STERLING BANK PLC v. P.A OYOYO
(2016)LCN/8599(CA)
In The Court of Appeal of Nigeria
On Friday, the 13th day of May, 2016
CA/K/358/2013
RATIO
INTERPRETATION: INTERPRETATION OF ORDER 5 RULE 1(5)
Order 5 R. 1(5) provides as follows:
Where a petitioner has been previously married, his petition shall state-
- a) The date of the previous marriage or of each previous marriage, as the case may be
- b) The means by which the previous marriage or each previous marriage was dissolved; and
- c) lf a previous marriage was dissolved by a Court, the name of the Court by which, and the date on which, the marriage was dissolved.
There is no doubt that the rule stipulates by the use of the word ‘shall that the requirements to state those particulars are mandatory. The principle governing the use of the word “shall” in a legislative sentence is that it is generally imperative or mandatory and in its ordinary meaning “shall” is a word of command which is given the ordinarily compulsory because it denotes compulsion to do the act. It is legally mandatory. See Amokeodo v IGP (1999) 6 NWLR Pt. 607 Pg. 467; Amaechi v INEC (2008) 5 NWLR pt. 1080 Pg.227. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
PROCEDURE: RULES OF COURT; EFFECT OF NON-COMPLIANCE WITH THE RULES OF COURT
In the case of Nzekwe v Anakwegbu (2011) 16 NWLR pt.1274 pg. 435 the Court herd thus:
“It is not in every non-compliance with the provisions of the Rules of Court that would nullify or render a proceeding void. Under certain circumstances non-complaince or failure to do certain things required to be done by rules of Court may be treated as mere irregularity curable if it is trivial, insignificant or merely affecting the periphery of the litigation. In such circumstance, the Court will readily award costs to cure the unintentional, unorganized and unpremeditated blunders. However, the Court may consider that non-compliance has invalidated proceedings where the party in breach fails to advance reasons for such non-compliance or to present sufficient materials upon which the Court could exercise its discretion.” PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
MATRIMONIAL CAUSES: EFFECT OF NON-COMPLIANCE WITH RULES BINDING PROCEEDINGS
Matrimonial Causes are special causes with its own special rules promulgated to enhance fair dispensation of justice in that cause of action. The rules binding proceedings therein must be obeyed.
In Raymond S. Dongtoe v. Civil Service Commission Plateau State (2001) 4 SC (Part II) 43, the Supreme Court per Karibi-Whyte JSC (as he then was) held thus;
“It is a well settled principle that where a special procedure is prescribed for the enforcement of a particular right or remedy, non compliance with or departure from such a procedure is fatal to the enforcement of the remedy.”
“The law is trite, that where the law provides a mode or a time for commencement of an action there must be strict compliance with such law or statutory requirement. None compliance by a claimant who might have a cause of action, loses the right to enforce it by judicial process. see also Eboigbe v. NNPC (1994) 5 NWLR Pt. 347, pg. 649; Oke v. Nwaogbunya (2001) 1 SC Pt.1 pg.22. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria
Between
STERLING BANK PLC Appellant(s)
AND
P.A OYOYO Respondent(s)
ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment): The Respondent was the plaintiff in suit No. K/324/2011 at the High Court of Kano State holden at Kano. The action was commenced through the writ of summons dated 12th June, 2011 as well as the statement of claim of the same date. The Respondent had claimed against the Appellant being the defendant as follows in the statement of claim.
1. The sum of N13,500,000.00 (Thirteen Million five hundred thousand Naira only) being 5 professional fees of the sum of N 270,000,000.00 (Two Hundred and seventy Million Naira only) being the consideration plaintiff sold the defendants property to Sani Brothers Ltd.
2. The sum of N5,000,000.00 (Five Million Naira only) being general damages for the series of inconveniences, negotiations, expenses incurred by the plaintiff occasioned by the defendant in pursuance of this claim and for breach of contract.
3. Interest on the sums afore mentioned at Court rate interest at 110 from the judgment date till the judgment debt is fully liquidated.
4. The sum of N500,000.00 (Five Hundred thousand Naira only) being plaintiff solicitor’s professional fees for
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prosecuting this action.
