Nigerian-american Bank Ltd V. Abayomi Samuel & Anor. (2006)
LawGlobal-Hub Lead Judgment Report
PAUL ADAMU GALINJE, J.C.A.
The Appellant herein is a company incorporated in Nigeria and licensed to carry on the business of merchant banking with its registered office at 1/12 Macarthy Street, Lagos. The first Respondent is a former employee of the Appellant. During the course of that employment, the 1st Respondent was sponsored by the Appellant for a course upon a condition for which the 1st Defendant executed a service bond dated 7th of April 2000 in which he undertook to serve the Appellant after the course. However on the 9th of February 2001 the 1st Respondent withdrew his service with the Appellant and took up an appointment with the 2nd Respondent also a Company incorporated in Nigeria and carries on the business of banking.
It is against this fact that the Appellant sued the Respondents jointly and severally at the Lagos High Court wherein it claimed as follows:-
(i) (a) The sum of N277,510.00 being damages for breach of the contract between the Plaintiff and the 1st Defendant which breach was induced and procured by the 2nd Defendant together which (SIC) interest thereon at 21% per annum from 24/2/2001 until judgment and final liquidation.
(b) The cost of this action.
(ii) Against the 1st Defendant the sum of N20,000.00 being Solicitors fees incurred (sic) the Plaintiff for the enforcement of the 1st Defendant’s obligations under the service bond aforesaid.”
The Respondents filed a joint statement of defence at the lower Court. While the Suit was pending before the lower Court, the 2nd Respondent filed a motion dated 12th December 2001 wherewith he sought for the following reliefs from the lower Court, to wit:-
“1. An order that the point of law raised in paragraph 10 of the statement of Defence dated 19th of July 2001 to wit.
(a) Whether or not the Plaintiff/Respondent’s statement of claim and Reply to the Defendants statement of Defence reveals any reasonable cause of action against the 2nd Defendant.
(b) If the answer to (a) above is in the negative, whether the 2nd Defendant is properly before this Honourable Court for the jurisdiction of the Court to be competently invoked.
(c) Whether the Honourable Court has jurisdiction to entertain the Plaintiffs suit against the 2nd Defendant as presently constituted and whether the said suit does not amount to an abuse of process in relation to the 2nd Defendant.”
The application was heard and in a considered ruling dated 24th June 2003 by Oyekan – Abdullahi J. the reliefs sought by the 2nd Respondent were granted in the following words:-
“The Plaintiff from the averment on its statement of claim have made out a cause of action against the 1st Defendant to which this Court has Jurisdiction to adjudicate on, as the argument of the Plaintiff/Respondent that the act of the 2nd Defendant is in tort would have been substantiated if the necessary documents such as the bond had been presented before the Court, this omission on the Plaintiff/Respondent part is fatal to its ease and weakens its claim. In conclusion the 2nd Defendant (sic) application succeeds and the name of the 2nd Defendant’s (sic) be and is hereby struck out.”
It is against this ruling that the Appellant who is the Plaintiff at the lower Court has appealed to this Court. It’s appeal is predicated on three grounds of appeal dated 27th of June 2003. These grounds of appeal are hereunder reproduced without their particulars as follows:-
“1. The Learned trial Judge erred in law in striking out the name of the 2nd Respondent from the Suit or striking out the Suit as regards the 2nd Respondent when no such relief was claimed in the application before her.
- The learned trial Judge erred in law in holding that by failing to exhibit the service bond in opposition to the 2nd Respondent’s motion dated 12/12/01 the Appellant had failed to disclose that it had a reasonable cause of action against the 2nd Respondent.
- The learned trial Judge erred in law in holding that the Appellant did not disclose a reasonable cause of action against the 2nd Respondent because of lack of privity of contract between the parties.”
In reading through the notice of appeal, I find that the appeal is attacking a non-existing ruling dated 20th of June 2003. There is no ruling in the record of appeal that is dated 20th of June 2003. The only ruling that exists in the record is the one of 24th June 2003. I consider this an error. I accordingly ignore the error and treat the notice of appeal as attacking the ruling of 24th of June 2003 especially when the Appellant referred to 24th June 2003 as the date of the ruling it is challenging at page 1 paragraph 1.4 of its brief of argument.
