Chief Peter Amadi Nwankwo & Anor. V. Ecumenical Development Co-operative Society (Edcs) U.A. (2001)
LawGlobal-Hub Lead Judgment Report
FABIYI, J.C.A.
This is an appeal against the ruling handed out by Agbo, J., sitting at the High Court of Justice, Enugu on 30th July, 1997.
The learned trial Judge entered judgment in favour of the plaintiff who is the respondent herein against the defendants who are the appellants in this appeal in the sum of US $500,000 (Five hundred thousand US Dollars) plus interest at the rate of 9% per annum from 22-1-91 to 30-7-97 as well as 5% per annum interest until the judgment debt is liquidated. Cost was assessed at N3,000 in favour of the plaintiff/respondent by the learned trial Judge. It should be noted here that the judgment was entered vide the dictates of the applicable rules relating to the undefended list procedure as shall be depicted anon.
It is desirable to state the back-ground facts leading to this appeal. The claim of the plaintiff/respondent, as contained on page 2 of the record of proceedings, reads thus:
“PARTICULARS OF CLAIMS:
The plaintiff claims against the defendants jointly and severally as follows:-
(a) The Sum of $500,000 (Five hundred thousand US Dollars) being the principal sum of the loan due from the first and second defendants to the plaintiff under a personal guarantee executed by the defendants to secure a loan granted by the plaintiff to Amike Ezzamgbo Community Farms Limited under a loan agreement dated 18th January, 1990 payment of which sum the first and second defendants have failed, refused and/or neglected to pay despite repeated demands.
(b) Interest on the principal sum of $500,000 (Five hundred thousand US Dollars) at the agreed rate of 9% (nine percent) per annum from January 22nd, 1991 till date of judgment.
(c) Interest thereafter at the rate of 6% (six percent) per annum from the date of judgment until the entire judgment sum is finally liquidated.”
The respondent placed reliance on a contract of guarantee executed by the appellants in its favour. It is part of Exhibit A as can be gleaned from pages 23 to 28 of the record of proceedings. The appellants guaranteed a loan transaction between the respondent and Amike Ezzamgbo Community Farms Nigeria Limited. The 1st appellant is the Chief Executive of the Company. Based on the guarantee agreement, the respondent released a loan of US $500,000 to which was attached interest and fees to Amike Ezzamgbo Farms Nigeria Limited. When the loan was due for repayment, the company defaulted and failed to pay. The respondent made demands on the appellants to pay pursuant to the guarantee agreement but they refused and/or failed to pay. The respondent believed that the appellants had no defence to their action filed and placed on the undefended list.
The appellants filed a notice of intention to defend the suit. In their affidavit, they tried to garner some points which they felt would dissuade the learned trial Judge to transfer the suit to the general cause list, it was stated that the contract of guarantee failed because the respondent refused to disburse the stated loan. They contended that the trial Judge could not make any award in foreign currency. They signified their intention to raise a defence of limitation of time. As well, they maintained that the trial court was not competent to hear the suit as the site of the farm (the beneficiary of the loan) is in Ebonyi State.
The learned trial Judge was duly addressed by counsels on both sides on all relevant points as properly raised on behalf of the parties in his well reasoned and considered judgment, he found that the appellants failed to make out any triable issue that could warrant a transfer of the suit to the general cause list. He then entered judgment in favour of the respondent herein as stated above.
The appellants felt dissatisfied with the judgment and ex debito justitiae, filed their notice of appeal dated 12-3-98. Three grounds of appeal accompanied same. From the three grounds of appeal, the appellants formulated three issues for determination, they read as follows:
“1. Whether the High Court of Enugu State is competent to hear and determine the case as the subject matter of the case is land in Ebonyi State?
- Whether for the purpose of proper determination and adjudication of issues raised in the affidavit evidence before the court below, the parties would not have been ordered to file pleadings and evidence led (sic) by both parties in accordance with the pleadings to avoid denial of fair hearing?
- Whether the trial court’s decision to enter judgment against the defendants/appellants when the principal obligator (sic) obligor was not jointed (sic) joined as a necessary party has not occasioned perverse judgment?”
