Olasunkanmi Greg Agbabiaka V. First Bank of Nig. Plc. (2006)
LawGlobal-Hub Lead Judgment Report
SOTONYE DENTON WEST, J.C.A.,
The Respondent in this Appeal who was the Plaintiff in the High Court of Lagos State, claimed in that Court as per its Writ of Summons and Amended Statement of Claim, for:-
1) An Order for the specific performance of the agreement between the Plaintiff and the Defendant (i.e) that the Defendant should forthwith deliver the Certificate of Occupancy in respect of the property at No. 22, Akinbaiye Street, Isolo, Lagos to the Plaintiff.
2) The total debt of the sum of N844, 207: 06k as at the 17th June 1992.
3) 15% interest on the total sum owed from 29 January 1985 until judgment and 10% thereafter until the entire judgment debt is obtained.
4) Cost as this Honorable Court may deem fit and proper to award in the circumstance.
The Respondent also filed an Application in the lower court for Summary Judgment under Orders 10 and 11, Rules 1 and 2 of the High Court of Lagos State Civil Procedure Rules of 1972 and under the inherent jurisdiction of the honorable court with a 14 paragraph Affidavit and 9 Exhibits A1-A8 and Exhibit B.
The Appellant herein, who was the Defendant in lower Court, filed a 14 paragraph Affidavit Showing Cause. He attached no Exhibit to his Affidavit.
In His Ruling of July 18, 1997, containing the final judgment, the learned the trial judge, Kekere-Ekun J. of the High Court of Lagos State as she then was stated inter alia;
‘In the circumstance, judgment is hereby entered in favor of the plaintiff against the Defendant in the sum of N844, 207: 00k being the cumulative principal and interest due to the Plaintiff as at 17th June, 1992 as a result of banking facilities (term loan and overdraft) granted at the request and instance of the Defendant or the sum of N180, 000: 00k of the cumulative sum.
The Defendant is further ordered to pay to the Plaintiff interest on the said loan at the rate of 15% per annum from 17th June, 1992 until judgment and thereafter at the rate of 6% per annum until the whole sum is finally liquidated.’
The Appellant dissatisfied with the Judgment of the trial Court filed the Notice of Appeal dated the 25th day of August, 1997, wherein four grounds of Appeal were set out.
The Learned Counsel for the Appellant filed an Amended Appellant’s Brief on the 12th of November, 2003 and also formulated four issues for determination in the Appeal which accommodated the four grounds of Appeal earlier raised. The issues are:-
‘(i) Whether the Appellant was not denied a fair hearing by the learned trial judge who decided to hear the Motion for Summary Judgment against the Appellant in the absence of the Appellant and his Counsel on a day fixed by the Court Clerk or Registrar for mention and not for the hearing of the said Motion.
(ii) Whether from the facts of this case the Plaintiff/Respondent had satisfied the conditions for the grant of a Summary judgment entitling them to be awarded the entire amount claimed plus interest in the absence of materials showing how the amount was arrived at.
(iii) Whether the learned trial judge did not misapply the principles of law enunciated in the ease of MACAULY V NAL MERCHANT BANK LTD. (1990)4 N.W.L.R. 144 AT 283 to the facts of this case in holding that the Defendant/Appellant has no Defense to the Plaintiff/Respondent’s claim.
(iv) Whether in view of the provisions of the section 132(1) of the Evidence Act Cap 112 Laws of the Federation 1990, the learned trial judge was right to have entered judgment for the Plaintiff/Respondent in the entire sum claimed plus interest when the amount had not fallen due.’
The Respondent Counsel in his Brief of Argument filed on the 3rd of March, 2004 adopted the four issues formulated by the Appellant with some variance.
In issue one Learned Counsel for the Respondent stated that the matter was adjourned for hearing of the pending Motion whereas the Appellant in issue one stated that the matter was adjourned for mention.
In the second issue, the Respondent stated contrary to the Appellant, that the materials showing how the amount claimed was arrived at were before the trial Court.