In compliance with the practice of this Court, the Appellant filed its brief of argument and a reply brief dated 9th December 2003 and 9th of March 2004 respectively, while the 2nd Respondent filed its brief of argument dated 29th of January 2004.
From the three grounds of appeal, the Appellant distilled two issues for the determination of this appeal. These issues read as follows:
“1. Whether evidence of any nature whatsoever is required or allowed for the purpose of determining whether a Plaintiffs claim discloses a reasonable cause of action. (This issue is covered by grounds of appeal Nos. 1 & 2.)
- Whether in order to maintain a cause of action in tort a Plaintiff must establish the existence or a contract between itself and the alleged tort-feasor. This issue is covered by ground of appeal No. 1”
The 2nd Respondent on its part also formulated two issues thus:-
“1. Whether on examination of both the writ of summons and the statement of claim the proper cause of action revealed is one of contract and not tort.
- Whether the learned trial judge erred in law when she found that the statement of claim of the Appellant did not reveal a reasonable cause of action against the 2nd Respondent.”
The Appellant’s first issue is similar to the 2nd issue formulated by the Respondent. I will therefore marry them and treat them together. When the appeal came up for hearing on the 13th April 2006, Miss. Ayokunle Rotimi, learned Counsel for the Appellant identified the Appellant’s brief, reply brief adopted same and urged the Court to allow the appeal.
Mr. Chidi Anya, Learned Counsel for the Respondent also identified the Respondent’s brief adopted same and urged the Court to dismiss the appeal based on the argument canvassed in the brief.
The Appellant’s brief of argument was prepared by J. O. K. Balogun, Learned Counsel in the Chambers of St. Matthew, Daniel, and Balogun & Associates. Learned Counsel submitted in argument that it is now trite law that in considering an application to strike out a suit or a party from a Suit on the basis that no reasonable cause of action is sworn, the only documents the Court is allowed to consider are the statement of claim and the Reply (if any). According to the Learned Counsel the statement of Defence and affidavit evidence in support of application cannot be considered. In aid Learned Counsel cited the authority in Ibrahim v Osuin (1988) 19 NSCC (Pt.1) 1184. Dada & Ors v. Ogunsanya & Drs (1992) 3 NWLR (Pt.232)754 at 765 – 768. On the tort or unlawful interference Learned Counsel for the Appellant submitted that paragraphs 5 and 9(i) (a) of the statement of claim and paragraph 5 of the Reply contain sufficient particulars of the tort of unlawful interference with contract or inducing or procuring a breach of contract. In a further argument, Learned Counsel submitted them the learned trial judge was wrong when he held that the non production of the bond which was executed by the 1st Respondent at the instance of the Plaintiff/Respondent was fatal to its own case, because, according to the Learned Counsel, the burden of proving that the statement of claim did not disclose any cause of action rested with the 2nd Respondent who was the Applicant. Continuing in argument, learned Counsel insisted that the proper thing to do was to call evidence to ascertain whether the statement of claim disclosed any cause of action. It is also argued by learned counsel that in striking out the name of the 2nd Respondent from the suit, the learned trial Judge gave an order that was not sought for contrary to law. For this he cited in support the following authorities Nigeria Housing Development Society Ltd & Anor v. Mummuni (1977) 11 NSCL 65 at 74 -75, Borno Radio Television Corporation v. Egbnonu (1991) 2 NWLR (Pt.171) 81.
Finally on this issue learned counsel submitted that the Respondent’s application could only be properly taken under order 23 Rule 4 of the Lagos High Court Civil Procedure Rules. In support, Learned Counsel referred this Court to page 279 paragraph 25.10 of the Practice & Procedure of the Supreme Court, Court of Appeal and High Courts of Nigeria (2nd Edition) by T. A. Aguda and contends that the statement of the learned Justice is in conformity with a plethora of decided cases on the subject.