On behalf of the respondent, three issues were also formulated for the due determination of this appeal to balance the equation; as it were. And, they read as follows:
“I. What is the subject matter of the suit and whether the Enugu State High court, Enugu was right in assuming jurisdiction to try the suit.
- Whether the respondent/plaintiff was obliged by law to join the principal debtor (Amike Ezzamgbo Farms) in the suit against the guarantors (the appellants) and; whether the judgment of the court below was perverse on account of the non-joinder.
(3) Having considered and refused the appellants’ notice of intention to defend the suit and given judgment to the respondent thereon under the ‘undefended list’ whether the court below denied the appellants/defendants fair hearing by not ordering pleadings to be filed.”
Arguing issue 1, appellants’ counsel asserted that vide the Constitution of the Federal Republic of Nigeria, 1979 as well as that of 1999, each State has a High court with jurisdiction over the land in the State. He referred to Order 4 rule 1 of the High Court Rules of Anambra State, applicable in Enugu State which vests jurisdiction in land related matters in the State High Court. He observed that the land which is the subject matter of the legal mortgage dated 12-11-91 is situate at Amike Ezzamgbo in Ishielu Local Government Area of Ebonyi State. He felt that the High Court of Enugu State is incompetent as it lacks jurisdiction.
The learned counsel for the respondent felt that the contention of the appellants was built on the position that the subject matter of the action is land situate in Ebonyi State. He stressed that such was erroneous. He submitted that in determining the subject matter or cause of action in a suit, the court will only need to look at the writ of summons and statement of claim vide the decisions in Olagunju v. Yahaya (1998) 3 NWLR (Pt.542)501 at 512; Chief Afolayan v. Oba Ogunrinde & Ors (1990) 1 NWLR (Pt. 127) 369.
Learned counsel observed that this action was not one to foreclose the legal mortgage and did not touch on the land in Ebonyi State; the subject matter of the legal mortgage. He stressed that the subject matter of this action is the enforcement of the personal guarantee executed by the appellants in favour of the respondent as further security for the loan advanced to Amike Ezzamgbo Farms by the respondent. The appellants were sued in their personal capacities as guarantors of the loan. learned counsel further referred to Sodipo v. Lemminkainen OY (1992) 8 NWLR (Pt.258) 229 at 242.
Learned Counsel referred to Order 4 rule 3 of the Anambra State High Court Rules 1988 applicable to Enugu State. He submitted that since the appellants reside at Enugu in Enugu State, the Enugu State High court is imbued with jurisdiction to try the case. He cited I.K. Martins (Nig.) Ltd. v. U.P.L (1992) 1 NWLR (Pt.217) 322 at 331.
It is now beyond dispute that in determining the subject matter or cause of action in a suit, the court only needs to look at the writ of summons and the statement of claim; where applicable. See Olagunju v. Yahaya (supra); Chief Afolayan v. Oba Ogunrinde & ors (supra).
Cause of action has been defined as a situation or state of facts which would entitle a party to sustain action and give him right to seek a judicial remedy in his behalf: Thompson v. Zurich Ins. Co. D.C. Minn. 309 F. Supp. 1178, 1181; the fact or facts which give a person a right to judicial relief. See Egbe v. Adefarasin (No.2) (1987) 1 NWLR (Pt.47) (1987) 1 NSCC (Vo1.18) 1 at 16; Savage v. Uwaechia (1972) 3 SC 214; Omotayo v. Nigerian Railway Corporation (1992) 7 NWLR (Pt.254) 471 at 483; Sodipo v. Lemminkainen OY (supra) at page 242.
Earlier in this judgment, I quoted in extenso the claims of the respondent herein before the trial court. In all its ramification the cause of action is the recovery of the loan of US $500,000.00 through the enforcement of the personal guarantee freely executed by the appellants in favour of the respondent. This claim did not touch, even remotely, the foreclosure of any legal mortgage over land situate in Ebonyi State of Nigeria. Appellants erroneously tried to import same to suit their purpose but all to no avail.
On the point relating to competence of Enugu High Court to try the case, reference was made to Order 4 rule 3 of the High Court Rules 1988. It provides as follows:
“3. All suits for the specific performance or upon the breach of contract may be commenced and determined in the Judicial Division in which such contract was made or ought to have been performed or in which the defendant resides.”
