Nasco Management Services Limited V. A. N. Amaku Transport Limited (2002)

LawGlobal-Hub Lead Judgment Report

MANGAJI, J.CA.

The main appeal in this case, concerned the judgment of Uloko, Chief Judge of Plateau State the date of the delivery of which has become the primary issue. In it the learned trial Judge found the claim of the respondent as plaintiff proved and concluded as follows:-

“On the whole, I am satisfied that the plaintiff has proved its claim against the defendant. Consequently, I hereby enter judgment for the plaintiff, against the defendant in the sum of N3,240.000.00.

The defendant is hereby ordered to pay the plaintiff, of the sum of N3,240.000.00 as damages for the detention of its trailer tanker, BO 2913 P from 16/12/93, until 30/11/94, when it was conditionally released by the court.”

The appellant was thoroughly dissatisfied with the above judgment. It accordingly, filed a notice of appeal containing four ground dated 11th August, 1995. It seems after the judgment, the respondent applied by a writ of fifa and levied execution on some of the property of the appellant. In order to arrest further execution and to have those property attached returned to the appellant, a motion on notice was filed before the court below, seeking for the following reliefs:-

MOTION ON NOTICE

“TAKE NOTICE that this Honourable Court will be moved on the ………day of …. 1995, at the hour of 9’0 clock in the forenoon or so, soon thereafter as counsel on behalf of the applicant may be heard praying this court for:-

(a) An order recalling the writ of fifa (execution) and the Notice of attachment issued pursuant to the judgment of this court.

(b) An order suspending and or staying the execution and or further execution of the judgment of this honourable court, pending the determination of the appeal.

(c) An order setting aside the execution and attachment of the properties of the judgment debtor, and releasing from attachment the properties of the judgment debtor.

(d) An order restraining the respondents, any bailiff of this court, their agents, servants or privies from attaching, or selling properties of the judgment debtor.”

The application was argued on 19/9/95, and in a reserved ruling delivered on 20/9/95, the whole application was found to be unmeritorious. It was accordingly dismissed in its entirety. The appellant was again dissatisfied with the ruling. In the event, it filed a notice of appeal questioning the ruling on three grounds. The notice and grounds of appeal was dated 16/11/95. The two notices of appeal were both incorporated in one file and were given same appeal number. That in my view, explains why the appellant after filing a motion seeking to consolidate the two appeals, withdrew the motion which was accordingly struck out on 6/11/97, because in reality there are no two appeals that could be consolidated.

Be that as it may on 17/3/97 learned Counsel for the appellant argued a motion which he filed on the same day, seeking for extention of time to file the appellant’s briefs of argument. This court granted the application and the two briefs of argument exhibited one each for the two appeals were deemed properly filed and served. The brief in respect of the main appeal, was however amended by leave of this court and the brief filed on 11/5/2000, was submitted was substituted in its place. In the brief on the main appeal the appellant identified three issues as arising for determination. These issues are:-

“(1) Whether the judgment of the lower court based on the affidavit evidence and other considerations relied upon was proper in law to establish the liability of the defendant.

(2) Whether the award of N3,240,000.00 by the lower court in favour of the plaintiff was proved.

(3) Whether the proceedings of the lower court did not amount to a nullity having been conducted in breach of the appellant’s right of fair hearing.”

As regards the second appeal, which deals with the ruling of the court below, the appellant in its brief of argument, identified two issues as arising there from. The two issues are the following:-

“(A) Whether the trial court was light in the motion amending (sic) the judgment without any application or hearing the parties in respect of much (sic) amendment.

(B) Whether the issuance and subsequent execution of the writ of fifa in this suit was proper (sic) law.”

The respondent too filed two briefs of argument. Both briefs were filed on 30/4/99. However, the respondent had cause to amend its brief of argument on the main appeal after the appellant’s motion to amend its brief of argument was granted. Thus, on 17/5/2000, by the leave of this court, the respondent filed an amended brief of argument. In its amended brief of argument, the respondent similarly identified three issues as arising for determination in the main appeal. These issues, though differently worded are same in substance with the issues identified by the appellant. The difference however, is that the respondent’s 1st issue is issue No.3 in the appellant’s brief Issues No.2 and 3 correspond with appellant’s number 1 and 2 respectively.

Just as the appellant identified two issues for determination from the grounds of appeal questioning the ruling of the court below dismissing the motion for stay of execution among sundry prayers, the respondent also identified two issues which are correspondingly same. But because of the clarity of the language used by learned senior counsel for the respondent I shall adopt the issues he formulated. Let me reproduce them hereunder:-

“(1) Whether the learned trial Chief Judge was right in correcting the date on the court’s judgment to read 21/7/95.

(2) Whether the appellant’s application for stay of execution was lightly/properly refused.”

Now after filing its amended brief of argument on 17/5/2000, Learned senior Counsel for the respondent on 25/5/2000, filed a notice of preliminary objection in terms of Order 3 rule 15 of the Court of Appeal Rules, 1981, as amended. At pages 5 to 7 of the brief, argument was proffered in support of the objection. It will be better appreciated, if I could reproduce the preliminary objection. It was couched thus:-

“1.The notice and ground of appeal is incompetent as no judgment was delivered on 25/7/95.

2. Ground of Appeal No.1 in the Notice dated 11/8/95, raised the issue of fair hearing and deposition in earlier affidavit. These issues were never raised in the court below and no leave was sought or granted to raise the issues for the first time in the Court of Appeal.
3. Issue No.3 in the appellant’s brief of argument relates to ground of appeal No.1; and since the ground of appeal No.1 is incompetent the issues raised therein and the argument are incompetent.”

On 25/10/2001, the respondent again filed another notice of preliminary objection regarding the appeal on the ruling of the court below, which formed the basis of the second appeal. The objection is reproduced hereunder:-

“a. The ruling appealed against was delivered 20/9/95, but the appeal was filed on the 16/11/95.

b. Every interlocutory appeal must be filed within 14days from that date of ruling appealed against. See section 25(2)(a) Court of Appeal Act. 1976.

c. The grounds of appeal filed by the appellant and dated 16/11/95, are grounds of mixed law and facts, which requires leave of the lower court or that of this court to be competent. See section 221(1) 1979 Constitution. No such leave was obtained.

d. No issue was formulated to cover grounds of appeal No.3. The same is deemed abandoned.”

In the brief of argument, learned senior counsel extensively argued the preliminary objection. In response, the appellant filed two reply briefs each proffering argument why the preliminary objection in each of the two appeals should not be upheld. It is remarkable to note that the preliminary objection was argued orally before us on 30/10/2001 when the appeal came up for hearing.

The facts which gave rise to the filing of the suit before the lower court resulting in the judgment now on appeal are fairly straight forward. The appellant (defendant before the court below) is a limited liability Company and a member of the NASCO Group of Companies. Essentially, it is concerned with the management of NASCO Household products. The respondent on the other hand is a Limited liability company engaged in the business of petroleum haulage. On 27/11/93, an Ozar Ugolosi, a road haulage contractor entered into contract with the respondent wherein two of the latter’s tanker trailers with registration No. BO 2913 P and PL 6012 JF, were to be used in transporting for the appellant, its white tallow from Lagos to its Jos factory. Incidentally, white tallow is a petroleum product used by the appellant in the manufacture of some of its finished products. It was agreed that each of the tanker trailers was to attract a fee of N45,000.00 for the transportation of the tallow to Jos from Lagos.

The tallow was accordingly loaded after a N50,000.00 part payment was made for hiring the two vehicles.

Along the way, at a village called Abuduka, at the outskirts of Ogbomosho town, a Mack open-body trailer No. PL 6012 JF, hit the vehicle No. BO 2913 P, which was carrying the tallow from the rear. This caused the vehicle to veer into the road sides. As a result, the tanker was partly damaged thereby, occasioning spillage of some of the tallow in it. The tanker was returned to Lagos wherein, it was mended to save the remaining tallow that was yet to leak out.

Eventually, the tallow was conveyed to Jos. On measuring the tallow, the appellant found that the contents had a short delivery of 13.78 tons, the cost of which was found to be N226,772.01. Appellant’s version was that the respondent’s driver, who drove the vehicle involved in the accident at Abuduka, requested it for a space to park the vehicle to enable him travel to Lagos to report about the short delivery. The respondent’s version is that, the appellant detained the vehicle until the respondent would have paid the cost of the tallow that was lost as a result of the accident. Not able to settle their differences, the respondent as plaintiff filed before the court below a suit, in which it claimed from the appellant, “the sum of N1,350,000.00 as loss of earnings from 15th December, 1993 to 16th May, 1994, and thereafte,r at N270,000.00 per month, until the entire sum is paid.”

