Cross River State Water Board V. Nugen Consulting Engineering Ltd. & Ors. (2006)
LawGlobal-Hub Lead Judgment Report
CHRISTOPHER MITCHELL CHUKWUMA-ENEH, J.C.A.
This is an appeal by the 1st defendant against the judgment of the Akamkpa High Court of Cross River State (CORAM: Ogar, J.) delivered on 15/12/1999 in favour of the plaintiffs against the defendants as per the claim.
The plaintiffs’ claim against the defendants (i.e. 1st, 2nd, 3rd and 4th) in synopsis jointly and severally is as follows:
“the sum of N3,604,736.68 (Three million, six hundred and four thousand, seven hundred and thirty-six naira sixty-eight kobo) being the total amount due to the plaintiff from the defendants for the designing and supervision of construction of water supply scheme for Calabar with interest on the basis of statute at the rate of 15% from 7th February, 1994 until judgment and 10% from judgment until liquidation of the judgment debt.”
Aggrieved by the decision, the 1st defendant within the extended time granted on 16/10/2002 by this court has brought this appeal upon a notice of appeal at pp. 46 – 49 of record containing five grounds of appeal. The parties have since filed and exchanged their respective briefs of argument in the matter.
The appellant has in its brief of argument raised three issues for determination as follows:
“1. Whether the trial court was right in holding that on the facts averred in the affidavit of the defendants, the defendants had not made out a case to warrant the transfer of this suit to the ordinary cause list. (Grounds 1, 3 and 5 of the appeal).
- Whether this suit was properly constituted with respect to the parties (Ground 2).
- Whether the trial court was right in awarding prejudgment interest of 15% to the plaintiffs in the absence of any affidavit evidence setting forth the grounds upon which such an award could be predicated (Ground 4).”
The 1st and 2nd (plaintiffs’) respondents in their amended joint brief of argument have adopted and relied on the same issues as raised for determination by the appellant. They however have firstly taken a preliminary objection as to the competency of grounds 1, 2, 3 and 4 of the grounds of appeal. I shall revert to that question later in this judgment.
The 3rd and 4th respondents otherwise the 2nd and 3rd defendants in the court below, who have not appealed the said judgment have raised two issues for determination by replicating issues 1 and 2 as raised in the appellant’s brief of argument. They have not concerned themselves with issue 3 and no reasons have been offered for this omission.
The facts of this case are not complicated nor are they so much in any controversy. The suit was entered on the undefended cause list upon the claim above-mentioned, the same having been verified by a supporting affidavit of 17 paragraphs deposed to by one Monica Ibrahim. The 1st and 2nd respondents as the plaintiffs in the court below alleged having completed their contract entered into as per exhibits A and A1 for which various interim payment certificates i.e. exhibits B – B3 totaling N3,604,736.68 were approved for payment. And that the appellant and 3rd & 4th respondents (as defendants) failed and neglected to pay the said amount. It is not in contention that to the extent that the plaintiffs entered into contracts with the 3rd respondent, the defendants in the lower court admitted the existence of the contracts. It was asserted that the 1st and 2nd respondents were aware that on the recommendation of the appellant herein, they were to be paid by the said third party – one Hold-Trade Co. Ltd. which was not made a party to this suit. On that assertion the defendants in the court below denied owing the 1st, 2nd respondents (plaintiffs) and contended that the suit was incompetent for want of territorial jurisdiction and as being improperly constituted as to the plaintiffs (i.e. 1st and 2nd respondents) as parties to the suit and therefore an abuse of process.
The appellant in its brief of argument has argued that the court below has failed to appraise the defence’s case as per the affidavit verifying the notice of intention to defend in which they i.e. defendants as contended have sufficiently disclosed a defence on the merit to be let in to defend the action at the trial. They have alleged conflicting affidavits of the parties with regard to the failure of the 1st and 2nd respondents to tender the full contract documents i.e. pages 2 – 10 of the contract agreement which were deliberately omitted and as well, that the contract fees have to be paid by a third party – Hold-Trade Co. Ltd. which should have been joined in the action including also that exhibits B-B3 are fraudulent, all these, it is contended to constitute the grounds which have misled the trial court to misconceive and wrongly to apply the import of Order 23 rule 3(1) of the Cross River State High Court (Civil Procedure) Rules, 1987 to the application and for improperly invoking section 149(d) of the Evidence Act against the defendants in the court below. It has been reiterated that the 1st and 2nd respondents as plaintiffs have nonetheless to succeed on the strength of their case; and that non-joinder of the Hold-Trade Co. Ltd. in itself is even material enough to cause the transfer of the matter to the general cause list. It has relied on Macaulay v. NAL Merchant Bank Ltd. (1990) 4 NWLR (Pt.144) 283; Santory Co. Ltd. v. Elabed (1998) 12NWLR (Pt.579) 538, Calvenply Ltd. v. Pekab Int. Ltd. (2001) FWLR (Pt. 61) 1655; (2001) 9 NWLR (Pt. 717) 164 and Nyav. Edem (2001) FWLR (Pt.57) 825 at 565, (2000) 8 NWLR (Pt. 669) 349 to submit on the liberal approach of the court in determining when a defendant would be given leave to defend in an action of this nature. And so, that the trial court has failed to properly appraise the defence’s case as deposed to in their affidavit, which it is contended has met the stipulation required under Order 23 rules 3(1) (supra).
