UBA PLC v. JOEL OKUNRINBOYE FARM EXPORT CO. LTD & ORS
(2021)LCN/15693(CA)
In the Court of Appeal
(LAGOS JUDICIAL DIVISION)
On Wednesday, June 16, 2021
CA/L/650/2018
Before Our Lordships:
Joseph Shagbaor Ikyegh Justice of the Court of Appeal
Abubakar Sadiq Umar Justice of the Court of Appeal
Abdullahi Mahmud Bayero Justice of the Court of Appeal
Between
UNITED BANK FOR AFRICA PLC APPELANT(S)
And
1. JOEL OKUNRINBOYE FARM EXPORT CO. LTD 2. MR OLUREMI OKUNRINBOYE 3. NIGERIA DEPOSIT INSURANCE CORPORATION (NDIC) RESPONDENT(S)
RATIO
WHETHER OR NOT PARTIES ARE BOUND BY THEIR PLEADINGS
It is a trite position of the law that parties and the Courts are bound by pleadings filed by parties to a suit. Neither the Court nor parties can go outside the pleadings filed in the suit. See OBANYE V. MBAMALU (2012) LPELR–9475 (CA).
It is also trite that both the Court and parties are bound by the records of the Court which is presumed correct until the contrary is proved. See NWOLE V. SKYE BANK (2018) LPELR – 46542 (CA). PER UMAR, JC.A.
WHETHER OR NOT PARTIES MUST RE-FILE THEIR PROCESSES AFTER A STRUCK OUT SUIT IS LISTED
I do not know of any law or rule that parties must re-file their processes after a struck out suit is relisted. Indeed, the process purportedly being relied on by the 1st and 2nd Respondents is titled “amended statement of defence and counterclaim”. The “amended” in the name of the process shows that it is predicated on a previously filed statement of defence and counterclaim. Going by the submissions of the 1st and 2nd Respondents, if the Appellant’s initial reply and defence to counterclaim was invalid, the 1st and 2nd Respondents’ statement of defence and counterclaim will also be invalid and any amendment predicated thereon would be a nullity. See CO-OPERATIVE & COMMERCE BANK PLC V. EKPERI (2007) LPELR–876 (SC); ATANDAIRO V. DODO & ORS (2018) LPELR–45139 (CA).
As I have stated earlier, there is no rule that processes already filed in a suit must be re-filed after where such a suit is struck out and subsequently relisted. PER UMAR, J.C.A.
WHETHER OR NOT IT IS EVERY MISTAKE OR ERROR IN JUDGEMENT THAT MUST BE APPEALED AGAINST
It is an established position of the law that it is not every mistake or error in the judgment appealed against that will cause an appellate Court to overturn same. For an error in the judgment of the trial Court to ground the setting aside of the judgment of the trial Court, same must have occasioned a miscarriage of justice to the Appellant. The onus is on the Appellant to demonstrate that a miscarriage of justice was occasioned. See the cases of ADEGBUYI V. APC & ORS (2014) LPELR – 24214 (SC); OJE & ANOR V. BABALOLA & ORS (1991) LPELR–2368(SC); NWOSU V. IMO STATE ENVIRONMENTAL SANITATION AUTHORITY & ANOR (1990) LPELR–2129 (SC). PER UMAR, J.C.A.
WHETHER OR NOT AN APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF FACT BY A TRIAL COURT
An appellate Court cannot interfere with findings of facts upon a proper evaluation of evidence. The Court can only interfere when the evaluation was improper thereby leading to perverse findings not supported by evidence, see GAJI V. PAYE (2003) 8 NWLR (Pt. 823) 583 which held thus:
“As a general principle of law, evaluation of evidence and the ascription of probative value to such evidence are the primary functions of a trial Court, which saw, heard and assessed the witnesses. Where a Court of trial, unquestionably evaluates the evidence and makes definite findings of fact which are fully supported by such evidence and are not perverse, it is not the business of the Court of Appeal to substitute its own views for those of the trial Court. What the Court of Appeal ought to do is to find out whether there is evidence on which the trial Court arrived at its findings. Once there is evidence on record, the appellate Court cannot interfere.” PER UMAR, J.C.A.
ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Lagos State, Lagos Judicial Division delivered by T.A. Oyekan-Abdullai, J. on 15th February, 2018, wherein the learned trial Judge granted the reliefs sought by the 1st and 2nd Respondents in their counterclaim against the Claimant.
BRIEF STATEMENT OF FACTS
The Appellant herein was substituted for City Express Bank Limited, which itself was earlier substituted for Industrial Bank Limited, the original Claimant.
