Patrick Izuagbe Okolo & Anor. V.union Bank Of Nigeria Limited (2004)
LAWGLOBAL HUB Lead Judgment Report
TOBI, J.S.C.
This appeal concerns bank/customer relationship. The appellants are the customers. The respondent is the bank. The case of the appellants is that the respondent failed to comply with foreign exchange transactions involving the transfer abroad timeously of the foreign exchange or currency equivalent of N239, 143 to cover cost of goods supplied to them by their overseas customers, thus causing business loss to the appellants. The appellants alleged negligence on the part of the respondent.
The appellants asked for the following reliefs:
“(a) An order for account of all monies paid into and debited against 2nd plaintiff’s account or account with the defendant from 1986 till date and reversal of all wrongful and illegal debits made by the defendant on the said accounts from 1986 till date and payment over to the 2nd plaintiff of all monies excessively debited with interest at prevent (sic) long bank rate.
(b) An order of perpetual injunction restraining the defendant by herself, her servants and/or agents or otherwise howsoever from auctioning, selling, disposing of or in any way interfering with 1st plaintiff’s title to possession over the property lying and situate at plot 16 Kodesoh layout, Effurun.
(c) An order for the immediate refund of the sum of E5,155.35 (British Pound) and/or its current Naira equivalent amount by the defendant to the plaintiff as directed at paragraph 16d(i) hereof. (d) The sum of N1,000,000.00 being damages suffered by the plaintiffs.
(e) The sum of E5,155.35 (or its current equivalent in Naira) including the current bank interest rate of 30%, which said sum the defendant have failed, refused or neglected to refund to plaintiffs despite repeated demands.”
The respondent did not accept liability. It rather counter-claimed as follows:
“WHEREFORE the defendant seeks the order of this honourable court that the mortgage registered as No. 42 at page 42 in Volume 523 at the Lands Registry in the office in Benin City be enforced against the plaintiffs by for-enclosure and the delivery of possession to the defendant by the plaintiff the mortgaged property registered as No. 45 at page 45 in Volume 273 at the Lands Registry in the office at Benin City in accordance with terms of the said mortgage. Defendant shall rely on its letters dated 29/3/89 and 14/4/89 at the trial.”
After hearing evidence, the learned trial Judge, Bozimo J., (as she then was) delivered judgment. Each of the parties was not satisfied with the judgment. The appellants appealed. The respondent also cross-appealed. At the Court of Appeal, that court dismissed the appeal and allowed the cross-appeal in part. While the appellants have come on appeal to this court, the respondent has also come to this court on a cross-appeal. Briefs were filed and duly exchanged. Mr. Okiemute Odje, counsel for the appellants, was absent when the appeal was argued. By the rules of this court, the brief of the appellants and the reply brief were regarded as argued.
In the respondent’s brief, learned Senior Advocate, Chief E.L. Akpofure, raised a preliminary objection. Learned counsel for the appellants, Mr. Okiemute Odje, in his appellants reply brief has answered the preliminary objection raised by the respondent. I think I should take the preliminary objection first.
At paragraph 3 of the respondent’s brief, Chief Akpofure raised the preliminary objection in the following terms:
“The respondent shall at the hearing of this appeal raise preliminary objection with the leave of this honourable court in accordance with the rules of this honourable court that this appeal is incompetent on the following ground.
‘that the conditions of appeal were not perfected within the stipulated period and no leave was sought by the appellants herein. This goes to the entire root and competence of this appeal as same borders on jurisdiction’.”
Chief Akpofure submitted that before an appellate court can successfully adjudicate over an appeal the conditions of appeal must be satisfied or fulfilled. Referring to page 161 of the record, learned Senior Advocate contended that the appellants failed to perfect the conditions of appeal within the stipulated time. The appellants, instead of filing the relevant processes before the Court of Appeal, orally applied to the Assistant Chief Registrar of the trial court for extension of time within which to do so. The Assistant Chief Registrar purporting to act under Order 8 rules 28 and 29 of the High Court Civil Procedure Rules, 1988 of the defunct Bendel State of Nigeria, now applicable to Delta State, purported to extend time by a period of twenty days with effect from May 2, 1995 in favour of the appellants. He argued that Order 8 rules 28 and 29 does not give the Registrar any power to extend the period within which conditions of appeal could be fulfilled. He submitted that what the Registrar did is a nullity. He therefore urged the court to dismiss the appeal as the court lacks jurisdiction to entertain same.