On issue two, the appellant has challenged the suit as constituted as to parties and the plaintiffs’ (1st and 2nd respondents) locus standi to sue at all and has referred to exhibit A and A1 i.e. pages 1 and 11 of the contract documents made between Government of Cross River State and the 1st and 2nd respondents doing business under the name and style of Nugen Consulting Engineers Ltd. to contest how Nugen Consulting Engineers Ltd. (i.e. 1st respondent) has emerged as a party and has made the point that only parties to a contract derive rights and obligations under it and that it cannot be enforced against a non-party to it; See: Oshevire v. Tripoli Motors (1997) 4 SCNJ 246 at 255, (1997) 5 NWLR (Pt.503) 1 and Chitty on Contract (23rd Edition) p. 453 para. 971. Alfotrin Ltd. v. A.-G .. of the Federation (1996) 125 SCNJ 236 at 256, (1996) 9 NWLR (Pt. 475) 634; UBN Ltd. v. Penny-Mart Ltd. (1992) 5 NWLR (Pt.240) 228 at 240; Negbenebor v. Negbenebor (1971) 1 All NLR 210 at 270 – 271 and Federal College of Education, Okene v. Anyanwu (1997) 4 NWLR (Pt.501) 533 at 564. On the question of competency of the 1st and 2nd respondents (plaintiffs) to sue, the appellant has referred and relied on Ezeafulukwe v. John Holt Ltd. (1996) 25 SCNJ 104 at 110; (1996) 2NWLR (Pt. 432) 511;A.-G .. Federation v. A.I.C. Ltd. (2000) FWLR (Pt.26) at 1758 to 1744; (2000) 10 NWLR (Pt. 675) 293; Ikpeazu v. ACB Ltd. (1965) NMLR 374 to challenge their competency. The point is made that the procedure under the undefended list having eliminated full scale trial, its technical nature must be strictly followed: see Olubusola Stores v. Standard Bank of Nig. Ltd. (1975) 5 UILR (Pt.1) 27 at 30 per Coker, JSC. Ezuma v. Nkwo Market Community Bank Ltd. (2000) FWLR (Pt.28) 2243 at 2265; (2000) 10 NWLR (Pt. 676) 638. In short, that the instant action has not been commenced by proper parties. And so, the 1st and 2nd respondents on whom the onus lies have not discharged the same.
These inadequacies, it is submitted show that the suit is incompetent and that the appellant should have been let in to defend the action for these inadequacies to be fully ventilated.
The appellant on the 3rd issue has submitted that the award of 15% prejudgment interest not having been properly grounded upon the affidavit evidence has no basis and has been wrongly awarded.
The 1st to 2nd respondents have taken a preliminary objection to grounds 1, 2, 3 and 4, of the grounds of appeal. It is their contention that grounds 1 and 3 raise questions of fact and so require leave of court. See: Ogbechie v. Onochie (1986) 2 NWLR (Pt.23) 484 at 489; Ali v. Hussaini (2004) FWLR (Pt.194) 49 at 512; A.I.B. Ltd. v. Packoplast (Nig.) Ltd. (2004) 3 NWLR (Pt.859) 129. On grounds 2 and 4 of the grounds of appeal the 1st and 2nd respondents have challenged firstly ground 2 for raising for the first time the question that Engr. Benedict Aginah was not mentioned as a plaintiff in the suit thus could not have given his consent to Monica Ibrahim to swear to the affidavit and on the difference between Nugen Consulting Engineering Ltd. and/or Nugen Consulting Engineers Ltd. and so the appellant has raised fresh issues not taken in the court below without leave of court. Also in regard to ground 4 that the question of prejudgment interest is being taken for the first time here. They submit that the four grounds are therefore incompetent: See Jov v. Dom (1999) 9 NWLR (Pt.620) 538 at 547 and Tahir v. J. Udeagbala Holdings Ltd. (2004) 2 NWLR (Pt.857) 438 at 447. The court is urged to strike out the said grounds of Appeal and even the 3rd and 4th respondents brief of argument as incompetent as they cannot without filing an appeal be seen to be attacking the judgment.
