Macgogo Nigeria Limited & Anor V. Indemnity Finance Limited (2009)
LawGlobal-Hub Lead Judgment Report
CLARA BATA OGUNBIYI, J.C.A.
This is an appeal by the claimants/appellants against the judgment of the Lagos State High Court delivered on the 24th November, 2005, whereby the learned trial judge entered summary judgment for and in favour of the defendant/respondent in respect of its counter-claim and as per its prayer on the motion on notice for summary judgment dated and filed on the 19th May, 2005.
Deducing from the record of appeal, the claimants/appellants commenced the action in this suit by writ of summons dated 15th December, 2003 and filed on the 16th December, 2003. The statement of claim also dated 15th December, 2003 was filed together with the writ of summons on the same day and wherein the claimants/appellants claimed against the defendant/respondent the following reliefs:-
“(a) A declaration that, vide an agreement between the plaintiffs and the representatives and or agents of the defendant dated 1/9/2003, the plaintiffs are no longer indebted to the defendant for any amount of money as outstanding either as principal or interest in respect of the loan facility granted the 1st plaintiff and secured by the 2nd plaintiff with collaterals vide the defendant’s letter of offer of 3/12/98.
(b) A declaration in view of declaration (1) above that, the sum of ten million Naira (N10, 000, 000.00) paid by the 2nd plaintiff on behalf of the 1st plaintiff to the defendant vide an agreement of 1/9/2003, represented the full final payment on the loan facility of forty million Naira (N40, 000, 000.00) granted by the defendant to the plaintiff and secured by the 2nd plaintiff.
(c) A declaration in view of declarations 1 & 2 above that, the 1st plaintiff is entitled to the return of the titled deeds in respect of its vessels i.e. F. B. TOLU OJO, WB BRASS CREEK and TUG-ASARI (A tug boat) which were deposited with the defendant as collaterals or security on the forty million Naira (N40, 000, 000.00) loan facility.
(d) An order of this Honourable court on the defendant, ordering it to return to the plaintiffs the title deeds relating to TOLU OJO, WB BRASS CREEK and TUG-ASARI (A tug boat) without condition(s) which are still being held over by the defendant inspite of their persistent demands for their release after the agreement referred to in declarations 1 & 2 above has been executed by the parties to this suit.” Pages 4-7 of the records of appeal is in reference.
The defendant/respondent in its defence denied the totality of the claimants/appellants claims and also filed a counter claim to recover the outstanding sum of appellant’s indebtedness to it as a result of the loan transaction. The respondent in its Amended Counter Claim of 6th October, 2004 therefore claimed as against the appellants the following reliefs:
“(a) the sum of N35, 649, 731.26 (Thirty Five Million, Six Hundred and Forty nine Thousand, Seven Hundred and Thirty-one Naira, Twenty six kobo) being the debt owed by the claimants as at 31st March, 2004 arising from the sale and Leaseback Finance facility granted by the defendant/counter claimant to the 1st claimant on or about the 3rd day of December, 1998 which sale and Leaseback finance facility was personally guaranteed by the 2nd claimant.
(b) Interest in the sum of N35, 649, 731.26 (Thirty-five Million, Six Hundred and Forty Nine Thousand, Seven Hundred and Thirty-one Naira, Twenty-six kobo) at the rate of 40% per annum from 31st March, 2004 to the date of judgment and final liquidation of the judgment debt.” Page 54 of the record of appeal is in evidence.
While this suit was pending and after parties have exchanged pleadings, Lagos State enacted a new civil procedure rules for its High Court and both parties filed motions to comply with the new rules.
The learned trial judge however ordered the claimants to comply with order 3 rule 2 of the High Court of Lagos State Civil Procedure Rules, 2003 and front load its processes.
The claimants/appellants in compliance with the order of the lower court that the claimants/applicants should comply with order 3 rule 2 and front load its processes filed the said processes mentioned therein. Following the foregoing events, the defendant/respondent filed its motion on notice dated 19th May, 2005 for summary judgment. Pages 139-182 of the record of appeal is in evidence.