The plaintiff a Legal Practitioner practicing under the name and style of P.K, OYOYO Co. had instituted the action against the defendant a banking concern that carries on the business of banking in Nigeria. The plaintiffs case is that his law firm, P.A. OYOYO & Co. was appointed as external solicitor to the defendant, and in January 2009, the defendant briefed him to find buyers for its property at Tafawa Balewa Road, Kano popularly called NMI property and covered by Certificate of Occupancy No. LKN/COM/82/443. He eventually sold the property to Sani Brothers Ltd. that paid the amount of N270,000,000.00 as agreed by the defendant, but the defendant refused to honour his bill for the agreed professional fees of 5%. The plaintiff said he was initially persuaded by the defendant?s officers to drop the bill upon promise to compensate him with other work under the retainership arrangement. However when the defendant refused to honour that promise he represented the bill which the defendant failed to pay, hence this action.
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Upon the motion of the plaintiff for leave to serve the Originating Process on the defendant
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out of jurisdiction, the trial Court so ordered and processes were duly served. The case came up in Court on 17/11/11 when it was adjourned to 6/12/11 and further to 11/1/12 for mention and eventually came up for hearing 2/9/12 at which proceedings the parties were represented by their respective Counsel but was adjourned at the instance of the learned defence Counsel because he was making moves to settle the matter. The hearing of the case eventually took off on 23/10/12 in the presence of the plaintiff and his Counsel while Mr. Mukhtar Musa was the defence Counsel. Although the learned defence Counsel, Mr. Mukhtar cross examined the plaintiff, Mr. P.A. OYOYO who testified as PWl, there was no statement of defence filed. The plaintiff closed his case with evidence of the sole witness and the case was adjourned to 31/12/12 for judgment obviously without taking or calling for addresses of Counsel to the parties.
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In the judgment delivered on 31/12/12, the learned trial judge entered judgment in favour of the plaintiff and ordered the defendant to pay N13,500,000.00 to the plaintiff being the 5% professional fees of the sum of N270,000,000.00, and
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N5,000.000.00 general damages for the inconveniences negotiations, letter issued to the defendant in respect of the negotiation, expenses and losses incurred by the plaintiff, as well as 10% Court interest on the sums awarded from the date of judgment until full payment of the entire judgment sum.
Meanwhile the defendant had filed a motion on 24/12/12 for enlargement of time to file and serve statement of defence, the learned trial Judge heard the motion and in the ruling delivered on same 31/12/12, the motion was dismissed.
Against the judgment of the trial Court delivered on 31/12/12, the defendant (hereinafter called the appellant) gave notice of appeal dated 2nd January 2013 with two grounds of appeal as a mark of dissatisfaction with the judgment. Additional grounds of appeal were subsequently filed with the leave of this Court to amend the Notice of appeal. By the Amended Notice of appeal filed on 27/3/14, the Appellant has now filed five grounds of appeal and has distilled four issues from these five grounds of appeal as set out in the Appellant’s Brief of Argument prepared by Victor O. Odjemu of Counsel and filed on 3/4/14.
1. Whether in
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the circumstances of the case the trial Court ought to have allowed the Appellant to file its statement of defence out of time
2. Whether the non-adjournment of the suit for final addresses of counsel occasioned a miscarriage of justice, against the appellant.
3. Whether Exhibit 17A and other legally inadmissible evidence by virtue of Section 83 (3) of the Evidence Act 2011 ought to be expunged and discountenanced by this Honourable Court.
4. Whether from the facts of this case the Respondent was entitled to general damages.
The Respondent’s Brief of Argument was prepared by M.N. Duru Esq. and filed on 27/11/14 but deemed properly filed on 2/12/14. The Respondent reframed the issues formulated by the Appellant’s Counsel and set the issues as follows:-
1. Whether from the facts and circumstances of this matter, the learned trial judge rightly exercised his discretion by refusing to grant the Appellant’s application to file its statement of defence out of time.
2. Whether or not in the circumstances of this matter and in particular the provisions of Kano State High Court ought (Civil Procedure) Rules 1988 the Court ought to
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have adjourned the matter for address.
3. Whether Exhibit 17A and other Exhibits were legally inadmissible, and if the answer is yes, whether same ought to be expunged by the Court.
I have examined the issues formulated by the parties and I am of the humble view that this appeal will effectively be determined on the basis of the three issues distilled by the Respondent and I adopt these issues for the consideration and determination of the appeal.