The case of the Appellant as 1st Claimant was that the 1st Respondent took a loan of N42,000,000.00 (Forty Two Million Naira) from Industrial Bank Limited for the purpose of importing artificial resins. That the 1st Respondent also applied for and was granted various overdraft facilities totalling N26,506,070.00 (Twenty Six Million, Five Hundred and Six Thousand and Seventy Naira) by Industrial Bank Limited, the original Claimant. The Appellant stated further that the 1st Respondent failed to repay its debt as at when due and as a result of such refusal, Industrial Bank Limited took possession of the imported resins and sold them for N38,295,000.00 (Thirty Eight Million, Two Hundred and Ninety Five Thousand Naira).
It was also the case of the Appellant that the 1st Respondent sold to Industrial Bank Limited the sum of $549,942 (Five Hundred and Forty Nine Thousand, Nine Hundred and Forty Two Dollars) in its domiciliary account for N44,716,112.50 (Forty Four million, Seven Hundred and Sixteen Thousand, One Hundred and Twelve Thousand Naira, Fifty Kobo). That after selling off the said dollar sum and the resins, there was an outstanding balance of N24, 562, 069.12 (Twenty Four million, Five Hundred and Sixty Two Thousand, Sixty Nine Naira and Twelve Kobo). In a bid to recover the outstanding sum, Industrial Bank Limited therefore instituted an action against the 1st and 2nd Respondents as 1st and 2nd Defendants respectively to claim the aforesaid outstanding balance.
On their part, it was the case of the 1st and 2nd Respondents that the Appellant unilaterally and without authority, sold the dollars in the 1st Respondent’s domiciliary account. That having sold the imported resins and the aforesaid dollars, it was impossible for the 1st Respondent to still be indebted to Industrial Bank Limited. Rather, that it was the Appellant that was indebted to the 1st Respondent. The 1st and 2nd Respondents therefore counterclaimed in their amended statement of defence and counterclaim for the following reliefs:
“1. A Declaration that the Defendants are entitled to an account of the goods sold by the Claimant contrary to the agreement of the parties as well as the balance of 12.5 metric tons of resins which were not imported and the Claimant having admittedly sold the goods for a sum of N38,295,000.00 (Thirty Eight Million Two Hundred and Ninety Five Thousand Naira) are not entitled to claim any sum whatsoever any longer form the Defendants.
2. A Declaration that the Claimant action in selling of the sum of 549,942.50 U.S. Dollars together with an interest of $500 to itself which sum of money belonged to the 1st Defendant as contained in its domiciliary account without the Defendant’s authorisation and consent whatsoever.
3. An Order compelling the Claimant (Defendant to the Counter Claim to return forthwith to the 1st Defendant/Counter Claimant the said sum of 549,942.50 U.S. Dollars plus $500 or its equivalent at the rate of N85 to the dollar from February 1995 to 1998 and thereafter at the prevalent exchange rate of the dollar to the naira together with interests at the rate of 21% per annum and at 6% per annum thereafter until the final liquidation thereof, being money had and received by the Claimant/Defendant to the Counter Claim to the use of the 1st Defendant/Counter Claimant.”
During the pendency of the suit, Industrial Bank limited became City Express Bank Limited. Pursuant to an order of the trial Court granted on 12th March, 2012, the 3rd Respondent was joined as the 1st Claimant (see page 784 of volume 2 of the record of appeal). Also during the pendency of the suit, the 1st and 2nd Respondents filed an application praying that City Express Bank Limited be substituted for the Appellant herein. The Application was granted by the trial Court; hence the Appellant was substituted for City Express Bank Limited as Claimant.
The entire suit was struck out on 18th November, 2014 for want of diligent prosecution, but the 1st and 2nd Respondents applied to have their counterclaim relisted. The Application was granted by the trial Court therefore trial proceeded on the counterclaim of the 1st and 2nd Respondents.
In its judgment delivered on 15th February, 2018, the trial Court entered judgment in favour of the 1st and 2nd Respondents as per their counterclaim. Dissatisfied by the judgment of the trial Court, the Appellant appealed before this Court via a notice of appeal filed on 9th April, 2018. The said notice of appeal which contains five grounds of appeal is at pages 851–854 of volume 2 of the record of appeal. The grounds of appeal shorn of their particulars are as follows:
“GROUND ONE:
The learned trial Court erred in law in entering judgment for the defendant/counterclaimant on their counterclaim on the basis that the claimant failed to file a reply to the counterclaim of the defendants.
GROUND TWO:
The learned trial judge erred in law when he entered judgment for the defendants/counterclaimants in terms of the amended statement of defence and counterclaim dated 16th of March, 2006.
GROUND THREE:
The learned trial judge erred in law when he held that the 1st claimant is liable for the claims of the defendants expressly stated in their amended statement of defence and counterclaim, paragraphs 1, 2 and 3 respectively in that the 1st claimant assumed the liabilities of City Express Bank Limited.
