UNION BANK OF NIGERIA PLC v. ASSOCIATED NIGERIA HOSPITAL EQUIPMENT LIMITED & ANOR (2014)

UNION BANK OF NIGERIA PLC v. ASSOCIATED NIGERIA HOSPITAL EQUIPMENT LIMITED & ANOR

(2014)LCN/7301(CA)

In The Court of Appeal of Nigeria

On Friday, the 20th day of June, 2014

CA/K/71/2010

RATIO

APPEAL: GROUNDS OF APPEAL; THE CONSEQUENCE OF A GROUND APPEAL ALLEGING MISDIRECTION OR ERROR IN LAW, THAT THE PARTICULARS AND THE NATURE OF THE MISDIRECTION OR ERROR ARE NOT CLEARLY STATED

As I earlier noted, the two grounds of appeal raised by the Appellant do not contain supporting Particulars of the Errors allegedly committed by the lower Court, a situation the Supreme Court had in several cases expressed to have rendered the grounds of appeal raised without any Particulars of such errors invalid and exposed such grounds as being liable to be struck out. See the case of Anadi v. Okoli (1977) 3 S.C. 11, (1977) All N.L.R 23, per Idigbe, J.S.C., where he stated:

“Those grounds of appeal (i.e. the new grounds) are obviously improper and although learned counsel for the respondent failed to object to them, the Court suo moto drew the attention of learned counsel for the appellant to the improper nature of the grounds of appeal. In respect of grounds 2(a) (b) (c) & (d) as well as ground (4) it was pointed out to learned counsel for the appellant that although these grounds alleged that “the learned trial Judge of the court below erred in law and misdirected himself in the passages of his Judgment set down in ground 2(a)(b)(c)(d) and ground (a) no particulars of “errors in law” and “misdirection” were set out in those grounds of appeal. per. THERESA NGOLIKA ORJI-ABADUA, J.C.A.

APPEAL: GROUND OF APPEAL; WHETHER WHEN A GROUND OF APPEAL ALLEGE MISDIRECTION OR ERROR IN LAW THE PARTICULARS AND THE NATURE OF THE MISDIRECTION OR ERROR SHALL BE CLEARLY STATED

It is settled by a long line of decisions that when a ground of appeal alleges “error in law” or “misdirection” on the part of the Court of trial particulars of the said errors or “misdirection” must be given (i.e. set out clearly) in the said ground of appeal. (See Pfeiffer v. The Midland Railway Company (1887) 18 QBD 243; Murfett v. Smith (1887) 12 PD 116. These two cases deal with motion for a new trial on the ground of misdirection by the trial Court which in effect is an “appeal”). Following our own Rules of Court, this Court has on a number of occasions and in compliance with the express provisions of the particular rule struck out grounds which are defective because although they alleged “error in law” or “misdirection” on the part of a court of trial, they also failed to particularise the error or misdirection alleged. It is not enough to set out in quotation a passage in the Judgment of the Court of trial and allege, without more, that there is “an error in Law or misdirection” and such a bare allegation offends the provisions of the Supreme Court Rules Order VII rule 2(2) of which reads: “2(2) If the ground of appeal allege misdirection or error in law the particulars and the nature of the misdirection or error shall be clearly stated.” Further, the Supreme Court in Global Trans. Oceanica S.A. v. Free Ent. (Nig.) Ltd. (2001) 5 NWLR (Pt.706) 426, per Kalgo, J. S. C., held that: “The purpose of Order 3, rule 2(2) of the Court of Appeal Rules is to inform the court and the respondent of the particulars of errors in law or misdirection alleged, to enable the respondent meet the case of the appellant and the court to properly consider and determine such error or misdirection complained of. See Atuyeye v. Ashamu (1987) 1 NWLR (Pt. 49) 267 at 282. Any ground of appeal which alleges error in law or misdirection but fails to provide the particulars of such error or misdirection, contravenes the provisions of Order 3 rule 2(2) of the Court of Appeal Rules 1981 and is to that extent incompetent, and liable to be struck out. (See Anadi v. Okoli (1977) 7 SC 57 at 63; Nta v. Anigbo (1972) 5 SC 156 at 164; Osawaru v. Ezeiruka (1978) 6 – 7 SC 135.” Also,in Osasona vs. Aiayi, (2004) 18 NSCQR 40, the Supreme Court, per, Uwaifo, J.S.C., expressed that: “It is settled that where the particulars of error in law or misdirection of the ground complained of are either not set out separately or not discovered through careful perusal as having been incorporated into the body of the ground of appeal, the ground of appeal will contravene the relevant rule which, in the present case, is Order 3, rule 2(2) of the Court of Appeal Rules. The ground will be incompetent and is liable to be struck out. See Nta v. Anigbo (1972) 5 SC 156 at 164; Anadi v. Okoli (1977) 7 SC 57 at 63.” per. THERESA NGOLIKA ORJI-ABADUA, J.C.A.