However, in the alternative to their preliminary objection being overruled, they have argued on issue one that there is evidence of a contract as per exhibits A and A1 between the parties to the suit but to the exclusion of Hold-Trade Co. Ltd., a stranger to the contract and so has not been sued in this matter. And that the trial court rightly has come to the conclusion on the claim based on exhibits B to B3 and moreso as no particulars of fraud as regards exhibits B to B3 have been deposed to in their verifying affidavit to defend the suit. And that the parties in the suit are also parties to the said contract agreement as shown in exhibits A and A1. See Negbenegbor v. Negbenegbor (supra) and Onamade v. ACB Ltd. (1997) 1 NWLR (Pt.480) 123. They submit that the 1st defendant as the appellant and the 3rd and 4th respondents have not made out a triable defence so as to be let in to defend the suit in the court below. And even then that as there is evidence accepted by the trial court to support the decision it should not be disturbed. See: Atanda v. Ajani (1989) 3 NWLR (Pt.111) 511.
On the proper parties they allege that the defendants have admitted the locus of the 1st and 2nd respondents in their paragraphs 4, 5, 6, 8, 9 and 12 of their affidavit and have not taken that issue before the trial court and so, it cannot be taken here as it is a new issue without leave of court.
The 1st and 2nd respondents have also argued that the prejudgment interest awarded to them is properly awarded and well grounded and have referred to section 274 of the 1999 Constitution and section 16 of Cross River State and Law Reform (Miscellaneous Provisions) Act, 1934 to show the statutory backing for the award.
The court is urged to dismiss the appeal.
The 3rd and 4th respondents as I have earlier stated, have identified issues one and two as per the appellant’s brief of argument and have in their joint brief of argument predicated their arguments on the two issues. They have submitted making out a case upon the defendants’ affidavit verifying facts of their notice of intention to defend to deserve having the matter put on the general cause list for hearing. For one, they have referred to the question of incomplete agreement papers, that is pages 2 to 10 i.e. outside exhibits A and A1 to raise the question of conflicting affidavits requiring resolution by oral evidence. See Eimskip Ltd. v. Exquisite Industries (Nig.) Ltd. (2003) 13 NSCQR 489; (2003) 4 NWLR (Pt. 809) 88, or Mike Momoh v. VAB Petroleum Inc. (2000) 4 NWLR (Pt.654) 534; Arjay Ltd. v. Airline Management Support Ltd. (2003) 14 NSCQR; (2003) 7 NWLR (Pt. 820) 577. And for another it has also argued that once the 1st and 2nd respondents (plaintiffs) have not denied paragraphs 4, 5, 6, 9, 10 and 12 of the defendants verifying affidavit to defend the suit, the facts alleged therein stand admitted. See Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688 and therefore that the trial court wrongly invoked section 149(d) of Evidence Act against the defendants in the court below instead of as urged by the appellant against both parties.
On issue two i.e. on the situs to institute the action being an issue of jurisdiction is one that can be taken on the face of the writ and the affidavits of both parties and their accompanying exhibits including other documents before the court. See NDIC v. Central A Bank of Nig. and Anor. (2002) 9 NSCQR 432; (2002) 7 NWLR (Pt.766) 272. They have also relied on Order 10 rules 3, 5, and 6 to contend that the defendant having objected to the territorial jurisdiction of the trial court to hear the matter, the trial court should have first resolved that question against the background of where the contract was made or performed or where the defendants were residing. And that the venue has to be governed by the defendants’ place of residence or performance of the said contract and has relied for the submission on the case of Magaji v. Matari (2000) 2 NSCQR 436, (2000) 8 NWLR (Pt.670) 722 and Madukolu v. Nkemdilim (1962) 1ANLR 587; (1962) 2 SCNLR 341. They refer also to U.N.N. v. Orazulike Trading Co. Ltd. (1989) 5 NWLR (pt.119) 19 for the submission. It has also been submitted that the rules as to venue should have been adverted to so as to enable the trial court resolve the crucial question of its territorial jurisdiction also see: Osuji Okoro Ofarkire v. John Maduike and Ors. (2003) 13 NSCQR 339; (2003) 5 NWLR (Pt. 812) 166. They therefore submit on the whole that the trial court has no jurisdiction to entertain the suit. The court is urged to allow the appeal, set aside the judgment and order a retrial.
