UNION HOMES SAVINGS LOAN PLC v. AKINTAN
(2020)LCN/15739(CA)
In The Court Of Appeal
(AKURE JUDICIAL DIVISION)
On Friday, July 17, 2020
CA/AK/4/2018
Before Our Lordships:
OyebisiFolayemiOmoleye Justice of the Court of Appeal
Ridwan Maiwada Abdullahi Justice of the Court of Appeal
Patricia Ajuma Mahmoud Justice of the Court of Appeal
Between
UNION HOMES SAVINGS LOAN PLC APPELANT(S)
And
HIGH CHIEF SAMUEL AGBOOLA AKINTAN RESPONDENT(S)
RATIO:
THE DEFINITION OF SUMMARY JUDGMENT
A summary judgment procedure is a procedure whereby the Court gives judgment in favour of a party without a full trial and any judgment given thereon is a judgment on merit because it is based on the lack of defence to the claim and it is deemed a final judgment. Summary judgment procedure is for disposing with dispatch, cases which are virtually uncontested. See UWAZURUIKE & ORS. VS. A.G. FEDERATION (2013) LPELR 20392 (SC), OBARO VS. HASSAN (2013) LPELR 20089 (SC), BONA VS. TEXTILE LTD. & ANOR. VS. ASABA TEXTILE MILL PLC. (2012) LPELR 9828 (SC) and UNION BANK PLC VS. AWMAR PROPERTIES LTD. (2018) LPELR 44376) (SC).
Where the Defendant fails to file a defence or notice of intention to defend, the Court can proceed and deliver its judgment. See LEWIS VS. UBA (2016) LPELR 40661 (SC). RIDWAN MAIWADA ABDULLAHI, J.C.A.
THE PRINCIPLE ON THE ABUSE OF COURT’S PROCESSES AND MULTIPLICITY OF ACTIONS
In arriving at what would constitute an abuse of Court’s process, the law has laid down some principle guiding the consideration of whether the process constitutes abuse of Court or not and to sustain the claim of abuse of process, there must co-exist the following:- (1) Multiplicity of suit between the same opponents; on the same subject matter; and on the same issue. These preconditions are conjunctive.
In SARAKI VS. KOTOYE (1992) 9 NWLR (PT. 264) 156, the Supreme Court had this to say:
“The multiplicity of action on the same subject matter between the same parties even where there exist a right to bring the action, is regarded as an abuse. The abuse lies in the multiplicity and manner of exercise of the right, rather than the exercise of the right per se.
It further thus:
“The abuse consists in the intention, purpose and aim of the person exercising the right to harass, irritate and annoy the adversary and interfere with the due administration of justice such as instituting different actions between the same parties simultaneously in different Courts, even though on different ground”.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<> RIDWAN MAIWADA ABDULLAHI, J.C.A.
THE COURT IS WITHOUT POWER TO AWARD A CLAIMANT WHAT HE DID NOT CLAIM
It is trite that in civil cases, the Court is without power to award a claimant what he did not claim. The Court is not a charitable organization and therefore should not make unsolicited order or grant prayers not sought by the parties. RIDWAN MAIWADA ABDULLAHI, J.C.A.
THE DISCRETION OF THE COURT TO AWARD COSTS
A Court has an absolute discretion to award costs but the discretion must be exercised judicially and judiciously. Costs follow event and a successful party is entitled to costs. However, costs is not meant to be a bonus to the successful party. See NNPC VS. CLIFCO NIG. LTD. (2011) LPELR 2022 (SC) and OLUSANYA VS. OSINLEYE (2013) LPELR 20641 (SC).
The record is salient on the reason for the award of the general damages by the lower Court, indeed the damages has not been claimed. There are no facts upon which the lower Court relied to make the order. In the end, I set aside the award of general damages by the lower Court. RIDWAN MAIWADA ABDULLAHI, J.C.A.
THE INTRFERENCE OF THE EXERCISE OF DISCRETION BY A COURT
While it is true that a successful party should not be denied costs unless for good reasons and a defeated party ought not be demnified in costs for no cause, costs it must be borne in mind are not awarded as punitive. A Court has an absolute and unfettered discretion to award costs or not to award. The paramount thing is to take into account all circumstances in the case. An Appellate Court does not as a matter of course, interfere with the exercise of discretion by a trial Court unless it is not exercised in accordance to law or it is perverse –Olusanya vs. Osinleye (2013) LPELR. RIDWAN MAIWADA ABDULLAHI, J.C.A.
RIDWAN MAIWADA ABDULLAHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Ondo State, sitting in Akure (hereinafter referred to as the Lower Court) coram: W. A. Akintoroye J, in Suit No. AK/54/2017, delivered on 18th October, 2017. The Appellant and the Respondent were the respective Defendant and Plaintiff before the lower Court.
The facts of the case which transformed into the appeal are simple. The Plaintiff is a Legal Practitioner while the Defendant is a body corporate registered as a Bank and carries on the business activities of banking.
On 14th April 2011, the Plaintiff and the Defendant entered into a fixed term deposit investment with the sum of N500,000,000.00 (Five Hundred Million Naira only) with the Defendant based on the agreement that the investment shall attract 10% interest per annum which was later increased to 11.5% payable to the Plaintiff monthly, while the investment shall be rollover on maturity every month. The nature of the interest payable on the interest should be paid at the end of every month after which the fixed deposit is rolled over for another month whereby another account is created and the said fixed term deposit investment continues on the same terms and condition.
The Plaintiff withdrew part of the investment sometime in 2013 and 2014. Thereafter the Plaintiff by letter dated 11th September, 2014 and 14th January, 2015 wrote to the Defendant asking for his account balance and the Defendant wrote to the Plaintiff stating its indebtedness to the Plaintiff as at 14th January, 2015. The Plaintiff aver that since 2014, the Defendant was not honouring his cheques and money request.
