YAKASAI v. HARUNA & ANOR
(2021)LCN/15885(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Wednesday, October 06, 2021
CA/KN/273/2018
Before Our Lordships:
Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal
Abubakar Muazu Lamido Justice of the Court of Appeal
Bature Isah Gafai Justice of the Court of Appeal
Between
JAMILU ABDULLAHI YAKASAI APPELANT(S)
And
1. ALHAJI ABDULLAHI HARUNA 2. ALHAJI RABIU ISYAKU RESPONDENT(S)
RATIO
THE POSITION OF LAW ON PLEADINGS OF PARTIES
The starting point for the resolution of this question must be the pleadings of the parties. The Courts have stated over and over that in an action fought on pleadings, the very foundation of the action is the pleadings of the parties.
Pleadings are the written statements of the parties setting forth in a summary form the material facts on which each relies in support of his claim or defence, as the case may be. They are the means by which the parties are enabled to state and frame the issues which are in dispute between them and it operates to define and delimit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the Court will be called to adjudicate between them — Orodoegbulam Vs Orodoegbulam (2014) 1 NWLR (Pt 1387) 80, Aminu Vs Hassan (2014) 5 NWLR (Pt 1400) 287, Corporate Ideal Insurance Ltd Vs Ajaokuta Steel Co. Ltd (2014) 7 NWLR (Pt 1405) 165 at 188 A-B, Anyafulu Vs Meka (2014) 7 NWLR (Pt 1406) 396 at 424G.
In Okoye vs Nwankwo (2014) 15 NWLR (Pt 1429) 93, the Supreme Court stated the principle at page 125 G-H thus:
“The purpose of pleading is to afford the opponent the opportunity of knowing the case he would meet at trial. It is for that reason that all facts relied upon by the party in a civil matter before a superior Court of record must be clearly pleaded in numbered paragraphs. The reason for this principle of practice is that no party should take advantage of locking away facts from his pleadings and unleashing a surprise in Court by evidence on a matter not pleaded.”
Thus, a party who predicates his case on some particular facts must plead those particular facts – Olusanya Vs Osinleye (2013) 12 NWLR (Pt 1367) 148, Okusanmi Vs Attorney General of Lagos State (2015) 4 NWLR (Pt 1449) 220. Dovetailing from the above is a principle of pleadings that asserts that parties are bound by their pleadings and any fact that emerges from matters that are not pleaded go no issue and should be discountenanced —Reptico S. A. Geneva Vs Afribank Nigeria Ltd (2013) 14 NWLR (Pt 1373) 172, Phillips Vs Eba Odan Commercial & Industrial Company Ltd (2013) 1 NWLR (Pt 1336) 618, Osoh Vs Unity Bank Plc (2013) 9 NWLR (Pt 1358) 1. PER ABIRU, J.C.A.
THE PRINCIPLE OF LAW IS THAT A PARTY WHO ASSERTS FACTS MUST PROVE THEM WITH CREDIBLE EVIDENCE
Now, it is elementary that in civil litigation, where the fact alleged by a party is not admitted by his adversary, the burden of proving the existence of that fact by a preponderance of credible evidence is on the party asserting the fact — Uzodinma Vs Ihedioha (2020) 5 NWLR (Pt 1718) 529, Gbadamosi vs Julius Berger (Nig) Ltd (2021) 5 NWLR (Pt 1770) 419, Offodile Vs Onejeme (2021) 7 NWLR (Pt 1775) 389. Thus, the burden of proving the existence of the guarantee and/or suretyship of the second Respondent by the Appellant was on the first Respondent. The question before the lower Court was whether the first Respondent discharged the burden of proof. PER ABIRU, J.C.A.
WHETHER OR NOT A CONTRACT OF GURANTEE TO BE BIDNING AND ENFORCEABLE MUST BE IN WRITING
The law is that for a contract of guarantee to be binding and enforceable, it must be in writing. This is one of requirements for the validity and bindingness of a contract of guarantee and if it is not in writing, it is not a contract of guarantee “strictu sensi’ — Eboni Finance Securities Ltd Vs Wole-Ojo Technical Services Ltd (1996) 7 NWLR (Pt 461) 464, Saraki Vs Societe Generale Bank Ltd (1995) 1 NWLR (Pt 371) 325, Omega bank (Nig) Plc vs OBC Ltd (2002) 16 NWLR (Pt 794) 483, First City Monument Bank Ltd vs SAIC Ltd (2007) All FWLR (Pt 363) 133, Dike vs Kay Kay Construction Ltd (2017) 4 NWLR (Pt 1584) 1.
This is a fall out of the provisions of Section 4 of the Statute of Frauds 1677 that ‘no action shall be brought whereby to charge a defendant upon any special promise to answer for debt, default or miscarriage of another person, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith or some other person thereunto by him lawfully authorized.’ The Statute of Frauds is a statute of general application and it is still applicable in Nigeria — Ibekwe Vs Nwosu (2011) 9 NWLR (Pt 1251) 1, Dantata Jnr vs Mohammed (2012) 14 NWLR (Pt 1319) 122. Therefore, the Courts have always defined the term ‘guarantee’ as a written undertaking made by one person to another to be responsible to that other if a third person fails to perform a certain duty, for example, payment of debt — Royal Exchange Assurance (Nig) Ltd Vs Aswani Textile Industries Ltd (1992) 3 (Pt 227) 1, Saraki vs Societe Generale Bank Ltd (1995) 1 NWLR (Pt 371) 325, Trade Bank Plc Vs Chami 2003) 13 NWLR (Pt 836) 158, Amede Vs United Bank for Africa Plc (2008) 8 NWLR (Pt 1090) 623, Chami vs United Bank for Africa Plc (2010) 6 NWLR (Pt 1191) 474, South Trust Bank Ltd vs Pheranzy Gas Ltd (2014) 16 NWLR (Pt 1432) 1. PER ABIRU, J.C.A.
WHETHER OR NOT THE COURTS HAVE THE POWERS TO RAISE ISSUES SUO MOTU ON BEHALF OF PARTIES BEFORE IT
It is correct that a Court being a Court of facts and law is entitled to raise any issue germane to the resolution of the dispute submitted by the parties for adjudication suo motu in the interest of justice and that, as a general principle of law, the Court, where it raises an issue suo motu, must give the parties an opportunity to address on it before deciding the issue, particularly the party that may suffer some disadvantage or disability by reason of the issue so raised — Okebola Vs Molake (1975) 12 SC 61, Kuti Vs Balogun (1978) 1 SC 53, Graham Vs Esumai 1984) 11 SC 123, Bamgboye Vs Olanrewaju (1991) 4 NWLR (Pt 184) 132, Union Bank of Nigeria Plc Vs Awmar Properties Ltd (2018) LPELR 44376(SC).
This principle, however, admits three exceptions of when a Court may raise and resolve an issue suo motu without calling the parties to address on it and these are (i) when the issue relates to the Court’s own jurisdiction; (ii) when both parties are not aware or ignored a statute which may have bearing on the case; or (iii) when on the face of the records serious questions of the fairness of the proceedings is evident — Effiom Vs Cross River State Independent Electoral Commission (2010) 14 NWLR (Pt 1213) 106 at 133-134, Gbagbarigha vs Toruemi (2012) LPELR-15535(SC), Omokuwajo Vs Federal Republic of Nigeria 2013) 9 NWLR (Pt 1359) 300 at 332, Omoniyi Vs Alabi (2015) 6 NWLR (Pt 1456) 572 at 592-593, Airtel Networks Ltd vs Plus Ltd (2020) 15 NWLR (Pt 1747) 235, Ehinle vs Ikorodu Local Government (2021) 1 NWLR (Pt 1757) 279, Idachaba Vs University of Agriculture, Makurdi (2021) 11 NWLR (Pt 1787) 209 at 231B-D. PER ABIRU, J.C.A.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): There is confusion in the case file on the proper Appeal Number for this appeal. Some processes carry Appeal No CA/KN/570/2017 and others carry Appeal No CA/KN/575/2017, while the records of appeal carry Appeal No CA/KN/273/2018. By the Rules of procedure in this Court, an appeal is entered when the records of appeal are received by the Registry of this Court and given an Appeal Number. Therefore, it is the Appeal Number on the records of appeal that should govern and not those on the processes filed. This confusion was discovered after the appeal had been heard and reserved for judgment and at which time it was impossible for the Court to call on Counsel to the parties to amend the Appeal Numbers on their briefs of arguments to tally with that on the records of appeal. This Court considers it necessary to make this clarification for record purposes.