The Respondent adopted issue number three (iii) of the Appellant in verbatim.
The only variance in the fourth issue is that while the Appellant stated that the entire sum claimed had not fallen due at the time of judgment, the Respondent stated that it had fallen due.
The first issue formulated by both parties in this Appeal is most germane, since it borders on the constitutional right of fair hearing, it is settled that where Fair Hearing has been made an issue by a party, the Court must determine it first of all other issues that there may be. See BABALOLA -V OSHGBO L.G. (2003) 16 N.W.L.R. (PT. 289) 465 CA. It may as well be decisive of the present Appeal; I shall therefore accordingly deal with it.
The plaintiff in the trial Court who is the Respondent herein filed its Application for Summary Judgment on the 8th day of March 1996 together with its Affidavit in Support. The Respondent attached 9 Exhibits to its Affidavit, all of which were pleaded in paragraphs 11 and 12 of the said Affidavit. See page 33 of the Records of Appeal.
Paragraphs 11 and 12 of the Affidavit in Support are hereunder reproduced;
- that the Defendant’s Application for loan Ref: SAH /E /1/85 dated 7th January 1985, the Plaintiffs reply thereto dated 29th January, 1985, the Defendant’s further reply, reference SAH/F/2/85 of 29th January 1985, the Defendant’s Solicitor’s letters of 2nd February and 8th March 1985 respectively, addressed to the plaintiffs Manager and the plaintiffs form No. 917, in which the Defendant undertook to effect a Legal Mortgage to the plaintiff are hereby annexed as Exhibits ‘A1-A8’.
- That the Defendant last serviced his Account No. 01042374 on 8th February, 1988, as shown in form No. 3483 herewith annexed as Exhibit ‘B’.
The Respondent’s Counsel duly served the Appellant on the 20th of March, 1996 and filed an Affidavit of Service in respect of the Motion for Summary Judgment. The Appellant filed an Affidavit showing Cause on the 3rd of May, 1996 the same day that the Case was listed in the trial Court, the case was adjourned to the 9th of July 1996 for argument.
On the 9th of July 1996, the case had already been transferred from the Court of Martins J. to the Court of Kekere-Ekun J. as he then was, who eventually delivered the judgment now appealed against. The Case was therefore adjourned to 13th day of January 1997 for mention.
On the 13th of January 1997, before the lower court, His Lordship adjourned the Respondent’s Motion for Summary Judgment of 8th March 1996 for argument to the 5th of March 1997, at the instance of the Appellant, three days less one year when it was filed.
On the 5th of March 1997, the Appellant Counsel who suggested the hearing date at the last adjourned date was absent in Court but, wrote the Court for an adjournment. The Respondent’s Counsel stated that he was not copied with the letter for adjournment and that it was the Appellant who suggested the hearing date. Learned Counsel argued that the Affidavit Showing Cause filed by the Appellant lacked substance, he urged the Court to allow the Respondent move his Application.
The Learned trial judge in his Ruling refused the application of the Respondent to allow him move his Motion and gave the Appellant a last opportunity to defend same. He however added in his Ruling that if the situation remained the same, learned Counsel for the Respondent shall proceed to move his Motion.
In his letter for an adjournment, learned Counsel for the Appellant suggested the 16th of April 1997 for the argument of the pending Application, the Application was adjourned to same date suggested.
On the 16th of April 1997, the Respondent’s Counsel was absent, but wrote a letter informing the Court of his indisposition. The case was further adjourned to the 14th of May 1997 for argument.
On the 14th of May, 1997 the learned trial judge was on a course and so the Court did not sit, the case was therefore adjourned mutually by both counsels to the 7th of July, 1997, (after call over). See page 51 of the Record of Appeal.
Learned Counsel for the Appellant was absent on July 7th 1997 without explanation despite that the date was mutually fixed by both Counsel on the last adjourned date. The learned trial judge stood down the matter till 12: 10pm, when the Appellant’s Counsel still was absent without explanation the learned trial judge gave leave to the Respondent to move his Application of 8th March 1996 and thereafter reserved Ruling till the 18th of July, 1997.
