Mercantile Bank Nigeria Plc V. Imesco Enterprises Limited (2016)
LawGlobal-Hub Lead Judgment Report
PAUL OBI ELECHI, J.C.A.
This is an appeal against the Ruling of the High Court of Cross River State sitting at Calabar coram S.E.J. Ecoma C. J. of blessed memory delivered on the 21st November, 1995. The Lower Court on an application to withdraw the suit during trial, exercised discretion and dismissed the suit rather than merely strike it out as applied by the Appellant.
The Appellant bring dissatisfied with the above Ruling of the Court filed a Notice of Appeal on the 15th December, 1995.
However, owing to the re-structuring of the Appellant (Mercantile Bank Nigeria PLC) and subsequent taking over of same by their liquidator, the Nigeria Deposit Insurance Corporation (NDIC) the appeal was not prosecuted diligently until recently when the present Counsel B. E. Udo, Esq., took up the challenge and filed a motion for extension of time within which to file the Appellant?s brief. Thereafter, he filed Notice of Appeal containing three grounds and later added an additional ground making it altogether four.
?The facts leading to this case on appeal is that the Respondent obtained a loan from the defunct
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Mercantile Bank of Nigeria PLC (now called Mercantile Bank of Nigeria PLC – in liquidation) and failed to liquidate the loan. The Appellant in a bid to recover the loan filed a Suit – C/87/92 at the Calabar High Court Cross River State: In the course of hearing the suit the Bank became distressed and Nigeria Deposit Insurance Corporation (NDIC) was appointed as its liquidator.
With the advent of the Failed Banks Tribunal, the Nigeria Deposit Insurance Corporation (NDIC) instructed their solicitor – the firm of Paul Erokoro & Co. to discontinue the suit at the High Court and transfer same to the Failed Banks Tribunal for the accelerated hearing and determination of the suit.
However, when the Appellant applied to Court to discontinue the hearing and determination of the suit at the High Court the High Court instead of striking out the suit rather dismissed same on the 21st December, 1995.
?The NDIC as the liquidator to the Appellant instructed their Counsel to challenge the Ruling on appeal. Due to one reason or the other, the NDIC engaged the services of another Law firm – Edu-Uwem Chambers with B. E. Udoh as Solicitor to continue the
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prosecution of the said appeal.
From the statement of claim it is stated that the Respondent took a loan of N1,000,000.00 (One Million Naira) from the Appellant in October 1984. At the instance of the Respondent, the said loan facility was later increased to N5,000,000.00 (Five Million Naira) only. In the course of time, the Appellant took over the Respondents liability (debt) from the United Bank for Africa to the tune of N2,770,895,26 (Two Million, Seven Hundred and Seventy Thousand, Eight Hundred and Ninety Five Naira, Twenty Six Kobo) on the Respondent’s request. The Respondent further applied for an additional loan of N300,000.00 in September 1995 and it was granted. This therefore brought the total indebtedness to N6, 443,255.00 (Six Million, Four Hundred and Forty Three Thousand, Two Hundred and Eighty Five Naira) only as at September, 1985.
The Respondents have not liquidated the loan and all the accruing interest has raised the total indebtedness to the sum of N25,393,971 as at the tune of instituting this suit.
Thereafter, the Respondent makes frantic efforts to have the outstanding debt re-structured but to no avail.
?From the
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four grounds of appeal, the Appellant distilled three issues for determination:
1. Whether the refusal of the application for discontinuance of the suit and dismissal of same did not amount to the denial of the right of the Appellant as well as a denial of fair hearing.
2. Whether the trial Courts assertion that the evidence led does not in any way, point to a possibility that the case would succeed… in the instant case, the plaintiff from all indications, does not know the exact amount the defendants are owing it. The plaintiff has sufficiently thrown the defendants into difficulties… does not amount to a bias when the case was only party heard.
3. Whether, after the Mercantile Bank had a liquidator to take over its affairs, the State High Court still had the jurisdiction to continue with the suit.
In arguing Issue No. 1 above, Learned Appellant’s Counsel submitted that it was wrong in Law for the trial Court to have dismissed the suit instead of striking it out as evidence in the matter was being taken in Court. Dismissing same instead of striking it out is tantamount to a denial of their right of fair hearing; and a great injury to
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the Appellant who is yet to recover the outstanding loan facility not yet paid or off-set. He then urged the Court to resolve this issue on their behalf.
On issue No. 2:
“Whether the trial Court’s assertion that ?…the evidence led does not in any way point to a possibility that the case would succeed…. in the instant case, the plaintiff from all indications does not know the exact amount the defendants are owing it. The plaintiff has sufficiently thrown the defendants into difficulties….. “does not amount to a bias when the case was only part heard”.