This appeal is against the judgment of the High Court of Kano State delivered in Suit No K/90/2014 by Honorable Justice Hadija Sulaiman on the 22nd of June, 2017. The first Respondent was the claimant in the lower Court and second Respondent and the Appellant were the first and second defendants respectively. The claim of the first Respondent was for the sum of N6,676,000.00, jointly and severally against the second Respondent and the Appellant, together with interest thereon at the rate of 10% from the date of judgment until liquidation.
The case of the first Respondent in support of his claims was that the second Respondent and the Appellant were in the business of buying and selling of textile materials and that in the course of the business the second Respondent placed an order for textile materials from the principal of the Appellant based in China. The second Respondent was unable to fully pay for the goods and consequent on which the Appellant approached the first Respondent on behalf of the second Respondent to provide part funding for the goods and the Appellant guaranteed that the second Respondent will repay the money and he vouched for the integrity of the second Respondent. It was the case of the first Respondent that based on the assurances, he provided the sum of N8.8 Million to the second Respondent as part funding and it was agreed that upon the arrival of the goods in Nigeria, it would be shared between him and the second Respondent pro rata, on the basis of the funds provided.
It was the case of the first Respondent that upon the arrival of the goods in Nigeria, the second Respondent, in the company of the Appellant, approached him and offered to buy out his share of the goods by paying him an additional sum of N1.5 Million on the N8.8 Million, making a total of N10.3 Million. It was his case that the Appellant again guaranteed the second Respondent on the proposal and based on which he agreed to same and it was agreed that the second Respondent would remit the monies either through the Appellant or directly to him. It was his case that the second Respondent remitted to him the total sum of N3.5 Million in four installments, leaving a balance of N6.8 Million unpaid and that he made several demands for the payment of the balance sum of N6.8 Million from the second Respondent and the Appellant, his guarantor, to no avail.
It was the case of the first Respondent that he reported the matter to the Kano Zonal Office of the Economic and Financial Crimes Commission and to the Kano Police Command and that in the course of the investigations, the second Respondent returned one bale of textile material valued at N124,000.00 to him through the Appellant, leaving a balance of N6.676 Million unpaid. It was his case that the second Respondent and the Appellant admitted the facts of this case as averred in their extra-judicial statements made at Nigeria Police Force CID Headquarters, Bompai, Kano in the course of investigation into his complaint by the Police. It was his case that the second Respondent and the Appellant have failed and neglected to pay the outstanding sum.
In his statement of defence, the second Respondent, as the first defendant, denied the entire case of the first Respondent and averred that he did not know the first Respondent and did not solicit for any funds from the first Respondent, either personally or through the Appellant and that he had no business dealing or relationship with the first Respondent. It was his case that the Appellant at a point in time introduced the first Respondent to him as his brother, but that he transacted business with only the Appellant and not with the first Respondent and that all receipts pleaded by the first Respondent were fabricated and he denied being indebted to the first Respondent in any sum at all.
In his statement of defence as the second defendant, the Appellant admitted knowing the first Respondent very well as a business associate but denied the case made out against him on the pleadings of the first Respondent. The Appellant admitted the fact that the first Respondent did make payments for goods along with the second Respondent and that the second Respondent did repay to the first Respondent sums totaling N3.5 Million and that all the payments were receipted. It was his case that neither he nor the second Respondent was indebted to the first Respondent in the sum of N6.8 Million and that he did not transact any business with the first Respondent to be so indebted to him and he denied returning one bale of textile to the first Respondent.
The first Respondent filed replies to the statements of defence of the second Respondent and of the Appellant wherein he reiterated his assertions in the statement of claim. The matter proceeded to trial and in the course of which the second Respondent gave evidence as the sole plaintiff witness and tendered documents in proof of his case. The second Respondent testified as the first defence witness, and the only witness, in his defence and the Appellant too gave evidence as the second defence witness, and the only defence witness, in his defence. At the conclusion of trial, Counsel to the second Respondent and Counsel to the first Respondent filed and adopted their final written addresses, while Counsel to the Appellant declined filing a final written address. The lower Court thereafter entered judgment granting the claims of the first Respondent against the second Respondent and the Appellant jointly and severally.
The Appellant was dissatisfied with the judgment and he caused his Counsel to file a notice of appeal containing three grounds of appeal and dated the 3rd of June, 2017 against it. The records of appeal compiled and transmitted to the Registry of this Court on the 7th of May, 2018 were deemed properly compiled and transmitted on the 28th of June, 2018. In arguing the appeal, Counsel to the Appellant filed a brief of arguments dated the 8th of March, 2019 on the same date, and this was sequel to the Appellant being granted an order of extension of time by fourteen days to file the brief of arguments on the 28th of February, 2019. The first Respondent, in response, filed a brief of arguments dated the 16th of September, 2019 on the 17th of September, 2019. The second Respondent filed no process to contest the appeal. Counsel to the Appellant filed a reply brief of arguments to the brief of arguments of the first Respondent and it was dated 2nd of February, 2021 and filed on the 3rd of February, 2021. At the hearing of the appeal, Counsel to the Appellant and Counsel to the first Respondent relied on and adopted the arguments contained in their respective briefs of arguments.
As stated earlier, Counsel to the Appellant filed a reply brief of arguments. A read through the contents of the reply brief of arguments reveals that it is merely an embellishment of the arguments contained in the Appellant’s brief of arguments. The first Respondent’s brief of arguments merely responded to the Appellant’s brief of arguments and did not raise any new point. It is settled law that the function of a reply brief is to answer the arguments in a respondent’s brief which were not taken in the appellant’s brief and it should be limited to answering any new points arising from the respondent’s brief. Where a Respondent’s brief merely responds to the points raised in the Appellant’s brief and does not raise any new points, as in the instant case, a reply brief is otiose as it is not a means for re-arguing the case of the Appellant – Longe Vs First Bank of Nigeria Plc (2010) 6 NWLR (Pt 1189) 1, National Revenue Mobilization Allocation and Fiscal Commission Vs Johnson (2019) 2 NWLR (Pt 1656) 247, Ezeani vs Federal Republic of Nigeria (2019) 12 NWLR (Pt 1686) 221. This Court will thus discountenance the reply brief of arguments.
Counsel to the Appellant distilled three issues for determination in the appeal and these were:
i. Whether the first Respondent proved his case on the balance of probabilities to warrant entering of judgment in his favor against the Appellant.
ii. Whether the learned trial Judge was right in law when he held that the judgment sum is to be paid jointly by the Appellant and the second Respondent having regards to the Exhibits A1, A 7, B1, B5, E and F tendered before the Court.
iii. Whether the High Court Judge acted contrary to the principle of fair hearing.
Counsel argued the first and second issues for determination together and he referred to the contents of paragraphs 13, 16(iv) and 23 of the pleadings of the first Respondent before the lower Court and stated that they showed that the Appellant was merely a third party and a witness to the transactions that took place between the first Respondent and second Respondent, and who agreed between themselves that monies be paid to each other through the Appellant, and that the Appellant took no part in the transaction to warrant his being held jointly liable for the debt of the second Respondent to the first Respondent. Counsel referred to the case of Ojo Vs Rasaki (2010) 7 WRN 117 in reiterating that parties are bound by their pleadings and stated that also in the totality of the evidence adduced at the trial there was nothing said about an agreement involving the Appellant with the first and second Respondents in respect of purchase of goods and thus no basis for the finding of the lower Court that there existed such agreement to warrant the judgment entered against the Appellant.