Now parties filed their respective pleadings, which were amended at various times. Eventually, issues were joined and the suit went to trial. Parties called evidence and the suit was adjourned to 25/7/95, for the delivery of judgment. For reasons not contained in the two records of appeal, the date for the delivery of the judgment had to be shifted. Consequently, hearing notice was served on R. J. Jatau (Miss) of Counsel for the appellant, indicating that judgment would be delivered on 21/7/95. Learned Counsel signed acknowledging the receipt of the hearing notice on 19/7/95 (see the supplementary record).

On 21/7/95 judgment was accordingly delivered. On that day Miss R.I. Jatau appeared for the appellant, while Alhaji Abdul Azeez, represented the said appellant. However, the judgment which was read from the civil record book on judgment, bore the original date of 25/7/95 being the date it was adjourned for judgment, before the date was brought forward.

Appellant was dissatisfied with the judgment and appealed. In the meantime, the respondent, who had judgment in his favour on 24/7/95 applied to the court below for the issuance of a writ of fifa.

On 26th July, 1995, writ of execution was issued and some of the appellant’s property had been attached. Appellant was not happy. It accordingly, filed a motion on notice seeking for stay of execution of the judgment and setting aside the execution already levied. It also sought an order recalling the writ of fifa.

The application was argued. In a reserved ruling, the court below dismissed it in it entirety. The appellant was dissatisfied with the ruling. He accordingly, filed a notice and grounds of appeal dated 16/11/95, a period of 57 days after the ruling was delivered.

During arguments on the application for stay of execution the issue about the date, when the judgment of the court was delivered became a serious question. Whereas the respondent was positive that judgment was delivered on 21/7/95, the respondent held on to the date on 25/7/95, reflected on the record as the correct date. In the ruling, the learned trial Chief Judge likened that date of 25/7/95, to a clerical or typographical error. He ordered that the date be amended to 21/7/95 at once. Appellant felt that that order was made suo motu and that the learned trial Chief Judge, almost had no right to amend the date. These are the two appeals we shall consider anon.

Perhaps, the starting point should be the second appeal which deals with the ruling of the court below of 19/9/95. On 25/1 0/2001, learned senior Counsel for the respondent, filed a notice of preliminary objection, the contents of which had been fully reproduced elsewhere in this judgment. He argued the preliminary during oral hearing on 30/10/2001. The gravamen of his objection is that the ruling of the court below which was delivered on 20/9/95, was indeed an interlocutory decision. He submitted that section 25(2)(a) of the Court of Appeal Act, 1976 has provided a period of 14 days, within which appeal could be lodged in interlocutory decisions. Further, learned Senior Counsel submitted that the appellant’s appeal having been lodged on 16/11/95, being a period of 57 days after the ruling was delivered, does violence to section 25(2)(a of the Court of Appeal Act. 1976 and is thus, rendered incompetent.

On the second leg of his objection, learned Senior Counsel submitted that the grounds of appeal are grounds of mixed law and fact. He said by virtue of section 221(1) of the 1979 Constitution of the Federal Republic of Nigeria, leave of the court below or this court is mandatorily required to be obtained as a condition to the validality of the grounds. He argued that no such leave was obtained either at the court below or this court and that in the event, the appeal is rendered incompetent.

The other aspect of the preliminary objection affected ground 3 of the grounds of appeal. There is no doubting at all that ground 3 found no issue identified for determination from it. That indeed explains why the appellant had no reply to the objection on that score. The law is that issues for determination must be formulated in concrete terms and must be related to the grounds of appeal filed. See Obala of Otan-Aiyegbaju v. Adesina (1999) 2 NWLR (Pt.590) 163. In a situation such as the one at hand, where no issue is identified as arising from a ground of appeal, the ground is deemed abandoned. See Baridam v. State (1994) 1 NWLR (Pt.320) 350; Amadi v. NNPC (2000) 10NWLR (Pt.674) 76 at 100. I therefore, entirely agree with Mr. Okafor for the respondent, that ground 3 of the grounds of appeal is abandoned not having found an issue formulated from it. It is accordingly, struck out.

Without doubt, the ruling of the court below was delivered on 20/9/95. (See pages 84 to 93 of the record). The appeal, questioning the ruling was dated 16/11/95. If that ruling is a final decision, then an appeal questioning the decision may be lodged within 90 days from the date it was delivered. If on the other hand, it is considered interlocutory, then the period for filing appeal therefrom is 14 days.

That is the tenor of section 25 of the Court of Appeal Act, 1976. For the avoidance of doubt the section reads as follows:-

“25(1) Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application, for leave to appeal in such manner as may be directed by rules of court within the period prescribed by the provision of subsection (2) of this section that is applicable to the case.

(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are –

(a) in an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision;

(b) in an appeal in a criminal cause or matter, ninety days from the date of the decision appealed against.

It must also be pointed out from the onset that, if the ruling of the court below in question is a final decision, then respondent’s objection (c) will be without basis. See section 220(1) of the 1979 312 Constitution of the Federal Republic of Nigeria. In other words, where the ruling is found to be a final decision, then the need for leave would not arise in this court as the period within which the appeal was to be lodged, had not expired. All authorities cited by the learned Senior Counsel appear to relate to appeals from the decision of this court to the Supreme Court, and are to that extent inapplicable.

I must now attempt to recall judicial decisions of the Supreme Court on decisions that are said to be final and those classified as interlocutory. The issue is a vexed one and must always be considered in the light of the facts in the decision at hand. All attempts at arriving at workable and acceptable principles for the determination of what constitute final decision as distinct from interlocutory decision eluded courts for, the nagging issues that usually present themselves after working out what may ex facie appear to be sound solution easily put itself in doubt. Whether an appeal against a decision is final or interlocutory has attracted a lot of judicial decisions. I find the judgment of the Supreme Court in Omonuwa v. Oshodin and another (1985) 2 NWLR (Pt. 10) 924 elaborate and particularly helpful. In discussing the question whether a decision of a court is interlocutory or final, Karibi-Whyte JSC so extensively reviewed authorities on the matter and presented those principles that can aid the court in determining whether a decision is final or interlocutory. I need quote part of the judgment on the issue and extensively too. At pages 932.

His Lordship said:-

“The question whether a decision of a court is interlocutory or final, has been one of perennial difficulty for the courts. This difficulty stems from the lack of precision or certainty in the definition of the words, or the uncertainty in the judicial decisions on the issue. This has prompted Lord Denning M.R., to suggest that “it is impossible to lay down any principles about what is final or what is interlocutory” – See Salter Rex & Co. v. Ghosh (1971) 2 All ER. 565 at p. 566; Technistudy Ltd. v. Kelland (1976) 3 All ER at p.865. Indeed, it was suggested in the last mentioned case that, “the only thing to do is to go to the practice books and see what has been done in the past.” Whilst this approach may provide a useful guide, the problem marches on. I think that in a matter of this nature, despite the elusive imprecision of decided cases, the ideal is to provide a workable test for the determination of the issue, when it arises, instead of relying on examples. It is admitted that so far, the authorities on the issue are not uniform. I shall however, classify them and endeavour to suggest a test which in my opinion is acceptable in principle and workable in practice. Although s. 277 defines the word “decision” in relation to court, as any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation” there is no definition of the words final” or “interlocutory” either in the Rules of Court, Supreme Court Act, Court of Appeal Act or in the Constitution. In the circumstances resort ought to be had to the judicial decisions. In Gilbert v. Endean (1878) 9 Ch. 259 at Pp. 268, 269, Cotton, L. J. said:

“Those applications only are considered interlocutory which do not decide the rights of the parties, but are made for the purpose of keeping things in status quo till the rights can be decided, or for the purpose of obtaining some direction of the court as to how the cause is to be conducted as to what is to be done in the progress of the cause, for the purpose of enabling the court ultimately to decide upon the right of the parties.”

Again in Blakey v. Latham (1890) 43 CH. D. at p. 25, Cotton L. J. said;

“Any order, which in my opinion, does not deal with the final rights of the parties, but merely directs how the declarations of rights already given in the final judgments arc to be worked out is interlocutory, just as an order made before judgment is interlocutory where it gives no final decision on the matters in dispute, but merely directs how the parties are to proceed in order to obtain that final decision.”

I do not think there is any dispute as to the correctness of the above dicta with regard to the definition of an interlocutory application and the resulting order or judgment. I accept it as the correct definition.