On the first issue which is whether the learned trial judge rightly exercised his discretion by refusing to grant the appellant’s application to file its statement out of time in the circumstances of the case, the learned counsel for the appellant contended that appellant filed a motion on notice seeking enlargement of time to file its statement of defence out of time giving as reason for the delay the fact that the appellant’s Counsel was exploring out of Court settlement of the suit and the delay in filing the defence was due to negligence of Counsel. It was submitted that since there was no counter affidavit from the opposite party, the trial Court ought to have taken that fact as established and to
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have acted on it; A.G. Nassarawa State V. A.G. Plateau State (2012) 10 NWLR (Pt. 1309) 419.
The learned Counsel submitted further that where the delay in complying with the Rules of Court such as filing a statement of defence within time is due to the mistake, inadvertence, negligence or misapprehension of Counsel, the Court ought to exercise its discretion in favour of granting extension of time for compliance so that the case can be determined on the merit; Doherty V. Doherty (1964) 1 ALL NLR 292- 294; Akinyede V. The Appraiser (1971) 1 ALL NLR 164; Ibodo V. Enarofia (1980) 5-7 SC 42; S.B.N. Plc V. Abdulkadir (1996) 4 NWLR (Pt. 443) 460.
It was contended that the learned trial judge did not take the relevant fact into account while the Court also acted upon wrong principle by regarding the application for extension of time as one to arrest judgment. The learned Counsel submitted that the appellate Court ought to interfere with excuse of discretion by the trial Court where that trial Court acted upon wrong principle or mistake of Law or failed to take relevant matters into account thereby occasioning a miscarriage of justice; Adejumo V. Ayantegbe
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(1989) 3 NWLR (Pt. 110) 417.
The learned Counsel for the respondent contended that the trial Court was right in exercising its discretion to refuse the application after the Court had taken cognisance of the facts particularly that the appellant had more than ample opportunity to file its statement of defence but neglected to do so and the learned Counsel for the defence was in Court when the matter was set for hearing and actually participated at the trial by cross examining the respondent’s witness. It was submitted that once the lower Court has exercised its discretion in accordance with the Law, the appellate Court should not disturb the decision merely because it would have exercised the discretion differently.
The learned counsel submitted that the Court will not interfere with discretion that has been judicially and judiciously guided by Law; Oyengun V. Nzeribe (2010) All FWLR (Pt. 516) 425; New Swatch Comm. V. Alta (2006) AII FWLR (Pt. 318) 580; Gambari V. Buhari (2009) All FWLR (Pt. 479) 458; Haruna V. Ladeinde (1987) 4 NWLR (Pt. 67) 941.
It was contended that the fact that the Appellant was exploring out of Court settlement did not
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prevent it from filing a defence within a period of one year after filing the memorandum of appearance as equity aids the vigilant and not the indolent; CPC v. INEC (2012) ALL FWLR (Pt. 617) 505.
It has been mutually acknowledged by both parties that the application for enlargement of time to file statement of defence placed before the trial Court by the appellant called for exercise of judicial discretion by the learned trial judge. It is now well settled that for judicial discretion to be properly exercised, such discretion must have been exercised judicially and judiciously. See Eronini V. Iheuko (1989) 2 SC (Pt. 1) 30; Williams V. Williams (1987) All NLR 253, (1987) 4; SC 23. It is the law that judicial discretion must be exercised in accordance with common sense and in line with the dictate of justice, and the Court exercising judicial discretion must do so in accordance with relevant rules of law and practice and not according to sentiment or caprices. The discretion must be founded upon the consideration of the facts and circumstances of the particular case. See Odutola V. Kayode (1994) 2 NWLR (Pt. 324) 1; Oyeyemi V. Irewole Local Government,
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(1993) 1 NWLR (Pt. 270) 462; Ebe V. Commissioner of Police (2008) 1 SC (Pt. 11) 222.
The proper approach of Court in the consideration of an application for enlargement of time prescribed by the rules of Court to perform an act has been stated by the Supreme Court in Akinpelu V. Adegbore (2008) ALL FWLR (Pt. 429) 413 at 444 per Tabai JSC that; “All I need say here if only for the purpose of expanding the principles of Law guiding the grant or refusal of this type of application is that when a Court is invited to make an order extending the time within which to do certain things such as extending the time prescribed by the rules of Court for taking certain procedural steps, the Court must always bear in mind that the rules of Court must prima facie be obeyed. Thus to justify the Court exercising its discretion in extending the time which is prescribed by the rules of Court to do certain procedural act, there ought to be materials, call same deposition, in the supporting affidavit explaining the delay in taking timeously such procedural steps.”
