UBA PLC v. AKPAN & ANOR
(2021)LCN/15688(CA)
In the Court of Appeal
(CALABAR JUDICIAL DIVISION)
On Thursday, May 06, 2021
CA/C/407/2018
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
James Shehu Abiriyi Justice of the Court of Appeal
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Between
UNITED BANK FOR AFRICA APPELANT(S)
And
1. SUNDAY UDO AKPAN 2. SUNDUBROUS INVESTMENT LIMITED RESPONDENT(S)
RATIO
THE CONDITION PRECEDENT FOR A COURT TO HAVE JURISDICTION OVER A MATTER
In deciding Issue 1, it must be realized that the point of a judgment being delivered by a Judge who did not hear evidence does not only border on jurisdiction, but also on the constitutional requirement of fair hearing. It borders on jurisdiction because it fails to fulfil the conditions laid down in the case of MADUKOLU v. NKEMDILIM (1962) ALL NLR 581 for the assumption or retention of jurisdiction to adjudicate. Recall, that Bairamain F. J. in MADUKOLU v. NKEMDILIM’s case (supra) emphasized that a Court is competent when:
1. It is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or another; and
2. The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
3. The case comes before the Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.
The above immutable exposition by Bairamain F. J may indeed be followed up by another look at our constitutional provisions. Section 272 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides generally for the jurisdiction of the High Court of a State.
In Section 273, the Constitution of the Federal Republic of Nigeria 1999 declares:
For the purpose of exercising any jurisdiction conferred upon it under the Constitution or any law, a High Court of a State shall be duly constituted if it consists of at least one Judge of that Court.
This provision would allow State legislation to constitute a High Court with two or even more Judges to sit but it did not provide for a situation where one Judge would start a case and another would be constituted to conclude the case. PER OWOADE,J.C.A.
WHETHER OR NOT A COURT CAN WRITE A JUDGEMENT BASED ON THE EVIDENCE RECORDED BY ANOTHER JUDGE
It is palpably wrong to write a judgment based on the evidence recorded by another Judge. A trial is a judicial examination of evidence according to the law of the land, given before the Court after hearing parties and their witnesses. A trial must be conducted by the Judge himself and at the end of the hearing, he will write the judgment which is the authentic decision based on the evidence received and recorded. It is a mistrial for one Judge to receive evidence and another Judge to write judgment on it.
The Supreme Court re-emphasized the above position of the law in the case of SOKOTO STATE GOVERNMENT OF NIGERIA & ORS. v. KAMDEX (NIG.) LTD. (2007) LPELR – 3093 SC per Mohammed, J.S.C. (pp. 14 – 16) as follows:
The status of a judgment given by a Court improperly constituted in the sense that the Court was differently constituted during the hearing of the case, had been determined in many decisions of superior Courts including this Court and the West Africa Court of Appeal. In ADEIGBE & ANOR. VS. KUSIMO & ORS. (1965) 1 All NLR (Reprint) 260 at 263. Ademola CJN (of blessed memory) had this to say on the subject:- “We are in no doubt about the correctness of what the learned appeal Judge said in his judgment that there are abundant decisions in the High Court and the West Africa Court of Appeal on the point that where a Court is differently constituted during the hearing of a case, or on various occasions when it met, or where one member did not hear the whole evidence, the effect on the proceedings is to render them null and void. The learned Judge obviously had in mind, among others, the following cases EGBA N. A. v. ADEYANJU (1936) 13 NLR 77; TAWIAH III v. EWUDZI 3 WACA 52; OTWIWA v. KWASEKO 3 WACA 230; DAMOAH v. TAIBILL 2 WACA 167; RUNKA v. KASTINA N. A. 13 WACA 98. PER OWOADE,J.C.A.
THE CONSEQUENCE OF THE FAILURE TO ENDORSE A WRIT OF SUMMONS
While it is true that some judicial decisions have treated non-compliance with rules of Court in relation to service of writ without obtaining leave of Court an irregularity that can be waived where the Defendant has taken further steps in the proceedings, the Courts have insisted that failure to endorse a writ for service outside jurisdiction is a condition precedent for the assumption of jurisdiction in that suit.