In conclusion learned Counsel submitted that the decision of the Supreme Court in the case of Dada v. Ogunsanya (supra) is authority for the view that, “reasonable cause of action” is not the nature of question of law to be raised and determined under Rules 2 and 3, but rather under Rule 4.
In reply Tobechi C. Egboh, Learned Counsel for the Respondent, who prepared the brief of argument, argued that the Appellant had no cause of action against the 2nd Defendant in its statement of claim at the lower Court and that the lower Court’s remark for exhibition of the bond allegedly executed by the 1st Respondent ought to be seen as Obiter dictum. In support of this submission Learned Counsel cited the case of Achiakpa v. Nduka (2001) 7 SC (Pt.3)125.
On the appropriate rule under which this application should have been brought Learned Counsel for the Respondent submitted that Order 23 rule 2 of the High Court of Lagos State Civil Procedure Rules under which the Respondent brought the application at the lower Court is the appropriate Rule under which an application of this nature should be initiated. In a further argument Learned Counsel submitted that even if the application was improperly brought the Appellant must show that the defect resulted in miscarriage of justice. According to him, where no miscarriage of justice is shown an application cannot be refused or struck out merely because it is defective in form. In support here of Learned Counsel cited Ahmadi v. NNPC (2000)5 WR 47; Joseph Afolabi & Ors v. John Adekunle & Anor. (1983) 2 SC NLR 141: (1983)8 SC 98 at 117-119, Adewunmi v A.G. Ekiti State (2002) 1 SC 47.
Finally Learned Counsel urged this Court to dismiss this appeal as the statement of claim does not contain the necessary detailed particulars required by law for the purpose of disclosing an reasonable cause of action against the 2nd Respondent in the tort of inducing or procuring or unlawfully interfering in a contract, as the necessary details were not pleaded.
From the issues raised herein and the submission of both counsel, clearly this Court has been called upon to review what is purely an exercise of the discretionary powers of the Court below. A grant or refusal of the application subject matter of this appeal by the lower Court was purely within the province of the discretionary powers of the Court below. The law is settled that discretionary powers of Courts must at all times be exercised not only judicially but also judiciously on sufficient materials. See Udensi v. Odusote (2003) 6 NWLR (Pt 817) 545 at 558 paragraph B, University of Lagos v. N.M.J. Aigoro (1985) 1 NWLR (Pt 1) 143 at 148, Ogbuehi v. Governor Imo State (1995) 9 NWLR (Pt.417) 53.
It is equally settled that if judicial discretion has been exercised bona fide uninfluenced by irrelevant consideration and not arbitrarily or illegally by a Court, the general rule is that an Appellate Court will not accordingly interfere. However an Appellate Court may interfere with the exercise of judicial discretion if it is shown that there has been a wrongful exercise of judicial discretion such as where the Court below acted under a misconception of law or under misapprehension of fact in that it either gave way to irrelevant or unproved matters or it omitted to take into consideration matters that are relevant or where it exercised or failed to exercise the discretion on wrong or inadequate materials and in all other cases where it is in the interest of justice to interfere. See Udensi v Odusote (supra) at page 558 paragraphs C-E, Enekebe v. Enekebe (1964) 1 All NLR 102.
The question now is whether the lower Court was justified in the exercise of its discretion when it struck out the name of the 2nd Respondent from the Suit No.LD/1287/2001.
The Court below justified its action to strike out the name of the 2nd Respondent from the Suit on the fact that the Plaintiff/Appellant did not exhibit the bond which was allegedly executed by the 1st Respondent before the Court, an action which it said led to the failure of the Plaintiff to establish that the 2nd Defendant is a party to the agreement duly executed by it and the 1st Defendant. This is what the lower Court said at page 17, paragraph 4 – page 18, paragraph 1-3 of the record of appeal:-
“From the submissions of both Counsel the Plaintiff seems to have a cause of action against the 1st Defendant and not strictly against the 2nd Defendant strictly sensus. A look at the paragraph 3 – 4 of the statement of claim is clear on this. Although the Plaintiff said in paragraph 9(a) and (b) that they are claiming jointly and severally from the Defendants they seem to my mind to have a claim against the 1st Defendant. This though finds jurisdiction on privy of contract. The bond which the Plaintiff referred to was not an Exhibit before the Court and as such the Plaintiff failed to establish that the 2nd Defendant was a party to the agreement duely (sic) executed by it and the 1st Defendant.