There are also judicial definitions of what is a final judgment. In In re Faithful, Ex parte Moore (1885) 14

QBD. 67, Cotton, L. J. at p. 629, explained what he said in ex parte Chinery 12 QBD. 342 as to what is a final judgment. He said;

“I think we ought to give to the words “final judgment” in this subsection their strict and proper meaning i.e. a judgment obtained in an action by what a previously existing liability of the defendant to the plaintiff is ascertained or established “unless there is something to show the use of the words in an extended sense.”

I think the definition of Lopes L.J. in Salaman & ors. v. Warner (1891) 1 QB 734 at p. 736, would seem to me, the same but is more precise. His Lorship said;

“I think a judgment or order would be final within the meaning of the rules, when, whichever way it went, it would finally determine the rights of the parties.”

This case followed the earlier decision of Standard Discount Co. v. La Grange (1877) 3 CPD. 67 In Blakey v. Latham (1890) 43 Ch. D23 C.A.,

Cotton L. J. construing the Rules of the Supreme Court, 1883 Order LVIII r.15, Cotton L. J., said;

“No order, judgment or other proceeding can be final, which does not at once affect the status of the parties, for whichever side the decision may be given, so that if it is given for the plaintiff it is conclusive against the defendant, and if it is given for the defendant it is conclusive against the plaintiff.”

His Lordship went on to add at p. 25 –

“I cannot help thinking that no order in an action will be final unless a decision upon the application out of which it arises, but given in favour of the other party to the action would have determined the matter in dispute.”

In Bozson v. Altrincham Urban District Council (1903) 1 KB. 547 Lord Alverstone, C. J., agreeing with the Earl of Halsbury L.C. said at pp. 549 – 550.

“It seems to me that the real test for determining this question ought to be this. Does the judgment or order as made, finally dispose of the tights of the parties? If it does, then I think it ought to be treated as a final order: but it does not, it is then in my opinion an interlocutory order.”

See also Egerton & Ors. v. Shiley (1949) 1 KB. 107.

It would seem clear from the cases and the dicta cited that two tests for determining what is interlocutory or what is final have emerged from the cases. There are the cases which adopt the nature of the application to the court as the determining factor whether the judgment or order is interlocutory or final. and there are others which consider the nature of the order made. Whereas Gilbert v. Endean; Blakey v. Latham (supra); Salter Rex & Co. v. Gbosh (supra) the Technistudy Ltd v. Kelland (1976) 3 All ER 632 represent the first view, Salaman v. Warner (supra); Bozson v. Altrincham UDC (supra); Blay & Ors. v. Solomon (1947) 12 WACA 175, represent the second view. It seems clear to me from the cases in this jurisdiction, that the tests in the second class of case has been adopted and applied. The test laid down by Lord Alverstone in Bozson v. Altrincham U.D.C. (supra) has been consistently applied.

In Akaniya Oguntimehin (The Oloja of Igboruwo) v. Omotoye (1956) 2 FSC 56, the learned trial Judge made an order transferring one of the issues in an action pending before him in the Benin High Court to a Native Court for decision. Plaintiffs appealed against the order. In the Federal Supreme Court the question arose, whether the order for transfer is final or interlocutory since no appeal lies from an interlocutory order without leave which in this case, has not been obtained. Nageon de Lestang, F.J. delivering the judgment of the court referred to the test laid down in Bozson v. Altrincham U.D.C. (supra) and said at p. 57 –

That test has been applied in a number of cases, and applying to the present case, I should have thought that it was unarguable that the order under consideration is interlocutory.”

In Blay & Ors. v. Solomon (1947) 12 WACA 175; the action was for possession of property, account of profits and for partition or sale. The trial Judge ordered that an account as between the respondent and third appellant be filed, and that the property be sold by auction. Defendant appealed. Counsel for respondent raised the preliminary objection that the judgment appealed from being interlocutory was out of time, not having been brought within fourteen days of the date of the decision as prescribed by S. 11(2) West African Court of Appeal Rules 1937. Verity, C.J., delivering the judgment of the court referred to Bozson v. Altrincham UDC (supra) and Ex parte Moore, In re Faithful (supra) and applied the principles enunciated in these cases as conclusive of the case before the court. His Lordship said, at p. 177-

“The terms of the judgment below do not at once affect the status of the parties, or indeed of any of them, for there is no order consequent upon the enquiries into the accounts, no determination as to the proceeds of the sale, no indication of the rights or interests of the parties or any of them in relation thereto, no determination of the plaintiff’s claim against either the first or the second defendant and no order as to, by whom, or to whom, the costs when taxed are to be paid. There is no order for anything to be done without further reference to the court, and in no sense does it appear from the judgment that the rights of the parties or any of them are finally disposed of. We have no doubt whatever that the judgment appealed from is interlocutory decision.”

This judgment was followed in Afuwape & Ors. v. Shodipe & Ors. (1957) 2 FSC. 62, where it was put very succinctly as follows at D.. 68 –

“The judgment of the court below does not at once affect the status of the parties, neither does it finally dispose of their rights, since it leaves undecided the very point at issue, namely, whether there would be partition or sale.”

In Alaye of Effon v. Fasan (1958) 3 FSC. 68, the appeal was against the refusal of the trial Judge to set aside the order striking out the suit for non-appearance of plaintiff/appellant. The notice of appeal was within time, if regarded as a final decision, but out of time if interlocutory. Onyeama. Ag. J., held it was interlocutory and dismissed the application. Appeal to the Supreme Court was dismissed. Coussey, Ag. FJ. at p. 69, referred to the dictum of Foster Sutton in Bansah v. G.B. Olivant Ltd. 14 WACA 408, where the latter said;

“The question for determination is – does the order under appeal finally disposed of the rights of the parties? In our view it does not. In re Jerome and Peek v. Peek (1948) 2 All ER. 297, if the learned trial Judge had agreed to review his judgment that decision could clearly not have disposed of the rights of the parties, and a refusal to review does not, because it is the judgment which is the subject of the application for review which finally disposed of the rights of the parties, not the trial Judge’s refusal to review.” I refer also to Nabham v. Nabham (1967) NMLR 130, which was decided on the preliminary objection whether for the purpose of the appeal an order for a decree nisi in a divorce petition was a final or an interlocutory order. No leave to appeal was obtained before the notice of appeal was given. Brett, J.S.C. delivering the judgment of the court held that for the purposes of s. 117(2)(a) of the Constitution 1963 (unlike s.213(2) of the Constitution a final decision includes a decree nisi; although he admitted that a decree nisi cannot be regarded as a final decision for all purposes. It is important to observe here that the court was considering whether an order for a decree nisi was a final order determining the rights of the parties, within the meaning of the expression “final” in s. 117(2)(a) of the Constitution 1963. Brett, J.S.C. was quick to point out before coming to this conclusion; that “Matrimonial causes, with the various issues to which they may give rise (including status, property, alimony and the custody of children) are in a class of their own procedurally) (1967) NMLR at P. 135). There is no doubt that this was the overriding consideration for the view finally adopted that “If the court were to hold that a decree nisi was a final decision for the purposes of appeal but not for the purposes of alimony pendentelite, as in Head-Head, it would not involve any new inconsistency.

Since that was presumably the position while s.6 of the Federal Supreme Court (Appeals) Ordinance remained in force.” (1967) NMLR at P. 135)”

With due respect, this reasoning cannot sustain the appeal before us, consistent with the practice of this court. I cannot conceive of the situation where two final decisions inter parties will be required to determine finally the claim before the court. This invariably will be the result of accepting appellants contention.

Nabbam’s case can therefore, safely be limited to its facts and the question of decree nisi in divorce petitions which are, admittedly sui generis.

There is clearly no doubt that the principle established in all the above cited cases is that where the decision of the court does not finally determine the issue or issues between the parties or does not at once affect the status of the parties for whichever side the decisions is given, it is interlocutory. The emphasis here is clearly on the nature of the decision.

The dictum of Brett, L.J. has been generally accepted and applied in determining what is a final order or judgment. In Standard Discount Co. v. La Grange (1877) 3 CPD. 67, His Lordship said, at p. 71.

“No order, judgment or other proceeding can be final which does not at once affect the status of the parties for which ever side the decision may be given, so that if it is given for the plaintiff it is conclusive against the defendant, whereas if the application for leave to enter final judgment had failed; the matter in dispute would not have been determined.”

See also Akinsanya v. UBA Plc (1986) 4 NWLR (Pt.35) 273. Clearly, two methods of approach have emerged from decided cases on tests that may be applied in order to determine whether a judgment or order of court is final or interlocutory. These are:-

(1) Nature of the application to the court as determinant factor whether the judgment or order is final or interlocutory.

(2) The nature of the order made as basis for the resolution whether it is final or interlocutory.