The appellant in its reply brief has responded to the preliminary objection taken by the 1st and 2nd respondents in their joint 1st and 2nd respondents’ brief of argument. On the competency of grounds 1 and 3 raised without leave, the appellant has made the point that the decision being a final one it was entitled under section 241(1)(a) of the 1999 Constitution to appeal as of right and so it has not sought nor obtained extension of time from this court to so do and that the appeal is otherwise competent. See Aqua Ltd. v. Ondo State Sports Council (1988) 4NWLR (pt.91) 622; 7-Up Bottling Co. Plc v. Abiola & Sons Bottling Co. Ltd. (2002) 2NWLR (Pt.750) 40 at 57-58; Inyang v. Ebong (2002) 2 NWLR (Pt.751) 284 at 321 and Etim v. I.G.P. (2001) 11NWLR (Pt.724) 266, (2000) FWLR (Pt.21) 767 at 779 – 780.
On grounds 2 and 4, i.e. on whether the 1st and 2nd respondents’ action is properly constituted before the court as to parties, being an issue of jurisdiction proper i.e. on the locus of the parties i.e. as regards the plaintiffs (1st and 2nd respondents), can be taken suo motu and so should have been taken by the trial court suo motu. See Adesanya v. President, Federal Republic of Nigeria (1981) 2 NCLR 358 at 388 and so that no leave of court is required to appeal the same in the circumstance. See Attorney-General, Enugu State v. AVOP Plc. (1995) 6 NWLR (Pt.399) 90; Oredoyin v.Arowolo (1989) 4 NWLR (Pt.114) 172; Gaji v. Paye (2003)FWLR (Pt.163) 1; (2003) 8 NWLR (Pt. 823) 583 and Ijebu-Ode Local Government v. Adedeji Balogun & Co. Ltd. (1991) 1 NWLR (Pt.166) 136 at 153.
Having responded as per above to the preliminary objection, the appellant has gone on to revisit issues 1, 2 and 3 of its arguments as canvassed in the main brief of argument. This cannot be allowed, being inconsistent with the concept of reply brief.
I have to start examining of this matter firstly, by adverting to the preliminary objection in the event that it could dispose of the entire matter early enough as not to warrant any wasting of the time of the court in having to wade into the merits or demerits of the substantive matter. See N.N.B. (Plc.) v. Imonikhe (2002) 5 NWLR (Pt.760) 294. The preliminary objection has therefore, to be resolved first.
Secondly, on the competency of grounds 1 and 3 not being grounds of law but at best of mixed law and fact, I see no need to reproduce them here even though the 1st and 2nd respondents have challenged their competency as having been raised without the leave of court. I think the objection is totally misconceived in that the decision upon which the instant action has been brought under the undefended cause list being a final one, the appellant is clearly entitled under section 241(1)(a) of the 1999 Constitution to appeal as of right. The appellant does not require to seek leave of the court below or of this court to file the said grounds 1 and 3 of the grounds of appeal in this matter. Section 241(1) provides that “an appeal shall lie from decisions of the Federal High Court or of a High Court to the Court of Appeal as of right in the following cases:
(a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;”
This conclusion is further settled by a number of authorities including Aqua & Sons Ltd. v. Ondo State Sports Council (supra); Seven-Up Bottling Co. Ltd. v. Abiola & Sons Bottling Co. Ltd. (supra).
For the same reasons I have stated above there is no basis to require leave for grounds 2 and 4 being grounds of appeal raised against a final decision at first instant in a civil matter even though they are of mixed law and fact. See section 241(1)(a) of the 1999 Constitution. And so, grounds 1, 2, 3 and 4 do not require leave of this court on the said ground.
The 1st and 2nd respondents have also raised a more serious objection against grounds 2 and4 i.e. as to whether the suit is properly constituted against the question of locus of the 1st and 2nd respondents and the award of pre-judgment interest of 15% on the ground that both questions being fresh issues have been raised in this appeal without leave of court. I now set out to deal with the question by taking the two grounds distinctly separately. In regard to ground 2, the same is set out as follows:-
“2. The learned trial court erred in law when it proceeded to enter judgment for the plaintiffs without ascertaining whether there were proper parties before the court.
Particulars of error
(i) Neither Cross River State Water Board (1st defendant) nor Nugen Consulting Engineering Ltd. (1st plaintiff) were parties to the contract agreements, the substratum of the suit.
(ii) A person who is not a party to an agreement is not competent to sue or be sued on the said agreement even though he claims benefits therefrom.
(iii) The ‘affidavit to place suit on the undefended list’ did not mention Engr. Benedict Aginah (the signatory to the contract agreements) as either plaintiff nor even as the signatory to the agreement; neither was the said affidavit alleged to have been deposed to with his consent.
(iv) Nugen Consulting Engineers is different from Nugen Consulting Engineering Ltd. and/or Nugen Consulting Engineers Limited.
The appellant has submitted that the depositions as per paragraphs 13 and 14 of the defendants’ affidavit in the court below have raised the pertinent questions of improper constitution of the action for want of proper plaintiffs i.e. the 1st and 2nd respondents particularly as demonstrated in the particulars of errors to grounds 2 above and the consequent want of the court’s jurisdiction in that event. I set forth the two paragraphs 13 and 14 as follows:
“3. That the defendant also have deposed that this suit is incompetent and an abuse of the process of this Honourable Court and;”
“14 That this Honourable Court lacks the jurisdiction to entertain this suit.”
