwe Esq., with

B. O. Shittu Esq.For Respondent