Union Bank Of Nigeria Plc V. Branksome Properties Ltd. (2007)
LawGlobal-Hub Lead Judgment Report
CLARA BATA OGUNBIYI, J.C.A,
The plaintiffs’ claim against the defendant is in the sum of five million naira being damages suffered by the plaintiff for breach of contract when the defendant constituted the Title Deed of the plaintiff Registered as No.6 at page 6 in Volume 1568 in the Lands Registry, Lagos into a mortgage and refused to release same to the plaintiff on demand.
The plaintiff alleged that the title deed was deposited and kept with the defendant on a simple deposit agreement for safe keeping on behalf of the plaintiff. That the defendant has therefore subsequently refused and failed to release the said title deed supra to the plaintiff despite repeated demands and hence the institution of the suit from which this appeal stems.
The plaintiff filed an initial statement of claim which was subsequently amended and filed on the 6th February, 1991 evidenced at pages 75 – 82 of the record of appeal. At paragraph 34 of the said statement of claim the plaintiff therefore claimed as follows:-
“34. WHEREOF the plaintiff claims against the defendant as follows:-
(i) Declaration that the refusal of the defendant to release the original Deed of Conveyance dated 16th June, 1976 and registered as No.6/6/1568 to the plaintiff on demand is unlawful and a breach of contract.
(ii) An order compelling the defendant to release the said Deed of Conveyance Registered as No.6/6/1568 to the plaintiff.
(iii) The sum of five million Naira (N5, million) being damages suffered by the plaintiff for breach of contract when the defendant refused to release to it the Deed of Conveyance dated 16th June, 1976 and registered as No.6, at page 6 in Volume 1568 at the Land Registry, Lagos, which said Deed was kept with the defendant for safe custody. Despite repeated demands made by the plaintiff to the defendant since 1988 for the release of the said document the defendant has refused and failed to release same.”
At pages 96 – 99 of the record, the defendant filed a fourteen paragraphs statement of defence wherein it totally denied the plaintiffs claim at paragraph 14 and said:-
“WHEREOF the Defendant says that the claim is vexatious, frivolous, speculative and constitutes, an abuse of process of court and should therefore be dismissed.”
Deducing from the Plaintiff s claim, same was for monetary damages and the brief facts as summarized from the statement of claim are as follows:-
That the plaintiff was the customer of the defendant in regards to the Bank-Account which it maintained at the defendant’s 40, Marina Lagos branch. That within the ambit of a contractual Banker/Customer relationship, the plaintiff deposited its Title Deed (the Deed) with the defendant for safekeeping; in consideration, the plaintiff paid the periodic commissions charged by the defendant.
That the plaintiff s Board (by a Resolution), decided to sell the property covered by the Deed in order to raise money for a profit – oriented venture. Consequently, the plaintiff therefore made a formal demand on the defendant, who refused to release same, on the contention that it was being held as collateral for an over draft facility standing to the debit of the plaintiff. That the plaintiff was then constrained to institute the action in the High Court whereby it claimed the reliefs as per the endorsement on its Amended Statement of Claim reproduced supra.
The plaintiff/respondent on the one hand and to prove its claim called five witnesses whose evidence were at pages 53 – 60; 84 -87 and 102 – 103 of the record of appeal. The said witnesses were all cross-examined. The defendant/appellant on the other hand called only one witness at pages 104 – 107 of the record. While the defendant’s address is at pages 107-110 of the record of appeal, that of the plaintiff is at pages 113-117 of same. At the end of the proceedings, the learned trial judge found for the plaintiff in the following terms:-
(1) That the plaintiff deposited its Title Deed on a simple contract with the defendant for safe-custody;
‘(2) That there was no evidence to suggest or sustain the defendant’s contention that the said document was used as collateral in respect of an equitable mortgage;
(3) That despite several demands, the defendant unlawfully with held the deed in breach of the simple contract for its safe custody.
(4) That the plaintiff suffered loses on account of the defendant’s breach.
In consequence therefore, the court awarded monetary damages against the defendant in the sum of N1.8 million (one million Eight Hundred Thousand Naira) in favour of the plaintiff, plus costs. The defendant was aggrieved with the outcome of the decision and therefore filed a notice of appeal on the 30th December, 1991 containing two grounds of appeal. Vide a motion on notice dated 9th May, 2000 and filed on the same day, the appellant sought leave to amend the said notice of appeal and to file additional grounds of appeal as contained in the amended notice of appeal containing seven grounds of appeal. The motion was taken and granted on the 22nd January 2001.
In accordance with the rules of court briefs of arguments were exchanged by parties. The appellant’s brief was dated 22nd October, 2001 and filed the same day while that of the respondent was dated and filed on the 4th February, 2005.