The Appellant’s motion and the supporting affidavit filed on 24/12/12 are on pages 13 – 16 of the record of
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appeal. It is for enlargement of time to file and serve the statement of defence, and the witness statement on Oath and all other processes annexed to the affidavit as well as for order deeming these Court processes already filed as properly filed.
In Paragraph 4 of the affidavit in support of the motion on notice, it was deposed by one Edith Alabi, female as follows:-
?4. That I was informed by Mukhtar Musa Esq, the Counsel now handling this case on behalf of the Applicant on 5th December, 2013 in our office at about 12:30pm of the following facts which I verily believe to be true and correct as follows:-
(a) That the parties were trying to settle the matter out of Court.
(b) That we as fellow Legal Practitioner and as Counsel to the defendant tried to see that the matter is amicably settle (sic) out of Court.
(c) That the delay occasioned by the exploration of the settlement option made us to be out of the time allowed by the rules of this Honourable Court to file our statement of defence and the other processes,
(d) That there is need to file this application so as to seek an extension of time within which to file our
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processes,
(e) That the statement of defence written statement on Oath, List of Witnesses, List of Documents and the Documents to be relied on are now ready and have been shown to me and are annexed hereto and collectively marked as Exhibit A,
5. That the failure to file the above stated statement of defence and the other processes within the stipulated time was not out of disrespect for the Honourable Court but due to the depositions herein contained.”
It is noted that the Respondent did not file any counter affidavit to challenge the depositions in the affidavit of the Appellant or to controvert the facts in any manner whatsoever. The law is settled that affidavit evidence that is neither denied nor challenged is good evidence which the Court ought to rely upon. See R.T.A. & ORS. V. M.H.W.U.N. & ORS (2008) 1 SC (Pt. 11) 1; UBA LTD. V. ACHORU (1990) 6 NWLR (Pt. 156) 254; BADEJO V. FED. MIN. OF EDUCATION (1996) 8 NWLR (Pt. 464) 15.
Although it is clear that the fact that the parties were engaged in the process of settlement out of Court should not prevent the Appellant from filing a statement of defence, it is however clear from the
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depositions stated above that the Appellant did not in any way contribute to, or was instrumental to the failure of the learned Counsel to file the statement of defence. It is therefore obvious that the failure to file the defence within time was occasioned by the error, mistake or omission of the learned Counsel and the law is settled that the error, sin, mistake, omission or inadvertence of a Counsel is not visited on the litigant. In AKINPELU V. ADEGBORE (Supra) at page 433, Tobi JSC stated that; “Mistake of Counsel qualifies as a special circumstance. In other words, the Court would readily exercise its discretion to extend the period prescribed for doing an act if it is shown to the satisfaction of the Court that the failure by a party to do the act within the period prescribed was caused by the negligence or inadvertence of his Counsel; DOHERTY V. DOHERTY (1964) 7 ALL NLR 299; AHMEDU V. SALAWU (1974) 77 SC 43; BOWAJE V. ADEDIWURA (1976) 6 SC 743”, Also at page 435, the same learned justice of Supreme Court said; “It is the law that mistakes of Counsel cannot be visited on his client, The client is a novice in law. Counsel is the expert and the only duty of
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the client is making available to Counsel the evidence and the payment of the professional fees. Once he does that he cannot be made responsible for any mistake in law.”
In refusing the application, the learned trial judge described it as an application to arrest judgment and treated it as such holding that the rules of the Court do not provide for an application to arrest judgment. However it is abundantly and unequivocally clear that what the (applicant) Appellant sought was the order extending time to file statement of defence and order deeming the defence and other processes as properly filed which application is cognisable under the provisions of the High Court Civil Procedure Rules of Kano State. It is not in doubt that the application for extension of time was not considered and determined on its own merit, or in line with the dictates of law.
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The law is that ordinarily the appellate Court does not make a practice of interfering with the discretion exercised by the trial Court where such discretion has been exercised according to law or judicially and judiciously. Where however it has been established that the exercise of its discretion by the
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trial Court has been premised upon wrong principle or mistake of law or a misapprehension of the facts or took irrelevant matters into consideration or excluded relevant matters, and thereby occasioned a miscarriage of justice, the appellate Court will interfere to correct the error in the interest of justice. See OGOLO V. OGOLO (2006) ALL FWLR (Pt. 313) 1; UNIVERSITY OF LAGOS V. AIGORO (1985) 1 SC 265; ONONUJU V. ONONUJU (1991) 5 NWLR (Pt. 192) 479.