The above quoted rule has been clearly interpreted by this court in I.K Martins (Nig) Ltd. v. U.P.L. (Supra) at page 331 Per Uwaifo JCA, as he then was. The effect of the rule is that a plaintiff can, where venue is in issue, rely on any of the three alternatives provided:
a. Where the contract was made or;
b. Where the contract ought to have been performed or;
c. Where the defendant resided.
I perfectly agree with the respondent’s counsel that the action herein is founded on breach of contract of guarantee and consequently the above quoted rule is applicable.
The respondent chose the third option. I do not for one moment feel that the 1st appellant, who in his affidavits, confirmed their address as 9 North second Avenue, Trans Ekulu, Enugu at pages 67 and 77 of the record of proceedings can now turn round and raise a finger. It is beyond moot point that the trial Judge of High Court, Enugu was right in assuming jurisdiction to try the suit. Appellants confirmed their address as given by the respondent. They reside in Enugu; no doubt. This fact brings the case within the jurisdiction of the Enugu State High Court, Enugu.
In short, the 1st issue as formulated by each side of the divide is resolved-against the appellants without any shred of hesitation.
The 3rd issue formulated on behalf of the appellants is substantially the same as the respondent’s 2nd issue. It is whether the respondent was obliged by law to join the principal debtor (Amike Ezzamgbo Farms) in the suit against the guarantors (the appellants) and whether the judgment of the court below was perverse on account of the non-joinder.
The respondent’s counsel raised objection as according to him, the new point of law relating to non-joinder was not canvassed at the trial court and did not flow from the judgment appealed against. He contended that no leave was sought and obtained before raising the new point of law. He submitted that issues for determination must flow from the ground of appeal which in turn must arise from and relate to the decision of the court appealed against. Learned counsel cited Adeyinka v. Abiboye (1998) 2 NWLR (Pt. 539) 572 at 579; Saude v. Abdullahi (1989) 4 NWLR (Pt.116) 387 at 434; Uor v. Loko (1988) 2 NWLR (Pt.77) 430 SC Adedeji v. N.B.N. Ltd. (1989) 1 NWLR (Pt.96) 212.
I need to stress a point here that, a respondent who wishes to rely on a preliminary objection should file a Notice to that effect and grounds for same as dictated by Order 3 Rule 15 of the Court of Appeal Rules, 1981, as amended. However, where a preliminary objection is raised in the respondent’s brief of argument on a fundamental issue such as one relating to non-joinder canvassed by the appellants from the blues, it behoves the appellants to file a reply brief. As there is no reply brief filed in this matter, the court cannot validly brush aside the preliminary objection as argued in the respondent’s brief of argument. See Agbaka v. Amadi (1998) 11 NWLR (Pt.572) 16 SC, (1998) 7 SCNJ 367; Yusuf v. Union Bank of Nigeria Ltd. (1996) 6 SCNJ 203 at 210, (1996) 6 NWLR (Pt.457) 632.
I have carefully perused the appellants’ notice of intention to defend and the affidavits in support of same. They never raised the issue of non-joinder of Amike Ezzamgbo Farms as a party to the suit. No counsel touched on it in their respective addresses before the trial Judge. After a careful reading of the ruling of the trial Judge appealed against, I am unable to trace where a decision was made touching on the issue of non-joinder of Amike Ezzamgbo Farms.
It has been stressed that when a new point or issue is to be urged, the Court of Appeal ought to satisfy itself that there was a decision one way or the other on that point or issue in the trial court. See Saude v. Abdullahi (Supra) at page 434, an appellant’s right of appeal as of right does not confer on him an unlimited right to argue grounds of appeal filed in excess of that right. It is not a right to raise and argue such a point that was not canvassed at the lower court without leave of the court. See Uor v. Loko (supra) at page 439. Leave of the court must be sought and obtained to raise a fresh point or issue. See Adedeji v. N.B.N. Ltd. (Supra).
In this appeal, no leave was sought; and none was obtained to raise the new point or issue relating to the non-joinder of Amike Ezzamgbo Farms – the principal obligor to the suit. The issue hangs in the air; as it were. It should be, and it is hereby discountenanced.