On 20th January 2015, the Plaintiff wrote a letter to the Managing Director for the closure and transfer of both fixed deposit and his current accounts with the Defendant in the sum of N64,791,753.66 and the Defendant refused to transfer till date. The Defendant by a letter dated 9/9/2016 wrote to the Plaintiff captured RE: ACCOUNT BALANCE, the sum owned the Plaintiff by the Defendant stood at N65,211,434.64 which sum had yet to be paid to the Plaintiff in spite of repeated demands. The inability of the Defendant to honour the Plaintiff’s invitation for meeting and dishonouring his financial request since 2014, whichsubstantially made him to suffer untold hardship, financial loss, nervous shock and psychological trauma which necessitated the Plaintiff to write a letter dated 24/1/2017 to the Defendant to terminate the fixed deposit investment with effect from 1/1/2017 and pay all his entitlement immediately, which letter is yet to be replied. Thereafter the Plaintiff wrote a Notice for Court action which was equally not replied till date. The Plaintiff pleaded all the letters. Sequel to that, the Plaintiff on 7th December, 2016 via a writ of summons beseeched the Court and tabled his claims against the Defendant. The Defendant upon receipt of the said writ of summons filed a Notice of Preliminary objection challenging the competence of the suit.
Thereafter, the Plaintiff on 23rd January, 2017, filed a Notice of Discontinuance of the suit i.e. Suit No. AK/205/2016 before it has been assigned to any Court. The Plaintiff on 13th March, 2017 filed another writ of summons in Suit No. AK/54/2017 dated the 13th March, 2017 and issued same to be served on the Defendant.
By paragraph 37 whereof, the Plaintiff claimed against the Defendant as follows:-
(a) The claimant claim against the defendant is for the sum of N62,457,836.07 (Sixty Two Million, Four Hundred and Fifty-Seven Thousand, Eight Hundred and Thirty-Six Naira, Seven Kobo only) being the money owed the claimants by the Defendant arising out of the Fixed Term Deposit Investment sum of N500,000,000.00 (Five hundred million Naira only) which the claimant deposited with the Defendant at the Defendant’s branch office at Akure, Ondo State on the 14th day of April, 2011 and the outstanding balance in the personal current account of the claimant as at 30th day of November, 2016.
(b) The claimant also claimed interest in respect of the said sum of N62,457,836.07 (Sixty Two Million, Four Hundred and Fifty-Seven Thousand, Eight Hundred and Thirty-Six Naira, Seven Kobo only) at the rate of 11.5% from the 1st December, 2016 to the 31st day of January, 2017 and thereafter at the rate of 10% per annum from the date of the judgment till the whole judgment debt is fully and finally liquidated.
(c) The claimant claimed general damages sum of N50,000,000.00 (fifty million Naira only) against the Defendant for untold hardship, financial loss, defamation of character, nervous shock and psychological trauma suffered as a result of the Defendant’s refusal to pay the said sum to him till date in spite of repeated demands.
The Plaintiff also filed an application for summary judgment on 13th March, 2017 and prayed the Court for:-
1. AN ORDER for summary judgment in the sum of N62,457,836.00 being money owed the Claimant/Applicant by the Defendant/Respondent as at the 30th day of November 2016 arising out of the fixed term deposit investment and the outstanding balance in the personal current account of the Claimant/Applicant with the Defendant/Respondent which is the main plank of the subject matter as contained in relief 1 of the Claimant/Applicant.
2. The Claimant/Applicant claim interest in respect of the said sum of N62,457,836.07 at the rate of 11.5% from the 1st December, 2016 to 31st January, 2017 and thereafter at the rate of 10% per annum from the date of judgment till the debt is fully and finally liquidated.
3. AND for such further order as the Court may deem fit to make. Upon the receipt of the said writ of summons and the application for summary judgment the Defendant filed a Notice of Preliminary Objection dated 3rd April, 2017 on the ground that the Suit No. AK/54/2017 filed on 13th March, 2017 constitutes an abuse of Court process but the defendant did not file any Court process and or statement of defence in respect of the application for summary judgment. At the instance of counsel for both parties, all pending applications were adjourned to 24th July, 2017 to be heard. The applications and the preliminary objections were duly heard and adjourned to 18th October, 2017 for Ruling/Judgment. In a considered Ruling/Judgment delivered on 18th October, 2017, located at pages 278 – 295 of the record, the Lower Court overruled and dismissed the preliminary objection, granted the Plaintiff’s claim and awarded the sum of N2,000,000.00 as general damages and costs of N250,000.00 in favour of the Claimant.
Dissatisfied with the decision, the Appellant, hence on 30th November, 2017 lodged a four (4) grounds Notice of Appeal seen at pages 296 – 301 of the record and prayed this Court for:-
AN ORDER setting aside the judgment of W. A. Akintoroye J., delivered on 18th October, 2017 in Suit No. AK/54/14 and striking out the suit for being an abuse of Court process. Thereafter, the parties filed and exchanged their Briefs of Argument in line with the rules regulating the hearing of civil appeals in this Court. The appeal was heard on 16th March, 2020.
During the hearing of the appeal on 16th March, 2020, learned counsel for the Appellant – S. O. Giwa Esq. adopted the Appellant’s Brief of Argument filed on 14th February, 2018 settled by Oluwasesan Dada Esq. as representing his argument for the appeal. He urged the Court to allow the appeal. Similarly, learned counsel for the Respondent- O. J. Jejelola Esq. adopted the Respondent’s Brief of Argument filed on 2nd March, 2016 as representing his submissions against the appeal. He urged the Court to dismiss it.
In the Appellant Brief of Argument, the learned counsel distilled four issues for determination viz:-
1. Whether the learned trial judge was right to have held that Suit No. AK/54/2017 does not constitute an abuse of Court process because of mere filing of a Notice of Discontinuance in Suit. No. AK/205/2016.