Counsel traversed through the evidence of the first Respondent both in chief and under cross-examination and stated that they showed clearly that the transaction leading to the debt was clearly between the first Respondent and the second Respondent and that there was no binding agreement involving the Appellant and that an agreement is only binding on parties thereto and he referred to the case of Agbareh Vs Mimra (2008) 12 WRN 1. Counsel referred to the receipt for the payment of goods tendered in evidence as Exhibits A1, A7, B1, B5 and stated that they only contain the names of the first and second Respondents, and not the name of the Appellant, and that, in fact, none of the exhibits contained the name of the Appellant and he referred to the case of Okwusidi Vs Ladoke Akintola University (2011) 48 WRN 159 in asserting the principle that a Court cannot go outside the four walls of a document in interpreting it.
Counsel also referred to Exhibit F, the confessional statement made at the Police Station, and stated that it merely confirmed that the first Respondent got to know the second Respondent through the Appellant and that the Appellant was present when the transaction took place between the first Respondent and second Respondent. Counsel stated that the reliance placed by the lower Court on the evidence of the Appellant under cross-examination that the facts contained in his deposition on oath were not true and treating it as an admission of the case of the first Respondent and proceeding to enter judgment against the Appellant on that basis, was inapposite as the first Respondent had the onus to establish his case on a balance of probability and he referred to the case of Sa’idi Vs Ibude (2011) 20 WRN 105. Counsel referred to the case of Igbeka Vs Emordi (2010) 27 WRN 76 in restating the legal principle that he who asserts a fact has the burden of proving it and stated that even without the evidence of the Appellant, the evidence led by the first Respondent did not show any indebtedness against the Appellant, but against the second Respondent and there was no basis for the lower Court finding the Appellant jointly liable for same. Counsel urged the Court to resolve the first and second issues for determination in favour of the Appellant.
On the third issue for determination, Counsel stated that the lower Court admitted the exhibits tendered by the first Respondent in proof of his case in the absence of the Appellant and his Counsel and that it relied on same in the judgment without according the Appellant the right to see them or cross-examine on them. Counsel stated that all the parties to litigation are entitled to fair hearing and it is only where a trial is conducted in a manner in which the authority of the Court has been fairly exercised in consonance with the fundamental principles of justice that there is said to be fair hearing and that this includes giving the parties equal opportunity to present their evidence, cross-examine witnesses and the trial Court making findings supported by evidence and he referred to the case of Womiloju Vs Anibire (2010) 27 WRN 1. Counsel stated that when Counsel to the Appellant objected to the three statements on oath deposed by the first Respondent in proof of his case and applied that the matter be transferred and redirected, instead of the lower Court to rule on the application, it adjourned the matter for mention and it thereafter continued with the hearing of the case and admitted the exhibits tendered by the first Respondent in the absence of the other parties.
Counsel stated that the consequence of a denial of fair hearing is a nullification of the enure proceedings no matter how well conducted and that fair hearing goes to the root of the entire case and he referred to the case of Gbede Vs Ramoni (2011) 11 WRN 126. Counsel stated that the finding of the lower Court upholding the submission of Counsel to the first Respondent that Exhibits A1-A7 and B-B5, being documentary evidence, are regarded as best evidence that cannot be varied by oral evidence was perverse because documents admitted in evidence no matter how useful they could be, will be of no assistance to the Court in the absence of admissible oral evidence explaining their purport and he referred to the case of Obiremi Vs Awolola (2010) 7 WRN 156. Counsel reiterated that the reliance placed by the lower Court on the evidence of the Appellant under cross-examination, i.e. that the facts contained in his deposition on oath were no true and treating it as an admission of the case of the first Respondent and proceeding to enter judgment against the Appellant on that basis was wrongful and he gave a mumbled and opaque reason for the reiteration. Counsel urged the Court to resolve the second issue for determination in favour of the Appellant.
Counsel concluded his arguments by praying the Court to find merit in the appeal and to allow same and set aside the portion of the judgment entered against the Appellant and to dismiss the claims of the first Respondent against the Appellant.
Before proceeding to summarize the contentions of Counsel to the first Respondent in response, contained in his brief of arguments, it is pertinent to mention that the response of the Counsel was an indulgence in unnecessary verbosity and frivolity. The arguments spanned twenty pages and it was in response to the arguments of nine pages of the Counsel to the Appellant. It was unnecessarily long, windy, confused, confusing, repetitive, and it contained too many narratives rather than arguments. One of the invaluable assets that a Counsel must always possess is drafting skills. Briefs of arguments in an appeal contain the story of a party on which the appellate Court Justices are called upon to adjudicate. Like all good stories, the arguments in the brief must flow; they must be consistent, they must be concise, they must be comprehensive, they must be comprehensible; and they must be accurate.
Some of the eternal qualities of a good brief of arguments are brevity and precision. It must not be too short as to leave out the essentials and must not be too long as to become otiose. The goal must be to achieve maximum brevity consistent with accuracy and clarity. A good brief does not allow for verbosity and must be a succinct statement of a party’s argument in the appeal. A well crafted brief makes for joyful reading while a badly crafted one is tedious and laborious to understand and it is like a bad story which leaves an audience disgruntled, disgusted and unhappy. Counsel must understand that a long and windy brief is discouraging to the appellate Court Justices saddled with the determination of an appeal and can only amount to disservice to the cause of a litigant. Litigation is not a long essay competition where success is determined by the length of the brief of arguments and neither is it an academic dissertation — Engineering Enterprises Vs Attorney General of Kaduna State (1987) 2 NWLR (Pt 57) 381, Nagebu Company (Nig) Ltd vs Unity Bank Plc (2014) 7 NWLR (Pt 1405) 42. It is hoped that Counsel to the first Respondent will take heed and make efforts to improve his drafting skills.
The opening portion of the brief of arguments of Counsel to the first Respondent, headed “Statement of Facts”, consisted of six pages and contained legal arguments in support of which Counsel cited twenty case law authorities and quoted portions of the decided cases. In the case of Engineering Enterprises Vs Attorney General of Kaduna State supra, Oputa, JSC, at pages 413-414 commenting on what “Statement of Facts” in a brief should contain stated thus:
“The lawyer confronted with the task of preparing a brief would do well to remember what may be called the ABC of legal writing, namely Accuracy, Brevity and Clarity…
The statement of facts must be accurate. There should be a honest and straightforward presentation of all salient and relevant facts of the case. Facts are sacred. What is also important is that the statement of fact must be factual and not argumentative. The facts must be stated as they really and truly are without undue bias and/or embellishment. Unfavourable facts as well as favourable facts must be given equal emphasis otherwise the integrity of the Brief would have been seriously compromised and the effectiveness of the Brief will suffer, as the Court may then approach the Brief with a degree of skepticism or even disbelief. Honest and frank statement of all the facts (the good and the ugly) will no doubt inspire confidence. The statement of the facts affords Counsel a wonderful opportunity to state the equities of the case in such a way that the Court will feel that justice will be done by deciding as is urged by the Brief-writer. The facts included in the Statement of Facts must of course be facts supported by the record and there should therefore be a cross-reference (on the right hand corner) to the pages of the record of proceedings where those facts can be found. Accuracy thus implies a correct, fair, straightforward and honest statement of the facts of the case…
As the name implies a Brief should be brief. It should however be short enough to be attractive and yet long enough to cover the substance. The goal of brevity is not easy to achieve unless Counsel is very familiar with all the facts and circumstances of this case, can distinguish between the crucial and non-crucial, the important and the unimportant, the crux of the matter and the merely peripheral, the central issues and the subsidiary ones… (underlining for emphasis)
The “Statement of Facts” in the first Respondent’s brief of arguments failed to meet this threshold.