On the 21st November, 2006 when the appeal was called up for hearing, neither the appellant nor his counsel was in court. Service was however effected on the appellant on 15th November 2006. The learned counsel for the respondent Mr. Cyril Ogbekene before us Viva Voce argued the preliminary objection raised and contained in the respondent’s brief of argument. Counsel contended the two grounds in the notice of appeal as incompetent on the ground that they are contentious and argumentative and contravenes the requirement in the rules of court. That the grounds both offend Order 3 Rules 1 – 4 of the rules of Court. That despite the amended notice, the appeal still remains incompetent as the incompetence of the initial grounds cannot be cured by the subsequent notice. Counsel therefore adopted the arguments advanced on the respondents’ brief of argument.
In the alternative and on the merit of the appeal, the learned counsel, adopted the brief and submitted the appellant’s failure to show in what way the court erred in the judgment, especially where same is presumed to be correct. Learned counsel therefore urged for the dismissal of the appeal.
The appellant’s counsel, for the determination of this appeal, formulated five issues from the seven grounds of the amended notice of appeal. The respondent’s notice of preliminary objection as stated earlier is predicated against the original notice of appeal. Counsel in the alternative however and unlike the appellant, distilled only two issues from appellant’s seven grounds of appeal.
The reproduction of the Issues would be apt, with those of the appellant as follows:-
(i) Whether the plaintiff’s action can be maintained in contract and therefore claim for breach of contract?
(ii) Whether the Defendant unlawfully held onto the title deeds despite repeated demands when there was no cogent evidence of demand by the plaintiff?
(iii) What is the measure of damages for detention of goods in an action in detinue?
(iv) Whether it is necessary for a plaintiff, when claiming damages for loss of business, to specifically establish py evidence the actual loss?
The respondent’s issues for determination also read as follows:-
(i) Whether the Notice of Appeal dated 30/12/91 contain valid grounds of appeal as would inure for the competence of this appeal.
(ii) Whether by its Brief of Argument, the appellant discharged the burden of showing why the valid judgment delivered by the lower court, should be set aside.
While adopting its brief of argument as stated earlier, the learned respondent’s counsel, submitted their brief having been filed within time. The said brief was dated and filed on the 4th February, 2005. There was also an earlier order made on the 8th July, 2002 consequent to an application dated 22nd April, 2002 for an order setting down the appeal for hearing in default of the respondent’s brief. On the 19th January, 2005 however and consequent to an oral application for extension of time to file respondents brief out of time, an order was so made by this court to file same within 21 days. Thus a confirmation that the respondents brief was therefore filed within time.
The learned appellant’s counsel in response to the respondent’s brief filed a reply brief dated 11th and filed on the 19th April, 2006 wherein he argued the preliminary objection raised as misconceived. This, counsel submitted in view of the appellant having earlier obtained leave of this court on the 22nd January, 2001 to file an amended notice and grounds of appeal. That the provision of Order 3 Rule 16 of the Court of Appeal Rules, 2002 allows the amendment of a notice of appeal to be made with leave of court at any time. That consequent to the order of court therefore, the amended notice of appeal relates back to the date of the filing of the original notice of appeal. To buttress his submission, the counsel cited the case of First Bank of Nigeria Plc v Tsokwa (2003) F.W.L.R. (Pt.153) 205. Counsel in consequence argued the notice and grounds of appeal filed as competent.
On the 25th January, 2007, counsel were summoned to further address us on the effect of the order of court made the 22nd January, 2001 wherein the appellant was granted leave to amend its notice of Appeal and consequent to its filing an additional grounds of appeal. In otherwords whether it would not amount to this court sitting on appeal of its own decision.
In his submission before us, the learned respondent’s counsel Mr. Cyril Ogbekene submitted the objection as basically a challenge to the court’s jurisdiction and referred to the authority in the case of Nduka v Chiejina (2002) FWLR (pt 117) 118 at 119. Counsel argued the authority on all fours with the case at hand. That this court had not become functus officio but is competent on a preliminary objection. That since the notice of appeal is incompetent, it therefore remains for all intent and purposes and cannot subsequently acquire competence by any form of an amendment.That the appeal which was not on ground could not be placed subsequently. Further reference was made to the case of Emecheta v Ogueri (1998) 12 NWLR (pt 579) 502 at 515; also the case of Global Transport Oceanieo S.A & Ors v Free Enterprises Nig. Ltd (2001) 2SC 154 at 160 – 162; and Coker v U.B.A. Plc (1997) 2 NWLR (pt 490) 641 at 670 – 67l.
Learned counsel urged us to hold the preliminary objection in order; and that regardless of the amendment of the original notice, this court ought to declare same as invalid with the incompetence of the initial notice of appeal.
The learned appellant’s counsel Mr. Musa in response submitted the existence of a valid notice of appeal, which he argued gave rise to the amended notice of appeal which is the only notice now subsisting before the court as same was filed within time. Learned counsel, in support and to buttress his submission cited the same case of First Bank of Nigeria Plc v Tsokwa reference supra. That this court cannot sit on appeal to reverse its earlier decision made in respect of the amendment even if predicated on an incompetent notice of appeal. That the order made by the court can only be challenged by way of an appeal.