From decided authorities in this Country, it seems beyond argument that the second method of approach has been adopted. It is however, not without its inherent difficulties.

Be that as it may, interlocutory order is that which presents the following features viz:-

(a) It does not finally determine the rights of the parties.

(b) It is simply made for the purpose of keeping things in status quo till the rights are decided.

(c) Decision made for the purpose of obtaining some direction of the court as to how the cause is to be conducted to enable the court ultimately to decide upon the rights of the parties.

(d) An order which does not deal with the final rights of the parties but merely directs how the declarations of rights already in the final judgment are to be worked is interlocutory. See Blakey v. Layham (1889) 43 Ch. D. 25 per Cotton L. J.

Following from the above, one can safely consider the dispute in this appeal. The judgment in the main suit before the court below was delivered since 21/7/95. Let me be quick to add that whether the judgment was delivered on 21/7/95 or 25/7/95, will be dealt with extensively later in this judgment. The question that one might naturally ask is, did the application for stay of execution filed by the appellant at the court below create fresh or independent rights between the parties? The question simply over begs the answer. An application for stay of execution of judgment is a process taken seeking for the exercise by the court of its discretionary power It is always determined judicially and judiciously. But by its very nature, it does not decide with finality the rights of the parties involved. It is simply meant to keep the judgment delivered in abeyance or most precisely, to keep the status quo until an appeal lodged is heard and determined. At this stage no fresh or independent rights of the parties are involved. Indeed, where the application fails the party that obtained judgment in its favour will be at liberty to apply to the court to enforce the judgment. Thus, a further reference to the court without doubt has to be resorted to. After the dismissal of the motion filed by the appellant herein the respondent reserved the right to apply for the writ of fifa. Undoubtedly by dismissing the appellant’s motion no fresh or independent rights of the parties were decided. Quite clearly there was no order for the doing of anything without reference to the judgment of the court below in the main suit. That in my view has clothed the ruling of the court below with the finality of interlocutory decision. I am therefore, convinced beyond doubt that the decision of the court below in its ruling dated 20/9/95 is interlocutory.

Now by section 25(2) of the Court of Appeal Act, 1976, an appellant who is aggrieved with an interlocutory decision has the right to appeal against it within 14 days from the date of the decision.

See Ebokam v. Ekwenibe & Sons (1993) 6 NWLR (Pt.297) 108 at 119 – 120. The ruling on appeal was delivered on 20/9/95. (See pages 84 to 93 of the main record). This appeal was lodged on 16/11/95. It is clear as crystal that the appeal was lodged well outside the 14 days prescribed under the Act. Also instructive is that the appellant did not seek for and obtain leave to file the appeal having clearly realised that the mandatory 14 days had elapsed. It is my view therefore that preliminary objection raised by the respondent is well founded. The ruling of the court below of 20/9/95 being interlocutory any appeal questioning it had to be lodged within 14 days. This, the appellant failed to do. Equally instructive is that no leave of this court has been applied for and obtained. The whole appeal in circumstance is rendered incompetent. It is accordingly struck out.

Be that as it may, I shall attempt to look at the appeal on its merit primarily in order to tread on the side of caution. This is meant to obviate the danger of the higher court holding the contrary view on the materiality of the preliminary objection.

In its brief of argument beyond which there was no useful oral argument in amplification, learned Counsel for the appellant submitted that the date the main judgment in the principal appeal was delivered is 25/7/95. He submitted that the respondent apparently applied for the issuance of writ of fifa on 24/7/95 clearly before the judgment was delivered. He further submitted that the writ of fifa was itself issued on 26/7/95. Leal1led counsel submitted that from the record of appeal no judgment was delivered on 21/7/95 as the respondent will have us believe. He submitted that if the judgment was delivered on 21/7/95, which he does not concede, the appellant’s right to fair hearing was breached since it was not put on notice. At page 3 of the appellant’s brief of argument a lot of questions that are insinuating were raised perhaps I should reproduce it viz:-

“The record of the court shows at pages 50 to 67 that there was no record anywhere as to when and how the fixture earlier slated for 25/7/95 was now re-scheduled for 24/7/95. What necessitated the change of the date is not also disclosed on record. There are many questions that cry to the high heavens for answers that do not seem to be forth coming. It is even impossible to speculate as to the reason for what is responsible for the shifting of the date. Could it be that there was fear that the appellant was in possession of information that could be utilised to make a change in the likely outcome of the judgment? Could it be that having written the judgment, there were fears or information that before the scheduled date of 25/7/95, the trial Judge could cease to be a Judge of the High Court by virtue of an elevation? Could it be that there were fears that the appellant could file a motion to at test the judgment? Could it be that having written the judgment before the due date the trial Judge wanted to avoid a reconsideration of the matter in order not to write another judgment? Difference posers gave room to a log of speculations. The appellant is not able to give a threat answer for what necessitated the change. One fact remains unchallenged the change (if any) was not done with the consent of the parties as enjoined in Agwuna’s case (supra) Judges by virtue of their positions are expected to live above board, they are enjoined in their conduct to avoid an situation that would give room for suspicion. The need for this was properly addressed by the Supreme Court in Bakare v. Apena (1986) 4 NWLR (Pt.33) 1. Once any conduct gives room for suspicion, it erases the confidence of impartiality the public has in the Judge once this confidence is eroded, the principle of law that justice most not only be done, but manifestly seen to be done is infringed. A reasonable look at the foregoing circumstances of the matter into consideration one is very likely to arrive at the inevitable conclusion that justice has not been done. Fair hearing is invariably infringed.”

The above portrays learned Counsel, as a Lawyer who easily speculates even if the need did not arise to engage in doing so. Whereas, learned Counsel reserves the right to proffer submissions in the case, he has almost no right to speculate. Speculation is not the preoccupation of the legal profession and should not be introduced under any guise. Findings of facts and truth cannot be attained through speculative insinuations and serious exception must be taken by courts to such attitude. In any event, learned counsel submitted that the learned trial Chief Judge (CJ) recalled the date he delivered judgment without the consent of parties and that to that extent there was a breach of the right to fair hearing.

Continuing learned Counsel submitted that the learned CJ suo motu changed the date reflected in the judgment of the court from 25/7/95 to 21/7/95. He urged that the appeal be allowed on that premise.

On his part, learned Senior Counsel for the respondent submitted that a court of law has the general powers to amend proceedings in order to ensure that justice is done to the parties. He relied on order 26(1) and order 47(1) of the Plateau State High Court (Civil Procedure) Rules, 1987 as well as Egbo v. Agbara (1997) 1NWLR (Pt.481) 293 at 321 among other cases. Learned Senior Counsel went through the record to show that the appellant was aware from the onset that judgment was indeed delivered on 21/7/95 and with the knowledge of parties. He urged that the issue be resolved against the appellant.

The nagging issue whether the judgment of the court below was delivered on 25/7/95 as the appellant contended or 21/7/95 as the respondent submits is to my mind, a storm in a tea cup. The issue about the date presented itself when, on 19/9/95 the motion to recall the writ of fifa and stay of execution was argued. (See pages 7 to 83 of the record.) What is beyond argument is that from the record of appeal the judgment was dated 25/7/95. But that date was said to have been brought forward by the court and read on 21/7/95 was the act of bringing the date of the delivery of the judgment done behind parties? I think not. At page 83 of the record, Morolayo of counsel for the applicant is recorded to have said as follows:-

“I have read Order 4 rule (4) 1(2) of the Sheriffs (sic) and Civil Process (Judgment Enforcement) Rules. I have been shown the record of this court on 21/7/95 when the judgment of this court was delivered, Alhaji Abdulazeez the Senior Procurement Manager of the applicant was in court.”

The above facts emerged after Mr. Okafor SAN for the respondent had contended that “the judgment of this court was delivered on 21/7/95 but not on 25/7/95; the applicant and its counsel were in court on that day.” (See last paragraph of page 80 of the record.) Quite correctly that was the stage of things. The proceedings of the court below dated 21/7/95 bear this out. At page 12 of the supplementary record the following was recorded:-

“On the 21st day of July, 1995. Present: Mr. O. B. A. Maduabuchi for the plaintiff who is not represented in court. Miss R.J. Jatau for the defendant who is represented by Alhajl Adaji Abdul Azeez.”

Court: Judgment will be read from the civil record book on judgments”. (Italics supplied by me).

Clearly, the appellant was duly represented by Alhaji A. Abdul Azeez on the 21/7/95 when the judgment of the court was read. Beyond that, Miss R.J. Jattau of counsel appeared. How did they come to know about the shifting of the date of the delivery of the judgment? The record had shown that. Immediately after page 10 of the supplementary record there are two hearing notices. The second notice had the following address:-

“Rose J. Jatau (Miss) defendant Solicitor No. 26 Rwang Pam Street, Jos.”