However, I quite appreciate that one may falter atimes even in a situation where a strong opinion has been expressed. So, let me now consider, in the alternative, the issue of non-joinder of Amike Ezzamgbo Farms, the principal obligor to the suit. Appellants’ counsel strongly felt that the principal obligor is a necessary party to the suit.
According to learned counsel, it is by so doing that law and equity will be joined to usher in justice. Learned counsel submitted that the judgment was obtained by oppression, wrong and hard conscience. He referred to Earl of Oxfords (1915) 1 REP. CH 1, He further referred to Order 3 rule 6(1) of the High Court Rules, 1988; Boshali & Co. Ltd. v. Arikpi (1961) 1 All NLR 161 which deals with joint liability of partners.
Learned counsel felt that the question to be settled can not be effectively and completely settled unless the principal obligor is made a party to the suit and that non-joinder occasioned a miscarriage of justice. He cited in aid of his stand point the cases of Amon v. Rapheal Tuck & Sons Ltd. (1966) 1 K.B. 357, Uku and Ors v. Okumagba & Ors (1973) 3 SC 35; Alhaji Raji 1 Oduola & Ors. v. J.G. Coker (1981) 6 SC 197.
Learned counsel for the respondent observed that the appellants, in their personal capacities, executed a guarantee in favour of the respondent for the payment of the sum of US $500,000 loaned to Amike Ezzamgbo Farms. Learned Counsel referred to REAN v. Aswani ile Ltd. (1992) 3 NWLR (Pt.227) 1 at page 13.
Learned counsel submitted that the obligations of the appellants arose once it was established that the loan was disbursed to the principal obligor who failed to make good the repayment upon its due date and despite demands made upon it. Learned counsel felt that in such instance, the liability of the guarantors crystallized and the right of action against them accrues to the respondent.
Learned Counsel referred to Order 3 rule 6 (2) of the State High Court Rules, 1988, applicable to Enugu State. He maintained that stricto sensu the liability of the appellants as guarantors, is not joint as in the case of partnership. He felt that the case of Y. Bohsali & Co. Ltd. v. Arikpi cited by the appellants is irrelevant to this appeal.
Learned counsel further stressed that the respondent made no claim against the Amike Ezzamgbo Farms that could necessitate its joinder. He submitted that for the court to have jurisdiction to join a person as a defendant, the plaintiff must have a claim against that person. He referred to N.N.N. Ltd. v. Ademola (1992) 6 NWLR (Pt.507) 76 at page 83. Learned counsel observed that the appellants never denied the guarantee duly, signed by them. He maintained that the Amike-Ezzamgbo Farms Ltd. is not a necessary party to the suit.
Necessary party to a proceeding has been defined as the party whose presence is essential for the effectual and complete determination of the claim before the court. It is a party in the absence of whom the whole claim cannot be effectually and completely determined. See N.N.N Ltd. v. Ademola (supra) at page 83.
In order to ascertain whether the principal obligor is a necessary party or not, one needs to explore the purport and intendment of a guarantee in all its ramifications. In Black’s Law Dictionary, 5th Edition at page 634, guaranty is defined as
“a collateral agreement for performance of another’s undertaking. An undertaking or promise that is collateral to primary or principal obligation and that binds guarantor to performance in event of non-performance by the principal obligor – Commercial Credit Corp. v. Chisholm Bros Farm Equipment Co. 96 Idaho 194525 p, 2d 976, 978. A promise to answer for payment of debt or performance of obligation if person liable in first instance fails to make payment or perform obligation… A promise to answer for the debt, default or miscarriage of another person”.
In R.E.A.N v. Aswani iles Ltd. (supra) at page 13, Akpata, JSC, of blessed memory defined a guarantee in simple language as a written undertaking made by one person to a second person to be responsible if a third person fails to perform a certain duty, for example, payment of a debt. See also Eboni Finance & Sec. Ltd. v. Wole-Ojo Tech Services (1996) 7 NWLR (Pt.461) 464. In Salawal Motor House Ltd. v. Lawal (1999) 2 NWLR (Pt.620) 692, it was held that where a borrower failed to pay an outstanding debt, a guarantor of the debt is liable.
The covenant of the appellants, as per the guarantee in page 23 lines 7-11. reads as follows:
” … we hereby guarantee to you the payment on demand of all sums which now are or at anytime or times hereafter may become due or owing or may be accruing or becoming due to you by the borrower either alone or jointly with any person or persons ” (Italics by me).