On the 24th November 2005, the lower court delivered its judgment, whereby it granted the prayer sought by the defendant/respondent in the motion paper; pages 266 to 272 of the record is evident. It is against the judgment and findings of the lower court that the claimants/appellants have filed the notice of appeal herein having being dissatisfied with the decision. The claimants/appellants shall henceforth be referred to as the appellants, while the defendant/respondent shall be referred to as the respondent herein.
Briefly and on the one hand, the facts of the appellants case from the statement of claim at pages 108-110 of the record of appeal was that the respondent offered the 1st appellant the sum of Forty million Naira (N40, 000, 000.00) lease facility under the terms and conditions detailed in the letter of offer dated 3rd December, 1998, which offer was duly accepted. That it was also agreed between the 1st appellant and the respondent that the loan facility shall be disbursed to the 1st appellant by the respondent through the instrumentality of the Diamond Bank Limited of NO.222 Kwerre Road, Diobu, Port Harcourt, Rivers State of Nigeria. The appellants contended that the 1st appellant received just Thirty Million Naira (N30, 000, 000.00) out of the Forty Million Naira (N40, 000, 000.00) agreed in the facility. That the amount received was paid to the 1st appellant as agreed by the parties. That the remaining (Ten Million Naira) N10, 000, 000.00 (Ten Million Naira) was not paid to the 1st appellant through Diamond Bank of Nigeria Ltd. of No.222 Ikwerre Road, Diobu, Port Harcourt as agreed. That it was rather paid to one Mr. Tonye Dokubo whom the defendant claimed is the director of the 1st appellant contrary to the agreed and acceptable term regulating the disbursement of the loan facility.
The appellants contended that a total of sixty-four million Naira (N64, 000, 000.00) was paid by the 1st appellant to the Respondent as principal and interest on the thirty million Naira.
That the appellants’ further contention was that the respondent kept on demanding that the 1st appellants repay the ten million Naira, that it did not receive, and the 1st appellant turned down the demand of the respondent. That this necessitated exchange of correspondences between the 1st appellant and the respondent. That when the respondent could not recover the ten million Naira from the 1st appellant, it wrote a petition to the Inspector General of Police against Mr. Tonye Dokubo, who was alleged to have collected the N10, 000, 000.00 and the police arrested him.
It is the case of the appellants further that the agreement of 1st September, 2003 upon which the 2nd Appellant paid the controvertial N10, 000, 000.00 on behalf of the 1st appellant amounted to “Accord and Satisfaction”, thereby absolving the 1st appellant from any further liability to the respondent in respect of the lease facility (loan) granted by the respondent to the 1st appellant and which the 2nd appellant guaranteed. That after paying the controversial N10, 000, 000.00, the appellants demanded the release or return of the title documents (deeds) in respect of 1st appellant’s vessels, F. B. Tolu Ojo, WB Brass Creek and Tug-Asari (a tug boat) deposited with the respondent by the 1st appellant, but that the respondent refused to release them, claiming that the 1st appellant is still indebted to it with regards to the lease facility (loan). The appellants contended also that it cannot pay interest on a loan that was not received by either the 1st or the 2nd appellants. That having paid the controversial N10,000,000.00 the 1st appellant is absolved of any further liability in respect of the lease facility. It is pursuant to the foregoing that the appellants instructed their solicitors to commence this action, on which occasion their solicitors filed the processes in this suit to commence the same.