PRACTICE AND PROCEDURE: RES JUDICATA; WHEN IS A MATTER SAID TO BE RES JUDI CATA

In the decision of Chief Adekoya Oke Olukoga vs. Mr. Olufemi Fatude (1996) 7-10 SCNJ 1 the Supreme Court held as follows: “Where a competent Court has determined an issue and entered judgment thereon neither of the parties to the proceedings may re-litigate that issue by formulating a fresh claim. Since in the circumstances the matter is said to be res judicata. per. THERESA NGOLIKA ORJI-ABADUA, J.C.A.

JUSTICES

THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria

J.S. IKYEGH Justice of The Court of Appeal of Nigeria

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

Between

UNION BANK OF NIGERIA PLC – Appellant(s)

AND

1. ASSOCIATED NIGERIA HOSPITAL EQUIPMENT LIMITED

2. MR. RICHARD ADESANYA – Respondent(s)

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: (Delivering the Leading Judgment): The Respondents as per the Notice of Appeal dated 4/8/2008 commenced an action against the Appellant at the Kano state High Court in suit No. K/694/2002 stating that in 1999, the 1st Respondent applied for an overdraft facility, the Appellant demanded by a letter dated 29/3/99 that the overdraft be secured with a landed property covered by a Statutory Certificate of Occupancy No. LKN/RES/RC/82/414 belonging to the 2nd Respondent. The 2nd Respondent is the Managing Director of the 1st Respondent. Prior to the grant of the said overdraft, the Appellant had granted to the 1st Respondent an overdraft of N1.5 million by a letter dated 7/11/97 and secured with the same property, which was then transferred to the latter facility. From the averments, the 1st Respondent had problem with the repayment of the overdraft which allegedly caused them, and their sister Companies to be defamed. It was asserted that in October, 2001, the loan granted to the 1st Respondent was liquidated, but up till November, 2001, the Appellant had not delivered the Deed of Release. A letter was addressed to the Appellant to issue the same without delay which the Appellant did not adhere to. Several Reminders were dispatched to the Appellant, it still refused to budge. This, allegedly, generated a lot of losses on the part of the Respondent in terms of other overdraft facilities it could have obtained with the same Certificate of Occupancy that was withheld by the Appellant. It was averred that they suffered colossal losses running over N50 million due to lack of finance. As a result, the Respondents instituted suit No. K/694/2002 against the Appellant wherein they claimed as follows:

“a. Declaration of Court that the defendants are under contractual obligation and duty to deliver to the Plaintiff a Deed of Release of their Certificate of Occupancy from encumbrance shortly after the Plaintiff liquidated the overdraft facilities obtained from them of which the Certificate of Occupancy No: LKN/RES/RC/82414 was pledge as collateral, with or without a formal demand for same.

b. Order of Specific Performance compelling the defendant to deliver to the Respondents within 48 hours of judgment of this Honourable Court, the Deed of Release over Statutory Certificate of Occupancy No: LKN/RES/RC/82/414

c. The sum of N5.5 Million (Five Million Five Hundred Thousand Naira only) being General and Special Damages for breach of contract and loss occasioned as a result of the failure and unlawful refusal of the defendant to release from encumbrance the Plaintiffs Certificate of Occupancy earlier pledged as security for loan from them, despite repeated oral/written demands and pleas by the Plaintiff. Plus 10% Court rate of interest from date judgment till the judgment debt is liquidated.”

The Appellant filed an Amended Statement of Defence and Counter-Claimed against the Plaintiffs thus:

“(a) The sum of N600,000.00 only for the professional fee of the Solicitors defending the suit.

(b) indemnify the Defendant against any loss and damages incurred arising from this suit including any damages that may be awarded in favour of the Plaintiff in this suit.