Counsel to the first Respondent proceeded from the “Statement of Facts” to distill two issues for determination in the appeal and these were:
i. Whether the lower Court was right in holding that the first Respondent proved his case before her?
ii. Whether the Appellant’s claim of breach of his right to fair hearing is not baseless?
In arguing the first issue for determination, Counsel reproduced in four pages the deliberations made by the lower Court in its evaluation of the evidence led by the parties and it referred to case of the first Respondent on the pleadings, in his statement of claim and replies to the statements of defence of the second Respondent and the Appellant, as well the first Respondent’s depositions on oath and supported by the several exhibits he tendered, and stated that they showed clearly that there was an agreement by which the second Respondent was liable to pay the first Respondent the sum of N10.3 Million and that the Appellant guaranteed the repayment of the money. Counsel stated that both the second Respondent and the Appellant admitted the facts of the case of the first Respondent in their answers under cross-examination and that as such the finding of the lower Court that all the elements of an agreement; to wit; offer, acceptance, consideration, intention to create legal relations and consensus ad idem was correct and he referred to the cases of Bilante International Ltd Vs NDIC (2011) 6-7 SC (Pt IV), Akin Akinyemi & Associates vs Odu’a Investment Co Ltd (2012) 1 SC (Pt IV) 1 and Chukwuma Vs Ifeloye (2008) 12 SC 11) 291.
Counsel referred to the cases of Idoniboye-Obu Vs NNPC (2003) 2 SCM 103, Arjay Limited Vs Airline Management Support Ltd (2003) 5 SCM 17 and Best (Nigeria) Limited Vs Blackwood Hodge (Nigeria) Limited (2011) 1-2 SC (Pt 1) 614, amongst others, in asserting that it is settled law that parties who enter into an agreement are expected to fulfill the terms faithfully and honestly because they are bound by the terms of the agreement. Counsel stated that the second Respondent and the Appellant did not abide by the terms of the agreement and they only repaid the sum of N3.5 Million, as confirmed by Exhibits BI1B4, and returned some goods in the sum of N124,000.00, making the total repayment the sum of N3.624 Million and leaving a balance of N6.676 Million at the time of the commencement of the suit. Counsel stated that after the commencement of the suit, the second Respondent made a further payment of the sum of N1 Million, as evidenced by Exhibit I, leaving a balance of N5.676 Million and the documents, Exhibit B1-B4 and I speak for themselves and are regarded as best evidence which cannot be varied by oral evidence and he referred to the cases of Skye Bank Plc Vs Akinpelu (2010) 3 SC (Pt II) 29, Igbeke Vs Emordi (2010) 11 N WLR (Pt 1204) 1, amongst others.
Counsel noted that the Appellant did not adduce any contrary documentary evidence challenging the contents of documents tendered by the first Respondent as Exhibits B1—B5, C, D, F, G and I and he is deemed to have admitted the contents of the exhibits. Counsel stated that it is disheartening and disturbing that after leading on the first Respondent and making him to rely on their words, the second Respondent and the Appellant turned round to act in a manner that smacked of distasteful financial insincerity, dishonesty and breach of contract by refusing to pay the outstanding sum in full and a Court of law must frown and disapprove such actions and he referred to the case of BFI Group Corporation Vs BPE (2012) 7 SC (Pt III) 1. Counsel stated that the evidence adduced by the first Respondent was unshaken, unchallenged and un-rebutted, even under cross-examination, and that the lower Court was correct in giving the evidence full probative value in making its findings in the matter and he referred to the cases of Odon Vs Barigha-Amange (No 2) (2010) 12 NWLR (Pt 1207) 13 and Gonzee (Nig) Ltd vs NERDC (2005) 13 NWLR (Pt 934) 34. Counsel stated that the finding of the lower Court that the first Respondent led credible evidence to prove his case was supported by the evidence on record.
Counsel stated that going to the case made out by the Appellant in his defence, the evidence led in support thereof, particularly under cross-examination, was not in accord with the case made out on the pleadings and he reproduced the testimony of the Appellant under cross-examination as the second defence witness. Counsel stated that, rather than aid the defence of the Appellant, the evidence was an unequivocal admission of the facts pleaded and led in evidence by the first Respondent and it constituted admissible reliable evidence in support of the case of the first Respondent and he referred to the cases of Arta Industries Nig. Ltd Vs NBCL (1998) 4 NWLR (Pt 546) 357, Ali vs United Bank of Africa Plc (2014) LPELR-22635(CA), Onyenge Vs Ebere 2004) 13 NWLR (Pt 889) 1. Counsel referred to and quoted from the decision in the case of Akomolafe Vs Guardian Press Ltd (Printers) (2010) All FWLR (Pt 517) 773 on the significance of facts elicited during cross-examination. Counsel urged the Court to resolve the first issue for determination in favour of the first Respondent.
With respect to the second issue for determination, Counsel reproduced the Court proceedings of the 28th of April, 2015, and from which date the matter was adjourned to the 27th of May, 2015, the proceedings of which date Counsel to the Appellant complained about, and stated that it has long been settled that the fair hearing principle is for a party who is alive in the judicial process. Counsel stated that it is for parties to take advantage of the principle at the appropriate time and is not available to a party who sets a trap in the litigation process and turns round to accuse the Court of assumed wrong doing. Counsel stated that the Appellant was present in Court on the 28th of April, 2015 and was also represented by Counsel when the matter was adjourned to the 27th of May, 2015 for hearing, but he and his Counsel chose to be absent on the day and only for them to now allege lack of fair hearing like a magic wand and that this is not permissible and he referred to the case of Newswatch Communication Ltd Vs Atta (2006) 12 NWLR (Pt 993) 144. Counsel urged the Court to resolve the second issue for determination in favour of the first Respondent.
Counsel concluded his arguments by praying the Court to find no merit in the appeal and to dismiss same and affirm the judgment of the lower Court.
Before proceeding to deliberate on this appeal, it is important to put the complaints of the Appellant in proper perspective. The lower Court entered judgment in favour of the first Respondent in the sum N5.676 Million being the outstanding sum due in his favour from a business transaction and it held the second Respondent and the Appellant to be jointly and severally liable for the debt. A read through the brief of arguments of the Appellant in this appeal shows clearly that the first grouse of the Appellant is not with the finding of the lower Court that the outstanding sum due to the first Respondent on the business transaction was N5.676 Million. The grouse is with that aspect of the judgment that held him jointly and severally liable with the second Respondent for the repayment of the debt. The second grouse is on breach of his right to fair hearing by the lower Court in the conduct of the trial proceedings. In the light of the above, this Court agrees with the Counsel to the first Respondent that there are two issues for determination in this appeal. They are:
i. Whether, on the strength of the pleadings of the parties and the evidence led in support thereof, the lower Court was correct when it found that the first Respondent made out a credible case to warrant the Appellant being held jointly and severally liable with the second Respondent to repay the indebtedness found due to the first Respondent.
ii. Whether, in the conduct of the trial proceedings, the lower Court acted contrary to and in breach of the Appellant’s right to fair hearing.
This appeal will be resolved on these two issues for determination and the two issues for determination will be resolved seriatim.
Issue One
Whether, on the strength of the pleadings of the parties and the evidence led in support thereof, the lower Court was correct when it found that the first Respondent made out a credible case to warrant the Appellant being held jointly and severally liable with the second Respondent to repay the indebtedness found due to the first Respondent
It is necessary to reiterate that the first Respondent was the plaintiff in the lower Court while the second Respondent was the first defendant and the Appellant, the second defendant. In deliberating on the claims of the first Respondent, the lower Court noted that the question arising for resolution was whether by virtue of the facts presented and evidence adduced before the Court, the first Respondent proved his case to warrant judgment in his favour and be entitled to the reliefs claimed. The lower Court thereafter continued thus:
“And in order to determine this, I will consider whether there was a valid, binding and subsisting agreement between the plaintiff and the and 2nd defendants and in doing this I referred to the testimony of the plaintiff where he stated that:
‘l know the 1st defendant through the 2nd defendant and my claim arose out of transactions made pursuant to an agreement reached between me and the defendants sometime between April —July 2013.”