GROUND FOUR:
The learned trial judge erred in law when he held that the 1st claimant can be sued in the contract entered into between Industrial Bank Limited and the defendants in that the 1st claimant assumed the liabilities of City Bank Express Limited.
GROUND FIVE:
The judgment is against the weight of evidence before the Court.”
In line with the rules and practice of this Court, parties filed and exchanged their briefs of argument. The Appellant’s brief of argument and Reply brief were settled by MATTHEW ESONANJOR, ESQ. The Appellant’s brief is dated and filed on 30th May, 2018.
HABEEB A. OREDOLA, ESQ. settled the 1st and 2nd Respondents’ Amended brief of Argument dated 24th November, 2018 and filed on 25th November, 2020. The said brief was deemed properly filed and served by an order of this Court made on 10th December, 2020.
The Appellant’s reply brief is dated 2nd December, 2020 and filed on the same date. The said reply brief was deemed properly filed and served by an order of this Court made on 10th December, 2020.
ARGUMENTS AND SUBMISSIONS OF COUNSEL
The Appellant’s counsel at paragraph 3.1 of his brief of argument formulated the following issues for the determination of the instant appeal to wit:
“1. Whether the learned trial judge was right in entering judgment for the defendant/counter claimant on the counterclaim on the basis that the claimant failed to file a reply to the counterclaim of the defendants. (Distilled from ground 1 of the Notice of Appeal)
2. Whether the learned trial judge was right when he entered judgment for defendants counter claimant in terms of the amended statement of defence and counter claim dated March 16, 2006. (Distilled from ground 2 of the Notice of Appeal)
3. Whether the learned trial judge was right when he held that the 1st claimant was liable to the claim of the defendants/counter claimants expressly stated in their amended statement of defence/counterclaim paragraphs expressly stated in paragraphs 1, 2 and 3 respectively in that the 1st claimant assumed the liabilities of City Bank Express Limited. (Distilled from ground 3 of the Notice of Appeal)
4. Whether the learned trial judge was right when he held that the 1st claimant can be sued on the basis of the contract entered into between Industrial Bank Limited and the Defendants. (Distilled from ground 3 of the Notice of Appeal)”
5. Whether having regard to the totality of evidence before the lower Court, the learned trial judge was right when he entered judgment in favour of the Defendants/counterclaimant in respect of their counterclaim. (Distilled from ground 3 of the Notice of Appeal)”
Arguing issue no.1, counsel for the Appellant submitted that the reply and defence to counterclaim filed by Industrial Bank Limited inured in favour of the Appellant, thus the learned trial Judge erred in holding that the Appellant as 1st Claimant at the trial Court failed to file a reply to the counterclaim and predicating its judgment on the 1st and 2nd Respondents’ counterclaim. It was submitted that upon the substitution of the Appellant for City Express Bank Limited, the latter ceased to be a party to the proceedings and all its processes ought to inure in the Appellants favour. Counsel cited the cases of RE: APEH & ORS (2017) LPELR–42035 (SC); OJO V. AKINSANOYE (2014) LPELR–22736 (CA). It was noted by counsel that despite stating earlier in the judgment that the Appellant did not file any reply to the 1st and 2nd Respondents’ counterclaim, the learned trial Judge in the judgment at page 847 of volume 2 of the record made reference to and relied on the Appellant’s reply and defence to counterclaim. Relying on the cases of FUMUDOH V. ABORO (1991) 9 NWLR (PT. 214) 210; WOMILOJU V. ANIBIRE (2010) 10 NWLR (PT. 1203) 545, counsel submitted that the trial Court was entitled to look through its record and ascertain the processes filed by the parties in order to resolve the issues in contention between the parties. He urged this Court to resolve this issue in favour of the Appellant.
On issue no.2, counsel submitted that the 1st and 2nd Respondents’ further amended statement of defence/counterclaim dated 2nd June, 2009 and filed on 4th June, 2009 is deemed abandoned as it was not referred to in the trial Court’s judgment and the 1st and 2nd Respondents’ amended final written address. He submitted that the amended statement of defence and counterclaim dated 16th March, 2006 upon which the judgment of the trial Court was purportedly predicated never existed before the trial Court, thus the judgment of the trial Court was a nullity. That assuming there was an amended statement of defence and counterclaim before the trial Court, the Court nevertheless erred in entering judgment on the basis of same because the learned trial Judge analyzed neither the amended counterclaim nor evidence led in support thereof. Reliance was placed on the cases of OLUBODE & ORS V. SALAMI (1985) LPELR–2607 (SC); TINUBU V. KHALIL & DIBBO TRANSPORT LTD. (2000) LPELR–3249 (SC); ADEGBESAN & ANOR V. ILESANMI (2017) LPELR–42552 (CA).