Learned Senior Advocate also contended that the appellants failed to pay the requisite fees in line with the additional reliefs for the sum of N1,000,000.00 and E5,155.35 p. (British pound). Counsel urged the court to refuse the appellants’ claim in relation to reliefs 21D and E. As the relevant fees were not paid, the two reliefs were not properly before the court or they were otherwise incompetent, learned Senior Advocate argued. He cited Onwugbufor v. Okoye (1996) 1 NWLR (Pt. 424) 252, (1996) 34 LRCN 1 at 38, 39,40. He also urged the court to strike out the reliefs before the order dismissing the appeal is made.
To learned Senior Advocate, if the entire appeal is dismissed without first striking out the two reliefs, it will mean that the order made by the learned trial Judge in her judgment in relation to the two reliefs would still form part of the standing judgment of the trial court.
In his reply to the preliminary objection, learned counsel for the appellants, Mr. Okiemute Odje, submitted in his brief that the respondent’s notice of preliminary objection is misconceived and lacks merit and therefore ought to be overruled.
Learned counsel submitted that since the issues raised in the preliminary objection have been conceded at the court below by the respondent, this court cannot countenance the objection as it has no jurisdiction to entertain the same. He also argued that no ground of appeal was filed contending non-fulfilment of the conditions of appeal by the appellants. It is therefore beyond any thread of controversy that ground 1 of the notice of preliminary objection is a new or fresh issue raised for the first time in this court without prior leave, learned counsel submitted. He cited Onwugbufor v. Okoye (1996) 1 NWLR (Pt.424) 252 at 261;Management Enterprises Ltd. v. Otusanya (1987) 2 NWLR (Pt.55) 179; Bankole v. Pelu (1991) 8 NWLR (Pt.211) 523; Fadare v. Attorney-General. Oyo State (1982) 4 SC 1; Mogaji v. Cadbury (Nig.) Ltd (1985) 2 NWLR (Pt.7) 393; Kurfi v. Mohammed (1993) 2 NWLR (Pt.277) 602; Aladetoyinbo v. Adewumi(1990) 6 NWLR (Pt.l54) 98; Adaka v. Anekwe (1997) 11 NWLR (Pt. 529) 417 at 425 – 426; Citing HMS Ltd. v. First Bank of Nig. Ltd.(1991) 1 NWLR (Pt.l67) 290, learned counsel submitted that parties cannot be punished for the blunder or errors of their counsel.
Learned counsel submitted that this court should always do substantial justice and not stand on technicalities by punishing litigants for no fault of theirs. He cited Pharmatek Ind. Projects Ltd. v. Ojo (1996) 1NWLR (Pt.424) 332 at 334; Ogbuehi v. Governor of Imo State (1995) 9 NWLR (Pt.417) 53 at 58-59. He urged the court to refuse the preliminary objection and allow the appeal.
Learned counsel also raised preliminary objection in the cross-respondents brief of argument in the following terms:
“Preliminary objection is raised “as to the competence of the issues purportedly but ineffectually formulated from the cross-appellants’ grounds of appeal.”
Counsel relied on the following grounds:
“(1) Issues 1-5 formulated at pages 6-7 of the cross-appellant’s brief of argument as arising for determination do not arise from and/or are not distilled from the grounds of appeal purportedly filed in this court. Furthermore, the issues are not tied and/or not arranged under the relevant grounds of appeal as mandatorily stipulated in law.
(2) By reason of (1) supra, the said issues so far as they are not related to the said grounds of appeal are ab initio incompetent and/or incurably defective and ought to be dismissed and/or struck out.
(3) The said incompetent issues being inescapably fresh or new issues are infradig in the absence of prior leave sought and granted to raise them.”
Relying on Odofin v. Agu(1992) 3 NWLR (Pt.229) 350 at 361 and Onowhosa v. Odiuzou (1999) 1 NWLR (Pt.586) 173 at 181, learned counsel urged the court to strike out the incompetent issues raised in the equally incompetent cross-appellant’s brief of argument. He argued the court to dismiss the cross-appeal.
By way of preliminary issues, this appeal is a parade of preliminary objections, one each from the parties. Let me first take the one from the respondent. The appropriate provision in respect of the exercise of a registrar of the power to hear and determine applications in the High court is Order 8 rule 29. It provides as follows:
“No Registrar other than one who is also a qualified legal practitioner shall have the power to hear and determine any application which by these rules is conferred.”