I have also referred to the testimony of DW1, the 1st defendant in this case, where he testified under cross-examination that:
‘It is true that when the goods arrived in Nigeria, the 2nd defendant introduced me to the plaintiff.’
Similarly DW2, the 2nd defendant in this case, where he also testified that:
‘Together with the 1st defendant we went to the plaintiff’s office and discussed a business transaction where the plaintiff agreed to contribute money to conclude a transaction on the ground…’
…considering the above testimonies of all the parties, and in which the testimonies of the 1st and 2nd defendants were not challenged nor controverted, there is no doubt in the mind of this Court that there is a valid and subsisting agreement between the parties.
I have also considered that in the evidence, the claim of the plaintiff arose out of the transaction made pursuant to the agreement reached between him and the defendants between April and July 2013 as a result of which the plaintiff claimed to have given the defendants the sum of N8,800,000.00 to complete the payment for imported pieces of textile materials from Madam Vera (trading under the name and style of Prince and Vera). And that the defendant will pay him the sum of money he contributed plus additional N1,500,000.00 being profits due to the plaintiff. On this claim, I have referred to the testimony of DW1, 1st defendant in this case, where he stated that:
‘It is true that by exhibits 1A-1F, they are receipts issued to me and the plaintiff by Prince and Vera and that the payment was made on the 28th of May, 2013 while the last payment was made on the 1st of July, 2013 and these payments were made in respect of goods…’
I have also referred to exhibit F, to which DW1, the 1st defendant stated that it is the statement he made at State CID and that the statement is the truth. DW1 stated in exhibit F that:
‘I and Jamilu (the 2nd defendant in this case) went to Alhaji Abdullahi’s office (the plaintiff in this case) and he introduced me to him, and Alhaji Abdullahi (the plaintiff in this case) asked what will be his percentage … ‘
Similarly DW2, the 2nd defendant in this case testified that:
‘…together with the 1st defendant we went to the plaintiff’s office and discussed on the business transaction and that the plaintiff agreed to contribute money to conclude the transaction on the ground that the money he contributes will be paid to him and profit will also be given to him…’
DW2 further testified that:
‘…On the 28th of May 2013, together with the defendant, we went to the plaintiff’s office at No 51F Ado Bayero Road, Kano where the plaintiff also gave the defendant the sum and same was taken to Madam Vera and exhibit A1 was issued …’<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
These pieces of evidence were not challenged nor contradicted. It is trite in law that an agreement need not be in writing. A valid agreement can be oral or inferred by the conduct of parties concerned as in the instant case and parties who entered into such agreements are bound by the terms of the said agreement.
And by the testimonies of the witnesses before this Court, this has shown that all the elements of a valid agreement to wit: offer, acceptance, consideration and intention to create legal relations are visibly present in these transactions by the conduct of the plaintiff and both 1st and 2nd defendants in this case.”
It was on the basis of this finding of the existence of a subsisting and valid agreement between the first Respondent, on the one part, and the second Respondent and Appellant, on the other part, that the lower Court found that the Appellant was jointly liable with the second Respondent in paying the outstanding balance due to the first Respondent from the business transaction. The question is whether the conclusion reached by the lower Court in holding the Appellant jointly liable with the second Respondent is correct.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
The starting point for the resolution of this question must be the pleadings of the parties. The Courts have stated over and over that in an action fought on pleadings, the very foundation of the action is the pleadings of the parties.
Pleadings are the written statements of the parties setting forth in a summary form the material facts on which each relies in support of his claim or defence, as the case may be. They are the means by which the parties are enabled to state and frame the issues which are in dispute between them and it operates to define and delimit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the Court will be called to adjudicate between them — Orodoegbulam Vs Orodoegbulam (2014) 1 NWLR (Pt 1387) 80, Aminu Vs Hassan (2014) 5 NWLR (Pt 1400) 287, Corporate Ideal Insurance Ltd Vs Ajaokuta Steel Co. Ltd (2014) 7 NWLR (Pt 1405) 165 at 188 A-B, Anyafulu Vs Meka (2014) 7 NWLR (Pt 1406) 396 at 424G.
In Okoye vs Nwankwo (2014) 15 NWLR (Pt 1429) 93, the Supreme Court stated the principle at page 125 G-H thus:
“The purpose of pleading is to afford the opponent the opportunity of knowing the case he would meet at trial. It is for that reason that all facts relied upon by the party in a civil matter before a superior Court of record must be clearly pleaded in numbered paragraphs. The reason for this principle of practice is that no party should take advantage of locking away facts from his pleadings and unleashing a surprise in Court by evidence on a matter not pleaded.”
Thus, a party who predicates his case on some particular facts must plead those particular facts – Olusanya Vs Osinleye (2013) 12 NWLR (Pt 1367) 148, Okusanmi Vs Attorney General of Lagos State (2015) 4 NWLR (Pt 1449) 220. Dovetailing from the above is a principle of pleadings that asserts that parties are bound by their pleadings and any fact that emerges from matters that are not pleaded go no issue and should be discountenanced —Reptico S. A. Geneva Vs Afribank Nigeria Ltd (2013) 14 NWLR (Pt 1373) 172, Phillips Vs Eba Odan Commercial & Industrial Company Ltd (2013) 1 NWLR (Pt 1336) 618, Osoh Vs Unity Bank Plc (2013) 9 NWLR (Pt 1358) 1.
The lower Court and the appellate Courts too are bound by the pleadings of the parties and a trial Court should not consider an issue not raised by the parties on the pleadings and an appellate Court should also not allow a party to canvass on appeal an issue that was not raised by the party on his pleadings before the lower Court – First Bank of Nigeria Plc vs Sangonuga (2007) 3 NWLR (Pt 1021) 230, Akpan vs Udoh (2008) 3 (Pt 1075) 590, Afolabi vs Western Steel Works Ltd (2012) 17 NWLR (Pt 1329) 286, Julius Berger (Nig) Plc vs Ogundehin (2014) 2 (Pt 1391) 388.
Reading through the pleadings of the first Respondent in the lower Court, it is essential to understand that his case was not predicated on the failure of the contract of purchase of goods, textile materials, by himself and the second Respondent from Prince and Vera, represented by the Appellant. The first Respondent admitted that the contract was fulfilled and that the goods were delivered and cleared. The fulcrum of the case of the first Respondent was the sum of N8.8 Million that he provided to the second Respondent in part funding of the goods and the failure to fully repay the sum, together with the additional agreed interest sum of N1.5 Million.
The case of the first Respondent against the Appellant for this sum was that it was the Appellant who approached him and instigated him to advance the funds to the second Respondent and that the Appellant guaranteed the repayment of the money, plus the additional profit sum, by the second Respondent and he vouched for the integrity of the second Respondent. These are the contents of paragraphs 8 and 12 of the statement of claim and paragraph 10 of the reply to the statement of defence of the Appellant.
It was the case of the first Respondent that the Appellant attended at all the meetings that took place in respect thereof and that the part installmental repayments of the funds made by the second Respondent were remitted to him through the Appellant. It was not his case that the Appellant repaid any part of the money personally. Thus, the case of the first Respondent against the Appellant was predicated on the guarantee, suretyship and assurances given by the Appellant of the second Respondent repaying the advanced sum of N8.8 Million together with the additional profit sum of N1.5 Million and on the basis of which he advanced the sums to the second Respondent and allowed the second Respondent to take full custody of the goods when they were delivered. This was also the case canvassed by the first Respondent in his evidence led before the lower Court.