The implication of the 1st and 2nd respondents’ objection is that the instant fresh issues have not been taken, tried nor considered by the trial court so as to require leave of court to be so taken in this court. Before addressing the situation frontally, I shall revert firstly to the question of whether the above depositions per se can sustain the appellant’s claim of having challenged the action, on the ground of the plaintiffs’ (1st and 2nd respondents) locus and the court’s want of jurisdiction to deal with the action and more importantly whether these issues have been adverted to, tried and disposed of by the trial court. see: Araka v. Ejeagwu (2000) 12 SC (Pt. 1) 99; (2000) 15 NWLR (Pt. 692) 684. The guiding principles in regard to taking fresh issues in an appellate court as this court have recently been expounded in Araka v. Ejeagwu (supra) and Jov v. Dom (supra) and so, it is settled that a party as the appellant here who intends to take a new point or introduce a novel matter in the appeal must seek leave to do so. See: Jov v. Dom (1999) 75 SC (Pt.111); (1999) 9 NWLR (Pt. 620) 538. With respect, I take the view that the appellant has raised fresh issues here.
The apex court in the aforesaid cited case went on to add that to contend that issue of law or Constitution can be raised at any time and do nothing more than raise it, in an argument is like laying disrupting ambush for the opponent. And that proper application must be made so that the other side will know clearly what he has to meet. In further amplification of the principles it is trite that this court as the appellate court will not allow fresh issue to be taken before it if such a fresh issue was not pronounced upon by the court below. Also an appellant will not be allowed to take a point on appeal which was not tried or considered by the trial court except where the point involves substantial points of law, substantive or procedural and it is plain that no further evidence could have been adduced which would affect the decision or the points see: Araka v. Ejeagwu (supra).
In this regard I have to further examine the crucial deposition of the defendants as per their affidavit in the court below on the backdrop of the appellants contention on the import of the said paragraphs 13 and 14 set out above and they are as follows:
“4. That in answer to paragraphs 1 and 5 of the plaintiffs’ affidavit the defendants aver that the plaintiffs signed contracts with the 2nd defendant through the Ministry of Agriculture, Water Resources and Rural Development as evidenced by exhibits A and A1 attached to the plaintiffs’ affidavit.
- That in further answer to paragraphs 4 and 5 of the plaintiffs’ affidavit, the defendants contend that the plaintiffs’ fees were to be paid by Hold-Trade Company Limited on recommendation of the Cross River State Water Board.
- That further to paragraph 5 above, the defendants contend that the plaintiffs have excluded pages 2 – 10 of exhibits A and A1 in order to mislead this Honourable Court; and the defendant further contend that the averment in paragraph 5 above are contained in the said pages 2 – 10 which the plaintiffs have deliberately omitted.
- That in answer to paragraph 6 of the plaintiffs affidavit exhibits B-B3 are fraudulent.
- That the said Hold Trade Drilling Ltd. has not been made a party to this action.
- That in answer to paragraph 9 of the plaintiffs affidavit the defendant aver that they do not owe the plaintiffs the sum of N3,604,736.68 as claimed by the plaintiffs.
I have gone over the defendants affidavit in the court below including the aforegoing critical ones and I agree with the trial court that even alongside paragraphs 13 and 14 of the defendants in the said affidavit, the appellant and his co-defendants have not properly raised the issue of improper constitution of the 1st and 2nd respondents as competent plaintiffs in the action as there is nothing in the entire affidavit, in the nature of facts and/or circumstances from which those inferences could unreservedly be drawn, so as to compound the alleged improper constitution of the 1st and 2nd respondents as competent parties and the material facts and circumstances ousting the jurisdiction of the court in the matter. There is no doubt that, the onus is squarely on the 1st and 2nd respondents to show their locus to sue more so where that is put in issue. But firstly, it is the duty of the defence in the court below in the circumstance, to set out in extenso the details and particulars of those facts and circumstances they have relied upon to make the depositions as per paragraphs 13 and 14 of the said affidavit so as to sustain the complaints as per the particulars of errors to ground 2 of the ground of appeal set out above. The said paragraphs 13 and 14 as well as the foregoing depositions as per paragraphs 4, 5, 6, 7, 11 and 14 are in this regard completely bare and bereft of the facts and circumstances in support of the allegation of improper constitution of the plaintiffs as parties in this action and the grounds for want of jurisdiction – meaning that these questions being fresh issues have been raised in vacuo and are therefore of no moment. See Jov v. Dom (supra).