Before I continue to analyze the first issue formulated by the parties in the present Appeal, I observe with displeasure the foul and unacceptable language of the Learned Counsel to the Appellant in the Notice of Appeal and Amended Brief of Argument. The learned Counsel persistently referred to the learned trial judge as she / her in the Notice of Appeal and Brief of Argument and addressed the learned trial judge in very scornful and rude terms. For example in the fourth paragraph of the third page in the Appellant’s Amended Brief of Argument;
“she should have adjourned the case to a later date…
… and also the Appellant’s Counsel had appeared before her on at least three different occasions”
Also at page five, (line sixteen of paragraph three) of the Appellant’s Amended Brief of Argument;
“she should have realized that…”
In this jurisdiction, there is no ‘she / her’ on the bench, every Magistrate is His Worship and every Judge/Justice is His Lordship and are only properly referred to as the Learned trial Judge or the learned Justice, the respect that the Bench accords the Bar must be reciprocal. I am of the firm opinion, that irrespective of the different views of a judge and a Counsel on the issues involved in a case, no respect should be lost between them. The learned Counsel for the Appellant therefore erred and ought to be brought to order concerning his manner of address. On proper mode of addressing judges; the Supreme Court observed thus in GLOBAL TRANS S.A. V FREE ENTERPRISE NIG, LTD. (2002)5 NWLR 706 AT 426 S.C. PER KALGO J.S.C. AT PAGE 442, PARAS A-C.
WHEREIN HE SAID:-
“issue two of the Respondent before the Court of Appeal as seen in its brief on P.58 of the Record reads:-
‘Whether she concluded correctly that the Plaintiff had no locus standi.’
It is common ground that the trial judge in this case was a lady, and the word, “she” in issue 2 referred to the learned judge. This is a very bad way of showing discourtesy to a lady judge or in fact any judge at all by referring to him or her in third person pronoun. It is absolutely unethical and unpardonable and whether the judge is a he or she, reference should be made to the learned trial judge or learned judge or even Hon. Judge. I was very disturbed and disappointed to observe that this brief was coming from the chambers of a respectable Senior Advocate of Nigeria. I hope this type of thing will never happen again.” For lady judges, I believe in issues relating to their judicial functions that mere gender discrimination should not be alluded to them without due corresponding respect, hence they are brother judge or sister judge if and when the situation demands it but not for purposes of disrespect as it was obviously done here.
On the issue of fair hearing canvassed by the Appellant in pages 2 and 3 of the Brief of Argument, I perused the Argument of the Appellant and found out, that it is not the contention of the Appellant that he had no Notice of the adjourned date, learned Counsel did not contend the averment of the Respondent that both Counsel mutually fixed the date when judgment was eventually reserved rather, he argued that because Mondays were usually call over days and the courts were usually very busy and that he was otherwise engaged in another Court and so failed to appear or the least write the honorable Court. He contended that the case was adjourned by the Registrar of Court for mention and not for argument, I find no proof of this in the Record of Appeal. The learned Counsel for the Appellant found it convenient, not to appear in Court without explanation, but he expected that the Court must wait for him indefinitely.
The application for summary judgment had been filed more than a year before it was eventually heard, the delay in moving the said application was not unconnected to the truancy of the Counsel. In his Brief, learned Counsel for the Appellant stated that he was within the court promises but that he was busy in another Court. This argument of learned Counsel is not impressive, the date fixed for the hearing of the case now on appeal was not imposed on him, and the case was further stood down until 12:10pm before it was eventually heard, if learned Counsel was serious he would either have shown up by then, sent another Counsel or written a letter to the trial Court.
