Benbok Limited V. First Atlantic Bank Plc. (2007)
LawGlobal-Hub Lead Judgment Report
BODE RHODES-VIVOUR, J.C.A .
This appeal originates from the Judgment of Ishaq Bello, J. sitting at Abuja High Court in Suit No. FCT/HC/CV/588/03 delivered on the 25th of April 2005.
In the Court below the appellant (as the plaintiff) claimed in paragraph 26 of his Statement of claim against the respondent (as the defendant) as follows:
”26. Whereof the Plaintiff claims against the defendant N14,849,506.10 being the balance of money deducted from plaintiff’s account under the different names after the expiration of the bonds with effect from on or about 26/1/02 plus 14% interest from 26/1/02 to the date of final liquidation of the said sum.
After the Plaintiff filed and served his pleadings on the defendant, the defendant failed to file his statement of defence within time, and so the defendant filed a Motion for extension of time to file and serve its statement of defence and to deem as properly filed and served the said statement of defence.
The defendant abandoned the Motion.
The proceedings of the High Court, Abuja on 21/10/03 are very important. On that day the plaintiff was represented by S. Lanre. The defendant was absent and unrepresented. The proceedings went as follows:
Plaintiff’s Counsel: The Defendants have been absenting themselves thus neglecting their Motion which intends to seek extension of time within which to file statement of defence. We ask that the Motion be struck out. Thereafter we ask for a date for hearing.
Court: RULING:-.
The Motion as filed by Defendants is hereby struck out for want of prosecution. Adjourned to 25/11/03 for hearing as suggested by Plaintiff’s Counsel. Hearing Notice ordered.
The Ruling was signed by the Presiding Judge. The proceedings referred to above are on pages 41 – 42 of the Record of Appeal.
The Plaintiff gave evidence and was cross examined by the Counsel for the defendant. Thereafter a Sole witness gave evidence for the defendant, he was also cross examined by the plaintiff’s counsel. Twenty documents were tendered and admitted in evidence as Exhibits.
In his Judgment the learned trial Judge dismissed the appellant’s claim holding that the plaintiff has failed to establish his claim upon preponderance of evidence as required. The Judgment relied on the Statement of defence that was struck out by the Court in its Ruling delivered on 21/10/03 (See page 42 of the Record of Appeal). It is very clear the learned trial Judge relied on the statement of defence which he struck out on 21/10/03 because in the opening paragraphs of his lordship’s Judgment on page 63 of the Record of Appeal his lordship said:-
“The Defendants denied liability to the Plaintiff’ claim. Pleadings were thus exchanged and issues joined inter se.”
I shall return in a short while in the course, of this Judgment to comment on the statement of defence that was struck out. Issues were never joined.
The plaintiff was dissatisfied with the Judgment of the court below and so filed a Notice of Appeal containing five grounds of Appeal. In accordance with Order 6 rules 2 and 4(1) of the Court of Appeal Rules the appellant filed his brief of argument on 1/8/05 and a Reply brief on 8/11/05 which was deemed duly filed on 8/12/05.
The Respondent’s brief was filed on 12/8/05. At the hearing on 23/11/06, learned Counsel for the appellant S. Larry adopted his brief and urged us to allow the appeal. O. Ajunwa, learned Counsel for the respondent adopted his brief and urged us to dismiss the appeal.
The appellant presented only one issue for the determination of the appeal. It reads:
“Whether the plaintiff requires more than the unchallenged evidence already proffered before the Court in the proof of its claim in this suit.”
On the other side of the fence the respondent formulated three issues for the determination of the Appeal. The issues are:
“1. Whether Exhibit 4 and 4A expired in 8 months after its execution as alleged by the plaintiff and upheld by the trial Court.
- Whether the incompetency of the Defendant’s Statement of Defence makes the Plaintiff’s case unchallenged, uncontradicted and admitted by the Defendant.
- Whether the appellant proved his case before the lower Court to entitle him to his claim before the trial Court.
The only ground formulated by the appellant arose because there was no statement of defence before the trial court. It is the view of learned Counsel for the appellant that his client is entitled to Judgment in view of unchallenged evidence led in proof of his claim. This is crucial and fundamental to the determination of this appeal.
The Court of Appeal found itself in a similar but not identical situation in Akumechiel v. B.C.C. Ltd. 1997 1 NWLR Pt. 484 p. 695 where the respondents were granted extension of time to file their statement of defence but failed to file it. All they had before the Court was the proposed Statement of defence. The appellant’s counsel however, never raised this point during the trial. In his Judgment the Learned trial Judge dismissed the appellant’s claim holding that there was nothing irregular is the termination of the appellant’s appointment in the circumstances of the case. The Judgment also relied on the proposed statement of defence, which was not a defence properly filed in court.