As it is, rule 29 empowers only a registrar who is a qualified legal practitioner to hear and determine any application which by the rules is conferred upon a registrar. I entirely agree with learned Senior Advocate that the only provision which deals with the registrar is Order 3 rules 20(1) and 21(4) and these rules do not provide for or anticipate what the Assistant Chief Registrar did, that is, the extension of time by a period of twenty days within which to file the relevant processes.
Learned counsel for the appellants merely submitted that the respondent conceded to the procedure at the court below without making reference to the appropriate page of the record. I am at a loss to justify the submission of counsel. Even if that is the connect position, I do not think the respondent can be stopped from raising the objection.
Jurisdiction is the pillar upon which the entire case stands. Filing an action in a court of law presupposes that the court has jurisdiction. But once the defendant shows that the court has no jurisdiction, the foundation of the case is not only shaken but is entirely broken. The case crumbles. In effect, there is no case before the court for adjudication. The parties cannot be heard on the merit of the case. That is the end of the litigation, unless the action is filed in a court of competent jurisdiction, in which case the action is resuscitated de novo.
Jurisdiction, being the threshold of judicial power and judicialism and by extension extrinsic to the adjudication, parties cannot by connivance, acquiescence or collusion confer jurisdiction on a court. Where a court lacks jurisdiction, parties in the litigation cannot confer jurisdiction on the court. As a matter of law, lack of jurisdiction cannot be waived by one or both parties. It is a hard matter of law clearly beyond the compromise of the parties. This is because parties cannot conspire to vest jurisdiction in a court where there is none.
In view of the fact that the registrar lacked the competence to extend time, the order he purportedly made is null and void ab initio.
The next ground of objection was the failure of the appellants to pay filing fees in respect of two reliefs. Payment of filing fees is a precondition to or condition precedent to the court’s assumption of jurisdiction. Where filing fees are not paid, a court of law will have no jurisdiction to entertain the matter before it. This is because the rules of court make it mandatory for a party to pay filing fees. In this case, the respondent has clearly made out a case that the appellants did not pay filing fees for the additional reliefs 21(d) and (e). Learned counsel for the appellants did not say that the necessary statutory fees were paid.
In Onwugbuor v. Okoye (1996) I NWLR (Pt.424) 252 where the appellants failed to pay the appropriate fees for an additional claim for forfeiture, the Supreme Court held that the claim was incompetent.
Delivering the leading judgment, Iguh, JSC, said at page 292 and I will quote him in extenso:
“Quite apart from the fact that court orders must be obeyed as directed, it cannot be over-emphasised that for a valid and effective commencement of a claim, an intending plaintiff shall strictly comply with the provisions of relevant statutes and the rules made thereunder and governing the claims made such as the High Court Law and Rules of Anambra State. It is the responsibility of the plaintiff inter alia to pay the requisite fees in respect of each and every relief claimed as prescribed by the rules to enable the court’s judicial functions to commence. A court shall not entertain a relief claimed without payment of the prescribed requisite fees unless such fees have been waived or remitted by the court or such fees are payable by any Government Ministry or non-Ministerial Government Department or Local Government pursuant to the provisions of the said High Court Rules of Anambra State. If the default in payment is that of the plaintiff, the claim in respect of such prescribed fees have not been paid cannot be said to be properly before the court and should be struck out in the absence of an appropriate remedial action or application to regularise such anomaly. In this present case, no payment whatsoever was made by the appellants in respect of their new claim for forfeiture. Payment of the prescribed fees being a condition precedent to the filing of a valid claim before the court, it seems to me clear that the claim for forfeiture in the present suit is incompetent, improperly before the court and ought to be struck out. In the circumstance, it becomes entirely idle and academic to examine the various reasons given by both courts below in refusing the appellants’ claim for forfeiture which must be and is hereby struck out.”
In the light of the above, I have not the slightest difficulty in accepting the invitation of chief Akpofure to strike out the new reliefs Nos. 21E and D and I hereby accordingly strike them out.
Learned Senior Advocate for the respondent has urged this court to dismiss the appellant’s appeal. He cited “Order 3 & 20(1)” and “Order 8 & 1” of Supreme Court Rules as amended. I have some problem with the citations. I should not hide my ignorance, if it is an ignorance at all. I think the sign “&” stands for “and”. If I am correct then I must say that the Supreme Court Rules do not extend to Order 20. Similarly, while there is an Order 8 the “&” following the 8 refers to 1. Could this be Order1 If so, I must say that Order 1 does not provide for the dismissal of an appeal. If the sign refers to rule, then I must say that rule 20(1) of Order 3 of the Supreme Court Rules (as amended in 1999) does not deal with dismissal of appeal. There is some mix up somewhere.