In my view, the learned trial judge was fair to both parties, unless the Appellant was going to spin a surprise on the Respondent, its Affidavit showing cause was before the trial Court and it was duly considered in the judgment of the trial court, I do not think that the purport of fair hearing is to allow an unserious Counsel to perpetually frustrate justice by holding the Court to ransom, rather, I believe the purport of fair hearing is the interest of justice and justice delayed is justice denied. I refer to the Supreme Court’s decision on the issue of fair hearing in the case of MAGIT V UNIVERSITY OF AGRICULTURE MARKURDI (2005) 19 NWLR Part 959 Page 243-244 PARA F-A;
“fair hearing is not a cut and dried principle which parties can, in the abstract always apply to their comfort and convenience. It is a principle which is based on the facts before the Court; only the facts of the case can influence and determine the application or applicability of the principle. The principle of fair hearing is helpless or completely dead outside the facts of the case.”
The Appellant in the lower court had hitherto employed every delay tactics from filing processes on the dates fixed for Court sittings to being absent from court on days suggested by himself. The Motion for Summary Judgment suffered seven adjournments, many of which were at the instance of the Appellant. The Appellant deliberately absented himself from Court on a date he had Notice the matter was coming up, with the only excuse that the Court only should have mentioned the case and not hear the pending Motion.
This is a deliberate attempt by the Appellant to further frustrate the case of the Respondent and delay the justice of the ease. It is further instructive that the decision of the Supreme Court in NDUKABUA V KOLOMO (2005) ALL FWLR PART 248 1602, (2005) 124 LRCN 479 AT 492, OGUNTADE JSC emphasized on the enshrined provisions of Section 36 of the 1999 Constitution as regards fair hearing when he said:-
“In a civil case the principle of fair hearing in relation to a Plaintiff translates into these;
- A Plaintiff or any party is entitled to counsel of his choice.
- A Plaintiff must be afforded the opportunity to call all necessary witnesses in support of his case.
- A Plaintiff by himself or counsel must have the opportunity to cross-examine or otherwise challenge the evidence of witnesses called by his adversary.
- At the close of the case and in accordance with the relevant rules, a Plaintiff must have the same right as given to his adversary to offer by his final address on law in support of his case.”
See A.G. ANAMBRA STATE V. NWOBODO (1992)7 NWLR (PT.256)711; CONSORTIUM MC V. NEPA (1992) 6 NWLR PT.246 PAGE 132; AKAPO V. HAKEEM – HABEEB (1992) 6 NWLR (PT.147) 266; 7 UP BOTTING CO. LTD V. ABIOLA & SONS (N1G) LTD 1995 3 NWLR (PT.3830 257 S.C; EBELE V. IKWEKI (NO.2) (1995) 7 NWLR (PT.405) PAGE 91.
I therefore hold that the Appellant was not denied fair hearing by the learned trial judge when he heard the Respondent in default of the Appellant’s appearance on a day mutually fixed by both Counsel after standing the case down for several hours. Issue NO.1 is hereby resolved against the Appellant herein.
The second issue canvassed by the Appellant challenges the pre-judgment interest claimed and granted by the trial Court. The Appellant contends that the claim of the Respondent in the lower Court for pre-judgment interest was unsubstantiated and that the learned trial judge was wrong to have granted it.
In the lower Court, the Appellant contended that it was of the mind that the loan it applied for and was granted by the Respondent, (a bank,) was free of any interest charges. It is trite law, and a notorious fact, that a bank does not give overdraft / loans free of charge, in fact interest charge is the main source of a bank’s income.
The last but on line of the exhibit attached to the Respondent’s Affidavit at page 37 of the Record of Appeal informs me that there was indeed an agreement to pay interest on the overdraft facility granted.
The law is settled on the pre-requisite for the award of pre-judgment interest. The interest must have been claimed in the Writ and Statement of Claim, and evidence must have been led in support of the claim. The cases of HENKEL CHEM. LTD. Vs AG FERRERO & CO. (2003) 4 NWLR 810 AT 306 and F.B.N. PLC. V EXCEL PLAST. IND. LTD. (2003) 13 NWLR 837 AT 412. are succinct on the subject of prejudgment interest.