Learned counsel further submitted that reliefs (1) and (2) sought by the 1st and 2nd Respondents in their counterclaim are declaratory in nature and ought not to have been granted without proof. He cited the cases of CHUKWUMAH V. SHELL PETROLEUM (NIG) LTD(1993) LPELR–864 (SC); OGOLO & ORS V. OGOLO & ORS (2003) LPELR–2309 (SC). It was also submitted that the burden of proving the counterclaim was on the 1st and 2nd Respondents as it was them who would have lost if no evidence was led in proof of their counterclaim. Reference was made to Section 132 of the Evidence Act, 2011 and the case of ANWOYI & ORS V. SHODEKE & ORS(2006) LPELR– 502 (SC). He argued that a counterclaim is a distinct action subject to the same rules as the main claim and that there was no evidence in proof of the counterclaim to warrant the judgment of the trial Court. He referred to the cases of EJIKE V. OBIEGBUNAM & ANOR (2016) LPELR–41540 (CA); JERIC (NIG) LTD V. UBN PLC (2000) LPELR–1607 (SC).
On issue 3, counsel submitted that the learned trial Judge was wrong to have held that the Appellant assumed the liabilities of City Express Bank Limited as such fact was not averred in the counterclaim. He further submitted that none of the documents tendered at trial had anything to do with the Appellant. That trial in the suit had been concluded before the Appellant was substituted for City Express Bank Limited pursuant to an order of the trial Court and that trial was not reopened after the Appellant became a party to the suit. Learned counsel submitted further that the Purchase and Assumption Agreement relied upon by the learned trial Judge was not tendered at trial and same ought not to have been relied on by the trial Court. He relied on the cases of NIGERIAN PORTS PLC V. BEECHAM PHARMACEUTICALS PTE LTD & ANOR (2012) LPELR–15538 (SC); OLADELE V. AROMOLARAN ll (1996) 6 NWLR (PT. 453) 180.
It was further submitted that a consideration of the aforesaid Purchase and Assumption Agreement would reveal that the document neither merged with City Express Bank Limited nor did City Express Bank Limited change its name to United Bank for Africa Plc. That in line with the provisions of the Investment and Securities Act, 2007, a merger arrangement must be sanctioned by the Federal High Court, but no order of the Court was tendered before the trial Court. Counsel further submitted that pending litigations for or against, City Express Bank Limited was not acquired by the Appellant. That private sector liability which was acquired by the Appellant was not one of the reliefs claimed by the 1st and 2nd Respondents and that the account of the 1st and 2nd Respondents was not one of those covered by the Purchase and Assumption Agreement. He urged this Court to resolve this issue in favour of the Appellant.
Arguing issue no.4, learned counsel submitted that only parties to a contract can sue and be sued in respect of same because a third party lacks privity of contract to sue, even where the contract was made for his benefit. Reference was made to the cases of EZEAFULUKWE V. JOHN HOLT LTD (1996) LPELR–1196 (SC); LAGOS STATE DEVELOPMENT AND PROPERTY CORPORATION & ANOR V. NUGERIAN LANDS AND SEA FOODS LTD (1992) LPELR–1744 (SC); INCORPORATED TRUSTEES OF ROH EMPIRE MISSION V. OPARA(2017) LPELR–42463 (CA). It was submitted that the there was no evidence before the trial Court to show that City Express Bank Limited metamorphosed into the Appellant and it therefore could not be sued in respect of the facility agreement between Industrial Bank Limited and the 1st Respondent which was guaranteed by the 2nd Respondent. Counsel submitted that the facility agreement had been executed prior to the Purchase and Assumption Agreement entered into by the Appellant, the Central Bank of Nigeria (CBN) and the 3rd Respondent in 2007. He urged this Court to resolve the issue in the Appellant’s favour.
In arguing issue no.5, learned counsel mainly rehashed the argument earlier canvassed in respect of the other issues. However, he added that the judgment of the trial Court was not predicated on credibility of witnesses. That in the circumstances, this Court is in a good position evaluate the evidence based on the record of appeal and the documentary evidence tendered before the trial Court. Reliance was placed on the cases of CIVIL DESIGN CONSTRUCTION (NIG) LTD V. SCOA (BIG) LTD (2007) LPELR–870 (SC); ADEKEYE & ORS V. ADESINA & ORS (2010) LPELR–103 (SC). He urged this Court to exercise its power to evaluate the oral and documentary evidence led before the trial Court and set aside its judgment. On the whole, he urged this Court to allow the appeal.