In the case of OWNERS OF MV “ARABELLA” v. NIGERIA AGRICULTURAL INSURANCE COOPERATION (2008) 11 NWLR (Pt. 1059) 182,the Supreme Court per Ogbuagu, J.S.C. held categorically that the Respondent’s failure to endorse the writ in the manner provided under Section 97 of the Sheriffs and Civil Process Act, Cap. 6 LFN 2000 is not a mere irregularity but a fundamental defect which renders the writ incompetent.
See also BELLO v. NATIONAL BANK OF (NIG.) LTD. (1992) 6 NWLR (Pt. 246) 206 @ 217 – 218; NWABUEZE & ANOR. v. JUSTICE OBI OKOYE (1988) 4 NWLR (Pt. 91) 664 (1988) 10 – 11 SCNJ 60; OPARA & ANOR. v. AMADI &ANOR. (2013) LPELR – 20747 (SC). PER OWOADE,J.C.A.
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Akwa Ibom State High Court delivered by Hon. Justice Stephen E. Okon in Suit No. HU/485/2007 on 27th July, 2015.
By a writ of summons and statement of claim of 27/12/2007, the Respondents as Plaintiff commenced this action against the Defendant/Appellant.
The Respondents claimed a total amount of N3.8 billion naira being damages against the Defendant/Appellant for breach of contract for dishonouring the Plaintiffs/Respondents cheques and defamation apart from breaching the overdraft facility terms for wrongfully dishonouring cheques drawn upon Plaintiffs/Respondents accounts at Defendant/Appellant’s Uyo branch.
Pleadings were filed and exchanged, the Defendant Appellant filed an Amended Statement of Defence and counter claim wherein it denied the Respondent’s claim and also counter claimed for the sum of N63,548,275.00 (Sixty-three million, five hundred and forty-eight thousand, two hundred and seventy-five naira).
The 1st Respondent gave evidence and called one other witness. The Appellant called a sole witness. Several exhibits were tendered.
The learned trial Judge held the Appellant liable for breach of the contractual relationship between it and the Respondents, entered judgment in favour of the Respondents in the sum of N125, 000,000.00 (One hundred and twenty-five million naira) only, and dismissed the Appellant’s counter claim.
Dissatisfied with the judgment, the Appellant filed a Notice of Appeal containing five (5) grounds of appeal by leave of this Court on 8/5/2017.
The relevant briefs of argument for the appeal are:
1. Appellant’s brief of Argument filed on 11/2/2019 which was deemed filed on 9/4/2019. It is settled by O. Ojibara, Esq.
2. Respondent’s brief of Argument filed on 17/6/2019 but was deemed filed on 8/3/2020. It is settled by E. Egbadon, Esq.
3. Appellant’s Reply brief of Argument which was filed on 22/6/2020 but it was deemed filed on 3/2/2021. It is settled by O. Ojibara, Esq.
Learned counsel for the Appellant nominated three (3) issues for determination. They are:
1. Whether the entire proceedings of the lower Court and the subsequent judgment delivered by His Lordship, Justice Stephen E. Okon are not vitiated and a nullity for lack of jurisdiction? (Grounds 4 & 5)
2. Whether the trial Court was right when it held that the Appellant violated its fiduciary duties and was negligent in the management of the Respondent’s accounts and in awarding general damages against the Appellant without any evidence in proof of the worth of the Respondent’s business and yearly income? (Grounds 1 & 2)
3. Whether the trial Court was right when it dismissed the Appellant’s counter-claim despite the documentary and oral evidence adduced by the Appellant in proof of the Respondent’s indebtedness? (Ground 3).
The Respondents adopt the issues formulated by the Appellant. Learned counsel for the Appellant raised two perhaps three species of jurisdictional issues in Issue No. 1.