2. Whether the learned trial judge was right to have awarded the sum of Two Million Naira (N2,000,000.00) and the sum of Two Hundred and Fifty Thousand Naira (N250,000.00), amount not claimed in the Respondent’s application for summary judgment.
3. Whether the learned trial Judge was right to have heard the Appellant’s Notice of Preliminary Objection with the Respondent’s application for summary judgment without allowing the Appellant to file its defence relying on the provision of Order 22 Rule 5(1) of the Ondo State High Court (Civil Procedure) Rules 2012.
4. Whether the Learned Trial Judge was right to have held that Order 24 of the Ondo State High Court (Civil Procedure) Rule 2012 empowers a party and the Court to amend Court processes which include Claimant’s Counter Affidavit sought by the Claimant to amend.
The Respondent, in his Brief of Argument, crafted four issues for determination, namely:-
1. Whether the Learned Trial Judge was right to have held that Suit No. AK/54/2017 does not constitute an abuse of Court process because of the filing of a Notice of Discontinuance in Suit No. AK/205/2016.
2. Whether the Learned Trial Judge was right to have awarded the sum of Two Million Naira only (N2,000,000.00) and the sum of Two Hundred and Fifty Thousand Naira (N250,000.00) as general damages and costs in favour of the Respondent.
3. Whether the learned trial Judge was right to have heard the Appellant’s Notice of Preliminary Objection with the Respondent’s application for summary judgment in the suit.
4. Whether the learned trial Judge was right to have held that Order 24 of the Ondo State High Court (Civil Procedure) Rules 2012 empowers a party and the Court to amend any Court process in any case before it.
I have carefully gone through the record of proceedings and other processes filed on this appeal. A careful look at the two sets of issues shows that they are identical in substance. I am convinced that the interest of justice would be served with the four issues donated by the Appellant and will decide the appeal on the basis of the issues raised by the Appellant.
ISSUE ONE
Whether the Learned Trial Judge was right to have held that Suit No. AK/54/2017 doesn’t constitute an abuse of Court process because of a mere filing of a Notice of Discontinuance in Suit No. AK/205/2016.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
Learned counsel for the Appellant submitted that abuse of Court process is a term generally applied to proceedings which are wanting in bonafide. That abuse of Court process is the improper use of judicial process by a party in litigation and it does occur in various ways, he listed some ways where the above occurs.
Learned counsel submitted that the filing of Suit No. CA/54/2017 while Suit No. AK/205/16 is still pending constitutes institution of a multiplicity of action on the same subject matter against the same Appellant and it amount to abuse of Court process. He contended that mere filing of the Notice of Discontinuance by the Respondent in Suit No. AK/205/2016 without the Court making an order striking out the suit does not terminate the suit as wrongly held by the Learned Trial Judge. He cited the case of the vessel “Saint Roland vs. Osinloye (1997) 4 NWLR (pt. 500) 387 for the view.
Counsel argued that the mere filing of a Notice of Discontinuance does not automatically bring a cause or matter to an end. The matter remains pending until the Court makes a formal order in respect of the Notice of Discontinuance. He cited STABILINI VISIONI (NIG.) LTD. VS. S.V. LTD. (2011) 8 NWLR (PT. 1249) 258 for the point.
Learned counsel submitted that the lower Court was in error when it held that the filing of Notice of Discontinuance in Suit No. AK/205/2016 without more terminates the suit. That a Notice of Discontinuance must be heard before proceeding against a party is terminated. He cited ENTERPRISE BANK LTD. VS. AROSO (2014) 3 NWLR (PT. 1394) 256. Counsel contended that for any action to come to an end, all pending applications must be heard and determined one way or the other. That as at the time of filing the Notice of Discontinuance, the Notice of Preliminary Objection filed by the Appellant is still pending and the mere filing of the Notice of Discontinuance cannot terminate the Appellant’s Notice of Preliminary Objection which has not been heard and determined.
Counsel submitted that there is no provision that provides that mere filing of Notice of Discontinuance terminates the suit. That the trial Judge was wrong to have held that the filing of the Notice of Discontinuance in Suit No. AK/205/2016 without order of Court striking out the Appellant’s Notice of Preliminary Objection and the entire suit terminate the suit and the suit does not constitute abuse of Court process. He urged the Court to so hold and resolve this issue in favour of the Appellant.
Learned counsel for the Respondent in reaction to issue 1, submitted that discontinuance of suit is provided for under Order 23 Rule 2(1) of the Ondo State High Court (Civil Procedure) Rules 2012, he reproduced the provision of the order and contended that a discontinuance of action in any suit brings that action as is discontinued to an end. He cited A. A. OGUNKUNLE& 2 ORS. VS. ETERNAL SACRED ORDER OF THE CHERUBIM AND SERAPHIM & 13 ORS. (2001) FWLR (PT. 62) 1866 and MICHEAL EZEONU VS. AZUBUIKE AGHEZE (1991) 4 NWLR (PT. 187) 631 for the view.
Counsel contended that the said Suit No/ AK/205/2016 was no longer pending in any Court after the Respondent has filed a discontinuance. That the said notice of discontinuance implied that the Respondent voluntarily removed the suit or question to be determined from the determination of the Court, or refraining from proceeding with the action. He cited the case of BOLA TINUBU VS. IMB SECURITIES (2001) 16 NWLR(PT. 740) 670 for the definition of “Discontinuance”. He urged the Court to resolve this issue in favour of the Respondent.
RESOLUTION
A summary judgment procedure is a procedure whereby the Court gives judgment in favour of a party without a full trial and any judgment given thereon is a judgment on merit because it is based on the lack of defence to the claim and it is deemed a final judgment. Summary judgment procedure is for disposing with dispatch, cases which are virtually uncontested. See UWAZURUIKE & ORS. VS. A.G. FEDERATION (2013) LPELR 20392 (SC), OBARO VS. HASSAN (2013) LPELR 20089 (SC), BONA VS. TEXTILE LTD. & ANOR. VS. ASABA TEXTILE MILL PLC. (2012) LPELR 9828 (SC) and UNION BANK PLC VS. AWMAR PROPERTIES LTD. (2018) LPELR 44376) (SC).