It is correct that despite the denials in his pleadings and evidence in chief, the Appellant, under cross-examination, admitted approaching the first Respondent on behalf of the second Respondent to solicit for the sum N8.8 Million as part funding for goods ordered by the second Respondent, and that some of the funds were remitted to the second Respondent through him. It is also correct that the Appellant further admitted under cross-examination that upon the arrival of the goods, he went with the second Respondent to the first Respondent to persuade him allow the second Respondent take possession of the entire goods and for which the second Respondent undertook to repay the sum N8.8 Million with an additional profit sum of N1.5 Million. However, the Appellant categorically asserted in his pleadings that he did not guarantee, surety or give assurance on the repayment of the funds by the second Respondent and he made no such admission in his evidence, even under cross-examination.
Now, it is elementary that in civil litigation, where the fact alleged by a party is not admitted by his adversary, the burden of proving the existence of that fact by a preponderance of credible evidence is on the party asserting the fact — Uzodinma Vs Ihedioha (2020) 5 NWLR (Pt 1718) 529, Gbadamosi vs Julius Berger (Nig) Ltd (2021) 5 NWLR (Pt 1770) 419, Offodile Vs Onejeme (2021) 7 NWLR (Pt 1775) 389. Thus, the burden of proving the existence of the guarantee and/or suretyship of the second Respondent by the Appellant was on the first Respondent. The question before the lower Court was whether the first Respondent discharged the burden of proof.
What is evident is that both on the pleadings and the evidence led, the first Respondent relied on an oral contract of guarantee and/or suretyship which he stated that the Appellant gave him in the course of their discussions on the issue of funds advancement and which contract the first Respondent requested the lower Court to infer from the evidence given of the conduct of the parties in the course of the transaction. The lower Court agreed with the first Respondent and did infer the presence of such oral contract of guarantee and/or suretyship between the first Respondent and the Appellant from the conduct of the parties. The lower Court found that it was trite in law that such agreement need not be in writing and that a valid agreement could be oral or be inferred from the conduct of parties concerned, as in the instant case, and that parties who entered into such agreements are bound by the terms of the said agreement. The lower Court proceeded from this finding to hold the Appellant liable on the oral contract of guarantee.
The fundamental question that arises from the case presented by the first Respondent against the Appellant and the findings made by the lower Court thereon is — whether a contract of guarantee that is not in writing is enforceable and can form the basis of a cause of action? In other words, whether the law recognizes and will enforce an oral contract of guarantee? The simple answer is, No. The law is that for a contract of guarantee to be binding and enforceable, it must be in writing. This is one of requirements for the validity and bindingness of a contract of guarantee and if it is not in writing, it is not a contract of guarantee “strictu sensi’ — Eboni Finance Securities Ltd Vs Wole-Ojo Technical Services Ltd (1996) 7 NWLR (Pt 461) 464, Saraki Vs Societe Generale Bank Ltd (1995) 1 NWLR (Pt 371) 325, Omega bank (Nig) Plc vs OBC Ltd (2002) 16 NWLR (Pt 794) 483, First City Monument Bank Ltd vs SAIC Ltd (2007) All FWLR (Pt 363) 133, Dike vs Kay Kay Construction Ltd (2017) 4 NWLR (Pt 1584) 1.
This is a fall out of the provisions of Section 4 of the Statute of Frauds 1677 that ‘no action shall be brought whereby to charge a defendant upon any special promise to answer for debt, default or miscarriage of another person, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith or some other person thereunto by him lawfully authorized.’ The Statute of Frauds is a statute of general application and it is still applicable in Nigeria — Ibekwe Vs Nwosu (2011) 9 NWLR (Pt 1251) 1, Dantata Jnr vs Mohammed (2012) 14 NWLR (Pt 1319) 122. Therefore, the Courts have always defined the term ‘guarantee’ as a written undertaking made by one person to another to be responsible to that other if a third person fails to perform a certain duty, for example, payment of debt — Royal Exchange Assurance (Nig) Ltd Vs Aswani Textile Industries Ltd (1992) 3 (Pt 227) 1, Saraki vs Societe Generale Bank Ltd (1995) 1 NWLR (Pt 371) 325, Trade Bank Plc Vs Chami 2003) 13 NWLR (Pt 836) 158, Amede Vs United Bank for Africa Plc (2008) 8 NWLR (Pt 1090) 623, Chami vs United Bank for Africa Plc (2010) 6 NWLR (Pt 1191) 474, South Trust Bank Ltd vs Pheranzy Gas Ltd (2014) 16 NWLR (Pt 1432) 1.
In other words, the alleged oral contract of guarantee relied upon by the first Respondent was not binding and enforceable against the Appellant. This point was succinctly made by this Court in the case of Umegu Vs Oko (2001) 17 NWLR (Pt 741) 142, per Ekpe, JCA, at 157A-D thus:
“The learned trial Judge in his judgment held the view that there was an undertaking by the appellant as the contract of guarantee could be by words or by conduct. With due respect, I disagree with him. In my view, the learned trial Judge misconceived the meaning and the legal implication of a contract of guarantee. It is an elementary, but fundamental, principle of law that a contract of guarantee which the term implies an undertaking must be in writing in order to be binding on the guarantor. If it is not in writing, it is not a contract of guarantee strictu sensu.”
This requirement of writing cannot be displaced by and be inferred from the conduct of a defendant as a contract of guarantee is not one that can be predicated on the concept of estoppel by conduct and the doctrine of part performance has no application to contract of guarantee — Wain Vs Warfters (1804) 102 ER 972, Britain Vs Rossiter (1882-83) LR 11 QBD 123, Standard Bank of Nigeria Ltd Vs Ikomi (1972), LPELR-3112(SC). The facts of the case of Actionstrength Ltd Vs International Glass Engineering (2003) UKHL 17 are very apt illustration on the point. Actionstrength agreed with Inglen to supply labour to enable Inglen (the main contractor chosen by St-Gobain) to build a factory for St-Gobain. Inglen’s deficiencies as a contractor led Actionstrength being drawn, more closely than would be normal for a labour-only subcontractor, into oversight of Inglen’s performance. From an early date Actionstrength had difficulty obtaining payment by Inglen and substantial arrears built up. Actionstrength was contractually entitled to terminate its contract with Inglen on thirty days’ notice if duly approved invoices had not been paid within thirty days and remained unpaid.
Such termination would have been seriously prejudicial to St-Gobain, whose interest was to take expeditious possession of a completed factory. Actionstrength threatened to withdraw its labour. St-Gobain induced it not to do so by promising that, if Inglen did not pay Actionstrength any sums which were or became owing, it (St-Gobain) would do so. On that undertaking Actionstrength forebore to withdraw its labour and continued to supply labour to Inglen, whose indebtedness to Actionstrength increased fivefold over the weeks that followed. St-Gobain received the benefit of the work done by the labour which Actionstrength supplied. When Actionstrength, unable to obtain payment by Inglen, sought to enforce the agreement against St-Gobain, that company relied on the absence of a written memorandum or note of agreement to defeat Actionstrength’s claim.
The English House of Lords held that the oral promise was unenforceable and that contract of guarantee must, by the provisions of Section 4 of the Statute of Frauds, be in writing to be enforceable. Lord Walker said that “it would wholly frustrate the continued operation of S. 4 (Statute of Frauds) in relation to contracts of guarantee if an oral promise were to be treated, without more, as somehow carrying in itself a representation that the promise would be treated as enforceable”
The finding of the lower Court holding the Appellant jointly and several liable with the second Respondent to the first Respondent for the outstanding balance on the business transaction, on the basis of the oral agreement of guarantee/suretyship pleaded and led in evidence by the first Respondent, was perverse and wrongful. Such oral agreement, not having been evidenced in writing, was not binding and enforceable.