But does the law say that when an appeal is incompetent on the ground that the court has no jurisdiction to entertain it, the appeal must be dismissed It appears to me to be the law that where a court lacks jurisdiction the proper order to make is striking out of the action. In Okoye v. Nigeria Construction and Furniture Co. Ltd.(1991) 6 NWLR (Pt.199) 501, the Supreme Court held that the proper order to make where a court has no jurisdiction to entertain an action is that of striking out. Akpata, JSC, said at page 534:
“I now turn to the question of whether the trial court has right to have dismissed the suits of the appellants or whether the majority decision of the Court of Appeal substituting an order of striking out the suits was proper in the circumstance. Although Order 29 rules 3 states that the court shall either dismiss the suit or order the defendant to answer the plaintiff’s allegations of fact, I am in agreement with Oguntade and Uwaifo, JCA. That the proper order to make in the circumstance was an order striking out the plaintiffs’ suits for lack of jurisdiction … In the instant case, however as rightly pointed out by Uwaifo, JCA, as the suits stand no court has jurisdiction to entertain them. The plaintiffs can only validly react against the decision of Nwokedi, J., by way of an appeal.”
In Gombe v. PW (Nigeria) Ltd. (1995) 6 NWLR (Pt402) 402,the Supreme Court also held that where a court holds that it has no jurisdiction to hear and determine the matter before it, the proper order to make is that of striking out the action and not dismissing same. See also Din v. Attorney-General of the Federation (1986) 1 NWLR (Pt.17) 147;Akinbobola & Sons v. Plisson Fisko (Nig.) Ltd. (1988) 4 NWLR (Pt.88) 335;Chief Okafor v. Alhaji Hashim (2001) 1NWLR (Pt.693)183; Alhaji Baba v.Habib Nigeria Bank Ltd. (2001) 7 NWLR (Pt.712) 496.
In the light of the foregoing, I am in extreme difficulty to accept the invitation of learned Senior Advocate to dismiss the appeal. I would rather strike out the action instituted in the High Court of Delta State on the ground that the appellants failed to get proper extension of time to file appeal. Since the action gave rise to this appeal by the appellants, the appeal itself is incompetent and it is hereby equally struck out.
In the interest of fair hearing, the preliminary objection raised by Mr. Okiemute Odje in the cross-respondents’ brief will be taken here. The objection reads in part:
” … as counsel can be heard on behalf of the appellants/cross-respondents by way of argument upon preliminary objection as to the competence of the issues purportedly but ineffectually formulated from cross-appellants’ grounds of appeal … ”
Since I had earlier reproduced the grounds of the objection, I shall not repeat the exercise. What I should do now is to react to the objection. It is the law that issues must be formulated from the grounds of appeal. In other words, issues not formulated from the grounds of appeal will go to no issue. Issues should not be framed in the abstract but in concrete terms arising from and related to the grounds filed which represent the questions in controversy in the particular appeal. See Okpala v. Ibeme (1989) 2 NWLR (Pt.102) 208; Ehot v. The State (1993) 4 NWLR (Pt.290) 644;Idika v. Erisi (1988) 2 NWLR (Pt.78) 563;Madumere v. Okafor (1996) 4 NWLR (Pt.445) 637;Shie v. Lokoja (1998) 3 NWLR (Pt.540) 56.
Let me take each of the issues in relation to the grounds of appeal in the light of the preliminary objection. I will take the issues seriatim:
Issue No.1 is in the following terms:
“Whether the Justices of the Court of Appeal were right in law when they held at page 365 as follows:
‘The order of the lower court with regard to interest charged by the cross-appellant which is pegged at the interest rate of 11% is consistent with the relief sought by the respondent”. (Ground 5).
Ground 5 reads as follows:
“The learned Justices of the Court of Appeal erred in law when they held at page 44 of the judgment (per Achike, JCA) thus:
‘The order of the lower court will (sic) regard to interest charged by the cross-appellant which was pegged at the interest of 11% is consistent with the relief sought by the respondents.’”
It is clear to me that the ground of appeal is the same as the issue. The only difference is in the format. While the ground of appeal takes the format of a ground, the issue takes the format of an issue. With the greatest respect to the learned counsel, Mr. Odje, I do not see the basis of the objection. The objection therefore fails.