“…questions of law and jurisdiction can be raised at any time in the proceedings, but it is not on a free for all procedure … the court can raise a matter of law and Constitution at any time…”
The appellant has to distinguish the situation where competent parties to prosecute a case when a proper plaintiff or defendant is not before the court leading to want of jurisdiction to entertain the matter see: Fawehinmi v. N.B.A. (No.2) (1989) 2 NWLR (Pt.105) 558 and Lion of Africa Insurance Co. v. Esan (1999) 8 NWLR (Pt.614) 197; Agbonmagbe Bank Ltd. v. General Manager, G. B. Ollivant Ltd. (1961) All NLR 116 and where the question relates to the locus standi of the plaintiff, a fundamental issue as in the case of Adesanya v. President, Federal Republic of Nigeria (1981) 2 NCLR 358 at 388. In both instances the action is incompetent and it is as well settled that the court can suo motu take the point which could be taken at any stage of the proceedings. Oloriegbe v. Omotosho (supra). The above two instances have to be contrasted from the position here where the appellant as an after thought (as it was not taken specifically before the trial court) is taking the points for the first time without leave on the surmises that upon paragraphs 1, 2, 3, 4 and 5 of the plaintiffs supporting affidavit that the 1st and 2nd respondents are not competent parties to the action; even though the defendants in the court below including the appellant have admitted paragraphs 4 and 5 amongst others of the 1st and 2nd respondents’ affidavit i.e. on their locus to sue from which the appellant cannot now resite.
It must be recalled that however brilliant a party’s submission, it is never a substitute for evidence. The proper means of raising these questions as fresh issues is by deposing to facts and circumstances to that effect in their affidavit so that the court is left to draw the necessary inferences. This has not been done here. The appellant and its co-defendants filed a verifying affidavit to their intention to defend in which they have admitted the competency of the 1st and 2nd respondents as plaintiffs to initiate the instant action. They cannot be seen to approbate and reprobate at the same time. I have shown that the issue of improperly constituted parties and want of court’s jurisdiction were not raised, tried and considered by the trial court. This, a condition, the instant fresh issues being raised here have not met. From all perspectives, therefore, the appellant is precluded from relying on the new issues to prop up its case as they have no basis; as they were not put in issue in the court below otherwise it will be reopening its case here.
It is well settled that a party who challenges the competence of a court on the basis of certain facts but fails to put in issue those facts runs the risk of being precluded at a later stage when the proceedings have been brought to final conclusion from reopening that issue of fact. The appellant is caught in this web. The plaintiffs on record being juristic persons are prima facie capable of suing and being sued so that the instant action is also prima facie properly constituted as to the question of plaintiffs to the action. I am therefore inclined to uphold the objection against ground 2 as raising new issues without firstly having sought and obtained leave of court in regard to the said new issues see: Idika v. Erisi (No.2) (1988) 2 NWLR (Pt. 78) 563; Osinupebi v. Quadri S. Saibu (1982) 7 SC 104 at 110 to 111. The objection is well grounded. And so, issue 2 for determination which is predicated on ground 2 has to be discountenanced and it is so discountenanced and struck out.
On ground 4 that is, on pre-judgment interest. I can find no leg upon which to rest the 1st and 2nd respondents’ contention that leave of court is required to raise the point as it is not a fresh issue. In principle the 1st and 2nd respondents’ contention cannot be right as the prejudgment interest in this matter has been decided upon by the trial court at first instant and the appellant is competent to challenge the award by way of appeal. The objection is misconceived.
On the whole, therefore, in regard to grounds 1, 3 and 4 the objection is overruled but is sustained with regard to ground 2. I have earlier pronounced on issue 2 for determination, which is directly predicated on the said ground. It collapses with the said ground. I now go to the main appeal.
This is a good stage to recite Order 23 rule 1 of the High Court of Cross River State (Civil Procedure) Rules, 1987 as follows:
“Whenever application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt, liquidated money demand or any other claim and such application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there is no defence thereto, the court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the ‘undefended list’, …”
It is clear that the provisions of rule 1 contemplate most importantly of a situation in which a plaintiff to whom a specific amount is owed by the defendant among other requirements.
The next question is whether the appellant has disclosed a defence on the merit to deserve being given leave to defend upon such terms as the court may think fit as per Order 23 rule 3(1) of Cross River State High Court Rules, 1987. This is the crux of this matter at the trial court as here.
Rule 3(1) of Order 23 provides as follows:
“If the party served with the writ of summons and affidavit delivers to the registrar a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the court may give him leave to defend upon such terms as the court may think just.”