The above is still not the end of the matter. Order 3 rule 6 (2) of the Anambra State High Court Rules, 1988 applicable to Enugu State is here in point. It provides as follows:
“6(2) where a person has a joint and several demand against more persons than one either as principal or sureties it is not necessary for him to bring before the court as parties to a suit concerning that demand all the persons liable thereto; he may proceed against anyone or more of the persons severally or jointly and severally liable.”
It occurs to me that by putting their hands on paper to sign the guarantee agreements the appellants promised to answer for the outstanding debt of the principal obligor. They undertook to make good the debt of Amike Ezzamgbo Farms alone or jointly with other person or persons. This meant that they knew that they could be sued alone to pay the outstanding debt of their company. Upon a requisite demand, the 1st appellant, writing on behalf of Amike Ezzamgbo Farms as Chairman and Managing Director; in Exhibit ‘F’ dated 12-5-95, stated as follows:
“We acknowledge the fact that Amike Ezzamgbo Community Farms (Nig.) Ltd. borrowed from EDCS a total sum of $500,000 and that the company regrettably had defaulted in paying the installments of principal due and accrued interest… ”
Having admitted the debt as outstanding, requisite demands were made to the appellants to honour their covenant as contained in the guarantee freely signed by the duo, a couple who should put on garments of honour. After all, they covenanted to be responsible for the default of their company alone. It was therefore an eye wash to attempt to compare their liability with that of a partner in a partnership agreement. To that extent, the case of Y. Boshali & Co. Ltd. v. Arikpi (Supra) cited on behalf of the appellants is not of moment.
As soon as the principal obligor could not pay the outstanding debt, the liability of the appellants crystallized. The appellants who promised to answer for the debt, and to do so alone, cannot be heard to complain that any other person was not joined with them. No claim was made in the writ against any other person. The claim was founded only on redemption of contract of guarantee freely entered by the appellants. As the debt has been duly established, and the appellants did not deny the guarantee, I cannot see how the Amike Ezzamgbo Farms Ltd is a necessary party. To the appellants, the company may be a desirable party but in law, it is not a necessary party whose presence is essential for a due determination of the claim before the Court.
To cap the consideration of this issue, the appellants tried to invoke a principle of equity. For not joining the principal obligor, it was submitted on behalf of the appellants that equity frowns at unconscionable use of a person’s rights at common law and it generally acts in conscience. It was further submitted that the judgment was obtained by oppression, wrong and hard conscience.
I am unable to follow with adequate precision the rationale behind the high-sounding submissions. Generally, it is said that equity follows the law. Where the law is at play, equity must keep on watching from the side-line, appellants who covenanted to bear the outstanding debt of their company alone should not be heard invoking principle of equity in the air. The judgment was not obtained by any form of oppression, wrong and bad conscience. I cannot trace any form of miscarriage of justice. The judgment of the learned trial Judge was not in any way perverse on account of the non-joinder of the principal obligor.
The issue relating to non-joinder is accordingly hereby resolved against the appellants herein.
The 2nd issue formulated on behalf of appellants is basically the same as the 3rd issue couched on behalf of the respondent. It is whether having considered and refused the appellants’ notice of intention to defend the suit and given judgment to the respondent thereon under the undefended list procedure, the court below denied the appellants/defendants fair hearing by not ordering pleadings to be filed. Put succinctly, the issue is, whether in the entire circumstance of the suit before the trial court, defendants/appellants were denied fair hearing.
Appellants’ counsel submitted that from the affidavit of the appellants and the counter-affidavit of the respondent there are obvious conflicts which should be resolved by oral evidence. He referred to the case of CCB. (Nig) Plc v. Samed Investment Co Ltd. (2000) 4 NWLR (Pt.651)19 at page 30.
Learned counsel further maintained that parties did not lead any evidence and their respective counsel did not address the court in matters of legal importance. He observed that the appellants filed their notice of intention to defend vide Order- 24 rule 9 (2) of the High Court Rules, 1988. He felt that the learned trial Judge in error entered judgment for the plaintiff/respondent without calling on the plaintiff to lead evidence in proof of his case. He further referred to Order 24 rule 9 (4) of the High Court Rules, 1988.