Issue No.2 reads as follows:-
“Whether the Justices of the Court of Appeal were right in the law when they held as follows:
‘Be that as it may, it must be noted that the amount of the award is not contested nor is it covered by any ground of appeal. I am satisfied that having regard to the pleaded facts and the evidence lead (sic) by both parties coupled with the consideration made by the trial Judge in deciding the amount to be awarded by way of general damages it cannot be said that the award was not justifiable.’”
Ground 6 reads as follows:
“The learned Justices of the Court of Appeal erred in law when they held (per Achike, JCA) at page 45 thus:
‘Be that as it may, it must be noted that the amount of the award is not contested nor is it covered by any ground of appeal. I am satisfied that having regard to the pleaded facts and the evidence led by both parties, coupled with the consideration made by the trial Judge in deciding the amount to be awarded by way of general damages it cannot be said that the award was not justifiable.
This objection also fails.
Issue No.3 provides in the following terms:
“Whether the Justices of the Court of Appeal were right in law (per Achike, JCA) when they held as follows:
‘Therefore in the absence of pleadings and evidence to support any unilateral increase of the rate of interest it seems that the only statutory approach to the mortgage should remain the amount mutually agreed by the parties and that is 11%. In the circumstances any interest paid or charged over and above the rate of 11% should be reversed in favour of the respondent.’” (Ground 8).
Ground 8 is in the following words:
“The learned Justices of the Court of Appeal erred in law when they held (per Achike, JCA) at page 52 of the judgment as follows:
‘Therefore in the absence of pleadings and evidence to support any unilateral increase of the rate of interest it seems that the only statutory approach to the mortgage should remain the amount mutually agreed by the parties and that is 11%. In the circumstances, any interest paid or charged over and above the rate of 11% should be reversed in favour of the respondent’.”
This objection accordingly fails.
Issue No.4 is in the following terms:
“Whether the Justices of the Court of Appeal were right in law when they held as follows:
The attack on this award is unjustified. Exhibit L-L2 as well as the evidence of DWL afford ample evidence which support the judges’ holding that the respondents were entitled to the refund of E5,155.35 (five thousand one hundred and fifty five pounds thirty five pence) or its Naira equivalent.” (Ground 9).
Ground 9, in clearly almost the same language, reads:
“The learned Justices of the Court of Appeal erred in law to hold at page 53 of the judgment (per Achike, JCA) thus:
The attack on this award is unjustified. Exh. L-L2 as well as the evidence of DWL afforded ample evidence which support the Judges holding that the respondents were entitled to the refund of E5,155.35p or its naira equivalent. ”
This objection also fails,
And finally issue No.5 reads thus:
“Whether the judgment of the justices of the Court of Appeal is in line with the weight of evidence.” (Ground 1).
Ground 1 reads as follows:
“The judgment of the Court of Appeal is against the weight of evidence.”
This objection also fails.
My approach would look prolix but I do not have any alternative if I must take each of the objections one after the other. And that is what I have done. I am extremely surprised that learned counsel can raise such objection in a very clear and obvious situation. Since this court, like all other courts, must consider any preliminary objection, however unmeritorious, I am left with no choice than to take the objection. The objection was clearly out of place and a waste of the time of this court. I will say no more.
I think I am now left with the cross appeal. Let me now deal with it. Chief Akpofure, SAN, taking issues 1 and 3 together, submitted that what the 1st respondent asked for at page 48 lines 2 to 5 is in conflict with the relief sought in paragraph 21B, page 42H, lines 6-13. Pointing out that in the evidence of 1st respondent, he requested the court to revise the entries debited to his account and also credit his account as against the relief which speaks of debiting and crediting the 2nd respondent’s account, learned Senior Advocate submitted that the evidence is at variance with the relief sought. It is therefore clear that in law the learned trial Judge ought not to have granted that relief nor were the Justices of the Court of Appeal right when they agreed with the learned trial Judge, learned Senior Advocate reasoned. He cited Egbunike v. ACB Ltd(1995) 2 NWLR (Pt.375)34 at 51 and Igbodim v. Obianke (1976)9 and 10 SC 179 at 190.
Learned counsel argued that no facts were pleaded and the evidence thus led goes to no issue and ought not to have been received. Such evidence wrongly received ought to and should be expunged. Once expunged, there will be nothing upon which the learned trial Judge and indeed the Justices of the Court of Appeal would have based their finding, learned Senior Advocate contended.
Counsel submitted that relief 21(b) does not deal with the issue of interest chargeable or not, and that the issue of the interest charged by the cross-appellant was not raised in the relief. The issue of the interest rate being pegged at the rate of 11% does not also form part of the relief, learned Senior Advocate claimed.