The suit was slated for trial which the lower Court proceeded with. At the hearing, facts emerged that a similar suit No. K/697/2001 instituted by the 2nd Plaintiff and some others against the Appellant and two others claiming the same reliefs had already been adjudicated upon by Saka Yusuf, J before High Court No. 2 Kano State High Court, between them, and, which was a subject of appeal. During address, the Counsel addressed the Lower Court on the point and the lower Court then held that the issues in the instant matter had already been adjudged and determined in the said suit No. K/697/2001 presently on appeal. In consequence thereto, the lower Court dismissed the Respondents’ claims for special and general damages for breach of contract. From the record, it seems that no clear pronouncement was made in respect of the Appellant’s counter-claim. Following, the lapse, the Appellant appealed challenging the said decision on two grounds of appeal thus:

“Ground 1:

Angel vs. UBN Plc. MIDP vs. Olalomi (2002) FWLR Part 98 page 982 R1.

The learned trial Judge erred in law when it failed to consider, evaluate or improperly evaluate the evidence of the Defendant in support of the counter-claim of the Defendant/Appellant and consequently failed to grant the counter-claim of the Appellant.

Ground No. 2:

The judgment is (sic) pertains to the counter-claim in the suit is against the weight of evidence.”

It must be observed that these grounds of appeal do not have accompanying Particulars of Errors. Be that as it may, the Appellant, in its Appellant’s Brief of Argument, postulated two issues for determination in this appeal. They are as follows:

“1. The issue is whether the trial High Court No. 2 Hon. Justice Saka Yusuf, had determined and/or would have been in a position to determine in suit No. K/697/01, the claim of N600,000.00 (Six-Hundred-Thousand Naira) by the Appellant in suit No K/694/2002, a claim not placed before Hon. Justice Saka Yusuf at all as specified in Guarantee Agreement (This issue is distilled from Ground of Appeal No 1).

2. Whether if the trial Court evaluated the evidence on Records Properly, the counter claim of N600,000.00 (Six hundred Thousand Naira) and the 10% interest would not have been granted to the Appellant.”

I must observe that in the respective Briefs of the parties, only the name of the 1st Respondent was stated as the Respondent. I could not perceive any reason from the record of this Court why the name of the 2nd Respondent was omitted in the Briefs filed by the parties. Anyway, the Respondent for its part, adopted the Appellant’s issue No. 2 as contained in the Appellant’s Brief of Argument.

In arguing issue No. 1, Learned Counsel for the Appellant, I. H. Yamah Esq., submitted that Saka Yusuf, J., did not consider and determine in suit No. K/697/2001, the counter-claim of N600,000.00 and the interest of the Appellant in the present suit No. K/694/2002, therefore, the doctrine of estoppel cannot apply to the present suit. He invoked the provisions of Sections 55 and 51 of the Evidence Act; and the decisions in Alhaji Lamidi Ladimeji vs. Suara Salami (1998) 4 SNCJ at pages 11 – 14; Dr. Rasaki Oshidi vs. Yisa Osenu Eyifunmi (2007) 7 SCNJ 295 at 316 and submitted that the issues and the subject matters of the two claims are different, and there is no decision of the lower Court on the counter-claim. He then urged this Court to use its powers conferred on it by the Court of Appeal Act to consider the counter-claim.

On issue No. 2, he contended that the only defence put up by the Respondent against the counter-claim is that it is caught up by the principle of res judicata; that it did not controvert, challenge or contradict the counter claim or the quantum of it. It was submitted that clause 2(ii) empowered the Appellant to claim all expenses incurred in the course of recovering the debt owed it by the Respondent, and that was the basis for the Solicitor’s fee which the Appellant claimed in the instant matter. He clarified that what was claimed in suit No. K/697/2001 was N650,000.00 professional fees of the Appellant’s Counsel for defending the defamation claim in that suit. He argued there is no evidence showing that the claim of N600,000.00 was determined in the said suit No. K/697/2001. He made reference to Iliya Akwai Lagga vs. Audu Yusuf Sarkuna (2008) 16 NWLR Part 114 page 427 at 455 paragraphs Q-H, page 461 – 462 paragraphs G – A page 474 paragraphs D-F and page 453 paragraphs D-E; Nigeria Industrial Development Bank Ltd vs. Olalomu Industries Ltd (2002) FWLR Part 98 page 979 at 992 paragraphs E-F; S.132 (1) Evidence Act; Yudias Nig. Ltd vs. Great Nig. Insurance Co. Ltd (2007) 4-5 S.C 238 at page 260; and Integrated Dimensional Systems Ltd vs. African International Bank Ltd (2002) FWLR Part 98 page 953 at 970 paragraphs B-D, page 971 paragraphs B-F., and urged this Court to allow this appeal.