On his part, 1st and 2nd Respondents’ counsel at paragraph 3.1 of his brief of argument formulated a sole issue for the determination of this appeal to wit:
“Whether or not the learned trial Judge was right when she entered Judgment for the Defendants/Counter-Claimants in terms of the Amended Statement of Defence and Counter claim dated March 16, 2015 erroneously and inadvertently referred to in the Judgment of the lower Court as dated March, 16, 2006?”
In arguing his sole issue, counsel replied issues raised in the Appellant’s brief which he submits, all boil down to whether or not the learned trial Judge was right in entering judgment in favour of the 1st and 2nd Respondents.
On the Appellant’s complaint that the trial Court wrongly entered judgment on the basis of the 1st and 2nd Respondent’s counterclaim, counsel pointed out that when the trial Court granted the 1st and 2nd Respondent’s application to substitute the Appellant for City Express Bank Limited, the Court ordered the Appellant to amend its process and serve same on the 1st and 2nd Respondents, but the Appellant failed to obey the order. Relying on the cases of STRABAG CONST. LTD. V. UGWU (2005) 15 NWLR (PT. 949) 613; SHUGABA V. UBN PLC (1999) 11 NWLR (PT. 627) 459, it was submitted that the Appellant was bound to obey the order made by the trial Court. That after the suit was struck out and the 1st and 2nd Respondents applied to relist the counterclaim, the Appellant made no attempt to relist the main claim, neither did it file a defence to the counterclaim. It was also submitted that the Appellant could not rely on the defence to counterclaim filed by Industrial Bank Limited as same had been struck out and was never relisted; hence, it had no defence to counterclaim before the trial Court.
On the contention of the Appellant that the trial Court failed to analyze evidence led on the counterclaim, learned counsel submitted that the Court dedicated pages 846–849 to analyzing the evidence adduced in support of the counterclaim before arriving at the conclusion that the Appellant was liable.
In response to the Appellant’s contention that the learned trial Judge entered judgement on a non-existent counterclaim, it was the submission of learned counsel that the 1st and 2nd Respondents’ amended statement of defence and counterclaim was dated 16th March, 2015 and same was only erroneously referred in the judgment as dated 16th march, 2006. That it was a metre typographical error which cannot ground the setting aside of the judgment of the trial as no miscarriage of justice was occasioned. He referred to the cases of DAHIRU V. KAMALE (2005) 9 NWLR (PT. 929) 1; OWHONDA V. EKPECHI (2003) 13 NWLR (PT. 849) 326; AGU V. NNADI (2002) 18 NWLR (PT. 798) 103.
On the Appellant’s contention that it did not assume the liability of City Express Bank Limited and that the Purchase and Assumption Agreement relied on by the trial Court in its judgment was not tendered during trial, it was the submission of counsel for the 1st and 2nd Respondents that the decision of the trial Court to substitute City Express Bank Limited for the Appellant was made in the ruling of the Court delivered on 30th March, 2009 and not during the trial. It was further submitted that the trial Court did not rely on the said Purchase and Assumption Agreement as it was a mere obiter dictum which the Court referred to because the Appellant’s relied on same in his final written address. That an obiter dictum cannot ground a complaint in an appeal. Reliance was placed on the following cases OMOKHODION V. FRN (2005) 10 NWLR (PT. 934) 541; ABACHA V. FAWEHINMI (2000) 6 NWLR (PT. 660) 228; OWHONDA V. EKPECHI (2003) 17 NWLR (PT. 849) 326; ELIOCHIN (NIG) LTD V. MBADIWE (1986) 1 NWLR (PT. 14) 47; ONAFOWOKAN V. WEMA BANK PLC. (2011) 48 WRNSC 1; AGBAHOMOVO V. EDUYEGBE (1999) 3 NWLR (PT. 594) 170.
On the Appellant’s submission that it could not be sued on the basis of the loan facility between Industrial Bank Limited and the 1st and 2nd Respondents, counsel submitted that the counterclaim was undefended as the Appellant neither applied to relist its claim nor file a defence after the counterclaim was relisted, thus it is too late to raise the issue of privity of contract which was not raised at the trial Court. That cases of IDUFUEKO V. PFIZER PRODUCTS LIMITED (2014) 12 NWLR (PT. 1420) 96; EZEUKO V. STATE (2009) 9 NWLR (PT. 1146) 344 were relied upon. He also submitted that the arguments canvassed by the Appellant in respect of privity of contract amounts to raising fresh evidence on appeal, which should not be allowed.
In response to the contention of the Appellant that the lower Court failed to properly evaluate evidence before it, counsel submitted that the Appellant failed to call evidence at trial and was only raising fresh evidence on appeal. He also submitted that this issue was raised by the Appellant before the lower Court in various applications and same was decided by the Court. Counsel finally urged this Court to uphold the judgment of the trial Court and dismiss the appeal.