In HENKEL CHEM. LTD. V AG FERRERO & CO. (Supra) it was held;
On principles guiding the award of interest:
‘the mere fact that a sum of money is substantial is not enough to justify award of interest on debt. The general principle is that interest is not payable or recoverable at common law on ordinary debt in the absence of the following situations;
(a) Contract, express or implied; or
(b) Some mercantile usage; or
(c) provision by statute’
The Respondent in the lower Court Claimed pre-judgment interest on the principal loan it granted the Appellant and led evidence as per form 917 attached to its Affidavit in support, which also shows that there was an express agreement between the parties to pay interest. This evidence is unchallenged by the Appellant.
The Respondent is entitled to the pre-judgment interest claimed in my view, and I so hold the 2nd issue of the present appeal is therefore resolved against the Appellant.
The third issue formulated by the Appellant is; whether the learned trial judge misapplied the principles in MACAULY V NAL MERCHANT BANK LTD. (1990) 4 N.W.L.R. 144 AT 283 to the present case when he held that the Appellant disclosed no defense to the Action of the Respondent in its Affidavit Showing Cause.
Learned Counsel for the Appellant based the said third issue on the argument that each case should be treated on its Own merit and that the facts of the present case is not on four walls with the facts of MACAULY Vs. NAL MERCHANT BANK LTD. (Supra). Learned Counsel argued further that a disparity existed in the pleadings of the Respondent that was fatal to its Application for Summary Judgment, in that the Respondent averred in its pleading that the Appellant had deposited some money in the savings account it opened pursuant to the agreement the parties entered for the re-payment of the loan granted to the Appellant.
Learned Counsel for the Appellant argued that the learned trial judge should have inferred from the facts before the Court that the Respondent was only entitled to the balance of the loan it granted the Appellant without any interest (less the amount deposited by the Respondent).
In the interest of justice I will recant the principles of MACAULY v. NAL MERCHANT BANK LTD. (Supra), on the requirements of Affidavit Showing Cause which the learned trial judge relied upon in his ruling at pages 93 and 94 of the Record of Appeal;
“a) condescend upon particulars and as far as possible, deal specifically with the Plaintiffs claim and Affidavit and state clearly and concisely what the defence is, and what ,facts are relied on as supporting it.
b) state whether the defence goes to the whole or part of the claim, and in the latter case specify the part;
c) when the defence is that the defendant is not indebted to the plaintiff, state the grounds on which the defendant relied as showing that he is not indebted. A mere general denial that the defendant is not indebted will not suffice.
d) where the Affidavit states that the defendant is not indebted to the plaintiff in the amount claimed or any part thereof, state why the defendant is not so indebted and to state the real nature of the defence relied on;
e)…
f) …
g) in all cases, give sufficient facts and particulars to show that there is a bona fide defence.
To start with, I do not see why the requirements set out in the case above should not guide the learned trial judge in doing justice to the facts of the case in this present appeal. I am of the candid view, that the case of MACAULY v. NAL MERCHANT BANK LTD. (1990) 4 N.W.L.R. 144 at 283 is elaborate and conclusive on the nature of ‘Defendant’s Application Showing Cause and that the learned trial judge was right to have applied the enumerated principles above at the trial court.
The Appellant in his Affidavit Showing Cause admitted that he applied for and was granted an overdraft of N180, 000:00k as claimed by the Respondent. The contention of the Appellant in his Affidavit was that he believed that the said loan was interest free. The Respondent has claimed for interest on the loan and led evidence as per Form 917 attached to its Affidavit in support of the Motion for Summary judgment in proof of its claim for interest. The Appellant did not challenge this evidence but made a general “denial that it was unaware of any interest chargeable on the said loan, it therefore failed the test in MACAULY’S case.
The Appellant in his Amended Brief of Argument stated that the learned trial judge ought to have deducted the amount shown by the Respondent in its Exhibit to have been paid by the Appellant from the judgment sum. The Appellant did not attach any Exhibit to its Affidavit Showing Cause but, relied on Exhibit two of the Respondent.