Learned counsel referred to the case of Nishizawa v. Jethwani (1984) 12 SC 234 at 284-285 where the Supreme Court stated that “the principle that no man is to be judged unheard is as old as the Garden of Eden.” He referred to in Re: Chancellor of University of Cambridge (1723) 1 STR. 557 at page 567 where Fortesque, J. maintained that “even God himself did not pass sentence upon Adam before he was called to make his defence”.
Learned counsel maintained that what was required of the trial Judge was to find out from the affidavit in support of notice of intention to defend whether a prima facie case was made out. In short, the learned trial Judge was to say whether a triable issue had been made out to warrant the suit being transferred to the general cause list for hearing based upon pleadings. He cited Federal Military Government of Nigeria v. Sani (1990) 4 NWLR (Pt.147) 688; Olubusola Stores v. Standard Bank of Nigeria Ltd. (1975) 4 SC 51; UAC (Tech) Ltd. v. Anglo Canadian Cement Ltd. (1966) NMLR, 349, Macregor Associates Ltd. v. Nigeria Merchant Bank Ltd. (1996) 2 NWLR (Pt.431) 378, 1996 2 SCNJ 72. Learned counsel finally submitted that this appeal should succeed on this issue of denial of fair hearing.
The Learned counsel for the respondent also referred to Order 24 rule 9(4) of the High Court Rules, 1988. He observed that the trial Judge heard addresses by counsel and considered the affidavits of the defendants/appellants as not raising any bona fida issue for trial. He maintained that the trial court heard the suit as an undefended one; without calling for oral evidence.
Learned counsel submitted that the position taken by the appellants is a total misconception to the rules regulating “undefended list” suit. He maintained that on the return date, the suit came up for hearing; not for mention since no pleadings were required as at that stage. He referred to Ben Thomas Hotels Ltd. v. Sebi Furniture Ltd. (1989) 5 NWLR (Pt.123) 523 at page 529. He further observed that on 10-2-97, the trial court heard the case and entertained arguments from counsel based on the affidavit evidence in support of each party’s case.
Learned counsel referred to the case of Macaulay v. Nal Merchant Bank Ltd. (1990) 4 NWLR (Pt. 144)283 at 308; Willingford v. Mutual Society (1880) 5 AC 685; Harrison v. Bottenkiem (1878) 26 WR 362; Agro Millers Ltd. v. C.M.B. (1997) 10 NWLR (Pt.525) 469 at pages 478-479. Learned counsel stressed that by Exhibit ‘F’ the appellants admitted that the loan was outstanding. As such they have the burden to show repayment or reasons for non-repayment.
Learned counsel observed that the case of either party was determined solely from the respective affidavit-evidence. He contended that the complaint that judgment was entered without calling for oral evidence was mis-placed. He referred to C.C.B. (Nig.) Plc v. Samed Investment Co. Ltd. (supra) at page 31.
Learned counsel finally submitted on this issue that the appellants were not denied fair hearing. According to counsel, the allegation of denial of fair bearing could only have arisen if the trial Judge had failed to consider the appellants’ notice of intention to defend the suit with the affidavits in support thereof before judgment was entered.
It is clear that the ‘undefended list’ procedure is designed to expedite a suit in a claim for a debt or a liquidated money demand with no strings attached to same. Order 24 rule 9((2) of the High Court Rules of Anambra State, 1988 applicable to Enugu State provides as follows:
“If the party served with the writ of summons and affidavit delivers to the Registrar, not less than five days before the date fixed for hearing a notice in writing that he intends to defend the suit, together with an affidavit setting out the grounds of his defence and the court is satisfied that there is a triable issue, then and in such a case the suit shall be entered in the general list and pleadings shall be filed.”
But Order 24 rule 9(4), on the contrary, provides as follows:-
“… or where he delivered the notice and affidavit but the court is not satisfied therefrom that there is raised any bona fide issue for trial between the plaintiff and the said defendant, then and in such a case, the suit shall be heard as an undefended suit, and judgment given thereon without calling upon the plaintiff to summon witnesses before the court to prove his case formally.”