Learned Senior Advocate submitted that a claim relating to either excessive charge of interest or otherwise is a specific relief. He also submitted that the case of Union Bank of Nigeria v. Professor Ozigi (1994) 3 NWLR (Pt.333) 385 was wrongly applied and that the case was overruled by the Supreme Court. To learned Senior Advocate, the law is that the bank is at liberty to charge interest at the rate from time to time stipulated by the bank. This situation, learned Senior Advocate contended, exists where a mortgage has been entered into which carries a clause like the one in the Ozigi’s case.
Still dealing with the claim relating to arbitrary or excessive charge of interest, learned Senior Advocate submitted that the Court of Appeal fell into the same error as the trial court because there was no such relief. Citing
Egonu v. Egonu (1978) 11 and 12 SC III and Ajakaiye v. ldehai (1994) 8 NWLR (Pt.364) 504 at 526, learned Senior Advocate argued that a court of law cannot grant a relief that was not sought.
On issue No.2, learned Senior Advocate adopted his submission on damages in the respondent’s brief under the notice of preliminary objection. He quoted the relevant pages in the respondent’s brief. He contended that the issue of damages was raised in ground 6 by the cross-appellant and that the Court of Appeal was therefore in error when the court held that the issue was not covered by any ground of appeal.
It was the submission of learned Senior Advocate that paragraph 21(d) of the amended statement of claim is in law an independent and distinct cause of action and it must be complete by itself. He cited Savage v. Uwaechia (1972) 1 All NLR (Pt.1) 251 on the definition of a cause of action.
On the award of N50,000.00 general damages, learned Senior Advocate submitted that the learned trial Judge had no jurisdiction to “revise” (sic) herself to award the damages to the plaintiffs having held that there was no breach of contract and that no claim for negligence was incorporated in paragraph 21 of the amended statement of claim. He urged the court to set aside the damages awarded by the learned trial Judge.
On issue No.4, learned Senior Advocate adopted the submission made in the respondent’s brief under the second arm of the preliminary objection raised in the brief of the respondent to form part of the argument under this issue. Counsel submitted in the alternative that the learned Justices of the Court of Appeal were in error when they upheld the learned trial Judge’s holding that the respondents were entitled to refund of E5,155.35 or its naira equivalent.
Learned Senior Advocate submitted that the relief or claim being sought by the 1st appellant who incidentally was the only witness who testified on behalf of the respondents talks of the defendant being ordered to pay to him what he paid to his overseas customers. Referring to paragraphs 1,3,4,5,6,8,9,10,17, 18(d) and (j) of the amended statement of claim, learned Senior Advocate submitted that the averments contained therein relate to the operation of an account by the 2nd respondent as well as the business of import and export also carried out by the 2nd respondent. The 1st respondent is only a managing director who used his property as a collateral in favour of
the 2nd respondent and also entered into a guarantee on behalf of the 2nd respondent, learned Senior Advocate pointed out.
To learned Senior Advocate, whatever is being claimed must be tied in law to the 2nd respondent with whom the appellants herein had a banking relationship. He argued that there is a magnitude of difference in law between a managing director of a company, in this case the 1st respondent, and the limited liability itself in this case the 2nd respondent. In law the 1st respondent who is the managing director is an agent of the 2nd respondent who is his disclosed principal, counsel reasoned. Citing Yesufu v. Kupper International N. V. (1996) 5 NWLR (Pt.446) 17 at 28-29, counsel argued that in suing therefore, the managing director cannot as an agent of a disclosed principal sue or be sued on a contract like this in the instant appeal. Pointing out that the evidence proffered and reproduced
above under 4 relates to a claim being asked for by the 1st respondent for his person and not behalf of the 2nd respondent, learned Senior Advocate submitted that the award by the learned trial Judge in relation to the refund of the sum of E5,155.35 and which award was upheld by the Court of Appeal was erroneous and wrong in law. Again, citing Magnusson v. Koiki (1993) 9 NWLR (Pt.317) 287 at 302-303 and Ilodibia v. NCC Ltd. (1997) 7 NWLR (Pt.512) 174, (1998) Vol. 53, 2507 at 2543, learned Senior Advocate submitted that no court can grant either a claim not sought for or one in respect of which evidence was not led. He submitted that the Court of Appeal was wrong in law when it held that the attack on the award of the refund of 35,155.35pounds or its naira equivalent was unjustified.