Submitting on behalf the Respondent, his Learned Counsel, J.A. Kehinde Olaitan Esq; contended that issue No. 1 formulated by the Appellant was not distilled from any of the grounds of appeal raised by the Appellant. He made reference to the cases of Abdullahi vs. The Nigeria Army (2009) All FWLR Part 500 page 643 at 681 paragraphs B – D; F.A.A.N vs. Greenstone Limited (2009) All FWLR Part 500 page 741 at 754, paragraphs F-B; Bob vs. Akpan (2010) All FWLR Part 501 page 896 at 936, paragraph; Malumfashi vs. Karfi (2010) All FWLR Part 507 page 33 at 57 paragraph D, and urged this Court to strike out issue No. 1 for being incompetent having not emanated from the grounds of appeal.

Regarding issue No. 2, that is “Whether if the trial Court evaluated the evidence on Records Properly, the counter claim of N600,000.00 (Six hundred Thousand Naira) and the 10% interest would not have been granted to the Appellant”, learned Counsel referred to the testimony of the only defence witness, D.W.1, particularly at pages 37, 38, 41 and 43 where he acknowledged that the Appellant counter-claimed in High Court No. 2 for outstanding liability against the Plaintiffs in the action and expenses incurred as a result of the action i.e filing fees and the Solicitor’s fee. He further acknowledged that the Appellant did not give the Plaintiffs the Deed of Release because of the outstanding liabilities being claimed against the Plaintiffs, and that the suit covered all cost incurred by the Appellant in this action. Learned Counsel then relied on the decisions in NBA vs. FOBUR (2006) ALL FWLR Part 333 page 1739 at 1750 paragraphs E-F; UBA vs. Ukachukwu (2006) All FWLR Part 337 page 515 at pages 523 – 524 paragraphs F-A; and Ogoejeofo vs. Ogoejeofo (2006) All FWLR Part 301 page 1792 at pages 1802-1803 paragraphs E-A, and contended that D.W.1’s testimony amount to admission against interest, that the same issues being counter-claimed herein were counter-claimed in the suit already determined by Saka Yusuf, J. He submitted that an admission by a party against his interest is the best evidence in favour of his adversary in a suit, and the Respondent ought not to have re-litigated the same matter before another Court which amounts to abuse of process of Court.

Learned Counsel stressed that the subject matter in the counter-claim in suit No. K/697/2001 is the same as the one in the present claim giving rise to this appeal which was in line with the Deed of Guarantee binding the parties wherein the Respondent undertook to pay for expenses incurred by the Appellant in the course of recovering the loan. He contended that the counter-claim in the present suit No. K/694/2002 is not for recovery of debt owed the Appellant by the Respondent. it is a claim for recovery of the Solicitor’s fees of N600,000.00 the Appellant paid to its Counsel for defending it in the present suit plus interest thereon. The Respondent’s claim was for delivery of Deed of Release on its landed property having liquidated the outstanding amount owed the Appellant and for special and general damages of N5.5 million. He emphasized that the suit was dismissed by the lower Court based on the Appellant’s argument that the suit was caught up by the doctrine of estoppel,therefore, the Appellant cannot now counter-claim for defending the said suit, more so, since the counter-claim was not for recovery of the loan but for defence of the Respondent’s claim for the Appellant’s failure to issue to it a Deed of Release over its property. He cited the cases of Okoro vs. Nwachukwu (2006) ALL FWLR Part 343 page 1785 at 1797 paragraphs E-G; Benjamin vs. Kalio (2006) ALL FWLR Part 340 page 1064 at 1072, paragraphs E-F and stated that the Appellant owes the duty to establish that the lower Court did not evaluate the evidence adduced before it,not by mere alleging the same. He then persuaded this Court to dismiss this appeal.