The facts and Exhibits before the trial court discloses that the Appellant opened a savings account with its creditor (the Respondent) and saved some money therein in accordance with the terms of the facility granted him. The Appellant’s Affidavit is silent on this issue, whether the Respondent had exercised a lien on the said savings, neither did it prove that the amount claimed was not exclusive of the said savings.
The Appellant also did not give sufficient fact/particulars to support his case as recommended in MACAULY’S case; he failed to attach any Exhibit to its Affidavit. Appellant made a sweeping general denial of the averments in the Affidavit of the Respondent
I agree with the learned trial judge that the Affidavit Showing Cause did not ‘descend upon particulars’ as required by law and it disclosed no Defence to the claim of the Respondent. The third issue formulated by the Appellant is also resolved against the Appellant.
The fourth and last issue formulated by the Appellant in this Appeal is whether the learned trial judge erred, when he entered judgment in favor of the Respondent in view of section 132 of the Evidence Act.
The Appellant in his submissions isolated the condition that the Appellant should pay one thousand naira every month in settlement of the loan granted him and argued that it could be deduced from that condition that the loan was tenured for 180 months/15 years.
This issue like the three above was unattended to in the affidavit Showing Cause at the lower Court, none the less; in the interest of justice, I shall deal with it as though it were.
What agitates my mind most dramatically is whether the Appellant intends for the court to apply section 132 of the Evidence Act to only the piece of evidence he now relies upon and do selective justice or apply the law on broad principles. Should the Court misapply section 132 of the Evidence Act to Exhibit A1 and B in the interest of the Appellant? I don’t think so.
Exhibit A1 is the Appellant’s Letter of Application for N180, 000: 00 Loan addressed to the Manager of the Respondent, wherein the Appellant undertook as follows;
“… I promise to make a settlement within six months initially.’
The Appellant did not challenge this evidence at the trial Court and still does not challenge it in this Court but he urges this court to hold that the trial court ought to have deduced that the action was pre-mature from the condition that the Appellant was supposed to pay one thousand naira per month even when he failed to make this desperate inference in his Affidavit Showing Cause.
Exhibit B is form No. 3483 of the Respondent, annexed to the Affidavit in Support of the Motion for Summary Judgment in prove of the averment that the Respondent last serviced his Savings Account/repaid his debt, on the 8th of February 1988, eight years before the Respondent filed an Action against the Appellant, yet, the Appellant urges the Court to infer that the loan had not fallen due, when he had defected for eight years and failed to repay a loan he admits to have obtained.
The Appellant has not challenged any of the Exhibits pleaded by the Respondent at the lower court and he did not tender any Exhibit for himself but, he urges the honorable Court to draw inferences from the Exhibits tendered by the Respondent wherever he believes such inference will be in his favor, if such inference were in the interest of justice I would have drawn it.
In my vivid perusal of the Record of Appeal only one term/tenor of loan is express, and it is the one quoted above in Exhibit A1 attached to the Respondent’s Affidavit in Support of Motion for Summary Judgment; which is a term of six months.
The facts of this present Appeal brings to mind the recent comment of Ogbuagu J.S.C in the supreme court decision of MAGIT V. UNIVERSITY OF AGRICULTURE MARKURDI (2005) 19 NWLR 959 AT 250 PARA, A-E on the need for Counsel to have confidence in the success of a case or appeal before accepting it;
‘Where a Counsel finds and knows that there are no chances of his appeal succeeding, he should honorably throw in the towel and think less of his fees and more of the fact that he is also an officer in the temple of justice.’
It would appear that the learned Counsel for the Appellant would have aided justice if he advised his client to respect his agreement and pay back what he borrowed according to the agreed terms of the loan, especially since the Appellant agreed that he borrowed money from the Respondent and has not paid back same.
In the final analysis, I agree with the learned trial judge that the Appellant’s Affidavit Showing Cause disclosed no Defence to the claims of the Respondent. I affirm the judgment of the trial Court, this appeal is bereft of any credibility in my consideration and I accordingly dismiss same.
Cost of N5, 000.00 k is hereby awarded to the Respondent.
Other Citations: (2006)LCN/1977(CA)