Muntaka-Coomassie, J.C.A. commenting on the proposed Statement of defence had this to say:
“Finally is the question whether or not the trial Judge was right to rely on a proposed statement of
defence not yet filed. My answer is that it is too late in the day to raise such matters. Parties had contested the case at the lower court on the basis that the statement of defence was validly filed. The failure of the defendants to file their statement of defence within 14 days granted them by the Court was a mere irregularity. It did not vitiate the Statement of defence actually before the court. If plaintiff/appellant had felt dissatisfied with the situation, he should have raised the matter before the commencement of hearing. Having allowed the trial to commence and end on the mutual assumption that there was before the court a statement of defence properly filed the appellant could no longer turn round in his address as did not ask that the statement of defence before the court should be discountenanced. He must be deemed to have waived any irregularity arising from the filing of the Statement of defence. See Ariori & Ors. v. Elemo & Ors. 1983 1 SCNLR p.1. It is now settled that a court must endeavour to determine issues in dispute on their merits rather than on technicalities.
I entirely agree with the above reasoning. Before the court was a proposed Statement of defence. It was never properly filed but the parties contested the case as if it was properly filed. Surely on appeal a party cannot be heard to complain that the Statement of defence was not properly filed, it being irregular. Once a party does not complain about the irregularity at the trial court he is deemed to have waived the irregularity arising from the filing of the Statement of defence.
The facts in this case are different. The defendant had before the trial court on application for extension of time to file their statement of defence. On 21/10/03 the defendant was absent and unrepresented. Learned Counsel for the plaintiff asked that the Motion be struck out. The learned trial Judge struck out the Motion for want of prosecution and adjourned trial for 25/11/03. Trial proceeded as if there was a Statement of defence before the court and in the opening paragraphs of the Judgment on page 63 the learned trial Judge said:
“…Pleadings were thus exchanged and issues joined inter-se…”
This is wrong as pleadings were never joined since the defendants Motion to regularize his pleadings was struck out on 21/10/03.
In the Akumechiel case there was a proposed Statement of defence before the court, while in this case there was no Statement of defence before the court. The fact that, not complaining that there was a proposed Statement of defence amounts to a waiver, not complaining does not amount to a waiver in this case since there was nothing (i.e. no Statement of defence) before the court, and so nothing upon which to exercise one’s right to waive. See
Ariori & Ors. v. Elemo & 1 Ors. 1983 1 SCNLR p. 1; Adegoke Motors Ltd. v. Adesanya 1989 5 SC p. 113;. Menakaya v. Menakaya 2001 9-10 SC p. 1.
A proposed Statement of defence is a Statement of defence before the Court. A proper application ought to be made so that the proposed Statement of defence becomes a statement of defence duly filed. If no application is brought to regularize the proposed Statement of defence the statement of defence would remain irregular before the court, and an irregularity can always be cured by appropriate application on Notice or as in the Akumechiel case if the other party waives the irregularity.
On the other hand once a Statement of defence is struck out, there is no longer any Statement of defence before the Court. That is to say if as was the case here an application to regularize a Statement of defence is struck out, then there is no Statement of defence before the court.
I have read the briefs filed by both sides. It is so obvious that the appellant is of the view that the learned trial Judge ought to have entered Judgment in his favour since in the absence of Statement of defence evidence led on his behalf is unchallenged. Learned Counsel for the respondent described the striking out of the Statement of defence thus:
”It was a slip of the Counsel which cannot be visited on the Litigant.
I must pause here to say what the facts of the case are and the issues involved.
The appellant was awarded a contract by the National Electric Power Authority (NEPA) for the reinforcement of Birnin Kebbi 132/22 KV Substation. The contract price was split into Off-shore cost of US$665,913.64 and On-shore cost of N15,567,000.00. NEPA was to make an advance payment of 55% of the price of off-shore materials/equipment on the condition that the appellant presented its invoice and bank bonds (Advance Payment Bonds) equal to the said advance payment of 55%. The appellant approached the respondent bank for professional advice and the Advance Payment Bonds. The Bonds were issued by the respondent Bank. The appellant proceeded to perform the contract. On completion of the Contract, the appellant complains that the respondent Bank charged interest arbitrarily, made deductions in the form of interest, Commission on turnover (COT), VAT on COT, new facility fees etc. He claims N14,849,506:00 (fourteen Million eight hundred and forty nine thousand five hundred and six Naira) being the total balance of money deducted from his account.