To constitute a triable issue it has been stated that an affidavit in support of Notice of Intention to defend must set out a defence on the merit; not a sham intended to delay and frustrate justice. See Macaulay v. NAL Merchant Bank Ltd. (supra) at page 325; Agro Millers Ltd. v. CM.B. (Nig) Plc (supra) at pages 477-478. A defendant who has no tenable defence should not be allowed to rely on a farce to postpone the day of reckoning.
As can be garnered from pages 140-143 of the record of proceedings, learned counsel on both sides of the divide addressed the trial Judge on salient legal points as deemed fit. Addresses by counsel started on 10-2-97 the return date and ended on 17-6-97 when the case was adjourned to 30-6-97 for ruling. It is therefore not correct to say that parties counsel were not allowed to address the trial court on matters of legal importance.
The learned, trial Judge, in his ruling now under fire, dealt with the defences raked up by the appellants in their sequence. He found that the appellants did not deny the fact that they signed the guarantee; part of Exhibit ‘A’ and by the letter dated 12-5-95, Exhibit ‘F’, the 1st appellant admitted the disbursement of the loan and the fact that the same is outstanding. I agree perfectly with the respondent’s counsel that the appellants were not denied fair hearing as the trial Judge properly considered their affidavit and heard submissions from both counsel to the parties before delivering his judgment.
The trial Judge’s treatment of the issues put up by the appellant appears concise and to the point. Appellants put up the issue that the claim was in foreign currency. The trial Judge reminded them that the Supreme Court in Koya v. U.B.A. Ltd. (1997) 1 NWLR (Pt.481) 251,(1997) 46 L.R.C.N. 1 clearly stated that courts can make awards in foreign currencies.
The appellants said they intended to raise a defence as to limitation of time. The learned trial Judge rightly said that what the law required was for them to place their defence before the court and not to announce their intention. The same was properly discountenanced.
On the issue of competence, the learned trial Judge said his court had jurisdiction based on the residential address of the appellants who confirmed same as being in Enugu. Earlier in this judgment, I pronounced on the point. I only need to say that I am at one with the learned trial Judge.
By the provision of rule 9(4) of Order 24, a plaintiff is not required to call witnesses to prove its case once the defendant fails to show a triable issue or make a prima facie defence on the merit. The trial court rightly heard and determined the case based on affidavit evidence of the parties and addresses of counsel thereon. Since no triable issue or defence on the merit was shown, there was no need to transfer the suit to the general cause list where pleadings and oral evidence would be warranted. I see no material conflicts on real points in issue in the affidavit of parties before the trial court.
The learned trial Judge found that the defences put up by the appellants equated to a sham. I completely agree with him. See Agro Millers Ltd. v. C.M.B. supra at pages 477-478.
It appears that the appellants also complained that judgment was immediately given to the respondent after delivering the ruling refusing the intention to defend the suit. This Court, in CCB.( Nig) Plc v. Samed Invest. Co. Ltd (supra), at page 31 had cause to pronounce on a similar situation. As therein, I see nothing wrong in what the learned trial Judge did in this regard as he followed his rule of court as applicable to the matter, I am unable to surmise how the appellants were denied fair hearing in the prevailing circumstance of the case. I also resolve the issue relating to lack of fair hearing against the appellants herein. It appears that I have tried to go one extra mile to clearly depict the futility of the stance posed by the appellants. Amike Ezzamgbo Farms Ltd. a company owned by the appellants, took a, loan of US $500,000 from the respondent. The company failed to repay the loan. The appellants were called upon to pay the outstanding loan as guarantors. The appellants tried to rely on ‘catch-points’ like jurisdiction, equity and fair hearing. It is not for me to attempt to fathom the inscrutable workings of providence. But I can guess that of a mortal. It appears to me that the appellants thought that they created an equi- distant triangle with their pet ideas as stated above each standing at angle 60 degrees. It has been shown to the appellants that the idea was their own feigned imagination. It has disappeared into oblivion. Truth, no doubt, is always superior to false-hood.
I come to the conclusion that the appeal is devoid of merit. And, it is hereby dismissed as I affirm the ruling/judgment of the learned trial Judge which remains inviolate and unassailable. The appellants shall pay N5,000.00 costs to the respondent.
Other Citations: (2001)LCN/1003(CA)