The learned trial judge refused the Appellant’s application and proceeded to judgment after hearing only one side of the case and in breach of the hallowed principle of fair hearing especially the audi alteram partem rule which requires that the other party be heard. This denial of right of fair hearing to the Appellant consequent upon refusal to grant the application occasioned a miscarriage of justice. See UGHELLI SOUTH LOCAL GOVERNMENT COUNCIL V. EDOJAKWA (2006) ALL FWLR (Pt. 308) 1301. In ALSTHOM S.A. V. SARAKI (2005) ALL FWLR (Pt. 246) 1385, it was held that the principle of fair hearing is fundamental to all Court procedure and proceedings and its absence vitiates proceedings no matter how well
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conducted. A trial that accords with fair hearing is one in which both parties had the opportunity of ventilating their grievances in the Court.
It is my candid view based on the foregoing that the trial Court wrongly exercised its discretion in the circumstances of this case and a miscarriage of justice was thus occasioned to the Appellant which calls for interference by this Court. Consequently I resolve this issue in favour of the Appellant. The appeal therefore succeeds on this issue and it is allowed since the judgment of the trial Court has been rendered a nullity by failure to comply with the fundamental rule of fair hearing and I so hold. The judgment of the High Court of Kano State delivered on 31st December, 2012 by Hon. Justice A.M. Bayero in suit No. K/324/2011 is accordingly set aside.
In the light of the order I am bound to make in the circumstances, I find it unnecessary to consider the other issues raised in this appeal which are issues that touch on the trial of the action. Based on the foregoing the application of the Appellant before the trial Court succeeds and the suit No. K/324/2011 that led to this appeal is remitted to the
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Chief Judge of Kano State to be assigned to a judge of the High Court of Kano State (apart from Hon. Justice A.M. Bayero) for fresh trial on the merit.
I order that parties are to bear their costs of the appeal.
UWANI MUSA ABBA AJI, J.C.A.: I had a preview of the judgment of my learned brother, I.O. Akeju, JCA just delivered.
I completely agree with my learned brother that the failure to file a defence which was occasioned by the error or omission of learned counsel cannot be visited on the Appellant. It is now trite that any error, sin, mistake, Omission or inadvertence of counsel cannot be visited on the litigant. see Akinpelu vs. Adegbore (2008) All FWLR (Pt. 429) 413; Ahmedu vs. Salawu (1974) 11 sc 431 and Bowaje vs. Adediwura (1976) 6 SC 143.
The failure of the trial Court therefore to allow the defence to file a defence also amounts to a denial of the Appellant’s fundamental right to fair hearing as enshrined under the Constitution of the Federal Republic of Nigeria 1999 (as amended).
?I therefore agree with my learned brother that the appeal ought to be allowed and it is for the reasons adumbrated in the lead judgment of
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my learned brother that I too allow this appeal. Consequently, the judgment of the High Court Kano State in Suit No. K/324/2011 delivered on the 31/12/12 is hereby set aside. The Suit is thus remitted to the Chief Judge of Kano State for trial on the merit by a judge of the Court other than Hon. Justice A.M. Bayero.
I abide by order as to costs.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I am in agreement with the decision of my learned brother, Isaiah Olufemi Akeju JCA, on the success of this appeal.
While I readily admit the frustrations encountered by trial judges faced with the antics of Counsel who deliberately delay and stultify trials, the lower Court, I agree, should have exercised its discretion in favour of the Appellant by granting the application for enlargement of time to file its Statement of Defence. lt could then have proceeded to award punitive costs against the Appellant for filing the application at so late a stage.
The attitude of the Courts is, to as much as lies within its power, to hear the case of the parties on the merits, in order to arrive at the justice of the matter. See United Spinners Ltd. V. Chartered Bank
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Ltd. (2001) 14 NWLR Part 732 P. 195 at 216 Para A per Onu JSC; Wakwah v Ossai (2002) 2 NWLR Part 732 P. 545 at 562 Para F-G per Akpiroroh JCA.
I also allow this appeal and set aside the judgment of the lower Court delivered on 31st December, 2012 by Hon. Justice A.M. Bayero of the Kano State High Court.
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I agree with the consequential orders and the costs awarded by my learned brother.
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Appearances
Victor O. Odjemu, Esq.For Appellant
AND
M.N. Duru, Esq.For Respondent