In his reply brief, counsel for the Appellant submitted that the sole issue formulated from by 1st and 2nd Respondents’ counsel was not distilled from any of the grounds of appeal. He submitted that no mention was made of an amended statement of defence and counterclaim dated 16th March, 2015 which was mentioned in the 1st and 2nd Respondents’ issue for determination, in any of the grounds of appeal raised by the Appellant. He therefore submitted that the 1st and 2nd Respondents have no valid brief of argument before this Court and their brief is liable to be struck out. He relied on the cases of OJABO V. INLAND BANK NIGERIA PLC (1998) 11 NWLR (PT. 574) 433; MBAJI V. AMOBI (2011) LPELR–3988 (CA); OSSAI V. WAKWAH & ORS (2006) LPELR–2813 (SC).
Learned counsel submitted further that assuming the 1st and 2nd Respondents have a valid brief of argument before this Court, their sole issue was only formulated from ground 2 and they are deemed to have conceded the other grounds. He also urged this Court to discountenance issues raised in the brief not related to the sole issue distilled by counsel for the 1st and 2nd Respondents.
In response to the issue raised in the 1st and 2nd Respondents’ brief, learned counsel submitted that a Court lacks the power to order a party to amend its pleadings and that the fact that the Appellant did not amend its pleadings as ordered by the trial Court did not preclude it from relying on the reply and defence to counterclaim filed by Industrial Bank Limited. He further submitted that the 1st and 2nd Respondents cannot complain about the trial Court’s reliance on the amended statement of defence and counterclaim which was dated 16th March, 2006 as submissions of counsel in that regard is akin to rewriting the judgment of the trial Court. Counsel also submitted that this Court cannot correct any error contained in the judgment of the lower Court when such error was not made a ground of appeal. The cases of LABIYI V. ANRETIOLA & ORS (1992) LPELR–1730 (SC); CHIEF EJOWHOMU V. EDOK-ETER MANDILAS LTD (1986) 5 NWLR (PT. 35) 1 were referred to. That the 1st and 2nd Respondents having not filed a cross-appeal or a Respondent’s notice cannot complain of any the perceived errors in the judgment of the trial Court.
RESOLUTION
Before proceeding to resolve the appeal, I shall address the preliminary issue raised by counsel for the Appellant in his reply brief. Counsel at paragraphs 1.0–1.24 of the said reply brief ventilated his grievances against the sole issue distilled by the 1st and 2nd Respondents’ counsel in his amended brief of argument. I have set out the grouse of the Appellant’s counsel against the said sole issue earlier in this judgment. For the sake of clarity, the sole issue distilled by counsel for 1st and 2nd Respondent is as follows:
“Whether or not the learned trial Judge was right when she entered Judgment for the defendants/counter-claimants in terms of the Amended Statement of Defence and counter claim dated March 16, 2015 erroneously and inadvertently referred to in the Judgment of the lower Court as dated March, 16, 2006?”
Appellant’s counsel submitted that the issue was distilled from ground two contained in the notice of appeal. Ground two raised by the Appellant in the notice of appeal goes thus:
“The learned trial judge erred in law when he entered judgment for the defendants/counterclaimants in terms of the amended statement of defence and counterclaim dated 16th of March, 2006.”
Without expending much judicial energy on this preliminary point, I am of the view that the 1st and 2nd Respondents’ sole ground was not formulated outside the ambits of the Appellant’s notice of appeal. A Respondent may adopt issues framed by the Appellant, he may modify the issues giving them a slant in favour of this case or he may frame his own issues provided the issues so framed or modified are traceable to the grounds of Appeal. See the case of OKON V. ITA (2010) LPELR–9010 (CA). Contrary to the position of Learned Counsel for the Appellant, the mere mention of an amended statement of defence and counterclaim in the said issue, which was not mentioned in the grounds of appeal, particularly ground two, does not render the issue incompetent.
Learned counsel also contended that since the sole issue was formulated from ground two, the other grounds are deemed conceded and that submissions in the 1st and 2nd Respondents’ brief in relation to other grounds ought to be discountenanced. I also do not agree with the position of Appellant’s counsel in this regard. I agree with the 1st and 2nd Respondents’ counsel’s submission that all issues raised in the Appellant’s brief of argument boil down to whether or not the trial Court was right to have entered judgment in favour of the 1st and 2nd Respondents in terms of their amended statement of defence and counterclaim. Indeed, what is required is that issues for determination formulated by counsel flow from the grounds of appeal. There is no rule that there must be multiple issues for determination or that there must be as many issues for determination as there are grounds of appeal. A sole issue can encompass all the grounds of appeal and I am of the firm view that this is the case with the sole issue distilled by counsel for the 1st and 2nd Respondents. See MARANRO V. ADEBISI (2007) LPELR–4663 (CA); GOMNA V. MORRIS (NIG) LTD (2019) LPELR–46900 (CA).