At the reverse of it is the endorsement of Miss Jattau as follows:”

Received by me R. J. Jatau (Miss) on behalf of the defendant’s Solicitor.

This 20/7/95 by 12.35pm. Signed.”

The above clearly explained the presence of the representative of the appellant on the day the judgment was delivered. The date of 25/7/95 reflected in the judgment appears to be the product of the record system at the court below. The record book on judgment is obviously a separate book from the record used in minuting proceedings. It appears rational that the learned trial CJ. had written the judgment and signed same with the view of delivering it on 25/5/95. Somehow he changed his mind and brought it forward to 21/7/95, which fact he duly communicated to the parties.

From the above, I am convinced beyond doubt that, there was no breach of fair hearing. There is no law or authority to my knowledge which makes it mandatory for the court to obtain counsel’s approval before shifting the date of proposed delivery of judgment. What is necessary however, is that where the date fixed for the delivery of judgment is not feasible parties should be notified of the fresh date on which the judgment will be read. This was duly observed in this case most instructively that the appellant was properly represented by the very gentleman who, throughout the trial had been representing the appellant; coupled with the presence of its counsel. I therefore, find no merit in this complaint.

I should also consider whether the date of the delivery of the judgment was altered suo motu by the court from 25/7/95 to 21/7/95, as submitted by learned Counsel for the respondent. Without doubt, Mr. Okafor SAN for the respondent raised this issue on 19/9/95, during oral argument on the application for stay of execution. He submitted that the judgment was delivered on 21/7/95. See page 80 of the record. Mr. Morolayo for the defendant, agreed that the judgment was in fact delivered on 21/7/95. See page 83 of the record.

The hearing notices incorporated immediately after page 10 of the supplementary record and the proceedings of the court below at page 12 of the said supplementary record also showed that judgment was in fact delivered on 21/7/95. It was on that basis that the learned trial C.J. said as follows as can be seen at page 93 of the record:

“From the record of proceedings, the date when the judgment complained of was delivered is 21/7/95; the

appearance of 25/7/95, when the judgment was originally billed to be delivered is a mere typographical error and should be corrected at once.”

I couldn’t agree more given the facts highlighted above. Undoubtedly, the correction was not effected suo motu as learned counsel will want us believe. The issue about the date of delivery unwittingly became an issue in the application. Learned Counsel on both sides agreed that judgment was in fact delivered on 21/7/95 and not 25/7/95 as erroneously reflected in the record. The learned trial C.J. was under a duty, given the circumstances of the facts in the suit to correct the date. The judgment apparently, is the same judgment being appealed against and no party doubted that it was delivered on 21/7/95. Clutching to a date erroneously typed out in the record is quite unfortunate in my view, and is a clear attempt at engaging in sharp practice.

For the above reasons, I find the invective of learned Counsel on the questions he raised at page 3 of the appellant’s brief, quite detestable and unfortunate in the least. A brief of argument is not an avenue for lashing Judges for the sake of it especially when the whole grouse is built around speculations. Counsel should ensure moderation in their approach to brief writing and guide the court on matters in deference.

Issue No.1 is resolved against the appellant.

Issue No.2 addresses the question whether the appellant’s application for stay of execution was right/properly refused. The argument of learned Counsel for the appellant is pitch forked on the premise that the issue of the writ of fifa was made on 26/7/95. He argued on the basis that judgment was delivered on 21/7/95. If therefore, the writ was issued on 26/7/95 and execution was duly levied on same day, that execution was clearly carried out five days after judgment was delivered. At paragraphs 9 and 10 of the supporting affidavit to the application seeking for stay of execution, the deponent thereto said the writ was issued and executed on 26/7/95. If the appellant itself agreed that execution was carried out five days after the delivery of the judgment, I would not see any axe to grind about the matter. The law enjoined applicants to take such process only after the expiration of three days from the day on which judgment is given. The whole of learned Counsel’s submissions are neutralised by his very acceptance of the true position of things that the writ of execution was in fact issued five days after the judgment was given. I am of the view that the application for the issue of the writ of fifa and its consequent issuance are valid and properly made. Issue No.2 just like the 1st issue, must be and is hereby resolved against the appellant. In the event the appeal dated 16/11/95 complaining against the ruling of Uloko C. J. Plateau State delivered on 20/9/95 is without merit. Accordingly it is hereby dismissed.

Attention must now be focused on the second appeal. In point of lodgment, it is the first appeal. It is dated 11/8/95 and the notice of appeal showed that the date the judgment was read is 25/7/95.

The facts giving rise to the appeal are same with the facts which informed the first appeal discussed above. They are quite interrelated and interdependent and whatever my findings appear to be obviously and quite clearly are informed by the facts which I summarised earlier on in this judgment. As I pointed out, learned Senior Counsel for the respondent had filed a notice of preliminary objection containing three grounds dated and filed on 25/5/2000. The notice of preliminary objection was reproduced earlier on in this judgment. The first ground of objection related to the date the judgment appealed against was delivered. In both his brief of argument and during oral argument, learned senior counsel maintained that the notice and grounds of appeal are incompetent since they attack a judgment delivered on 25/7/95 and not that delivered by the learned trial C.J. on 21/7/95. The argument of learned Senior Counsel is same with the view I arrived at in my consideration of the appeal I have just disposed of on the ruling of the learned trial C.J. dated 20/9/95. He submitted that the judgment in issue was in fact delivered on 21/7/95.

Continuing, learned Senior Counsel re-emphasised the mandatory nature of reflecting in the notice of appeal the judgment being appealed against with the exact date of delivery. He reasoned that if the judgment being appealed against is not the judgment shown in the notice in the sense that the dates are different, the whole appeal is rendered a nullity. That it is as if no appeal has been lodged. He cited and relied on a number of authorities.

On his part learned Counsel for the appellant submitted that the judgment of the court below is clearly dated 25/7/95. He said to that extent, he is correct in indicating in the body of the notice the date he saw reflected in the record.

The issue appears simplistic. But in some very clear situations, they may present difficulties for the appellant. This is because the notice of appeal must of necessity contain the date when a decision appealed against was delivered. If no such decision was read on the alleged date, the whole notice is rendered incompetent. Appellant’s argument is that the date reflected at page 52 of the judgment is 25/7/95. As well he contended that the date the judgment was delivered as shown at page 67 of the record is 25/7/95. But for the dispute which arose and which, I resolved in the first appeal, the date of delivery is in point of the record of appeal 25/7/95.

On the part of learned Senior Counsel, the date of delivery of the judgment is 21/7/95. I have no reason to hold otherwise since all evidence documentary and otherwise show that in point of fact judgment was delivered on 21/7/95.

The whole problem was occasioned by the producer of the record, who in the process of typing out the proceedings took no time to see the effect of the ruling contained at page 93 of the record. Much worse the Registrar of the court below also failed to amend the date as ordered by the court. Considering each of the contentions separately, both parties are correct. The appellant appeared to draw his notice of appeal to reflect the date erroneously indicated in the record. It simply walked on the side of caution – if not compellingly to insert the date reflected in the record. The respondent on its side and rightly too in my view, objected on the ground that the judgment in fact was delivered on 21/7/95. Whatever it is, the dispute was created by the record of appeal itself and non of the parties can be blamed for it. What is obvious however, is that parties are agreed that the judgment on appeal is the very judgment they are hotly contesting upon. There is thus no conceivable dispute about the judgment being complained about apart from the dating of it caused by the producer of the record and the Registrar of the court. On the above score I find the first ground of the objection simply technical.

What happened during the production of the record of proceedings is basically an irregularity which I will not, by any shred of imagination render the notice and grounds of appeal void.

Accordingly I over rule it.

The second ground of the objection is to the effect that ground of appeal No.1 in the notice dated 11/8/95 raised the issue of “fair hearing and deposition in earlier affidavit.” Learned Senior Counsel is of the firm view that the issue was never raised at the court below and is to that extent incompetent since no leave was sought and granted to argue it either at the court below or this court. In oral argument learned Senior Counsel simply adopted the arguments he made in his amended brief of argument on that point apart from oral argument he proffered essentially touching on the dating of the judgment. In the circumstance, I meticulously went through the argument he articulated at pages 6 to 8 of his brief over and over again. But the more I read the argument on the preliminary objection, the more I find that no argument was proffered on the issue of “fair hearing and deposition in earlier affidavit.” Simply put, learned Senior Counsel raised an objection and relied on the argument he advanced in his brief when in point of fact he did not argue that aspect of the preliminary objection in his said brief. The effect of the above is that the preliminary objection is deemed abandoned.