The Appellant filed a Reply Brief and made reference to various case laws to reinforce its earlier arguments in the Appellant’s Brief of Argument.

It particularly relied on the decisions which tended to show that by the deposit of the title Deeds with the Appellant as security for loan, an equitable mortgage was created. By that, it has a right to equity of redemption, that is, that its title Deeds be released to it on full payment of the loan advanced to it by the Bank. He stressed that a mortgagor coming into equity to redeem must do equity and pay the principal interest and cost before he can recover the property which at law is not his. He also dwelt on evaluation of evidence and admission against interest. He cited the cases of Chief D. S. Yaro vs. Arewa Construction Limited & 2 Ors (2007) 6 SC Part 11 page 149 at 182 – 184;

Ogundiani vs. Araba & anor (1973) 6-7 (Reprint) 43; (1973) NSCC (Vol.II) 55; Adjei vs. Dabanka (1930) 1 WACA 63 at 67; Kadiri vs. Olusaga (1956) 1 FSC; Bank of New South Wales vs. O’connor (1889) 14 AC 273; Usenfowokan vs. Idowu & anor (1975) NSCC (Vol.1) 175; Usenfowokan vs. Idowu (supra); New South Wales vs. O’conner (1889) 14 AC page 273; Omolaja A. Adeniyi, on the law and practice of Banking in Nigeria, 1st Edition – 1981, at pages 131-133 and 147-152; Oshodi vs. Eyifunmi (2000) FWLR Part 8 page 1229 paragraphs B-C; Nwojini vs. Adu (2000) FWLR Part 20 at 599 paragraph D; Walter vs. Skyll (Nig) Ltd (200) FWLR Part 13 at 2267 paragraphs A-B; Oparadike of Njiaekaere vs. Egbuonu 7 WACA 53 referred to Part 2267, paragraphs A-B; Daramola vs. Atta-Gen., Ondo State (2000) FWLR Part 6 at 1018 and 1020. Paragraphs E-F; Azubuike vs. Eluwa (2000) FWLR Part 16 at 2807 Paragraph C; Samson Ajibade vs. Mayowa & anor (1978) 9 & 10 SC 1 at 6; Eko Odume vs. Ume Nnachi & Ors (1964) 1 ALL NLR 329 Part 1310 paragraph D; Melford Agala vs. Chief Benjamin Okusin (2010) 10 NWLR Part 1202 page 412 at 433 paragraphs E-F 438 paragraphs A-D and Part 439 paragraphs A-F; General Muhammadu Buhari vs. INEC (2008) 12 S.C Part 1 at pages 150 – 152; Randolph vs. Tuck (1951) 1 ALL E.R. 814; Fadiora vs. Gbadebo (1978) 3 SC 219 part 1323 paragraph G; Florence Olusanya vs. Olufemi Olusanya (1983) 3 SC 41 at 56 -57 Part 1310 paragraphs E-P. He contended that the argument of Counsel for the Respondent on issue No. 2 were not pleaded and they did not emerge from the Appellant’s grounds of appeal.

“2(2) If the ground of appeal allege misdirection or error in law the particulars and the nature of the misdirection or error shall be clearly stated.”

Further, the Supreme Court in Global Trans. Oceanica S.A. v. Free Ent. (Nig.) Ltd. (2001) 5 NWLR (Pt.706) 426, per Kalgo, J. S. C., held that:

“The purpose of Order 3, rule 2(2) of the Court of Appeal Rules is to inform the court and the respondent of the particulars of errors in law or misdirection alleged, to enable the respondent meet the case of the appellant and the court to properly consider and determine such error or misdirection complained of. See Atuyeye v. Ashamu (1987) 1 NWLR (Pt. 49) 267 at 282. Any ground of appeal which alleges error in law or misdirection but fails to provide the particulars of such error or misdirection, contravenes the provisions of Order 3 rule 2(2) of the Court of Appeal Rules 1981 and is to that extent incompetent, and liable to be struck out. (See Anadi v. Okoli (1977) 7 SC 57 at 63; Nta v. Anigbo (1972) 5 SC 156 at 164; Osawaru v. Ezeiruka (1978) 6 – 7 SC 135.” Also,in Osasona vs. Aiayi, (2004) 18 NSCQR 40, the Supreme Court, per, Uwaifo, J.S.C., expressed that:

“It is settled that where the particulars of error in law or misdirection of the ground complained of are either not set out separately or not discovered through careful perusal as having been incorporated into the body of the ground of appeal, the ground of appeal will contravene the relevant rule which, in the present case, is Order 3, rule 2(2) of the Court of Appeal Rules. The ground will be incompetent and is liable to be struck out. See Nta v. Anigbo (1972) 5 SC 156 at 164; Anadi v. Okoli (1977) 7 SC 57 at 63.”