Where the Defendant fails to file a defence or notice of intention to defend, the Court can proceed and deliver its judgment. See LEWIS VS. UBA (2016) LPELR 40661 (SC).
In the total case, the Appellant as Defendant was served with all the Court processes in this suit, he did not file anything by way of defence. The Defendant by his own failure to file his defence or notice ofintention to defend with an affidavit disclosing a defence on the merit, the lower Court is left with no option than to proceed to judgment.
Learned counsel for the Appellant argued that Suit No. AK/205/2016 was still pending, therefore the subsequent filing of Suit No. AK/54/2017 on the same subject matter against the same parties, constitute an abuse of Court process. The phrase Abuse of Process was defined as the improper and tortuous use of a legitimately issued Court process to obtain a result that is either unlawful or beyond the process’s scope. See OGBORU & ANOR. VS. UDUAGHAN & ORS. (2013) LPELR 20805 (SC). The feature of abuse of process of Court is the improper use of judicial process by a party in litigation. See ALLANAH & ORS. VS. KPOLOKWU & ORS. (2016) LPELR 40724 (SC). Abuse of Court process means abuse of legal procedure or improper use of legal process. In considering whether an action constitute an abuse of Court process, the Court is to critically consider the peculiar circumstances of each case in which the issue of abuse of Court is raised to determine whether the act of the party complained of constitutes anabuse of Court process. In arriving at what would constitute an abuse of Court’s process, the law has laid down some principle guiding the consideration of whether the process constitutes abuse of Court or not and to sustain the claim of abuse of process, there must co-exist the following:- (1) Multiplicity of suit between the same opponents; on the same subject matter; and on the same issue. These preconditions are conjunctive.
In SARAKI VS. KOTOYE (1992) 9 NWLR (PT. 264) 156, the Supreme Court had this to say:
“The multiplicity of action on the same subject matter between the same parties even where there exist a right to bring the action, is regarded as an abuse. The abuse lies in the multiplicity and manner of exercise of the right, rather than the exercise of the right per se.
It further thus:
“The abuse consists in the intention, purpose and aim of the person exercising the right to harass, irritate and annoy the adversary and interfere with the due administration of justice such as instituting different actions between the same parties simultaneously in different Courts, even though on different ground”.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
See also OYEYEMI & ORS. VS. OWOEYE & ANOR (2017) LPELR 42903 (SC); CPC & ANOR. VS. OMBUGADU & ANOR. (2013) LPELR 21007 (SC) and NWOSU VS. P.D.P. & ORS. (2018) LPELR 44 386 (SC).
A Court is enjoined by law to examine each case predicated on its facts and circumstances in order to ascertain if it displays an abuse of Court process or not. In the instant case, I have examined the record, the bedrock of the appeal. Incontestably, Suit No. AK/205/2016 was filed on 7th December, 2016 against the Appellant. The Appellant upon receipt of the said writ filed a preliminary objection against the competence of the suit. Thereafter and before the assignment of the suit to any judge, the Respondent on the 23rd January, 2017 filed a Notice of Discontinuance of Suit No. AK/205/2016. On 13th March 2017 the Respondent filed another writ of summon in Suit No. AK/54/2017.
Thereafter, the Appellant filed a Notice of Preliminary Objection on the ground that Suit No. AK/54/2017 constitute an abuse of Court process. I have gone through the reliefs claimed in the two Suits, the results of the two are the same. However, the two suits are not product ofmultiplicity of action, this is because the filing of Notice of Discontinuance of Suit No. AK/205/2016 brings the action to its grave. A discontinuance in my opinion brings the action to an end against the Appellant/Defendant. The action has been discontinued without further intervention from the Court. In this wise, this Suit No. AK/54/2017 is not guilty of the allegation of abuse of Court process of Suit No. AK/205/2016. See OGUNKUNLE & ORS. VS. ETERNAL SACRED ORDER OF THE CHERUBIM AND SERAPHIM & ORS. (2000) LPELR 2339 (SC).
In the end, I resolve issue one against the Appellant and in favour of the Respondent.
ISSUE TWO
Whether the learned trial Judge was right to have awarded the sum of Two Million Naira (N2,000,000.00) and the sum of Two Hundred and Fifty Thousand Naira (N250,000.00) amount not claimed in the Respondent’s application for summary judgment.
Learned counsel for the Appellant submitted that the learned trial Judge at page 294 of the record awarded the sum of Two Million Naira and Two Hundred and Fifty Thousand Naira as costs against the Appellant. That the Respondent filed an application for summary judgment on13th March, 2017, Counsel reproduced the reliefs claimed therein and submitted that the Two Million Naira awarded by the lower Court as general damages and Two Hundred and Fifty Thousand Naira costs are not part of the Respondent’s reliefs in his application for summary judgment. That the Respondent in his application for summary judgment only asked for two reliefs as stated in his application and does not contain any relief for general damages nor costs as granted by the lower Court.
Learned counsel contended that a Court cannot grant a relief not claimed by parties. He cited the cases of ALHASSAN VS. ISHAKU (2016) 10 NWLR (PT. 1520) 230 and ZABOLEY INT’L VS. OMOGBEHIN (2005) 17 NWLR (PT. 953) 218. That the Respondent in moving his application for summary judgment, did not move the Court on the prayers for general damages and costs. Therefore, said counsel, the lower Court was in error in granting prayers for general damages and costs not moved before it. He cited SOCIETY BICSA VS. CHARZIN IND. LTD. (2014) 14 NWLR (1398) 49 and, ETIM EKPENYONG & 3 ORS. VS. INYANG EFFIONG NYONG & 6 ORS. (1975) 2 SC 65 for the view. Counsel submitted that the learned trial Judge went beyond his jurisdiction when he awarded the sum of Two Million Naira as general damages and Two Hundred and Fifty Thousand Naira as costs not claimed as reliefs in the Respondent’s motion for summary judgment. He urged the Court to so hold and resolve this issue in favour of the Appellants.