On issue No.5, learned Senior Advocate called the attention of the court to the state of pleadings and contended that the respondents admitted being indebted to the cross-appellant, and that all that they were disputing was the amount. He claimed that from the record both from pleadings filed by the respondent herein and the evidence of the 1st appellant who was the only witness for the respondent, no figure was given by them as being the debt owed by the 2nd respondent. He referred to the evidence of DWI and DW2.
Calling in aid Ajibona v. Kolawole (1996) 10 NWLR (Pt.476) 22 at 30; Ndiwe v. Okocha (1992) 7 NWLR (Pt.252) 129 at 139140, learned Senior Advocate argued that the award by the trial Judge in relation to the 2nd respondent’s indebtedness to the cross-appellant and which award was wrongly upheld by the Court of Appeal amounts to a judgment that is against the totality of the evidence adduced before the court. This also amounts to improper evaluation of evidence, counsel submitted. He urged the court to allow the cross-appeal.
Learned counsel for the cross-respondents, Mr. Odje, adopted his arguments in the appellants’ brief, particularly all the arguments and judicial pronouncements in the list of authorities in general, in particular the case of Union Bank of Nigeria PIc. v. Odusote Bookstore Ltd. (1995) 9 NWLR (Pt.421) 558-594; Learned counsel also adopted the conclusion contained at pages 19 and 20 of the appellants’ brief as the logical and inescapable reliefs that this court ought to make in order to prevent fraud and unjust enrichment.
Learned counsel submitted that the long and rambling arguments proffered rather verbosely at pages 7 to 26 of the cross-appellant’s incompetent brief of argument are solely and wholly out of point and therefore not germane to the just determination of this appeal. He described the arguments in the brief as “barren controversies” which are uncalculatedly aimless of direction and headless of consequence; and the same ought to be discountenanced.
Let me take the issues seriatim. In respect of issue No.1, the learned trial Judge said at page 120 of the record:
“Since neither of the parties gave evidence as to the prevailing rate of interest as at 1986-1990 when the sum of N75,119.21 was said to be outstanding, I want to assume that interest was worked out at the rate of 11% per annum. In the circumstances judgment is hereby entered for the defendant against the 2nd plaintiff in the sum of N75,119.21 being the sum outstanding as at 20/7/90 as per the counter claim of the defendant. The sum shall attract interest at the rate of 11% per annum which was the agreed rate of interest at the time of the transaction. ” Dealing with the same issue, Achike, JCA (as he then was) said:
“Therefore in the absence of pleadings and evidence to support any unilateral increase of the rate of interest it seems that the only statutory approach to the mortgage should remain the amount mutually agreed by the parties and that is 11%. In the circumstances any interest paid or charged over and above the rate of 11% should be reversed in favour of the respondent.”
Learned Senior Advocate did not deal with the important point made by Achike, JCA (as he then was) in respect of the cross-appellant not pleading what the learned Justice called “unilateral increase of the rate of interest”. I would like to think that the point is central to the whole argument of learned Senior Advocate. The basic law is that parties are bound to plead all facts they intend to rely upon at the trial and facts not pleaded will go to no issue. One rationale behind this principle is that litigation must follow some restrictive order and not open-ended in order to save the time of both the courts and the litigants. If the procedure of pleadings was not introduced in litigation, parties’ search for evidence could not have ended and that should have protracted litigation beyond expectation.
Did the cross-appellant plead the unilateral increase of the rate of interest I should refer to the counter-claim at page 63 of the record. It is of three paragraphs. The relief is in paragraph 10. It reads:
“WHEREFORE the defendant seeks the orders of this honourable court that the mortgage registered as No. 42 at page 42 in Volume 523 at the Lands Registry in the office in Benin City, be enforced against the plaintiffs by foreclosure and the delivery of possession to the defendant by the plaintiff the mortgaged property registered as No. 45 at page 45 in Volume 273 at the Lands Registry in the office at Benin City in accordance with terms of the said mortgage. Defendant shall rely on its letters dated 29/3/89 and 12/4/89 at the trial.
“Where is the pleading to support the unilateral increase of the rate of interest Instead of dealing with this important point, learned Senior Advocate dealt with conflict of evidence of the 1st respondent and the relief sought. I think Achike, JCA (as he then was) is correct.
The issue is therefore resolved in favour of the respondents (for the purpose of the cross appeal) and against the cross-appellant. Since issue No.3 was argued together with issue No.1, and rightly too for that matter, issue No.3 is equally resolved in favour of the respondents and therefore against the cross-appellant.