It is clear in the aforementioned cases that if a party, or the Appellant in his ground of appeal alleges that a Court committed an “error in law” or “misdirection” without particularizing those errors or highlighting them, that ground of appeal is liable to be struck out for being incompetent. I must observe that but for the fact this issue was not drawn to the attention of the parties’ respective Counsel, I would have on this premise, terminated this appeal.

Nevertheless, it was contended by the Respondent’s Counsel that issue No. 1 was not distilled from any of the two grounds of appeal raised by the Appellant. It is instructive to note that whereas ground No. 1 complained about the lower Court’s mistake in law when it failed to consider, evaluate or improperly evaluate the evidence of the Defendant in support of the counter-claim of the Defendant/Appellant and consequently failed to grant the counter-claim of the Appellant, issue No. 1 propositioned by the Appellant questioned “whether the trial High Court No. 2, Hon. Justice Saka Yusuf, had determined and/or would have been in a position to determine in suit No. K/697/01, the claim of N600,000.00 (Six- Hundred – Thousand Naira) by the Appellant in suit No K/694/2002, a claim not placed before Hon. Justice Saka Yusuf at all as specified in Guarantee Agreement.

Obviously, ground No. 1 questioned the trial Court’s failure to properly evaluate the evidence placed before it, but the issue claimed to have been framed therefrom was contesting the applicability of the doctrine of estoppel on the counter-claim presented by the Appellant in suit No. K/694/2002 giving rise to this appeal.

It is crystal clear that issue No.1 formulated by the Appellant is different from ground No. 1 raised by it, in its Notice of Appeal. In Omo v. J.S.C., Delta State (2000) 12 NWLR Part 682, it was emphasized that issues are formulated against a ground or grounds of appeal, therefore, if an issue raised is not related to any ground of appeal, it will be and is incompetent and ought to be ignored, per Mohammed, J.S.C.

In the light of the above, particularly, since issue No. 1 did not emerge from ground No. 1, it will be and is hereby struck out having not been phrased from any of the Appellant’s grounds of appeal. This now leaves this Court with the second issue presented by the Appellant as the lone issue in this appeal, that is to say, “whether if the trial Court evaluated the evidence on Records Properly, the counter claim of N600,000.00 (Six hundred Thousand Naira) and the 10% interest would not have been granted to the Appellant,” which clearly derived from the two grounds of appeal.

In considering the lone issue now before this Court, i.e., whether if the trial Court evaluated the evidence on Records Properly, the counter claim of N600,000.00 (Six hundred Thousand Naira) and the 10% interest would not have been granted to the Appellant, it is pertinent to note that in law, the Appellant’s counter-claim is a different and a separate action from the Respondent’s main action, therefore, the fact that the Respondent’s suit was dismissed does not imply that the counter-claim of the Appellant equally failed or was dismissed along with the Respondent’s main claim.

A careful perusal of the judgment of the lower court clearly indicates that no mention was made by the lower court regarding the substance of the counter-claim. lt is also interesting to note that the lower court in determining the first issue excogitated by the Respondents therein, that is to say “Whether the Plaintiff are estopped from making their claim by virtue of suit No. K/697/01 and whether the claim of the Plaintiff are caught up by res judicata, held thus:

“I have also carefully perused the pleadings in both this suit and suit No. 697/01 and the Counter-Claim and reply to the Counter Claim in both cases and they appear to be dealing with the same subject matter a loan facility given by the defendant bank to the Plaintiff and whether or not the loan has been paid.

In association with the above two issues are the area of the relevant law which are the areas of issue estoppel and res judicata.

In the decision of Chief Adekoya Oke Olukoga vs. Mr. Olufemi Fatude (1996) 7-10 SCNJ 1 the Supreme Court held as follows:

“Where a competent Court has determined an issue and entered judgment thereon neither of the parties to the proceedings may re-litigate that issue by formulating a fresh claim. Since in the circumstances the matter is said to be res judicata.