In accordance with the import of the aforegoing rule, the defendant to satisfy the rule is required to file a written notice of intention to defend, and a verifying affidavit of the said notice of intention to defend, which prima facie discloses a defence on the merit to the action. In this matter, the appellant and its co-defendants filed the processes as above and a notice of preliminary objection the trial court found against them and rightly entered judgment for the 1st and 2nd respondents (plaintiffs).
In this regard, it is proper to set forth the rest of the relevant paragraphs (i.e. 4 to 14) upon which the appellant and its co-defendants in the court below have relied to submit that the trial court has failed to exercise its discretion judiciously to let them in (having herein reproduced some of the paragraphs of the said affidavit) as follows:
“8. That in answer to paragraph 7 of the plaintiffs affidavit, the defendants aver that the plaintiffs were in the habit of inflating their bills, hence the queries. The said letters and the plaintiffs’ response vide letters ref. No. CWB/AD/S.222/VOL.II/57 of 27/10/98 and CAL/F/125 of 28/10/98 are herewith annexed as exhibits MOJ3. 3A and 3B.
- That in answer to paragraph 8 of the plaintiffs affidavit, the 2nd defendant, in order to expedite action on the contracts, decided to pay the plaintiffs fees upon the understanding that all further fees were to be paid by Hold-Trade Drilling Limited, the contractor. This is spelt out in a letter ref. no. CWB/AD/S.222/VOL.II/60 of 12/10/92 herewith annexed as exhibit MUJ 1.
- That further to paragraph 8 above, the plaintiffs were fully aware that their fees were to be paid by the said Hold Trade Drilling Ltd. as is evidenced by their letter ref. no. CAL/F/126 of 29/10/93 which is herewith annexed as exhibit MOJ 2.
- That the defendant aver that this suit is incompetent and an abuse of the process of this Honourable Court.
- That this Honourable Court lacks the jurisdiction to entertain this suit.
Having gone through the defendants’ affidavit filed in the court below, the only issue outstanding for resolution here is the contention of whether Hold-Trade Co. Ltd has the recommendation of the appellant to pay the 1st and 2nd respondents’ their contract fees. And so, the joinder of Hold-Trade Co. Ltd to the suit would have cast doubt on the bona fides of the instant claim being made against the appellant and its co-defendants as the claim should have been filed against Hold-Trade Co. Ltd. simpliciter, that is to say, upon the understanding that it was to pay all further contract fees on the contract as alleged in the letter exhibit MOJ2 addressed to the Governor by the appellant. The appellant has contended that it is therefore a great omission for not having sued Hold-Trade Co. Ltd. in the suit, or even joined it. Furthermore that exhibits A and A1 being pages 1 and 11 only of the contract agreement imply that the main body of the agreement as contained at pages 2 – 10 has been omitted.
However, the pertinent question to ask is whether in the circumstance Hold-Trade Co. Ltd. is a party to the contract agreement as per exhibits A and A1 so as to make it a necessary party to the suit. In this respect, the appellant cannot be seen to be arguing backwards and forwards in that it has stated at paragraph 4.01 of its brief of argument (page 3) that pages 1 and 11 of the two alleged contract agreements have depicted the parties, recitals, the 1st condition of contract and the attestation clauses. It is therefore neither the appellant’s case here that Hold-Trade Co. Ltd. is one of the parties so named in pages 1 and 11of exhibit A and A1 as exhibits A and A1 have debunked that supposition nor is it the case of Hold-Trade Co. Ltd. of having attested to exhibit A and A1. Even then there is no positive deposition to the effect that Hold-Trade Co. Ltd. was ever a party to the said contract agreement nor have exhibits A and A1 made any mention of the said company. The contention to treat Hold-Trade Co. Ltd. as a party to the contract agreement therefore becomes nebulous. The appellant is strident in its contention that Hold-Trade Co. Ltd. should have been joined to the suit so as to make it pay the contract fees as agreed. The onus of showing where such agreement was reached is on the appellant who has so alleged as exhibit MOJ2 a letter ref. No. CAL/F/126 of 29/10/93 cannot serve that purpose.
It is however settled that only parties to a contract can claim any rights or obligations under it. Indeed Hold-Trade Co. Ltd. not being a named party to the contract agreement but a total stranger to it is not subject to any rights or obligations under it. It is also settled that for want of privity of contract, it cannot derive any benefits under the instant contract as per exhibits A and A1, this is even so where it was made for its benefit which is not the case here.