The claim in tort might be a classical example of making the 2nd Defendant liable but this has to be proved as he who alleges must prove. See the case of Balogun v. Labiran (1988) 6 SCNJ page 7. As at this point in time I find no express cause of action against the 2nd Defendant ——, as the argument of the Plaintiff/Respondent that the act of the 2nd Defendant is in tort would have been substantiated if the necessary documents such as the bond had been presented before the Court, this omission on the Plaintiff/Respondent part is fatal to its case and weakens its claim.”
(Underlining is mine).
With respect to the lower Court, this ruling is predicated on the interlocutory application by the 2nd Respondent who is the 2nd Defendant in Suit No.LD/1282/2001 that is pending before the Court below. At this stage clearly the 2nd Respondent had the burden to show that the Appellant’s writ and statement of claim disclosed no cause of action against it, because it is the complainant in the application which is the subject matter of this appeal. The Appellant who was the Respondent in that application had no duty to tender the bond at that stage. Its duty to tender the bond can only arise during the substantive trial when it is required to substantiate its allegation against the 2nd Respondent by calling evidence. The Court’s pronouncement on the non exhibition of the bond allegedly executed by the 1st Respondent as the basis for striking out the name of the 2nd Respondent amount to making pronouncement on the substantive suit before it. The Supreme Court and indeed this Court have clearly warned in a number of decisions that Courts should not make any pronouncements or determine substantive matter at interlocutory stage unless such interlocutory decision will lead to a final determination of the substantive suit.
In S.D.C. Cementation (Nig) Ltd & 1 Or. vs. Nagel & Company Ltd & 1 or, (2003) 4 N.W.L.R. (Pt.811) 611 at 635, this Court said;
“A Court, while dealing with preliminary or interlocutory matters, is not entitled to make any comments, pronouncement or observation in its ruling on that application which might appear to pre-judge or pre-empt the main issue in the proceedings relative to the interlocutory application or which would prejudice the fair hearing of the substantive suit. In other words, it is not proper for a Court to comment on crucial issues in the substantive case when dealing with preliminary issues or objection.” See also Mortune v. Gambo (1979) 3-4 SC 54. Omonwa v A.G. Bendel State (1983) 4 NCLR 237 Elufioye v. Halilu (1993) 6 NWLR (Pt 301) 570, Akpomudje v. Government Delta State (2003) 9 NWLR (Pt.826) 561 Haslim v. Minister F.C.T. (2002) 15 NWLR (Pt.789) 159.
At page 18 paragraph 2 of the record which I have extensively quoted above, the learned trial Judge admitted that the claim in tort might be a classical example of making the 2nd Defendant liable. However she went on to say that this has to be proved as he who alleges must prove. What the learned Judge failed to appreciate here is who is making the allegation in the application before her. Proof in the substantive suit cannot be contemplated at this stage of the proceeding, and if there is any need to prove that there is no cause of action, such need will be shouldered by the applicant whose case will be made from the statement of claim of the Respondent and not the statement of defence. The trial Judge admitted that there would have been established a cause of action against the 2nd Respondent if the bond had been exhibited. I even at the risk of repetition let me quote her thus:-
“…as the argument of the Plaintiff/Respondent that the act of the 2nd Defendant is in tort would have been substantiated if the necessary documents such as the bond had been presented before the Court, this omission on the Plaintiff/Respondent part is fatal to it’s case and weakens its claim.”