?To argue this issue Learned Appellant’s Counsel submitted that since the matter had not reached its conclusion, the Lower Court was therefore not seized with the facts of the whole case. Also that from the affidavit evidence as shown on paragraph 15 of the records of appeal pages 104 to 107, the Appellant gave cogent reasons for discontinuing with the case. Yet the Lower Court discountenanced the argument in the reason and went ahead to dismiss the suit and therefrom breached the Appellants right of fair hearing. It is therefore Learned Counsel’s submission that the Learned trial Court
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rushed into a conclusion when he made the following remark thus:
“The evidence led did not point to the case succeeding” as it amounts to speculation and exhibition of bias. He then urged the Court to resolve this issue in their favour.
On issue No. 3:
“Whether, after the Mercantile Bank had a liquidator appointed to take over its affairs, the State High Court still had the jurisdiction to continue with the suit”.
Learned Counsel submitted under this issue that with the appointment of NDIC as the liquidator of the Appellant the High Court of Cross River State ought to have declined further jurisdiction to continue the hearing of the case especially as no leave of Court to that effect was obtained. See Section 417 of the Companies and Allied Matters Decree 1990. The Lower Court therefore erred in Law to have dismissed the case. He then urged the Court to resolve this issue in their favour.
On their part, the Respondent formulated one issue for determination thus:
“Whether the Lower Court wrongly exercised discretion to dismiss the Appellant?s suit rather than strike it out as prayed by the Appellant?”
?Learned Respondent
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Counsel submitted that the discretion exercised by the Judge to dismiss the case was due principally to the attitude of the Counsel handling the matter coupled with the length of time spent on the matter without a head-way. The case he stated lasted from 1995 to 2016. The discretion to dismiss the suit was therefore rightly exercised in the circumstances of the case because trial had advanced very far in the matter. See ERONINI v. IHEUKO (1989) 2 NWLR (PT. 101) 46 at 68, YOUNG SHALL GROW MOTORS LTD v. OKONKWO (2010) 15 NWLR (PT. 1217) 524.
On the basis of the above, he urged the Court to resolve this issue in their favour.
On the contention of the Appellant under issue No. 2, alleging bias against the Chief Judge, Learned Respondent’s case contended that there was no bias on the part of the trial Judge as the exercise of discretion was done in his exercise of judicial function and urged the Court to discountenance the argument of the Appellant in this regard and to resolve this issue on their behalf.
?On issue No, 3 of the Appellant
“Whether, after the Mercantile Bank had a liquidator
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appointed to take over its affairs, the State High Court still had the jurisdiction to continue with the suit”.
It is Learned Respondent’s submission on this issue that to allow a suit of 1992 dismissed in 1995 to be discontinued in the High Court and to start de novo at the Federal High Court in 2016 when there are no more witnesses available and the man who held the documents dead, runs contrary to the public policy rule that there must be an end to litigation. Therefore, to concede to the request would simply foist difficulties on the Respondent, the Court and even the Appellant. Based on all the above, he then urged the Court to resolve this issue in favour of the Respondent and consequently to dismiss the appeal and uphold the decision of the Lower Court.
I will resolve the issues as set out by the Appellant.
Issue No, 1 as stated by the Appellant is to the effect of whether the refusal of the application for discontinuance of the suit and dismissal of same did not amount to the denial of the right of the Appellant as well as a denial of fair hearing.
?Learned Appellant’s counsel submitted that it was a denial of the Appellant’s right
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to refuse the application for discontinuous and a denial of fair hearing to dismiss the suit when it was only partly heard.
On the other hand, the Respondent counsel contended that the discretion exercised by the trial Judge in dismissing the suit instead of striking it out was right and on sound principles and that it does not call for the interference of the Court of Appeal to intervene to upset it.
The discretionary powers of the Court must be exercised judicially and judiciously. See ODUSOTE v. ODUSOTE (1971) 1 NWLR (PT. 228), OFFORDILE v. EGWUATU (2006) 1 NWLR (PT. 961) 421. A judicial and judicious discretion is that power of a Judge or Court directed by sound judgment in determining the right of litigation where such right is not absolute. It is not to give effect to the will of the Judge but to that of the Law. It is the liberty of the Judge to decide and act in accordance with that which is fair and equitable under the peculiar circumstances of the particular case, guided by the spirit of the Law.
In UBN v. ASTRA BUILDERS (2010) 41 NSCQR 1016 at 1038 ? 1939 where His Lordship Adekeye JSC said:
An exercise of discretion is an
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act or deed, based on one’s personal judgment in accordance with ones conscience free and unfettered by any external influence or suggestions. A judicial discretion means the power exercised in an official capacity in a manner which appears to be just and proper under a given situation.