On my part, the objection is per force abandoned and I therefore discountenance it.

Having discountenanced ground two of the grounds of objection, ground three obviously has to be discountenanced too. This is because that ground relates to ground No.1 in the appellant’s notice of appeal and which alleges that issue No.3 formulated from ground 1 of the grounds of appeal is rendered incompetent because no leave was applied for and granted to raise it. But because ground 2 of the grounds of objection was not argued and was accordingly found to have been abandoned, ground 3 of the grounds of objection find no base to stand on. It is equally abandoned. I discountenance it as well, as there is no need flogging a dead horse.

Having disposed of the preliminary objection I shall now proceed and consider the appeal based on the issues formulated.

Issue 1 addresses the question “whether the judgment of the court below based on the affidavit of the respondent and the interlocutory proceedings in the course of hearing on the motion to release the vehicle from detention was justified approach in law.”

From appellant’s brief of argument learned Counsel summarised his argument as follows:-

“(1) This suit was filed on 15/2/94 and not 15/12/94 as erroneously stated by the learned trial Judge.

(2) The motion referred to by the learned trial Judge as coming up for hearing on 21/7/94 is not the same as the one conspicuously referred to, and said to have been filed by the plaintiff on the same date as the day the writ was filed.” (See last paragraph of page 3 to page 4 of the appellant’s brief.)

Learned Counsel submitted that reference by the learned trial C.J. to the date the motion was purportedly filed as well as paragraphs in the supporting affidavit are wrong. That indeed the motion referred to was never ever moved. He pointed out that the motion marked PLD/J87M4/94 had three exhibits and a supporting affidavit which was complemented by further supporting affidavit. He submitted that neither the supporting affidavit nor the further supporting affidavit contained the averment quoted by the learned trial C.J. as the content thereof. He therefore, submitted that the learned trial C.J. had made reference to a non existing motion.

Further in argument, learned Counsel for the appellant submitted that the motion alluded to by the learned trial C.J. was not argued at all and that in fact the value of the tallow in issue in the motion was amicably resolved thus making the resolution of the motion a nonissue. He argued extensively on section 34 of the Evidence Act, 1990, which in my view is not absolutely called for in this appeal given the issue under discussion. Continuing, learned Counsel, with necessary reference to the evidence on record recounted what transpired at the court below and submitted that the order made by the court below on 11/8/94 and 30/11/94 effectively rendered the motion for the release of the vehicle in issue spent. That not having been moved, the facts in the supporting affidavit to the motion cannot be a point of reference in the determination of an issue joined in the main suit and should not therefore have been used by the court as it did in arriving at its finding.

In response, learned Senior Counsel for the respondent in his brief reviewed quite extensively the evidence led by parties before the court below. He said contrary to the appellant’s contention the motion dated and filed on 15/2/94 does exist. He referred to the supplementary record. He pointed out that the finding of the court below was informed by the totality of the evidence on record and not just the motion in issue. He submitted that the court has power to look at the documents in its file which are not tendered as exhibit. He relied for so saying on Agbaisi v. Ebikorofe (1997) 4 NWLR (Pt.502) 630 at 648. He urged that the issue be resolved against the appellant.

The dispute which gave rise to the issue formulated was as a result of the finding of the court below contained at pages 63 to 65 of the record. The learned trial C.J. posed the question which he answered in the affirmative. I should reproduce the proceedings hereunder: –

“Did the defendant really detain the plaintiff’s vehicle?

To answer this question, it is very necessary to look at the whole case.

The plaintiff filed this suit against the defendant on 15/12/94; on that same day, it filed a motion on notice

praying the court for a declaration that:-

“… the seizure and unlawful detention of the plaintiff/applicant’s trailer with registration number BO 2913 P by the defendant/respondent is illegal, unconstitutional, null and void.

The application was supported by an affidavit. The plaintiff deposed in paragraph 7 of the affidavit that-

“… the plaintiff/applicant has made demand from the defendant/respondent for the release from their custody of the said trailer tanker, but the said defendant/respondent has refused, neglected or failed to release the said trailer tanker as demanded. Shown to me and marked exhibit “J.4″ is a copy of the plaintiff/applicant’s solicitors letter of demand dated 26th January, 1994.” Mr. Maduabuchi represented the plaintiff/applicant, while Mr. Ibrahim Hamman represented the defendant/ respondent. Mr. Hamman did not file any counter affidavit. When the motion came up for hearing on 21/7/94, Mr. Hamman said, among other things- “But however, I seem to agree with the suggestion of my learned friend, that the vehicle be released but after payment of the real value of the tallow into court”.

The court adjourned the matter to 29/7/94 to enable the parties resolve the issue relating to the value of the tallow. By 30/11/94 the value of the tallow had been ascertained and Mr. Hamman suggested –

”The vehicle could be released on bond which should remain valid until the N226,772.01 is paid to the defendant”.

Persuaded by this suggestion, I ordered that the vehicle be released to the plaintiff on a bond to pay –

“… the sum of N226,772.01 to the defendant, when the plaintiff receives the documents establishing the cost of the spilled tallow”.

From this brief account, it is crystal clear that the defendant wanted the plaintiff to pay the sum of N22,772.01 (sic) being the cost of the spilled tallow before its trailer tanker could be released to it. This explains why the defendant did not deny the plaintiff’s averment in paragraph 7 of the affidavit in support of the motion to release the vehicle. The release of the tanker on 30/11/94 was not absolutely free: was conditional. The plaintiff entered into a bond to pay the defendant the sum of N226,772.01, when the authentic of the spilled tallow would have been established.

Do we then need some ghosts to come and tell us that the defendant detained the plaintiff’s tanker to secure the cost of the spilled tallow? Certainly not.’ There, is one aspect of the defendant’s behavior that baffles me. DW1 said that the tallow was insured against the contingency which actually took place, in this case. The defendant was pursuing the insurance claim and at the same time detaining the plaintiff’s tanker to milk out the sum of N226,772.01 from the plaintiff. This is an unveled sheer act of greed.”

Appellant’s contention is that in arriving at the above finding, the learned trial C.J. relied on motion earlier on filed by the respondent which was eventually abandoned or indeed rendered spent by subsequent events. Mr. Okafor S.A.N. contends that the learned trial C.J. had the power to use document in his file which was not tendered as an exhibit.

There is a point raised by the appellant which in my view is not necessarily material and will not affect the final determination of this appeal. It is very strictly incorrect of the appellant to say that no motion was filed on the same date the appeal was lodged. Reference by the trial court to the date the appeal was filed as 15/12/94 is an avoidable slip which occasions no miscarriage of justice. What is clear on record is that the appeal was lodged on 15/2/94 and was simultaneously presented with a motion on notice bearing same date. See page 1 of the supplementary record. Very easily a non-discerning mind could insert a wrong month since 15/2/94 in figures could unintentionally be reflected as 15/12/94. But for all that are contained in the record that slip appears unintentional. Clearly no miscarriage of justice was occasioned by the slip. Whatever it is, there is no derogation from the fact that the respondent did file the motion dated 15/2/94 and as contained in the supplementary record.

The motion filed on 15/2/94 “seeking for an order declaring the seizure and unlawful detention of the plaintiff/appellant’s tanker,” was accompanied by a 13-paragraph supporting affidavit and four exhibits. Paragraph 7 of the supporting affidavit reads thus:

“That the plaintiff/applicant has made a demand from the defendant/respondent for the release from their

custody of the said trailer tanker, but the said defendant/respondent has refused, neglected or failed to release the said trailer tanker as demanded. Shown to me and marked exhibit “4” is a copy of the plaintiff/applicant’s solicitors letter of demand dated 26th January, 1994.”

It should be noted that the motion in issue bore no motion number. But in addressing the question raised by the court itself learned trial C.J. quoted a purported paragraph 7 in the supporting affidavit. Paragraph 7 in the supporting affidavit to the motion does not state those facts.

Indeed motion no. PLD/J87M4/94 referred to by the learned C.J. was filed on 24/5/94 and has in paragraph 7 of its supporting affidavit facts diametrically at variance with the facts reproduced by the learned trial Chief Judge. The learned trial C.J. obviously had a mix-up while writing his judgment. The inescapable fact however, is that the motion whose supporting affidavit he quoted and relied upon in arriving at his decision was never moved. It must be deemed abandoned. On the other hand, the motion which he said was argued in open court was dated 24/5/94. On 30/11/94 when it came up, learned Counsel for the respondent pointed out that the court’s order of 29/7/94 directing the appellant to bring the trailer in question at the premises of the High Court was not complied with.