The statement of defence that was struck out is on pages 14-16 of the Record of Appeal. A process that is struck out can always be brought properly before the same court that struck it out on an appropriate application.
The issues in this case are weighty and call for a trial where all the issues can be tried.
Much as I concede that a party is entitled to judgment on unchallenged evidence led. See Omoregbe v. Lawani 1980 3-4 5C p. 108; Odulaja v. Haddad 1973 11 5C p. 357; Bashali v. Allied Commercial Exporters Ltd. 1961 2 SCNLR p.322; Akinrinmade v. Lawal 1996 2 NWLR Pt. 429 p. 218.
This is a case that is riddled with mistakes e.g. The case was decided on the wrong assumption that there was before the Court a Statement of defence when the said statement of defence had been struck out, learned counsel for the respondent concedes that the striking out of the Statement of defence was all due to his fault. I am not satisfied with proof of the appellant’s claim as he has not said in detail how he became entitled to the said sums. The unchallenged evidence led is not of the quality that entitles the appellant to all the sums claimed. It is so clear that there were mistakes on all sides. The ends of justice are better served if and only if the court endeavours to determine issues in dispute on their merits rather than on technicalities. See Egbo v. Agbara 1997 1 NWLR Pt. 481 p. 293; Ezeji v. Ike 1997 2 NWLR Pt. 486 p. 206; Okenwa v. Mil. Gov. of Imo State 1997 6 NWLR Pt. 507 p.136: Ikeni v. Efamo 1997 4 NWLR Pt. 499 p. 318.
The aim of courts should always be to do substantial justice between the parties and not to let that duty be defeated by technicalities. Cases decided on technicalities never live up to the standards required and the parties leave the court dissatisfied, a state which if allowed to continue repeatedly may lead to a break down of Law and Order. A state of anomie. Cases should thus, wherever possible be decided on the merit.
In my respectful view, reversing the Judgment of the trial court and entering Judgment in favour of the appellant solely because there was no Statement of defence before the court would not meet the ends of justice since I am not satisfied with evidence led that the appellant is entitled to all the sums he claims. Judgment for the appellant in these circumstances would be on the basis of technicalities and that would be unfortunate.
By virtue of the provisions of Order 1 rule 21 of the Court of Appeal Rules this Court may if it thinks fit, make any such orders as could be made in pursuance of an application for a new trial or to set aside a verdict, finding’ or Judgment of the Court below.
The Court of Appeal will order a retrial if it is of the opinion that a substantial wrong or miscarriage of justice has occurred in the trial. On the other hand it would be wrong to order a retrial where the plaintiff’s case has totally failed or where there is no irregularity of a substantial nature obvious on the face of the record.
Finally if the appeal court is of the view that both parties are not entitled to Judgment a retrial would be ordered. See Adisa v. Oyinwola 2000 6 SC (Pt. 11) p. 47; First Bank v. May Medical Clinics 2001 4 SC. (Pt.1) p.108; Duru v. Nwosu 19894 NWLR Pt.113 p. 24; Abodunde v. Queen 1959 4 FSC p.70.
In Eke v. Okwaranyia 2001 12 NWLR Pt.726 p. 185 the Supreme Court stated that an appellate court will order a retrial:
(a) Where a trial court made no finding of fact on conflicting material evidence adduced on an issue by both parties to an action, the resolution of which is essential to the just determination of the case; or
(b) Where there has been a substantial misdirection by the court, or some other substantial error by the court itself has occurred and the error cannot be corrected by the appeal court; or
(c) Where it appears that the rules of fair hearing have been violated.
And before ordering a retrial the appellate court must be satisfied that:
(i) the other party is not thereby being wronged in a manner that there would be a miscarriage of
justice; or
(ii) it cannot, in the exercise of its appellate jurisdiction, do justice in the case and bring all the litigation to an end; or
(iii) the justice of the case, looked at in all its special circumstances, justifies it.
My lords, deciding a case in the mistaken belief that there was a statement of defence before the court is a substantial error that cannot be corrected by the Court of Appeal.
In such a situation the justice of this case justifies a retrial, and I so order. I hereby order that the Suit be remitted to the Chief Judge of the High Court of the Federal Capital Territory for a retrial by another Judge of that jurisdiction other than the trial Judge herein. There shall be no order on costs.
Other Citations: (2007)LCN/2239(CA)