This Court concedes that the question raised and answered on this first issue for determination — whether a contract of guarantee that is not in writing is enforceable and can form the basis of a cause of action, was not raised and canvassed by any of the parties and that it was raised suo motu by this Court. It is correct that a Court being a Court of facts and law is entitled to raise any issue germane to the resolution of the dispute submitted by the parties for adjudication suo motu in the interest of justice and that, as a general principle of law, the Court, where it raises an issue suo motu, must give the parties an opportunity to address on it before deciding the issue, particularly the party that may suffer some disadvantage or disability by reason of the issue so raised — Okebola Vs Molake (1975) 12 SC 61, Kuti Vs Balogun (1978) 1 SC 53, Graham Vs Esumai 1984) 11 SC 123, Bamgboye Vs Olanrewaju (1991) 4 NWLR (Pt 184) 132, Union Bank of Nigeria Plc Vs Awmar Properties Ltd (2018) LPELR 44376(SC).
This principle, however, admits three exceptions of when a Court may raise and resolve an issue suo motu without calling the parties to address on it and these are (i) when the issue relates to the Court’s own jurisdiction; (ii) when both parties are not aware or ignored a statute which may have bearing on the case; or (iii) when on the face of the records serious questions of the fairness of the proceedings is evident — Effiom Vs Cross River State Independent Electoral Commission (2010) 14 NWLR (Pt 1213) 106 at 133-134, Gbagbarigha vs Toruemi (2012) LPELR-15535(SC), Omokuwajo Vs Federal Republic of Nigeria 2013) 9 NWLR (Pt 1359) 300 at 332, Omoniyi Vs Alabi (2015) 6 NWLR (Pt 1456) 572 at 592-593, Airtel Networks Ltd vs Plus Ltd (2020) 15 NWLR (Pt 1747) 235, Ehinle vs Ikorodu Local Government (2021) 1 NWLR (Pt 1757) 279, Idachaba Vs University of Agriculture, Makurdi (2021) 11 NWLR (Pt 1787) 209 at 231B-D.
The question raised and decided by this Court was on the application of Section 4 of the Statute of Fraud of 1677 and it comes within the second exception. It is one this Court could raise and determine without calling on the parties to address on it. The first issue for determination is resolved in favour of the Appellant.
The consequential effect of the resolution of the first issue for determination is that the first Respondent did not, on the strength of the pleadings of the parties and the evidence led in support thereof, make out a credible case to warrant the Appellant being held jointly and severally liable with the second Respondent to repay the indebtedness found due to the first Respondent, and this is sufficient to determine the appeal. However, in view of the fact that this Court is not the final Court in the judicial hierarchy for this type of cases, it is wise that it goes further to look at the second issue for determination raised by the parties, in case it turns on a further challenge that its findings on the first issue for determination are wrong — Ovunwo vs Wolco (2011) 17 (Pt 1277) 522, Iwunze vs Federal Republic of Nigeria (2013) 1 NWLR (Pt 1334) 119 and University of Calabar Vs Akintunde (2013) 3 NWLR (Pt 1340) 1.
Issue Two
Whether, in the conduct of the trial proceedings, the lower Court acted contrary to and in breach of the Appellant’s right to fair hearing
The complaint of the Appellant under this issue for determination is that, in the course of the proceedings, the lower Court conducted trial on a date that the matter was fixed for mention and proceeded to admit documentary evidence of the first Respondent on that day in the absence of the Appellant and his Counsel, and thus breached right of the Appellant to fair hearing. Counsel to the first Respondent countered that the matter was fixed for hearing on the day in question, and not for mention, and that the fixture was done on the prior adjourned date in the presence of the Appellant and his Counsel, and that the Appellant and his Counsel chose to absent themselves from Court without any explanation on the hearing date.
The concept of fair hearing adumbrated under this issue for determination is the same as fair trial and it entails so much in the judicial process. As a matter of law, it is the pivot upon which the enure judicial process or the administration of justice revolves. It is the keystone of the trial process as no trial can be sustained unless it accords with the principles of fair hearing, which also involves the twin common law rules of natural justice rules, audi alteram partem and nemo judex in causa sua — Emerah Vs Chiekwe (1996) 7 NWLR (Pt 462) 536, Okeke vs Nwokoye (1999) 13 NWLR (Pt 635) 495.
Fair hearing postulates that where a person’s legal rights or obligations are called into question, he should be accorded full opportunity to be heard before any adverse decision is taken against him with regard to such rights or obligations. It is an indispensable requirement of justice that an adjudicating authority, to be fair and just, shall hear both sides, giving them ample opportunity to present their case. Accordingly, a hearing can only be said to be fair when, inter alia, all the parties to the dispute are given a hearing or an opportunity of a hearing. If one of the parties is refused or denied a hearing or is not given an opportunity to be heard, such hearing cannot qualify as a fair hearing under the audi alteram partem rule — Otapo Vs Sunmonu (1987) 2 NWLR (Pt 58) 587, Gakus Vs Jos International Breweries Ltd (1991) 6 NWLR (Pt 199) 614, Olumesan vs Ogundepo (1996) 2 NWLR (Pt 433) 628.
The rule of fair hearing is not a technical doctrine. It is one of substance. The question is not whether injustice has been done because of lack of hearing. It is whether a party entitled to be heard before deciding, had in fact been given an opportunity of being heard. Once an appellate Court comes to the conclusion that the party was entitled to be heard before a decision was reached but was not given the opportunity of a hearing, the judgment entered is bound to be set aside — Kotoye Vs Central Bank of Nigeria (1989) 1 NWLR (Pt 98) 419, Olumesan Vs Ogundepo supra, Ogundoyin Vs Adeyemi (2001) 13 NWLR (Pt 730) 403, Olufeagba Vs Abdul-Raheem (2009) 18 NWLR (Pt 1173) 384.
This right to be heard is so fundamental a principle of our adjudicatory process that it cannot be compromised on any ground — Nwokoro Vs Onuma (1990) 3 NWLR (Pt 136) 22 at 35, Iwuoha Vs Okoroike (1996) 2 NWLR (Pt 429) 231, Olufeagba Vs Abdul-Raheem supra. It is perhaps to underscore the inviolability of this right of a party to a dispute to fair hearing that a provision guaranteeing the right to every citizen of this country is firmly ensconced in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999. Hence, fair hearing is not only a common law right but also a constitutional right — Bamgboye vs University of Ilorin (1999) 10 NWLR (Pt 622) 290, Agip (Nig) Ltd Vs Agip Petroli International & Ors (2010) 5 NWLR (Pt 1187) 348, Agbiti vs Nigerian Navy (2011) 4 NWLR (Pt 1236) 175.
The right to fair hearing does not, however, exist in absolute terms. The concept of fair hearing postulates that it is the duty of a Court to create a conducive environment and atmosphere for a party to enjoy his right to fair hearing, but it does not say that it is part of the duty of the Court to make sure that the party takes advantage of the atmosphere or environment so created to exercise his right to fair hearing. It is not part of the business of a Court to compel a party to exercise his right to fair hearing. Where a party fails, refuses or neglects to take advantage of or utilize the environment created by a Court to exercise his right of fair hearing, he cannot turn around to complain of lack of fair hearing — Independent National Electoral Commission vs Musa (2003) 3 NWLR (Pt 806) 72, Dantata vs Mohammed (2012) 8 (Pt 1302) 366, National Films & Video Censors Board Vs Adegboyega (2012) 10 NWLR (Pt 1307) 45.
The records of appeal confirm the position as adumbrated by the Counsel to the first Respondent. The records show that it was on the 27th of May, 2015 that the lower Court continued hearing in the absence of the Appellant and of his Counsel and admitted all the documentary evidence of the first Respondent. The records show that two adjournments prior to that day, on the 14th of April, 2015, when the matter came up before the lower Court, the first Respondent and his Counsel were in Court as well as the Appellant and his Counsel and that the second Respondent was also in attendance, but his Counsel was absent and that the matter was adjourned at the instance of the second Respondent to the 28th of April, 2015 for continuation of hearing.