First, he submitted that the entire trial proceedings were conducted before I. N. B. Isua, CJ (Rtd.) and not Honourable Justice Stephen E. Okon who eventually delivered the judgment. He referred to the case of SOKOTO STATE GOVERNMENT OF NIGERIA & ORS. v. KAMDEX (NIG.) LTD. (2007) LPELR – 3093 SC per Mohammed J.S.C. (pp. 14-16) and submitted that the law is clear on the effect of a variation in the composition of a Court or tribunal that heard a matter and that which writes the judgment as such judgment is a nullity.
He urged us to declare the judgment a nullity.
On a second limb, learned counsel for the Appellant pointed out that the lower Court also erred in law when it proceeded to assume jurisdiction to hear and determine the suit in spite of the Respondents’ non-compliance with a fundamental condition precedent to commence the suit. He referred to the provision of Order 5 Rule 3 of the Akwa Ibom State (Civil Procedure) Rules, 1989 and submitted that no order for leave to issue writ outside jurisdiction was ever obtained.
Again, Appellant’s counsel submitted that the Respondents failed to endorse on the writ “for service outside jurisdiction” as provided in Section 97 of the Sheriff and Civil Process Act, Cap. 6 Laws of the Federation 2004 (“SCPA”). He added relying on the case of OWNERS OF MV “ARABELLA” v. NIGERIA AGRICULTURAL INSURANCE COOPERATION (2008) 11 NWLR (Pt. 1059) 182 that failure to endorse writ in the manner provided under Section 97 of the SCPA is not a mere irregularity, but a fundamental defect which renders the writ incompetent.
He submitted that it is glaring that the Respondents served the writ on the Appellant at its Head Office in Lagos State, out of the jurisdiction of Akwa Ibom State and failed to obtain the leave of the trial Court to do so and equally failed to ensure that the writ was properly endorsed as mandated by Section 97 of the SCPA. He referred to the case of MADUKOLU v. NKEMDILIM (1962) ALL NLR 581and urged us to set aside the judgment of the lower Court, which he said is a nullity.
On Issue No. 1, learned counsel for the Respondent submitted that the judgment in this case is not a nullity, merely because the proceedings were conducted before I.N.B. Isua, Chief Judge (Rtd.) but judgment was delivered by Justice Stephen E. Okon. He referred to the provision of Order 32 Rule 20 of the High Court Civil Procedure Rules of Akwa Ibom State, 2009, which provides:
Where a Judge is prevented by death, transfer or other cause from concluding the trial of a suit, his successor may deal with any evidence or memorandum taken down or made under the forgoing rules as if such evidence or memorandum had been taken down or made by him or under his direction under the said rules and may proceed with the suit from the stage at which his predecessor left it.
On the second leg of the Appellant’s argument on Issue 1 that leave was not obtained to serve writ of summons outside jurisdiction and that the writ was not endorsed as required under Section 97 of the Sheriffs and Civil Process Act (SCPA), learned counsel for the Respondent submitted that it is too late in the day for the Appellant to raise these issues. He referred to the case ofNDAYAKO v. DANTORO (2004) Vol. 118 LRCN 3972 @ 3999 to draw a distinction between procedural and substantive jurisdiction and submitted that the Appellants had waived the issue of service of writ of summons without leave of Court and cannot raise it belatedly in this appeal.
Learned counsel for the Respondents further submitted that the Appellant’s objection to the lack of compliance with the provision of Section 97 of the Sheriffs and Civil Process Act is also belated after the Appellant had taken fresh steps in the proceedings leading to the judgment delivered.
He submitted that having entered unconditional appearance and filed pleading, the Appellant is deemed to have waived whatever rights it had to set aside the proceedings. He referred to the case of ODU’A INVESTMENT CO. LTD. V. TALABI (1997) 52 LRCN 2107 @ 2113 per Ogundare J.S.C. (of blessed memory) to say that having filed unconditional appearance and statement of defence and put in witnesses in support of his case, the Appellant cannot turn round to complain about any defect in the originating process.