It is on this premise that the invocation of the rebuttable presumption under section 149(d) of the Evidence Act, 1990 against the appellant and its co-defendants in the court below has fallen into place: The appellant has alleged that omitting pages 2 – 10 of the agreement has led to the misapprehension by the court below of the role of Hold Trade Co. Ltd. in the transaction. This is not borne out from the foregoing reasoning. The trial court rightly in my view has relied on section 149(d) to hold that the appellant is withholding evidence as per pages 2 – 10 of the agreement which if produced would be unfavourable to it. This has to be so and if I may risk repeating myself all that the 1st and 2nd respondents as plaintiffs needed to show in their claim is sufficient particulars vis-a-vis the nature of the contract which in my view exhibits A and A1 have satisfied. The trial court has accepted exhibits A and AI as providing sufficient particulars of the nature of the contract and so, coupled with the interim certificates for payment i.e. exhibits B to B3 have shown a claim for a liquidated amount, in the sum of N3,604,736.68. These facts have been verified by the affidavit sworn to by Monica Ibrahim, so that the requirements as contemplated under Order 23 rule 1 (supra) are satisfied to sustain the instant claim. And so, where as here the appellant and its co-defendant have failed to produce a triable defence the trial court rightly entered judgment against them. The argument to prop up Hold-Trade Co. Ltd. to bear the brunt of paying the contract fees in this matter and also make it a necessary party to the suit having collapsed, the trial court in the premises has lightly exercised it discretion to refuse the application by the appellant and its co-defendants in the court below for leave to be let in to defend the action. I also from the foregoing reasoning refuse leave of the court.
On issue 3, a pre-judgment interest cannot be awarded as a matter of course but has to be awarded on the successful party as the 1st and 2nd respondents here having discharged the onus of proof in that regard and strictly. In this instance it has to be as deposed to in the said affidavit in support filed by the 1st and 2nd respondents at the court below. I must confess that there is no fact deposed to as to how the rate of interest was reached whether by agreement, custom or usage and/or the statutory backing for the interest so claimed.
It ought to be noted that pre-judgment interest is different from post judgment interest (i.e. discretionary interest) which is provided for under Order 40 rule 7 of the High Court, Cross River State Civil Procedure Rules, 1987. See: Ekwunife v. Wayne (W/A) Ltd. (1989) 5 F NWLR (Pt.122) 422 and M & B Electrical C. Ltd. v. The Government of Cross River State (2005) 6 NWLR (Pt.922) 471. In the latter case I have dealt in extenso on the question of pre-judgment and post judgment interests.
I am not here conceded with post judgment interest. As to the claim of pre-judgment interest at the rate of 15%, I have perused the plaintiffs’ (1st and 2nd respondents) affidavit in support of the claim. I am not able to find any iota of evidence in expatiation of the claim for the pre-judgment interest as claimed; not having seen any basis to sustain the said relief, it must fail and is hereby dismissed. Issue 3 is resolved in favour of the appellant. So that the 1st and 2nd respondents for the avoidance of doubt are entitled to judgment as per their claim without the pre-judgment interest at the rate of 15% as claimed.
On the application by the 1st and 2nd respondents to strike out the 3rd and 4th respondents’ brief as they cannot be seen to use respondent’s brief to attack the decision of the lower court. Even moreso in this instance when they have not appealed the decision. It is clear that the status of a respondent in an appeal as postulated under our rules is not the same as the appellant.
Rule 4(2) of Order 6 of the Court of Appeal Rules, 2002 has provided as follows:
“The respondent’s brief shall answer all material points of substance contained in the appellant’s brief and contain all points raised therein which the respondent wishes to concede as well as reasons why the appeal ought to be dismissed…”
The natural role of a respondent in an appeal therefore is to do every thing to support the judgment. See; Errington v. Errington (1953) 1 KB 290 at 300 per Denning, L. J. It is in recognition of this right that he is entitled by our rules to raise a contention by respondent’s notice, in order to hold his judgment. See: Bostel Bros Ltd. v. Hurlock (1949) 1 KB 74 at 84 per Somerville, C. J. And so, he is not supposed to attack the judgment excepting if he had cross-appealed. The posture now assumed by the 3rd and 4th respondents here is inconsistent with that role.
The 3rd and 4th respondents have adopted 2 issues out of the 3 issues for determination (i.e. issues 1 and 2) as raised by the appellant in this matter having been sued as one of the defendants at the Court below. It is significant that the 3rd and 4th respondents have used these issues to launch a scathing attack on the decision of the trial court. They have finally urged the court to allow the appeal; meaning that they have not supported the judgment as indeed they should do by adducing reasons to support the decision in their brief. Therefore, I hold that it cannot be right and in conformity with the express provisions of the above Rule. I therefore uphold the objection and strike out the said brief.
Finally, I find no merit in the appeal. I therefore dismiss it and I affirm the judgment of the court below. But for the avoidance of doubt on having resolved issue 3 in the appellant’s favour, the 1st and 2nd respondents (plaintiffs in the court below) are entitled to judgment as per their claim without the pre-judgment interest of 15% as claimed.
They are also entitled to N10,000.00 costs against the appellant.
Other Citations: (2006)LCN/1956(CA)