When that order was eventually complied with and on 30/11/94, the learned trial C.J. ordered for the release of the vehicle to the respondent. This was done. (See pages 30 to 31 of the record). The fate of the motion itself was put at abeyance. It was neither argued nor struck out. It remained suspended since what was sought for had been achieved by the final order made. In point of substance therefore, neither facts disclosed in the motion of 15/2/94 nor those in the motion dated 24/5/94 could have been utilised outside and independent of facts elicited by witnesses in arriving at the finding as found by the court below.

It is remarkable to note that Mr. A. N. Amaku who swore to the affidavit in support of the motion dated 15/2/94 gave elaborate evidence about the detention of the respondent’s trailer vehicle by the appellant during the hearing of the substantive suit. So also did the respondent’s driver. One expects that in finding whether the appellant in fact detained respondent’s vehicle the evidence on record would be relied upon rather than a resort to deposition of the person who incidentally gave evidence and who earlier on swore to affidavit in support of a motion that was eventually abandoned.

Beside heavy reliance and conclusive use the court below made of paragraph 7 of the supporting affidavit to the motion which was by and large abandoned, the court relied on the ipse dixit of learned counsel for the respondent made on 21/7/94 about the dispute regarding the cost of the spilled tallow and the possibility of releasing the trailer upon payment of the cost of spilled tallow. In point of fact however, no such motion was argued on 21/7/94. It is the said ipse dixit of counsel that was relied upon to support facts to justify upholding averment in a purported affidavit in respect of a motion though not moved has the paragraph of the supporting affidavit clearly at variance with what was alleged to be its contents. Besides each party called witnesses and tendered exhibits. The learned trial C.J. made no reference to the evidence led in resolving the issue whether the appellant infact detained respondent’s trailer.

The whole basis of the finding was built around clear misconception on the state of matters in the suit. The motion that was said to have been moved was not moved at all. The date on which it was said to have been moved i.e. 21/7/94 is a wrong assertion. Paragraph 7 of the supporting affidavit relied upon to found finding on detinue clearly ran counter to the tenor of the said paragraph 7 and no such facts can be seen in the supporting affidavit either. The motion which contains the exact facts deposed to in paragraph 7 of its supporting affidavit has no motion number and was never for a moment moved or referred to. Yet the whole of the lower court’s reasoning is founded on these misconceptions. I, in the circumstances find clear perversity in the court’s evaluation of evidence and its consequent finding.

I agree with the learned Senior Advocate that on the authority of Agbasi v. Ebikorofe supra, the court has the power to look at the document in its file which are not tendered as exhibits. But there is no running from the fact the court has no power to take and rely on facts disclosed in supporting affidavit to a motion which is abandoned. The ultimate aim of permitting a trial Judge to look at document in his file is not meant to give him leeway to ignore evidence led by parties while choosing to take facts in previous application in order to justify findings that the court deems appropriate. Far from it, document in the file can be utilized to support established facts. Independent of the evidence in the suit, facts especially in interlocutory matters that were eventually abandoned cannot justifiably be used to arrive at findings. The case Agbasi v. Ebikorofe relied upon by learned counsel therefore offers no assistance to him.

The learned SAN in his brief went through the evidence on record and submitted that outside the reason given by the learned trial Judge, supporting evidence has been led to justify the finding arrived at. I should think that learned SAN was simply fencing. The facts he said abound in the record pertain to the belief or non belief of evidence led by witnesses. I should be quick to point out that evaluation of evidence and ascription of probative value to the evidence of each witness is a matter primarily for the court of trial.

See Fatoyinbo v. Williams (1956) SCNLR 274; Woluchem v. Gudi (1981) 5 Supreme Court 291; Odiba v. Muemue (1999) 10 NWLR (Pt.622) 174 among a host of other cases.

Whether the trailer vehicle in issue was detained by the appellant as the respondent contended or was simply parked in the premises of the appellant by the latter’s permission as it contended, were matters in respect of which contradictory evidence was led. Therefore, the credibility of the witnesses was put to issue. The resolution of the dispute must necessarily involve the observations of the trial court of the demeanour in court and the impressions it has about the witnesses.

In the event the summary of reasons argued by the learned SAN in his brief on why the finding of the learned trial C.J. should be upheld outside the reason he gave in his judgment is legally unattainable. I am fortified in my view by the fact that no notice of intention to contend that judgment should be affirmed on grounds other than those relied on by the court below was filed. It is not a matter of wrong reasons given by the court to justify what ultimately is a right decision as the learned SAN seem to believe. The crux of the matter is that apart from the wrong perception by the trial court of the proceedings before it, evidence which requires ascription of probative value had been led by parties which did not attract any finding one way or the other. Having regard to my discussions above issue No. I must be answered in the negative.

I shall now consider the 3rd issue for determination. This is because the ultimate resolution of the issue will have great bearing on the 2nd issue. The issue poses the question whether the proceedings of the court below did not amount to a nullity. Arguing the issue, learned Counsel recounted how on 23/1/95, Mr. Hamman who was counsel to the appellant applied for an adjournment to enable his client brief another lawyer, because he was no longer interested in defending the appellant. As a result, the learned trial C.J. adjourned the suit to 4/4/95. He said on 4/4/95, the court did not sit wherein the matter came up on 6/4/95. Learned Counsel went through the evidence on record and submitted that on a number of dates when the suit came up including the day P.W.1 was taken the appellant was not served with hearing notice whether was it hinted by anybody that the suit was to be heard.

Learned Counsel drew attention to page 35 of the record where the court below said: “This suit is hereby adjourned to 13/4/95 for continuation of defence.” Learned Counsel said the next date the matter came up, instead of continuing with the defence the court reopened respondent’s case and took P.W.2. He said the procedure adopted by the court was improper since no application was made by the respondent to reopen its case. I think learned Counsel only picks hole over matters that should not be seriously queried. We should not lose sight of the sequence of events at the court below.

On 6/4/95 when the suit came up for heating Mr. Maduabuchi for the respondent/plaintiff said:-

“We are prepared to proceed. My client came with his witnesses from Lagos.

Court: We will take one witness today.” (See page 33 of the record).

Now, inspite of the fact that plaintiff came with his witnesses from Lagos and desired to take their evidence, the court was not disposed to accommodating them. It therefore, ordered that only one witness was to be taken. True to its credit, the court took only P.W.1. However, after taking P.W.I and in adjourning the suit quite unintentionally the learned trial C.J. recorded thus:-

“Court

This suit is hereby adjourned to 13/4/95 for continuation of defence.” (See page 35 of the record.)

What is clear from the proceedings is that the plaintiff at that stage did not close its case. Indeed, of the witnesses it had the court only took one. Thus, the suit could not have been adjourned for continuation of defence. In any event, the defence was yet to open its case in which case adjourning the suit for continuation of defence did not arise. It was even not rational and learned Counsel knows it too well. Undoubtedly learned Counsel appears happy to point at every slip in the judgment of the court below even when the slip will not advance his case in a jot. Obviously learned Counsel knew too well that as at 6/4/95 when the suit was adjourned the appellant had not opened its case. Neither did the respondent close its case. It was therefore, absolutely inconceivable for the court to adjourn the suit for defence and quite bizzare for learned Counsel to make an issue out of what he himself knows was an unintentional slip. The said slip in my view occasions no miscarriage of justice and must be understood to mean that on the next date of adjournment the plaintiff was to continue with its case as the record has shown. Argument of learned Counsel on that score therefore is uncalled for. In continuation learned Counsel concluded his argument by praying the court to declare the proceedings null and void having regard to the failure of the court to serve the appellant with hearing notice on the dates the suit came up and thus, conducting trial behind its back.

Mr. Okafor SAN in response recalled the evidence led by PW.1 and P.W.2. He as well recounted D.W.1’s evidence. Having regard to the summary of the evidence he made, learned SAN submitted that the court below was quite right in arriving at its decision since the whole trial was fairly conducted.

This issue will easily be resolved by reference to the events recorded in the record of appeal. On 21/7/94, when the suit came up, Mr. Hamman of counsel represented the appellant and two motions were duly moved one each by the contesting parties. The suit was accordingly adjourned to 31/11/94. (See pages 27 to 30 of the record). On the said 30/11/94, Mr. Hamman of counsel appeared and after taking proceedings on that day, he appealed to the court as can be seen at page 32 of the record thus:-

“Mr. Hamman:

I am not in a position to go on with this case today. I request for an adjournment to enable the defendant decide on a new counsel”

The above is a feeble attempt at seeking leave to disengage from further representing the defendant. The court accordingly ruled as follows:-

“Courts

I have observed that the defendant has never shown up in court. If there is any development between the inner working of the Chambers handling its case, the defendant would not be in a position to appreciate it.