In reacting to this issue, learned counsel for the Respondent submitted that the learned trial Judge was right to have awarded the sum of Two Million Naira (N2,000,000.00) and the sum of Two Hundred and Fifty Thousand Naira (N250,000.00) as general damages as costs in favour of the Respondent. That award of damages in breach of contract cases by a trial Court is an exercise of judicial discretion. He cited OCEANIC BANK INT’L NIG. LTD. VS. CHITEX LTD. (2006) 6 NWLR (PT. 661) 464.
Counsel submitted that the Respondent claimed Fifty Million Naira (N50,000.000) as general damages as contained on page 11 of the record being the untold hardship, financial loss, nervous shock and psychological trauma suffered by the Respondent. That the general damages awarded by the trial Court is such as the law implies orpresumes to have accrued from the wrong complained of. He argued that it is the Court that has the discretion to determine the sum to be awarded by way of damages after taking cognizance of the case. That the award of general damages is a matter of discretion of the trial Court and an Appellate Court does not normally interfere with such award. He cited SUNDAY AKANMU VS. OLUWOLE OLUGBODE (2001) 13 WRN 132.
Learned counsel submitted that general damages need not be specifically proved as it may be inferred from the circumstances surrounding the case. That a Court has a discretion to decide what amount it should award as general damages. He cited N.N.B. PLC VS. DENCLAG LTD. & 1 OR. (2004) FWLR (PT. 228) 606 and UAC OF NIG. PLC VS. MADAM IKOLE IROLE (2002) FWLR (PT. 113) 351.
Counsel submitted that the costs of N250, 000.00 awarded in favour of the Respondent was proper and just as the principle guiding the award of costs is well settled and established that costs follows events in litigation and that a successful party is entitled to costs unless there is a special reason for depriving him of the entitlement, which does not arise in this cases. Hecited the case of ADENAIYA VS. GOVERNOR-IN-COUNCIL (1962) 1 SCNLR 442 and AKINBOBOLA VS. PLISSON FISKO (1991) NWLR (PT. 167) 270 for the point. He urged the Court to resolve this issue in favour of the Respondent.
RESOLUTION
The Appellant castigates the award of general damages of the sum of Two Million Naira and Two Hundred and Fifty Thousand Naira as costs by the learned trial Judge on the ground that the reliefs were not asked for by the Respondents.
It is trite that in civil cases, the Court is without power to award a claimant what he did not claim. The Court is not a charitable organization and therefore should not make unsolicited order or grant prayers not sought by the parties.
I have examined the Respondent’s prayers as set out in his application for summary judgment and the subject of this appeal. It is discernable from pages 63 – 72 of the record that the reliefs encases in the application for summary judgment before the lower Court was for the following:-
1. AN ORDER of this Honourable Court for summary judgment in the sum of N62,457,836.07 (sixty-two million, four hundred and fifty-seven thousand, eight hundred and thirty-six Naira seven Kobo only) being the money owed the Claimant/Applicant by the Defendant/Respondent as at the 30th day of November, 2016 arising out of the Fixed Term Deposit Investment and the outstanding balance in the personal current account of the Claimant/Applicant with the Defendant/Respondent which is the main plank of the subject matter as contained in relief 1 of the claim of the Claimant/Applicant in this suit.
2. The Claimant/Applicant claim interest in respect of the said sum of N62,457,836.07 (Sixty-Two Million, Four Hundred and Fifty-Seven Thousand, Eight Hundred and Thirty-Six Naira Seven Kobo only) at the rate of 11.5% from the 1st day of December, 2016 to the 31st January, 2017 and thereafter at the rate of 10% per annum from the date of judgment until the whole judgment debt is fully and finally liquidated as contained in relief 2 of the claim of the Claimant/Applicant in this suit.
From the above reliefs, there is no clause in which the Respondent made a claim for general damages against the Appellant. A Court lacks the vires to grant to a party unclaimed reliefs. See ODUWOLE VS. WEST (2010) 10 NWLR (PT. 1203) 598,KAYILI VS. YILBUK (2015) 7 NWLR (PT. 1057) 281, HASSAN VS. ISHAKU (2016) 10 NWLR (PT. 1520) 230; EDILCON (NIG.) LTD. VS. UBA PLC (2017) LPELR 42342 (SC) and OYEYEMI & ORS. VS. OWOEYE & ANOR (2017) LPELR 41903 (SC). In the case of OYEYEMI(supra) the Supreme Court held thus:
“A Court is duty-bound to adjudicate between the parties on the basis of the claim formulated by them. The question of granting a relief not specifically claimed is not an issue which depends on the discretionary powers of a trial Court. The Court must hear the view of the parties before taking an order different from the one claimed.”
See: ABBAS VS. SOLOMON (2001) 15 NWLR (PT. 311) 257 and OSUJI VS. EKEOCHA (2009) 16 NWLR (PT. 1166) 81.
The unclaimed grant, with all due respect to the lower Court, portrayed it as a santa-claus, a Court of law is not a santu-claus that award an unsolicited claim. The Court below ought not to have granted the general damages because it was not solicited by the Respondent in his application for summary judgment, the subject of this appeal. I hold that the lower Court was wrong to have made it. The judgment of the Court under summary judgment is limited to liquidated money demand.
Whenever the amount claimed can be ascertained by calculation or fixed by any scale, the amount is said to be liquidated and in such a case oral evidence is not necessary where no statement of defence has been filed. But when the amount depends on all the circumstances of the case or by an estimate, the damages are said to be unliquidated, in such a case, evidence is required. The trial Judge did not receive any evidence either oral or by affidavit in support of the claim for damages in the said application for summary judgment before making the award of the damages and costs.