A perusal of the pleadings in both suits and the testimony of PW1 and DW1 in this suit and suit No K/697/01, shows that the issues for determination and the testimonies are similar. Infact in the Counter Claim of the Defendant/counter claimant Union Bank of Nigeria Plc. the bank had counter claimed and joined issues with the Plaintiffs in this suit.

Having said that I am of the view that this present suit has been adjudged determined in suit No. K/697/2001 presently on appeal before the Court of Appeal.”

In fact the lower Court recognized that the parties had joined issues in respect of the counter-claim, without making any pronouncement thereon. i.e., whether it was equally dismissed. It only remarked that the said Suit had then adjudged and determined in Suit No. K/697/2001. As indicated by the Appellant’s Counsel, Clause 2(ii) of the Guarantee signed by Mr. Richard Adesanya dated 5/1/1994 mentioned “Costs and Expenses recoverable from the Principal and Costs and expenses (on no full indemnity basis) arising out of or in connection with the recovery by the Appellant of the money’s due to the Appellant under the Guarantee which the undersigned agree to pay”.

The focal point under clause 2(ii) of the Guarantee is that the costs and expenses recoverable must arise out of or be in connection with the Appellant’s recovery of the money’s due to it under the Guarantee. If the costs and expenses must arise out of or be in connection with recovery of the debts due to the Appellant, the salient point to consider is, ‘whether the counter-claim of the Appellant was also, for recovery of the moneys due to it under the Guarantee?

The counter-claim is for the sum of N600,000 being the professional fee of the Solicitors defending the suit. It is stark in the Appellant’s counter-claim that there was no relief for recovery of any moneys or debt due to the Appellant under the Guarantee. Further, there was no suggestion by the Appellant that it was recovering any sum owed to it by the Respondent.

By the evidence of D.W.1, the Appellant Counter-Claimed in Suit No. K/697/2001 before High Court for outstanding liability standing against the Plaintiff in this action and expenses incurred by their actions fees and Solicitors fees. Judgment therein was delivered and the present Plaintiff appealed against it, and the same is still pending.

It is clear in the evidence of D.W.1 that i was in the said Suit No. K/697/2001, the Appellant had counter-claimed for the outstanding liabilities against the Plaintiffs i.e. the Respondents and, it was in that suit, it was entitled to claim for the costs and expenses of recovering the outstanding liabilities, the cost of the proceedings and the Solicitors fees for prosecuting that suit. D.W.1 said under cross-examination, that this suit did not arise out of the grant of a loan to the Plaintiffs. He further explained that the counter-claim in suit No. K/697/2001 was about the unpaid banking facility enjoyed by the 1st Respondent and guaranteed by the 2nd Plaintiff and the suit also covered all costs incurred by the Defendant, i.e., the Appellant.

I am afraid, the evidence of D.W.1 is clear that the Appellant’s counter-claim in suit No K/697/2001 was for the unpaid banking facilities and the cost and expenses of recovery of the said balance and the Solicitor’s fees. There is no claim for recovery of any debt or outstanding liability of the 1st Respondent, in the present suit, therefore, the present counter-claim of the Appellant was not in consonance with the provisions of Clause 2(ii) of the Guarantee, i.e. Exhibit 17. There was no proof of the actual payment of the said N600,000 by the Appellant to its Solicitors as Solicitors’ fees or that the Solicitor indeed charged the said sum. It is a special damage that ought to have been specifically proved. In any case the counter-claim was not covered by Clause 2(ii) of Exhibit 17, and since it was not proved nor authorized by the clause, the trial Court was right not to have awarded it.

Accordingly this appeal fails, and it is bound to be dismissed. The same is hereby dismissed by me, with N50,000 costs to Respondent against the Appellant.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I subscribe to the judgment pronounced by my learned brother, Orji-Abadua J.C.A. with nothing extra to add.

TIJJANI ABUBAKAR, J.C.A.: My learned brother Orji Abadua, JCA granted me the privilege to read in draft the lead judgment just delivered. My learned brother covered the field.

I have nothing to add except to adopt the judgment as my own in this appeal.

Appearances

I. H. Yamah Esq;For Appellant

AND

U. S. Aminu Esq; and J. A. Kehinde Olaltan Esq;For Respondent