The Respondents’ argument in their brief is that the pronouncement of the Court below with respect to the bond was a mere obiter dictum and is of no consequence. I do not agree with this line of argument. Indeed the issue of the production of the bond constitutes the ratio upon which the application was decided. It is the ratio decidendi and not a mere obiter dictum. I have already said elsewhere in this judgment that a Respondent in an application cannot be saddled with the Responsibilities of proving the allegations made by the applicant. The burden can only shift to him if the applicant has proved all the allegations made by him to the satisfaction of the Court. From the record of file lower Court I am satisfied that the Respondent did not establish that the Appellant failed to disclose any cause of action against it. The lower Court was therefore wrong to have struck out its name from the suit No. LD/1282/2001. Issue one is therefore resolved in favour of the Appellant.
The Appellant’s issue 2 is whether in order to maintain a cause of action in tort a Plaintiff must establish the existence of a contract between itself and the alleged tort feasor.
The Respondent’s 2nd issue is similar to the Appellant’s issue no. I have therefore dealt with these issues. The only issue standing to the credit of Respondents is issue 1. I will reproduce the issue here thus:-
“Whether on examination of both the Writ of Summons and the statement of claim, the proper cause of action revealed is one of contract and not tort.”
It is trite that an issue for determination in an appeal must relate to the grounds of appeal filed. Where it is not so related, it is liable to be struck out.
Where there is no cross appeal against the judgment appealed against, the Respondent cannot formulate issues that are not covered by the Appellant’s grounds of appeal unless with the leave of the Court. See Adah v. Allah (2001) SCNJ 90 at 97 Alhaji Kuhoro-Owo & 6 ors v. Lagos State Government & 4 ors (2001)5 SC (Pt.11)50 Alhaji Adeleke v. Alhaji Raji & Anor (2002) 6 SC (Pt 11) 126 Adelusola & 44 ors v Akiode & 3 ors (2004)5 SCNJ 235. See Abutu v Onyedima (2003)17 NWLR (Pt 849) 359, Njoku v. UAC Feeds (1999) 12 NWLR (Pt 632)557, Ali v. CBN (1997) 4 NWLR (Pt 498) 192, Obaike v. Bee BCC Plc (1979) 10 NWLR (Pt.525) 435.
The Respondent’s issue 1 is not related to any of the grounds of appeal which were filed by the Appellant. To that extent I agree with the submission of the learned counsel for the Appellant in his reply brief that this issue be struck out for being incompetent. The issue is questioning the type of action that is disclosed by the writ of Summons and the statement of claim. None of the grounds of appeal relates to whether the action was founded on contract or tort. I have reproduced the grounds of appeal elsewhere in this judgment. All the three grounds of appeal attack the findings of the lower Court and none complains against the type of action that was disclosed in the writ of summons and the statement of claim.
Finally on this issue, this Court hears appeals against the decision of the Court below. It does not bother itself with the type of action that was initiated before that Court. The issue would have been valid if it were canvassed before the lower Court, but certainly not before this Court. I find the issue not competent, same and all the argument canvassed therein are hereby struck out.
The only issue left is Appellant’s issue number 2. This issue is distilled from ground of appeal no, 3. Since this Issue stands unchallenged, same and all the argument canvassed there upon are deemed admitted. I therefore resolve the 2nd issue in favour of the Appellant. The relevant provision under which the application should have been brought is a matter of technicality which this Court does not concern itself with.
On the whole I am satisfied that the 2nd Defendant/Respondent’s name was prematurely struck out. In the result this appeal succeeds. The ruling of the lower Court dated 24th June 2003 in which the name of the 2nd Defendant/Respondent was struck out is hereby set aside and quashed. The 2nd Defendant/Respondent’s name is hereby restored on the Suit No.LD/1282/01 which is hereby remitted to the Chief Judge of Lagos State to be assigned to a judge other than T. A. O. Oyekan -Abdullahi, J for trial.
The 2nd Defendant/Respondent shall pay N5000 as cost to the Plaintiff/Appellant.
Other Citations: (2006)LCN/2011(CA)