I will grant the adjournment being sought but the defendant will bear the costs of the adjournment which is put at N5.000.00. This suit is hereby adjourned to 4/4/95 for hearing.” (See last paragraph of page 32 too 33.)

As fate would have it, the court apparently did not sit on the adjournment date of 4/4/95. Instead the next date the court sat over the matter was 6/4/95. At page 33 of the record. the Clerk of court gave the court some information respecting Hamman of Counsel. Incidentally, Mr. Hamman was not in court and the last date he knew the matter was to come up was 4/4/95. Said the Clerk of Court:

‘This suit came up on 23/1/95 Mr. Ibrahim Hamman represented the defendant. It was adjourned to 4/4/95 and 5/4/95 but the court did not sit on those days. Parties were in court and I informed Ibrahim Hamman that the case was adjourned to today and 13/4/95. He said that he is no longer coming for the case because the defendant did not brief him.”

Immediately after the above information, Mr. Maduabuchi for the plaintiff stood up and prayed the court to take his witnesses. The court obliged him and took one witness. I shall pause here and make pertinent observation. The last date the appellant knew the suit was to have come up was 4/4/95. The court did not sit on that day. As there is practically nothing on record to show that the court did order that the suit would next come up on 6/4/95 there was the mandatory need for the parties to be put on notice. This is more so that Mr. Hamman had indicated to the court on 23/1/95, that he was no longer representing the appellant whose instructions he did not possess. More particularly, the information the Clerk of court passed, unmistakably showed that Mr. Hamman told the clerk that he was not handling appellant’s brief. The learned trial C.J. was under a duty given the above situation to bear in mind the adjournment he granted on 23/1/95 because Mr. Hamman wanted to disengage from further representing the appellant and the instructive comments the court made on Mr. Hamman’s application. It is therefore, clear as crystal that neither the appellant nor its counsel officially knew that the suit was to come up on 6/4/95. Appellant needed to be invited by service on it of a hearing notice intimating it about the new hearing date.

It must be emphasized that hearing notice in our adversary system of justice is very fundamental. Where service of hearing notice is called for any proceedings conducted without due issuance of it is rendered null and void. It is a fundamental vice which easily vitiates proceedings. Where proceedings are conducted when no hearing notice is served on a party who should have been necessarily served the whole proceedings are rendered void no matter how well conducted they were. See Obimonure v. Erinosho (1966) 1 All NLR 250; Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 Supreme Court 6 at 26 -27; WEMA Bank v. Odulaja (2000) 7 NWLR (Pt.663) 1.

Knowing as the learned trial C.J. does that the last date he gave for the suit to be heard was not to be because he did not sit on that day, he was under a duty to order for fresh hearing notice to be served on parties. This the court failed to do. The proceedings conducted on 6/4/95 wherein P.W.1 was taken therefore, is rendered null and void. It breached the principle of fair hearing since the proceedings were conducted not to the knowledge of the appellant.

The judgment of the court below contained consideration of the evidence of P.W.1 – a piece of evidence led in breach of the principle of fair healing – and other evidence on record. It is not possible to sift P.W.1’s evidence from the rest of the evidence and that in any case evidence led in any given suit should be considered as a whole. The vice that afflicted the proceedings of the court of 6/4/95 necessarily renders the whole of the proceedings of the court below void. It is irredeemably vitiated. In the circumstance, I hold that the whole trial is rendered null and void. The 3rd issue is accordingly answered in the favour of the appellant.

Having resolved that the proceedings before the trial court were rendered void issue 3 which poses the question whether the award by the court of the sum of N3,240,000.00 had basis becomes academic. But for what it is worth, I shall consider the issue briefly though. Learned Counsel for the appellant reproduced paragraph 17(3) of the respondent’s amended statement of claim. He submitted that the evidence P.W.2 led which is contained at page 38 was materially at variance with respondent’s averment. Learned Counsel did some arithmetical calculation to prove that at best the respondent would have been awarded N3,105,000.00 if the court had accepted its evidence. He urged this court to interfere with the award.

While conceding that the amended statement of claim prayed the court to award the respondent the sum of N1,350,000.00 learned SAN pointed out that paragraph 17(3) of the amended statement of claim was so amended on oral application on the hearing date of 21/6/95. He referred to page 51 of the record.

On the issue regarding the award of damages, learned SAN submitted that the learned trial C.J.’s finding that it was not seriously contested was not challenged by the appellant. He urged that the award be sustained by this court since the trial court proceeded on right principle of law in making the award. He urged that the whole appeal be dismissed.

I should point out that from the available record there is only a statement of claim of 17 paragraphs. Apart from the oral application to amend the statement of claim made and granted on 21/6/95 no further amendment was affected.

Paragraph 17 of the statement of claim sought the following reliefs as can be found at page 8 of the main record. Viz:

“WHEREFORE plaintiff claims from the defendant:

(1) A declaration that the continued detention of its fiat trailer is unlawful;

(2) An order directing the defendant to release same to the plaintiff immediately;

(3) N1,350,000.00 as loss of earnings from 15th day of December, 1993 to 16th May, 1994, and thereafter at

N270,000.00 per month until the entire sum is paid.”

On 21/6/95 however Miss Jatau of counsel for the respondent moved orally to amend appellant’s statement of claim. In her words:

“When we filed our statement of claim the vehicle had not been released. I filed our statement of claim on 28/7/94. I seek to abandon the 1st and 2nd reliefs – they are no longer relevant. The relief(s) which read until judgment should and should be substituted with until 30/11/94 when the vehicle was released.”

The amendment sought for and granted by the court below in effect resulted in the withdrawal and subsequent striking out of reliefs 1 and 2 in paragraph 17. At paragraph 17(3) of the statement of claim however, the relief on loss of earning stood at N1,350,000.00. The amendment which affected the said paragraph, only incorporated the date of 30/11/94, as the date the trailer vehicle was released. Quite rationally, the respondent expected the trial court to do the necessary arithmetical calculations and arrive at a figure which is deemed just to award. Without doubt, the sum of N3,240,000.00 awarded by the court below was not a claim specifically prayed for in the statement of claim as amended. If the court below has made its calculation in an attempt to find the real claim that could be said to have been prayed for under paragraph 17(3) of the statement of claim as amended then something beyond what the court was invited to adjudicate upon took place. That justified the assertion of the appellant that the learned trial C.J. made calculations on what should be awarded to the respondent in the inner recesses of his chambers:an award that is not contained in the statement of claim. The statement of claim as amended has not claimed a specific figure that was awarded by the court. Also no reasons were given why that award should stand as it is.

The practice is clear that parties are bound by their pleadings. Emegokwe v. Okadigbo (1973) 4 Supreme Court 113; Ogbechie v. Onochie (1988) 1 NWLR (Pt.70) 370; Itauma v. Akpe-Ime (2000) 12 NWLR (Pt.680) 156. Pleadings of parties define their respective cases and bring to the fore matters in controversy. A statement of claim must disclose the reliefs sought. A statement of claim which consigns the responsibility of finding out what is truly claimed in a relief to the court to calculate is bad pleading. It is clearly an attempt at bringing the court into the arena of the dispute.

I seem to agree with learned Counsel for the appellant that even if the court had power to rationalise an otherwise obscure relief or precisely a relief in money’s worth which is not specified the award made by the court below, in my view was wrongly made. The arithmetical calculation as forcefully argued by learned Counsel would have been the sum of N3.105,000.00 and not N3.240,000.00.

The stand of the respondent is that the sum awarded by the court took cognisance of damages occasioned by the detention of the trailer vehicle. It cannot be true. The learned trial C.J. did not say so in his judgment. Just like the statement of claim did not claim any damages apart from the special damages claimed, the learned trial Judge made no mention about any damages outside the special damages he found proved. Therefore, the award he made of the sum of N3,240,000.00 was in respect of the specific claim of the respondent. It stood outstanding being wrong calculation just as it was not a relief specifically prayed for. I am of the clear view that, the award was without basis. In the event I find the award of the sum of N3,240,000.00 to be without basis. Issue No.2 is hereby answered in the negative.

On the whole, this appeal succeeds and is accordingly allowed.

The proceedings of the learned C.J. of Plateau State in Suit No. PLD/J87/94 are hereby declared void. Its effect however, is to render the success of the respondent in the interlocutory appeal of no moment.

I shall make no order for costs.

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Other Citations: (2002)LCN/1075(CA)