Having gone through the printed record, respective briefs of argument of counsel encapsulating their positions in this appeal as well as the judgment of the trial Court, I am of the view that the following issue suffices for the determination of the instant appeal:
Whether the trial Court was right in entering judgment for the 1st and 2nd Respondents in terms of their amended statement of defence and counterclaim?
It is a trite position of the law that parties and the Courts are bound by pleadings filed by parties to a suit. Neither the Court nor parties can go outside the pleadings filed in the suit. See OBANYE V. MBAMALU (2012) LPELR–9475 (CA).
It is also trite that both the Court and parties are bound by the records of the Court which is presumed correct until the contrary is proved. See NWOLE V. SKYE BANK (2018) LPELR – 46542 (CA).
The Appellant contends in its brief of argument that the trial Court erred when it held that the Appellant did not file a defence to the 1st and 2nd Respondents’ counterclaim. That having replaced City Bank Express Limited which itself replaced Industrial Bank Limited, the reply and defence to counterclaim filed by the latter which is at pages 66–69 of the record of appeal, inures in its favour. The 1st and 2nd Respondents on the other hand, contend that the Appellant having failed to amend its processes as ordered by the Court and having failed to file a defence to the counterclaim when same was relisted, it had no valid defence to counterclaim before the trial Court.
When amendment of processes is ordered by a Court, parties are not duty bound to amend their previously filed processes. There is no rule of procedure that so provides. The rule known to our civil procedure is that from the date of the amendment, all subsequent processes must reflect the new names and a caveat that it was substituted by order of Court. See the case of ACCESS BANK PLC V. SIJUWADE (2016) LPELR–40188 (CA). While the trial Court ordered at page 748 of the record in its ruling delivered on 30th March, 2009 that the parties amend their processes, I am of the opinion that the Appellant’s failure to do so does not preclude it from relying on the previously filed processes.
The 1st and 2nd Respondents also complained that the Appellant was expected to file a defence to the counterclaim after the counterclaim was relisted. The 1st and 2nd Respondents’ counsel did not cite any judicial or statutory authority in support of his position that the Appellant could not rely on the previously filed defence to counterclaim after same was relisted. I do not know of any law or rule that parties must re-file their processes after a struck out suit is relisted. Indeed, the process purportedly being relied on by the 1st and 2nd Respondents is titled “amended statement of defence and counterclaim”. The “amended” in the name of the process shows that it is predicated on a previously filed statement of defence and counterclaim. Going by the submissions of the 1st and 2nd Respondents, if the Appellant’s initial reply and defence to counterclaim was invalid, the 1st and 2nd Respondents’ statement of defence and counterclaim will also be invalid and any amendment predicated thereon would be a nullity. See CO-OPERATIVE & COMMERCE BANK PLC V. EKPERI (2007) LPELR–876 (SC); ATANDAIRO V. DODO & ORS (2018) LPELR–45139 (CA).
As I have stated earlier, there is no rule that processes already filed in a suit must be re-filed after where such a suit is struck out and subsequently relisted.
It is a settled position of the law in support of which no authority needs to be cited that a counterclaim is an independent action that does not depend on the outcome of the main claim. In the instant case, after suit was struck out, the 1st and 2nd Respondents successfully applied to the trial Court to have their counterclaim relisted. However, the main claim was not relisted. The Appellant in its brief of argument contends that the statement of claim and counterclaim filed by Industrial Bank Limited inures in its favour. I share the same view with Appellant’s counsel that the defence to counterclaim inures in the Appellant’s favour. However, I do not agree that the Appellant can rely on the reply to the statement of defence. The reply constitutes part of the main claim which was not relisted.
The defence to the counterclaim comprises only three paragraphs, paragraphs 9 – 11. The summary of all three paragraphs is to the effect that the Appellant denied the 1st and 2nd Respondents’ counterclaim and relied on its statement of claim and reply to statement of defence. Those processes having been struck out with the main claim are no longer valid. Therefore the Appellant cannot rely on them in defence of the counterclaim. You cannot place something on nothing and expect it to stand, it will crumble. See UAC V. MACFOY (1961) 3 ALL ER 1169; RE: APEH & ORS (2017) LPELR–42035 (SC). I therefore hold that the trial Court was right to have held that the Appellant had no defence to the 1st and 2nd Respondents’ counterclaim.