In his Reply brief, learned counsel for the Appellant submitted further that the philosophical underpinnings of the duty of the trial Judge to write the judgment, is to allow such a Judge who has had the opportunity to observe, evaluate and assess the witnesses, their demeanor and their testimonies to reach his decision on such testimonies after hearing the parties and their final addresses. Appellant’s counsel referred to the decision of the Supreme Court in SHANU v. AFRIBANK (NIG.) PLC. (2002) LPELR – 3036.
He emphasized that the trial Judge is a peculiar adjudicator and the need for such trial Judge to take evidence himself which he is to rely on to decide a matter is unarguably very vital. He further referred to the cases ofR. v. BERTRAND 16 L.J. Rei. N. S. 752; (1967) L. Rei. 1 PC 520; OLUJINLE v. ADEAGBO (1988) 2 NWLR (Pt. 75) 238 @ 254; ADELEKE & ORS. v. IYANDA & ORS. (2001) LPELR – 114 on the same point.
Learned counsel for the Appellant reiterated his earlier position that the failure of the Respondents to endorse the writ in the manner provided for under Section 97 of the Sheriffs and Civil Process Act, Cap. 6 Laws of the Federation (2004) (“SCPA”) is not a mere irregularity, but a fundamental defect which renders the writ incompetent.
He further referred to the case of OPARA & ANOR v. AMADI & ANOR (2013) LPELR – 20747 (SC) and emphasized that the decision of the Supreme Court in the case of OWNERS OF MV “ARABELLA” v. NIGERIA AGRICULTURAL INSURANCE COOPERATION (supra) which emphasized that the endorsement of writ to be served outside jurisdiction as a condition precedent to an action was decided after the case of ODU’A INVESTMENT CO. LTD. v. TALABI (supra) and in fact that the case of ODU’A INVESTMENT CO. LTD. v. TALABI (supra) was considered by the Supreme Court before reaching its decision in the case of OWNERS OF MV “ARABELLA” v. NIGERIA AGRICULTURAL INSURANCE COOPERATION (2008) 11 NWLR (Pt. 1059) 182 that failure to endorse a writ in the manner provided under Section 97 of the SCPA is not a mere irregularity but a fundamental defect which renders the writ incompetent.
In deciding Issue 1, it must be realized that the point of a judgment being delivered by a Judge who did not hear evidence does not only border on jurisdiction, but also on the constitutional requirement of fair hearing. It borders on jurisdiction because it fails to fulfil the conditions laid down in the case of MADUKOLU v. NKEMDILIM (1962) ALL NLR 581 for the assumption or retention of jurisdiction to adjudicate. Recall, that Bairamain F. J. in MADUKOLU v. NKEMDILIM’s case (supra) emphasized that a Court is competent when:
1. It is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or another; and
2. The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
3. The case comes before the Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.
The above immutable exposition by Bairamain F. J may indeed be followed up by another look at our constitutional provisions. Section 272 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides generally for the jurisdiction of the High Court of a State.
In Section 273, the Constitution of the Federal Republic of Nigeria 1999 declares:
For the purpose of exercising any jurisdiction conferred upon it under the Constitution or any law, a High Court of a State shall be duly constituted if it consists of at least one Judge of that Court.
This provision would allow State legislation to constitute a High Court with two or even more Judges to sit but it did not provide for a situation where one Judge would start a case and another would be constituted to conclude the case.
It is for this same reason that Rules of Court made under the provision of Section 274 of the said Constitution cannot be validly invoked for two or more Judges to sit at different times as constituting the High Court for a single case or matter or for a case in which a Judge has been constituted to adjudicate upon.
It seems to me that such practice or Rules of Court made under Section 274 of the 1999 Constitution will run contrary to the provision of Section 273 of the Constitution. In other words, there is no provision under our Constitution for Judges to be constituted in turns to hear and deliver judgment in a case. Thus in the case of EGHOBAMIEN v. FEDERAL MORTGAGE BANK OF NIGERIA (2002) FWLR (Pt. 121) 1858 @ 1866 the Supreme Court held inter alia:
It is palpably wrong to write a judgment based on the evidence recorded by another Judge. A trial is a judicial examination of evidence according to the law of the land, given before the Court after hearing parties and their witnesses. A trial must be conducted by the Judge himself and at the end of the hearing, he will write the judgment which is the authentic decision based on the evidence received and recorded. It is a mistrial for one Judge to receive evidence and another Judge to write judgment on it.