The motion for summary judgment moved by the Respondent on 24th July, 2017 and upon which the lower Court predicated its judgment can be found on pages 63 – 72 of the record. I have perused the motion and affidavit in support and I do not see where the Respondent claim general damages awarded by the lower Court. I so hold.
A Court has an absolute discretion to award costs but the discretion must be exercised judicially and judiciously. Costs follow event and a successful party is entitled to costs. However, costs is not meant to be a bonus to the successful party. See NNPC VS. CLIFCO NIG. LTD. (2011) LPELR 2022 (SC) and OLUSANYA VS. OSINLEYE (2013) LPELR 20641 (SC).
The record is salient on the reason for the award of the general damages by the lower Court, indeed the damages has not been claimed. There are no facts upon which the lower Court relied to make the order. In the end, I set aside the award of general damages by the lower Court.
While it is true that a successful party should not be denied costs unless for good reasons and a defeated party ought not be demnified in costs for no cause, costs it must be borne in mind are not awarded as punitive. A Court has an absolute and unfettered discretion to award costs or not to award. The paramount thing is to take into account all circumstances in the case. An Appellate Court does not as a matter of course, interfere with the exercise of discretion by a trial Court unless it is not exercised in accordance to law or it is perverse –Olusanya vs. Osinleye (2013) LPELR.
In this case, the Appellant’s contention on the issue of costs awarded by the trial Court, in my view is totally baseless. This is a case where the Appellant put the Respondent through all manner of demands and applications. The Respondent deposited the sum of Five Hundred Million Naira on Fixed Deposit Investment with the Appellant. The Appellant refused to pay the outstanding balance despite repeated demand; when the Respondents went to Court, the Appellant filed a Notice of Preliminary Objection and refused to file his defence or notice of intention to defend the Respondent’s application for summary judgment. Suffice it to say that I refuse to interfere with the costs awarded. I so hold. This issue is resolved partly in favour of the Appellant and partly in favour of the Respondent.
ISSUE THREE
Learned counsel for Appellant submitted that the Appellant Notice of Preliminary Objection was not challenging the competence of the Respondent’s application for summary judgment rather it is against the Respondent’s suit on ground of abuse of Court process. That the learned trial Judge was wrong when he heard the Appellant’s Notice of Preliminary Objection together with the Respondent’s application for summary judgment without first determine the preliminary objection before taking any step in the proceedings.
Counsel reproduce the provision of Order 22 Rules 5(i) of the Ondo State (Civil Procedure) Rules 2012 and submitted that the provision is only applicable where the jurisdictional objection was raised in the pleading and such relates to application for summary judgment or ordinary point of law but not objection that relates to the originating process, like the Appellant’s preliminary objection. That an objection to the jurisdiction of Court to entertain a matter is not an ordinary point of law contemplated under Order 22 of the Ondo State High Court (Civil Procedure) Rules. That what the trial Court ought to have done is to hear the Appellant’s Notice of Preliminary Objection, determine same and if refused, order the Appellant to file his Statement of Defence and other process. He cited ELABANJO VS. DAWODU (2006) 15 NWLR (PT. 1001) 76.
Counsel submitted that the learned trial Judge in his judgment dismissed the Appellant’s preliminary objection and entered judgment in favour of the Respondent without giving opportunity to the Appellant to defend the claimby filing its Statement of Defence. Thus, amount to denial of the Appellant’s right to fair hearing. He cited NDUKAUBA VS. KOLOMO (2005) 4 NWLR (PT. 915) 411.
He contended that it is not expected for a party challenging the competence of an action on ground of abuse of Court process to file a defence as a response to the Claimant’s processes. That the learned trial Judge was wrong when he held that the Appellant failed to comply with the provision of Order 11 Rule 4 for refusing to file Statement of Defence and other process in reply to the application for summary judgment. That the Appellant’s having filed a Notice of Preliminary Objection challenging the competence of the entire suit on ground of abuse of Court process, it would amount to waiver for the Appellant to file a Statement of Defence and reply to application for summary judgment. He urged the Court to so hold and resolve this issue in favour of the Appellant.
Learned counsel for the Respondent submitted that the learned trial Judge was right to have heard the Appellant’s Notice of Preliminary Objection with the Respondent’s application for summary judgment in this suit. That the learned trial Judge based on the agreement of all counsel adjourned all pending application in this case to be heard on the 24th July, 2017 and on that date all applications including motion for summary judgment were heard, the counsel to the Appellant never sought permission nor made any oral application to enable him file a counter-affidavit to the application for summary judgment. The Appellant deliberately decided not to file any counter to the application for summary judgment.
Learned counsel reproduced the provisions of Order 11 Rule 1, (2) and (4) and Order 22 (5)(1) of the High Court of Ondo State (Civil Procedure) Rules 2012 and submitted that the Appellant did not comply with the steps provided there-under. That there was no Statement of Defence, no deposition of Defendant’s witness on oath, no exhibits and no written brief in reply to the application for summary judgment. That the Notice of Preliminary Objection filed by the Appellant without filing his Statement of Defence, violated the provisions of Order 22 Rule 1 and 2 as it amounted to demurer which had been abolished under the Rule. He cited FRANCIS OKAFOR & 1 OR. VS. A. G. ANAMBRA STATE (2008) 128 LRCN, A.G. FED. VS. GUARDIAN NEWSPAPER LTD. & 5 ORS. (1999) 5 SCNJ 324 and COMFORT OLAOSUN VS. OLUWOLE OGUNSEMI (2004) ALL FWLR (PT. 214) 49.
He furthered that the pending Notices of Preliminary Objection in the suit was argued and the lower Court ruled on some in its judgment before delving into the Motion for Summary Judgment which was not challenged and the judgment was properly delivered. He urged the Court to so hold and resolve this issue in favour of Respondent.