Counsel for the Appellant in his brief of argument also argued that the learned trial Judge relied on a non-existent process to enter judgment for the 1st and 2nd Respondents. He submitted that the amended statement of defence and counterclaim dated 16th March, 2006 purportedly relied on by the trial Court does not exist. Counsel for the 1st and 2nd Respondents on his part submitted that the date mentioned by the trial Court was a mere error as the 1st and 2nd Respondent’s amended statement was dated 16th March, 2015.
I have taken a dispassionate look at the judgment of the trial Court as well as the record of appeal compiled and transmitted to this Court. I do not find that any amended statement of defence and counterclaim dated 16th March, 2006. The only amended statement of defence and counterclaim is the one dated 16th March, 2015 (see page 8 of the additional record of appeal). I have no doubt in my mind that 16th March, 2006 referred to by the trial Court was a slip. It is an established position of the law that it is not every mistake or error in the judgment appealed against that will cause an appellate Court to overturn same. For an error in the judgment of the trial Court to ground the setting aside of the judgment of the trial Court, same must have occasioned a miscarriage of justice to the Appellant. The onus is on the Appellant to demonstrate that a miscarriage of justice was occasioned. See the cases of ADEGBUYI V. APC & ORS (2014) LPELR – 24214 (SC); OJE & ANOR V. BABALOLA & ORS (1991) LPELR–2368(SC); NWOSU V. IMO STATE ENVIRONMENTAL SANITATION AUTHORITY & ANOR (1990) LPELR–2129 (SC).
I am of the opinion that a slip as to the year when a process was dated, which the Appellant has not demonstrated occasioned a miscarriage of justice to it cannot be a ground for overturning the judgment of the trial Court. Based on the foregoing, I hereby hold that the trial Court did not rely on a non-existent counterclaim in entering judgment for the 1st and 2nd Respondents.
Another grouse of the Appellant is the supposed failure of the trial Court to properly evaluate the evidence before it. That the Appellant was wrongly held liable for the claims of the 1st and 2nd Respondents’ reliefs sought in their counterclaim and that there was no evidence to support the trial Court’s decision in that regard. However, by the submissions of counsel before both the lower Court and this Court, the Appellant only took over the “private sector deposit liabilities” from City Express Bank Limited. It is clear as daylight that the Appellant that reliefs sought by the 1st and 2nd Respondents are in respect of private sector deposit liabilities. This is an admission against interest which can be relied on by this Court. See the cases of KAMALU & ORS V. UMUNNA & ORS (1997) LPELR–1657 (SC); DANJUMA V. NASIRU & ANOR (2015) LPELR–25922 (CA). By these reliefs, the 1st and 2nd Respondents complained and established through credible evidence as rightly held by the trial Court that the Appellant unilaterally sold off the dollars in their domiciliary account maintained with the Appellant. This clearly falls within private sector deposit liabilities.
Flowing from the foregoing, I hold that the Appellant could be sued in respect of reliefs sought by the 1st and 2nd Respondents, same falling squarely within the private sector deposit liabilities, to which the Appellant has admitted to be liable.
An appellate Court cannot interfere with findings of facts upon a proper evaluation of evidence. The Court can only interfere when the evaluation was improper thereby leading to perverse findings not supported by evidence, see GAJI V. PAYE (2003) 8 NWLR (Pt. 823) 583 which held thus:
“As a general principle of law, evaluation of evidence and the ascription of probative value to such evidence are the primary functions of a trial Court, which saw, heard and assessed the witnesses. Where a Court of trial, unquestionably evaluates the evidence and makes definite findings of fact which are fully supported by such evidence and are not perverse, it is not the business of the Court of Appeal to substitute its own views for those of the trial Court. What the Court of Appeal ought to do is to find out whether there is evidence on which the trial Court arrived at its findings. Once there is evidence on record, the appellate Court cannot interfere.”
In the instant appeal, I am of the firm view that the judgment arrived at is supported by the evidence adduced before the trial Court. The assessment and evaluation of the evidence at the trial Court cannot be faulted as the Appellant has failed to show why this Court should disturb the assessment and ascription of probative value to the evidence by the lower Court. On the whole, the sole issue is hereby resolved against the Appellant and in favour of the 1st and 2nd Respondents.
In the final analysis, this appeal fails. The judgment of the trial Court delivered on 15th February, 2018 by Hon. Justice T.A. Oyekan-Abdullai granting the reliefs sought by the 1st and 2nd Respondents in their amended statement of defence/counterclaim is hereby affirmed. Parties shall bear their costs.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the lucid judgement prepared by my learned brother, Abubakar Sadiq Umar, J.C.A.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.
Appearances:
Mathew Esonanjor For Appellant(s)
Habeeb A. Oredola for 1ST & 2ND Respondents For Respondent(s)