The Supreme Court re-emphasized the above position of the law in the case of SOKOTO STATE GOVERNMENT OF NIGERIA & ORS. v. KAMDEX (NIG.) LTD. (2007) LPELR – 3093 SC per Mohammed, J.S.C. (pp. 14 – 16) as follows:
The status of a judgment given by a Court improperly constituted in the sense that the Court was differently constituted during the hearing of the case, had been determined in many decisions of superior Courts including this Court and the West Africa Court of Appeal. In ADEIGBE & ANOR. VS. KUSIMO & ORS. (1965) 1 All NLR (Reprint) 260 at 263. Ademola CJN (of blessed memory) had this to say on the subject:- “We are in no doubt about the correctness of what the learned appeal Judge said in his judgment that there are abundant decisions in the High Court and the West Africa Court of Appeal on the point that where a Court is differently constituted during the hearing of a case, or on various occasions when it met, or where one member did not hear the whole evidence, the effect on the proceedings is to render them null and void. The learned Judge obviously had in mind, among others, the following cases EGBA N. A. v. ADEYANJU (1936) 13 NLR 77; TAWIAH III v. EWUDZI 3 WACA 52; OTWIWA v. KWASEKO 3 WACA 230; DAMOAH v. TAIBILL 2 WACA 167; RUNKA v. KASTINA N. A. 13 WACA 98.
Similarly, the pronouncement of Kingdom, Chief Justice of Nigeria sitting on the bench of the West African Court of Appeal with Betrides, Chief Justice of Gold Coast and Webber, Chief Justice of Sierra Leone, on the subject of judgment delivered by an improperly constituted Court is quite illuminating. In his leading judgment in the case of TAWIAH III v. EWUDZI (1936) 3 WACA 52 @ 54 – 55, the learned Chief Justice said “It is unnecessary for me to go in detail into merits of the case on the facts, owing to the submission which the Defendant/Appellant/Respondent’s counsel made to the Court at the last moment when he realized that he had little hope of successfully resisting the Plaintiff/Respondent Appellant’s contention that the Provincial Commissioner ought not to have reversed the Tribunal on the facts. This was to the effect that the whole proceedings before the Tribunal were a nullity, because all the members who sat upon the case and gave judgment were not present throughout the hearing. In the present case, it is clear that at least two of the Tribunal members who gave judgment were not present throughout the proceedings, and did not hear all the evidence. This vitiates the whole trial, and in my opinion this Court has no option to declare the whole proceedings before the Tribunal and the Provincial Commissioner’s Court a nullity, and to direct that the case be heard de novo in the Tribunal.
Indeed “hearing” cannot be said to be fair in the context of Section 36 of the 1999 Constitution when one Judge takes witnesses, watch the demeanour of witnesses, forms impressions on the demeanour of witnesses and based on the notes or records another Judge takes up the responsibility of delivering judgment in a case without ever seeing and listening to the witnesses in Court.
Such circumstances must have compelled Uwaifo, J.S.C. in the case of SHANU v. AFRIBANK (NIG.) PLC (2002) LPELR – 3036 to say inter alia:
… It is contrary to all my ideas and experience of justice for depositions taken before one magistrate to be considered by another magistrate sufficient evidence to commit a prisoner upon without having seen the demeanour of the witnesses when they were giving their evidence, and so being in a position to Judge for himself of the truth of their statements…
On the second limb of the Appellant’s contention on issue 1, that the Respondent failed to obtain leave of Court to serve writ outside jurisdiction and indeed did not endorse the writ for service outside jurisdiction as required by Section 97 of the Sheriffs and Civil Process Act, the Respondent tried to justify both failures on the ground of “Waiver” that the Appellant has taken further steps and therefore has waived the right to insist on their failure to comply with these requirements. They, (Respondents) relied on cases to bring out distinctions between procedural and substantive jurisdiction and argued that neither the requirement of leave to serve outside jurisdiction or endorsement of writ to be served outside jurisdiction are conditions precedent but mere irregularity that have been waived by the Appellant.