In the present case at hand, it is on record that the suit has had a chequered history since 29th June, 1992. The suit was commenced on the 1st February, 1994. PW1 Uwem Akpan testified and then adjourned to 26th April, 1994 when Oyo Udo Akpan also testified. After series of adjournment at the instance of the present Appellant on record, the suit was struck out in 1995. On the 15th March, 1995, it was re-listed PW3 Monday Timothy Inyang testified on the 11th July, 1995 and concluded his evidence on the 19th April, 1995. The suit thereafter continued to suffer series of adjournments with the present application to discontinue the suit was brought. All together, the three witnesses testified and a total of 42 exhibits already tendered and admitted.
It follows that issues have been joined at the stage already set for the conflict and an advanced stage has been reached
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three witnesses for the plaintiff have testified and 42 exhibits tendered and admitted, the plaintiff at that stage is no longer dominis lities and cannot be allowed to escape through the back door and enter against through another. See ERONINI v. IHEUKO (1989) LPELR – 1161 (SC), (1989) NWLR (PT. 101) 46.
In view of the above, I hold the view that it would not be judicial and judicious exercise of discretion to grant the Appellant?s relief sought having regard to the chequered history of the case.
In view of the above therefore, I hereby hold that the Learned Chief Judge exercised his discretion properly by refusing the application for discontinuance and rather dismissed the suit in view of the peculiar circumstance of this case already highlighted. The Lower Court in exercising its discretionary power must have borne in mind the fundamental principle that it is in the public interest that there should be an end to litigation which is often expressed in the popular Latin maxim, republicae ut sit finis litium. This is to ensure that access to justice is not frustrated and the administration of justice is not brought to disrepute. See EHINLANWO
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v. OKE (2008) 16 NWLR (PT. 113) 357. Issue No. 1 is therefore resolve in favour of the Respondent.
On Issue No. 2 which is whether the Learned trial chief Judge erred in Law in dismissing the suit at the same time as he refused the application for discontinuance, having thereby wrongly deprived the plaintiff of his right to proceed with the suit if he so wished. I have considered a greater part of the issue while treating Issue No. 1, I hold that the Lower trial Judge judicially and judiciously exercise its discretion in not only striking out the suit but dismissing same in view of the peculiar circumstances of the suit. This is a case that has remained three years in Court and evidence taken from only three witnesses and 42 exhibits admitted. Other reasons given by the learned chief Judge in the body of his judgment at page 116 of the records show that this case deserved to be dismissed instead of striking same. See ERONINI v. IHEUKO (supra).
There is, therefore, nothing like denying the Appellants their right of fair hearing by the order of dismissal by the Court. After all, they have taken three witnesses in Court and tendered 42 exhibits. They
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have, therefore, taken a big bite in the case and cannot complain of any denial of fair hearing at this eleventh hour of the case. In the case of MAJOR BELLO M. MAGAJI v. NIGERIAN NAVY (2008) LPELR – 181 (SC), Justice Niki Tobi (JSC) held at page 40 thus:
It has become a fashion for litigants to resort to their right to fair hearing on appeal as if it is a magic want to cure all their inadequacies. But it is not so and cannot be so. The fair-hearing constitutional provision is designed for both parties in the litigation, in the interest of fair play and justice. The Courts must not give a burden to the provision which it cannot carry or shoulder. I see that in this appeal, fair-hearing is not a cut and try principle which parties can, in the abstract, always apply to their comfort and convenience. It is a principle which is based and must be based on the facts of the case before the Court. Only the facts of the case can influence and determine the application or applicability of the principle. The principle of fair hearing is helpless or completely dead outside the facts of the case.
?I see no reason to depart from the above. The facts of the case in
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this appeal do not support the invocation of the principle of fair-hearing in favour of the Appellant because I do not see where the Appellant’s right to fair hearing was violated or contravened.
On the basis of the above, I, therefore, do not hold the view that there was a denial of the right of far hearing or bias on the part of the Lower Court when it refused the application for discontinuous and resolve same in favour of the Respondents.
On issue No. 3 as to whether after the Mercantile Bank had a liquidator appointed to take over its affairs, the State High Court still had the jurisdiction to continue with the suit, Learned Appellant?s Counsel had contended that with the appointment of a liquidator, the High Court of Cross River State should have declined jurisdiction to continue the case since no leave of Court was obtained to continue the case. This contention I dare say was not part of the issue that affected the discretion of the Court below. Also the said appointed liquidator was not a party at the Lower Court either as a plaintiff or defendant. There was therefore, of or leave neither of any sort to be obtained nor for the Court to
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decline jurisdiction as submitted by the Appellant. This issue is therefore resolved in favour of the Respondent.
Having resolved all the issues in this appeal in favour of the Respondents, I hereby hold that the appeal has no merit and it is accordingly dismissed. The decision of the Lower Court delivered on the 21st November, 1995 in suit No. C/87/92 is hereby affirmed. I assess and fix cost at N50,000.00 in favour of the Respondent.
Other Citations: (2016)LCN/8783(CA)