The records show that on the 28th of April, 2015, all the parties and their Counsel were present in Court and that the hearing in the matter could not proceed and the matter was again adjourned at the instance of Counsel to the second Respondent to the 27th of May, 2015 for hearing. The records show that on the 27th of May, 2015, only the first Respondent and his Counsel were in Court. The Appellant and his Counsel as well as the second Respondent and his Counsel were absent from Court without any explanation. The lower Court proceeded with the hearing fixed for the day and it, in the process, admitted the documentary evidence of the first Respondent.
The assertion of Counsel to the Appellant that the matter was for mention on the date in question, and not for hearing, was a blatant misrepresentation of the contents of the records of appeal and Counsel could only have done so in the hope of misleading this Court. This was most unprofessional. It is not the duty of a counsel to win at all costs and by all means, and seeking to do so by misrepresenting the contents of the records of appeal is ignoble, unethical, reprehensible and condemnable — Shola vs State (2020) 8 NWLR (Pt 1727) 530. In Isijola vs Olusoga (2015) LPELR 41788(CA), this Court opined thus:
“Starting with the contention relating to contradictions alleged in the evidence of DW1, DW3 and DW4. I do not find any, as claimed by the Appellant’s learned counsel. I must say in agreement with the Respondent’s learned counsel that the Appellant’s counsel abridged the evidence of DW1, contrary to that reproduced by Respondent’s counsel. A Court of law is bound by the record of proceedings. It is unethical so to misquote a witness or alter or seek to misrepresent the proceedings or record of a Court. The solemn duty of a counsel does not include as is commonly referred to ‘winning a case for his client at all costs’. No, the role of the lawyer nay counsel is to ensure that justice is done. This cannot be done by misrepresentation. The duty is owed to justice and not merely to clients.”
It is settled law that a party who, being aware that a matter is fixed for hearing, voluntarily chooses to stay away from Court on the date and the Court proceeds with the hearing in his absence, cannot turn round to assert lack of fair hearing — Ezechukwu Vs Onwuka (2016) LPELR 26055(SC), Eze Vs Federal Republic of Nigeria (2017) LPELR 42097(SC), Darma vs Eco Bank Plc (2017) LPELR 41663(SC). The doctrine of fair hearing is not a “one way traffic concept” for the benefit of the party who first parrots it. It is not an abstract term available to a party at all times and in all circumstances, even when the party has displayed un-seriousness and nonchalance. It means fairness to all the parties and fairness to the Court or the relevant administrative panel — Newswatch Communication Ltd Vs Atta (2006) (Pt 318) 580 at 600-601. In Okocha vs Herwa Ltd (2000) 15 NWLR (Pt 690) 249 at 258 G-H, Oguntade, JCA, (as he then was) made the point thus:
“It is not fair or just to the other party or parties as well as the Court that a recalcitrant and defaulting party should hold the Court and the other parties to ransom. The business of the Court cannot be dictated by the whims and caprices of any party. Justice must be even handed.”
The complaint of the Appellant on breach of his right to fair hearing was baseless and the second issue for determination is resolved in favour of the first Respondent.
In conclusion, in view of the resolution of the first issue for determination in favour of the Appellant, this appeal succeeds and it is hereby allowed. The portion of the judgment of the High Court of Kano State delivered in Suit No K/90/2014 by Honorable Justice Hadija Sulaiman on the 22nd of June, 2017 wherein the Appellant was held jointly and severally liable with the second Respondent for the payment of the judgment sum is hereby set aside. The remaining portion of the judgment and the findings, having not been appealed against, are hereby affirmed. The parties shall bear their respective costs of the appeal. These shall be the orders of the Court.
ABUBAKAR MUAZU LAMIDO, J.C.A.: I have had the privilege of reading in draft, the judgment delivered by my learned brother HABEEB ADEWALE OLUMUYIWA ABIRU, JCA, and I am in total agreement with the reasoning and conclusion reached. I too allow the appeal and I abide by all other consequential orders as contain in the lead judgment.
BATURE ISAH GAFAI, J.C.A.: I have had the privilege of reading the draft, judgment just delivered by my learned brother Abiru, JCA. I am in full agreement with his reasoning and the decision he arrived at in this appeal.
The two Issues for determination formulated by the counsel for the 1st Respondent which this Court in the lead judgment settled on in determining this appeal represent what the entire appeal is all about.
If I may add, on the first Issue (supra), it seems to me too that the learned trial Judge proceeded erroneously in finding the Appellant liable to first Respondent’s claims jointly with the second Respondent, without regard to the specific facts and evidence and respective applicable provisions of the law in relation to the Appellant in particular and the second Respondent.
The specific claims and evidence altogether against the Appellant were not for the main contract between the 1st and 2nd Respondents but for guarantee or suretyship of the contract. The trial Court wrongly treated both claims as one for the contract. From the entire evidence, it is clear that what the 1st Respondent toiled to establish against the Appellant, if at all, is a contract of guarantee which is quite distinct from, though rooted in the main contract between the 1st and 2nd Respondents. A contract of guarantee is a special contract which cannot be made orally. Section 4 of the Statute of Frauds (supra) provides that a contract of guarantee, as in the instant case, must be in writing. It cannot be made orally.
In Gold Link Insurance Company Ltd vs. Petroleum (Special) Trust Fund (2008) LPELR-4211 (CA) this Court relied on and quoted the decision of the Supreme Court in Royal Exchange Assurance (Nig) Ltd vs. Aswani Textile Industries Ltd (1992) 3 NWLR part 227, 1 @ 13 that:
“A guarantee is a written undertaking made by one person to a second person to be responsible if a third person fails to perform a certain duty.”
There being no evidence of a written guarantee contract between the Appellant and the 1st Respondent, the trial Court was in error in inferring an Oral contract of guarantee against the Appellant.
On the second Issue for determination (supra), it is very clear that from the Record of Proceedings, the Appellant’s bogus contention that the trial Court proceeded into hearing in his absence and on a date fixed for mention, is a clear misrepresentation of the correct position as shown by the Record. Record of Appeal is sacrosanct which binds both the trial Court and the appellate Courts. It is therefore detestable that a counsel reconstructs same merely to hoodwink the Court into wrongful findings against the trial Court and the other party in litigation. The Record clearly shows that the Appellant and his counsel were fully aware of the fixture of the proceedings for hearing, not for mention but they both chose to stay away from the Court on the resumed dated without any word of explanation: only for them to now frame a ground of appeal that the trial Court denied them fair hearing. This is improper. In Newswatch Communications Ltd vs. Alhaji Aliyu Ibrahim (supra), the Supreme Court held:
“The fair hearing principle formerly entrenched in Section 33 of the 1979 Constitution and now Section 36 of the 1999 Constitution, is not for the weakling, the slumberer, the indolent or the lazy litigant, but is for the party who is alive and kicking in the judicial process by taking advantage of the principle at the appropriate time. The principle is not available to a party who gets a trap in the litigation process against the Court and accuse the Court of assumed wrongdoing even when such so called wrongdoing is, as a matter of fact, propelled or instigated by the party, through his counsel.”
On the whole, while I too resolve the second Issue (supra) in favour of the 1st Respondent, I however resolve the first Issue (supra) in favour of the Appellant and thereby allow the appeal against the decision of the trial Court wherein it ordered the Appellant liable with the 2nd Respondent for the payment of the judgment debt, which particular decision is hereby set aside.
Appearances:
Ibrahim Aliyu Nassarawa, with him, Halima Kabir Sulaiman and Kennedy O. Erhinyoja For Appellant(s)
Adekunle Taiye Falola – for 1st Respondent
No appearance for the second Respondent For Respondent(s)