While it is true that some judicial decisions have treated non-compliance with rules of Court in relation to service of writ without obtaining leave of Court an irregularity that can be waived where the Defendant has taken further steps in the proceedings, the Courts have insisted that failure to endorse a writ for service outside jurisdiction is a condition precedent for the assumption of jurisdiction in that suit.
In the case of OWNERS OF MV “ARABELLA” v. NIGERIA AGRICULTURAL INSURANCE COOPERATION (2008) 11 NWLR (Pt. 1059) 182,the Supreme Court per Ogbuagu, J.S.C. held categorically that the Respondent’s failure to endorse the writ in the manner provided under Section 97 of the Sheriffs and Civil Process Act, Cap. 6 LFN 2000 is not a mere irregularity but a fundamental defect which renders the writ incompetent.
See also BELLO v. NATIONAL BANK OF (NIG.) LTD. (1992) 6 NWLR (Pt. 246) 206 @ 217 – 218; NWABUEZE & ANOR. v. JUSTICE OBI OKOYE (1988) 4 NWLR (Pt. 91) 664 (1988) 10 – 11 SCNJ 60; OPARA & ANOR. v. AMADI &ANOR. (2013) LPELR – 20747 (SC).
From the foregoing, the judgment appealed against is incurably defective in at least two senses. First, the evidence was taken by one Judge while the judgment was delivered by another Judge. Second, the writ of summons was in fact not endorsed for service outside jurisdiction as provided under Section 97 of the Sheriffs and Civil Process Act Laws of the Federation of Nigeria 2004.
Issue No. 1 is resolved in favour of the Appellant.
Having resolved issue No. 1 which has turned out to be an issue of jurisdiction in favour of the Appellant, I do not find it necessary to decide other issues in this appeal.
SeeIKECHUKWU v. FRN (2015) NWLR (Pt. 1457) 1 @ 21; BRAITHWAITE v. SKYE BANK PLC (2013) 5 NWLR (Pt. 1346)1; ONI v. CADBURY NIG. PLC (2016) 9 NWLR (Pt. 1516) 80; EKEMEZIE v. IFEANACHO (2019) 6 NWLR (Pt. 1668) 356; L. M. ERICSSON (NIG.) LTD. v. AQUA OIL (NIG.) LTD. (2011) LPELR – 8807 (CA).
This appeal is meritorious and it is allowed.
The judgment and orders of Hon. Justice Stephen E. Okon of the Akwa Ibom State High Court, Uyo Judicial Division delivered on 27th July, 2015 are hereby set aside.
Suit No. HU/485/2007 is accordingly struck out.
Parties to this appeal are to bear their respective costs.
JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the lead judgment just delivered by my learned brother, Mojeed Adekunle Owoade, J.C.A. and I agree that a Court is not properly constituted if one Judge conducts a trial and another proceeds to deliver judgment in the matter.
For the detailed reasons in the lead judgment, I too allow the appeal and set aside the judgment and orders of the Court below.
I abide by all other orders in the lead judgment including the order as to costs.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the opportunity of reading in draft the judgment just delivered by my learned brother, Mojeed A. Owoade, J.C.A. I agree entirely with the reasoning and conclusion that where a Court is differently constituted during the hearing of a case, or on various occasions, the effect of the proceedings is to render them null and void.
I too, allow the appeal and set aside the judgment and orders of the trial delivered on 27/7/2015. I also abide by all the consequential orders.
Appearances:
OBAFOLAHAN. OJIBARA, ESQ. For Appellant(s)
EKEMINIABASI EGBADON, ESQ. For Respondent(s)