RESOLUTION
Learned counsel for the Appellant contended that the Appellant’s preliminary objection was squarely against the Respondent’s suit on ground of abuse of Court process but not against the application for summary judgment. Therefore the learned trial Judge was wrong when he heard the Preliminary Objection with the Application of Summary Judgment. I had while considering Issue One, which border on abuse of Court process, reached the finding that Suit No. AK/54/2017 does not constitute an abuse of Court process.
There are no extenuating circumstance furnished before this Court to stimulate me to disturb the finding reached after due consultation with the law. I will in order to preserve the scarce judicial time import the finding from the issue and adopted same here.
Learned counsel for the Appellant contended Order 22 Rule 5 is only applicable where the jurisdictional objection is raised in the pleading or ordinary point of Law and not objection that relates to originating process like the Appellant’s Preliminary Objection, which is on ground of abuse of Court process. I disagree with this line of the Appellant’s argument, in the eyes of Law, an abuse of Court process is an issue of jurisdiction. See DINGYADI & ANOR V. INEC & ORS (2011) LPELR 950 (SC); ONYEABUCHI V. INEC & ORS (2002) LPELR 2726 and ORDER 22 Rule 5 (1) of the Ondo State High Court (Civil Procedure) Rules 2012 which provides: All jurisdictional and other objections shall be heard simultaneously with the following categories of proceedings:-
(a) Originating Summons and Originating Motion (except where as a result of factual issues in dispute, the Court directs that the case should be tried as one commence by Writ of Summons)
(b) Application for Summary judgment, application to strike out pleadings and application for interlocutory injunction or other forms of interim preservation or protective relief.
(c) Any other interlocutory proceedings that may conveniently be head together with a jurisdiction or other objections.
The Appellant’s Preliminary Objection and indeed all other pending applications were adjourned with the consent of both Counsel, firstly to 16th May 2017, to 30th May, 2017 and to 24th July, 2017. On 24th July, 2017 all the pending application were heard and adjourned to 18th October, 2017 for ruling and judgment. The learned trial Judge in a considered ruling dismissed the Appellant’s Application for Summary Judgment as seen at pages 289-294 of the record. Learned counsel for the appellant was therefore wrong to have said that his preliminary objection was not determined by the lower Court or that he was not given opportunity to file statement of defence. I so hold.
Order 11 Rule (1) and (4) of the High Court of Ondo State (Civil Procedure) Rules, provides:-
“11-(1) where a claimant believed that there is no defence to his claim. Notwithstanding that theaction is for declaratory relief, he shall file with his originating process the statement of claim, the exhibits, the deposition of his witnesses and an application for summary judgment which application, shall be supported by an affidavit stating the grounds of his belief and written brief in respect thereof.
(4) where a party served with the processes and documents referred to on Rule 1 of this Order intends to defend the suit, he shall not later than the time prescribed for defence files:-
(a) his statement of defence
(b) depositions of his witnesses
(c) the exhibits to be used in his defence and
(d) a written brief in reply to the Application for Summary Judgment.
With regard to the time prescribed for the filing of defence to summary judgment and other processes as provided under Rule 4 above, the Appellant has thirty (30) days to file his statement of defence and other processes. The record shows that the Appellant was served with the Writ, Statement of Claim, an Application for Summary Judgment and all other documents on 10th April, 2017. The Appellant elected not to file his Statement of Defence or Notice of Intention to Defend in respect of the Summary Judgment Application nor file any application for extension of time to enable him file same up till 18th October, 2017 when the judgment delivered for reasons best known to him. The Appellant having been served with a specially endorsed Writ, Statement of Claim and an Application for Summary Judgment, it was expected of it to file a defence or to show it has a good defence to the Respondent’s Claim by disclosing sufficient feet therefrom. The failure of the Appellant to file its defence or an application disclosing a good defence tells the Court that he has no defence to the motion on notice. A Summary Judgment for the failure of the Appellant to file a reply is activated by a motion in addition to the initial Statement of Claim which initiate the proceeding and the Lower Court was right to have proceeded to judgment. See LEWIS V UBA (2016) LPELR 40661 (SC), OBARO & ANOR V HASSAN (2013) LPELR 20089 (SC) and BEN THOMAS HOTELS LTD V SEBI FURNITURE COMPANY LTD (1989) NWLR (PT 123)523.
This Court will not interfere with the finding of the facts which led to the conclusion appealed against. There is no evidence ofany perversion or wrong application of the Rules to have called for interference with the findings of facts by the Lower Court. This issue is accordingly resolved against the Appellant
ISSUE FOUR
Learned Counsel for the Appellant submitted that filing of process in Court must be in accordance with the provision of the Law and Rules of the Court. That it is not in dispute that the Claimant/Respondent had a pending Counter-Affidavit sworn to on 10th April, 2017 in opposition to the Appellant’s Preliminary Objection. That the provision of Section 114 of the Evidence Act is to the effect that a defective Counter Affidavit may be amended and re-sworn by leave of Court, not for the Claimant to file new Counter-Affidavit and title re-sworn Counter Affidavit.
Learned Counsel reproduced the provision of ORDER 24 RULE 1 of the Ondo State High Court (Civil Procedure) Rule 2012 and submitted that the learned trial Judge was wrong when he held that Order 24 Rule 1 empowers a party and the Court to amend Court processes. That granting leave of Court is not automatic but on fulfillment of some conditions. That defective Affidavit is to be amended andre-sworn by leave of Court on such term as to time and costs not re-filing fresh Affidavit titled re-sworn Affidavit.
He contended that the amendment envisaged Under Order 24 is in respect of originating process and pleadings and not a Counter-Affidavit. Learned Counsel submitted that what a party who has a defective Affidavit is expected to do, is to seek leave of Court under Section 114 of the Evidence Act to amend the defective Affidavit and re-swear same on such term as to time, costs or otherwise and not to abandon the defective Affidavit and file a fresh Affidavit. That the provision of Section 114 of the Evidence Act does not give any party right to file fresh Affidavit to be titled re-sworn Counter-Affidavit. That filing of such process titled re-sworn Counter Affidavit constitute abuse of Court process because, said counsel, the earlier defective Counter Affidavit was still alive in the Court file. He urged the Court to resolve this issue in favour of the Appellant.