On issue No.2, the question is whether the Court of Appeal was right when it held that the “amount of the award is not contested nor is it covered by any ground of appeal”. I think not. Although learned Senior Advocate relied on ground 6, I think the relevant ground is ground 5 at page 156 spreading over to page 157. The ground complained of the award of N50.000.00 damages. Particulars (d) is relevant. It reads:
“(d) The learned trial Judge without basis found the defendant guilty of lack of negligence and awarded N50,000.00 as bonus to the plaintiff.”
In the light of the above, the Court of Appeal, with respect, was clearly in error in coming to the conclusion that the amount of the award was not contested. It was seriously contested and the contest is ground 5, and so the Court of Appeal was also in error in concluding that there was no ground covering the complaint on the award of N50,000.00. Accordingly, I resolve this issue in favour of the cross-appellant.
I now come to issue No.4, I do not think the Court of Appeal was right in coming to the conclusion that the learned trial Judge was right in holding that the plaintiffs/respondents were entitled to the refund of ‘a35,155.35p or its naira equivalent and that exhibits E-E2 and the evidence of DW1 supported the decision of the trial Judge.
The 1st plaintiff is a natural person while the 2nd plaintiff is in law an artificial person. The dichotomy is important, particularly in the light of the evidence of the 1st plaintiff. He said:
“The defendant wrote to my overseas partners that the money is yet to be sent. I represented the R.D.F. in Nigeria and they were to take my agency. I was owing them E5,515.00. I scouted round and got foreign exchange and I went to the UK to pay them … I now want the court to order the defendant to pay the equivalent of the sterling I have paid to my overseas customers at the prevailing rate plus interest.”
It is clear from the above evidence that the refund of E5,515.00 was made by the 1st plaintiff, Patrick Izuagbe Okolo. This is bome out by the use of the personal pronoun “I” and “my” the possessive form of the personal pronoun “I”.
The above gives rise to the pertinent question: who was the customer of the Union Bank of Nigeria Limited Was he Patrick Izuagbe Okolo who gave the evidence or Pace Industries Nigeria Limited, the artificial or corporate person Patrick Izuagbe Okolo was the Managing Director of Pace Industries Nigeria Limited. Are the two persons the same to the extent that they can change places at will I think not.
In the often cited English case of Salomon v. Salomon and Co.(1887) AC 22, the House of Lords held that the company is in law a person distinct from Salomon who formed the company with his wife and five children. In Chief Yesufu v. Kupper International N. V. (1996) 5 NWLR (Pt.446) 17, this court held that a director of a company is, in the eyes of the law, an agent of the company for which he acts and the general principle of the law of principal and agent would apply. Thus, where a director enters into a contract in the name of or purporting to bind the company, it is the company, the principal, which is liable on it, not the director.
The Court of Appeal held that the attack on exhibits E-E2 is unjustified. With the greatest respect, the attack is justified because the contents of exhibits E to E2 conflict with the evidence given by the 1st plaintiff. Exhibit E reads in part:
“Further to your correspondence with Pace Industries (Nig.) Ltd. on this matter, we are writing to ask you to release to Pace the monies held by yourselves, to cover this I.B.C.”
The heading of the letter is “Re-IBC No. 0971/81: E5,155.35 Red inflatable”. In exhibit E 1, on the same subject, part of the letter reads:
“On the 20th January, 1989 we received a letter from the drawers Messrs RDF limited asking us to release the local currently held in respect of this bill to pace …
” Finally, exhibit E2 reads in part:
“If you decide to withdraw this application and to instruct us to pay the naira cover to Pace Industries Nigeria Limited, please let us have the following … ”
It is clear that in all the above exhibits, it was the 2nd plaintiff, Pace Industries (Nig.) Ltd. that was the basis of the transaction; not the 1st plaintiff, Patrick Izuagbe Okolo. I expected the Court of Appeal to reconcile the contradiction in the evidence of the 1st appellant and exhibits E to E2. In the light of the above, I resolve issue No.4 in favour of the cross-appellant.
I do not think I will waste any time on issue No.5. It is the usual omnibus ground. Since I have dealt with the specific issues, issue No.5 becomes otiose. I therefore resolve it in favour of the respondent, the Union Bank Nigeria Limited.
In sum, the cross-appeal succeeds in part. For the avoidance of doubt, the cross-appeal succeeds only in respect of the award of N50,000.00 damages and the refund of the sum of E5, 155.35 p or its naira equivalent. Of course, my order striking out the appellants appeal remains. I make no order as to costs.
SC.161/1998