On the other hand, it was the case of the respondent that it extended a total facility in the sum of N40, 000, 000.00 (Forty Million Naira) to the 1st appellant upon the personal guaranty for the repayment thereof by the 2nd appellant. That the loan facility was disbursed to the appellants pursuant to its draw down instructions in its name vide two cheques and further vide a cheque made payable to Diamond Bank Limited for the liquidation of the 1st appellant’s outstanding debt to the said Bank. It was further the case of the respondent that appellants claim of an agreement for the disbursement of the loan facility through the instrumentality of Diamond Bank Limited was far fetched because having received respondent’s cheques drawn in its name, the onus was then on the appellants to obtain credit as they did for the said cheques through the instrumentality of any Bank they so choose to use. Pages 48-54 of the record of appeal are evident.
In consequence therefore, the respondent denied the appellants’ claim. The argument further contended that the 1st appellant is still indebted to it in respect of the lease facility and it was on that ground that it refused to return or release the title documents of the vessels aforesaid. In turn therefore, the respondent had counter claimed against the appellants jointly and severally for the sum of N35, 649, 731.26 and 40% interest thereon, being the debt owed to it by the appellants as at the 31st March, 2004 and arising from the Leaseback finance facility (lease facility) it granted to the 1st appellant as aforesaid.
Being dissatisfied with the judgment of the court, the appellants filed a notice of appeal dated 12th January and filed on the 16th January, 2006 wherein six grounds of appeal were raised at pages 284-288 of the record.
In accordance to the rules of this court briefs of arguments were filed by parties, with that of the appellants’ dated 13th and filed on the 19th October, 2006. The respondent’s was also dated 23rd January and filed the same day.
On the 27th January, 2009 when this appeal was called up for hearing the learned appellants’ counsel was absent. The respondent’s counsel Mr. Michael Edeko who was in court however urged that the appellants appeal be deemed argued with brief having been filed. Same is therefore deemed as having been argued. The learned respondents counsel proceeded to adopt and rely on the respondent’s brief under reference supra and urged for the dismissal of the appeal.
It is pertinent to mention at this point however that from the evidence before us the notice of appeal as earlier said is contained at pages 284-288 of the printed record. It was dated 12th and filed on the 16th January, 2006. At the last page of the record of appeal the evidence showed that the said same record was served on the appellants on the 5th July, 2006.
The appellants’ brief of argument as also mentioned earlier was dated 13th and filed on the 19th October, 2006. I am very mindful of the fact that the court of appeal rules 2002 operated to govern the filing of this appeal as at the date the notice was filed. Order 6 rule 2 of the said rules of court which governed same at the time reproduced state as follows:-
“2. The appellant shall within sixty days of the receipt of the record of appeal from the court below file in the court a written brief, being a succinct statement of his argument in appeal.”
It is pertinent from the rule of court that the appellant must, by the use of the word shall file his brief within 60 days of the receipt of record. This is a mandatory requirement and not optional. It is also on record that by a notice dated 4/8/06 both parties were invited to file their briefs. The date of service of such notice on the appellant is not specified. However and that notwithstanding, despite the said notice, it is the law as provided by the rules of court that ought to govern the filing of briefs and not some any notice or instruction by the registry staff. Any deviation there from the rules would not operate to obliterate the effect and legality of the rules. The said notice in my view has no effect therefore upon the mandatory provision of order 6 rule 2 of the rules of court 2002 which was the governing law at the point in time.
In the circumstance of this case therefore, the brief filed on the 19th October, 2006 with record having been served on the appellant on the 5th July 2006, a period of over three months, is clearly out of time. It is trite law that for an appeal to be competent it must be supported by a brief. In the absence of any motion for extension of time to file the appellants’ brief, the proposed brief sought to be relied upon is grossly incompetent and accordingly struck out. On the relevance of briefs of arguments, the authorities of N. O. M. Ltd. v Dawa (1996) 8 NWLR (Pt.468) 601 and S. P. D. C. (Nig.) Ltd. v Niger Optical Services Company (2004) 7 NWLR (Pt.872) 420 are very apt and relevant.
On the totality of this appeal and in the absence of any brief to support same, it is therefore dismissed for want of prosecution. Appeal is dismissed with no order made as to costs.
Other Citations: (2009)LCN/3202(CA)