In his reaction to this issues, learned Counsel for the Respondent submitted that the learned trial Judge was right to have held that Order 24 of the Ondo State High Court (Civil Procedure) Rules 2012empowersa party and the Court to amend any Court processes in any case before it, which include a Counter-Affidavit. That a Court have a very wide discretion in granting or refusing leave to amend for the purpose of determining the real question in controversy. Counsel reproduced the Provision of Order 22 Rule (4) of the High Court of Ondo State and submitted that all the processes filed by the Respondent were properly filed and do not constitute abuse of Court process.
Counsel submitted that the Respondent has the right to re-swear to the said Affidavit. He referred to Section 114 of the Evidence Act and the case of C & C LTD V. ALTIMATE INVST LTD (2004) 2 NWLR (PT. 857) 274 and UDUSEGBE V SPDC (NIG) LTD (2008) 9 NWLR (PT 1093) 593. He contended that the Respondent has the right under the Constitution to file a consequential reply to the reply on point of Law in support of the Appellant’s Notice of Preliminary Objection. He urged the Court to hold that a defective or erroneous Affidavit that may be amended or re-sworn to with the leave of Court in any case and resolve this issue in favour of the respondent.
RESOLUTION
The chief grievance of the learned Counsel for the Appellant is the holding of the learned trial Judge that Order 24 of the Ondo State High Court (Civil Procedure) Rules 2012 empowers a party and the Court to amend Court process. He reasoned that the word “re-sworn” used in Section 114 of the Evidence Act does not mean filing of fresh Affidavit to be titled re-sworn Affidavit. That the Respondent was wrong to have filed a fresh Affidavit to be title re-sworn Affidavit.
I have carefully gone through the record of appeal, it reveals that the Respondent by a motion filed on 23rd May, 2017 prayed the lower Court to grant him leave to amend and re-swear his Counter-Affidavit which he swore to on the 10th April, 2017. Order 24 of the Ondo State High Court (Civil Procedure) Rules provides:-
1. A party may amend his originating process and pleadings at any time before the close of pre-trial conference and not more than twice during the trial but before closing his case.
2. Application to amend may be made to a Judge.
Such application shall be supported by an exhibit of the proposed amendment and may be allowed upon such terms asto costs or otherwise as may be just.
Section 114 of the Evidence Act, 2011 provides thus:
“A defective or erroneous Affidavit may be amended and re-sworn by leave of the Court, on such terms as to time, costs or otherwise as seen reasonable.”
A defective Affidavit is any Affidavit that fails to meet mandatory provisions of the Evidence Act as to the form or contents or is offensive to any other statute, such as Oath Act or any other Law. See ONUJABE & ORS V IDRIS (2011) LPELR 4095.
The lower Court at pages 286-288 of the record held thus:
“… I have not been able to see any reason why the Claimant/Applicant should not be allowed to amend his process, and re-swear to the affidavit in opposition of defendant’s objection. Order 24 of the Ondo State High Court (Civil Procedure) Rules 2012 empowers a party and the Court to amend Court processes… I have considered the grounds the defendant has against the motion to amend. It is not the case of the defendant that the motion is out to overreach, nor is it its argument that granting it would occasioned injustice. Beside the issue of amendment, Defendant also said Claimant could not re-swear to his Counter-Affidavit. That is not the position in Law as provided by Section 114 of the Evidence Act, 2011.
I agree therefore with the learned Counsel for the Claimant/Applicant that it is permissible in Law, and this Court has the discretionary power to allow the Claimant to amend and re-swear his Counter-Affidavit. Consequently leave is hereby granted the Claimant/Applicant to amend and re-swear his Counter-Affidavit which he sworn to on the 10th day of April, 2017. The re-sworn Counter Affidavit is deemed to have been properly re-sworn, filed and served on the Defendant/Respondent……..”
It is discernible from the finding of the lower Court and indeed the entire evidence before the lower Court. The lower Court paid due obeisance to the Law when it granted the Respondent leave to amend and re-swear his Counter-Affidavit. The finding is unimpeachable. It will amount to an insult to the Law to tinker with. The amendment and the subsequent re-swearing of the Affidavit does not amount to filing a fresh Affidavit by the Respondent.
In a nutshell, I resolve issue four against the Appellant and infavour of the Respondent.
On the whole, there is no doubt that issue two is partly resolved in favour of the Appellant and partly in favour of the Respondent. For the avoidance of doubt the Appellant merely scored a palliative victory on the issue of the award of general damages by the lower Court only, which I had set aside. I had resolved issues one, three and four against the Appellant and in favour of the Respondent. In all, the Appeal on the sound footing of issue one, three and four having been resolved against the Appellant is devoid of merit and deserves the penalty of dismissal. Consequently, I dismiss the Appeal and affirm the decision of the lower Court except that as to order of general damages.
Parties shall bear their respective costs.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the privilege of reading the draft of the leading judgement, in this appeal, just delivered by my learned Brother, Ridwan M. Abdullahi, JCA.
I agree that the appeal is bereft of any merits and equally dismiss it. I abide by the consequential orders made in the said leading judgment, including that of costs.
PATRICIA AJUMA MAHMOUD, J.C.A.: I have had preview of the lead judgment of my learned brother, Ridwan M. Abdullahi, JCA, just delivered and I agree with his Lordship that this appeal lacks merit and should be dismissed with an order that each party bears its own cost.
Appearances:
S. O. Giwa, Esq. holding the brief of Oluwasesan Dada, Esq. For Appellant(s)
O. J. Jejelola, Esq., with him, Adeboye Olatunji, Esq. For Respondent(s)