The determinant questions on the preliminary objection are two fold, with the first relating to the legal effect of the initial notice and grounds of appeal. In otherwords whether or not the appeal is competent having regard to the notice and grounds of appeal filed at pages 143, and 144 of the record of appeal wherein the reproduction of the two grounds of appeal filed and their particulars are as follows:-
“1. The learned trial Judge misdirected himself in law and on the facts when he held that the” ….. flagrant refusal of the defendant to release the title deed upon demand, to the plaintiff was a wanton breach of contract.”
PARTICULARS OF MISDIRECTION AND ERROR
(a) Plaintiffs action can only be maintained as an action for detinue following the Supreme Court’s decision in Odumosu vs A.C.B. Ltd. (1976) 11 S.C. 55.
(b) No evidence of the contractual relationship was given by the respondent or its witnesses at the trial.
2. The learned trial Judge misdirected himself in law and on the facts in giving judgment to the respondent in the huge sum of one million eight hundred thousand naira only (N1,800,000.00) as damages when there was no evidence to establish any loss sustained.
PARTICULARS OF MISDIRECTION
(a) The trial judge did not advert his mind to the Court of Appeal’s decision in F.H.A. vs Sommer (1986) 1 N.W.L.R. (Pt.17) page 53 requiring that special damages must be alleged with particularity stating not only the amount of damages he suffered
but also how such amount is made up or calculated.
(b) There was no yardstick on which the trial judge computed the sum awarded as damages.
(c) In Odumosu vs A.C.B. Ltd. (supra) the Court maintained that general damage may, if established, be awarded (for they are not to be presumed) and they are generally nominal.”
The second determinant question is dependant on the outcome of the 15t question which if the answer is to the effect that the notice is incompetent, same would as a result call into further question the legal effect of the order made by this court on the 22nd January, 2001 and amending the notice of appeal.
The initial notices of appeal containing two grounds have been reproduced supra. While the learned respondent’s counsel submitted the notice as incompetent, the appellant argues the contrary.
The provision of Order 3 Rule 2 of the Rules of this Court 2002 (as amended) directs the procedure relating to what form and nature a ground of appeal should take. The reproduction of the requirements which are:-
“2(1) All appeals shall be by way of rehearing, and shall be brought by notice (hereinafter called “the notice of ,appeal) to be filed in the Registry of the Court below which shall set forth the grounds of appeal.
(2) If the grounds of appeal allege misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.
(3) The notice of appeal shall set forth concisely and under distinct heads, the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.
(4) No ground which is vague or general in terms or which discloses no reasonable ground of appeal shall be permitted, save the general ground that the judgment is against the weight of the evidence, ”
While the learned respondent’s counsel vehemently argued the defective nature of the notice and grounds of appeal, the appellant’s counsel tenaciously held the contrary. The nature and term of a notice of appeal has been well spelt out in the rules of this court reproduced supra. I would quickly hasten to say that the appeal is against a final decision of the lower court sitting as a court of Ist instance and consequent to which the grounds on mixed law and facts needed no leave as provided for under section 241(1)(a) of the Constitution of the Federal Republic of Nigeria 2002.
However vide the provision of order 3 Rule 2 restating the nature and requirement of a valid notice of appeal as reproduced supra, same does not permit any ground which is vague, general, or which discloses no reasonable ground of appeal, save of course the general or omnibus ground.
In the Supreme Court decision of Adah v Adah (2001) 2 SC 1 at 6 their Lordships per Uwaifo JSC had this to say amongst others:-
“It is plain that neither a ground of appeal nor the particulars in support should contain any argument or narrative, otherwise its validity could be called into question”
Also in the case of C.B.N. v Okoye (2002) 3 SC 99 at 103 – 104 Uwaifo JSC again had this to say:-
“I have no hesitation in agreeing with Mr. Okoye’s preliminary objection that the ground of appeal is vague. Vagueness of a ground of appeal may arise where it is concluded in a manner which does not provide any explicit standard for its being understood, or when what is stated is so uncertain that it is not susceptible of being understood. It may also be considered vague when the complaint is not defined in relation to the subject or it is not particularized or the particulars are ,clearly irrelevant. See Atuyeye v Ashamu (1987) NSCC (Vol. 18 pt.1) 117. In the present case the ground of appeal is incompetent for incurable vagueness and being the sole ground, the notice of appeal is accordingly in competent.”
Also in a further authority of Adeleke v Asani (2002) 4 SC (pt 11) 125 at page 135 their Lordships of the apex court per Ejiwunmi, JSC made this pronouncement wherein he said:-
“It is thus clear that under the rules, an appellant who alleges in his ground of appeal misdirection and/or errors in law is obliged to set out the alleged wrongs committed by the court against whose judgment he is appealing.”
Their Lordships re-iterated in that case that the burden lies on the appellant to frame his grounds of appeal with such clarity as would enable the opposite party and the court to appreciate his complaint. The two grounds of appeal in the case under reference were both vague and therefore struck out. With due reference to the two grounds of appeal in this matter under consideration and relating same to the enabling Order 3 rule 2 of the rules of court as well as to the authorities cited supra, the grounds in my humble opinion do not sufficiently and clearly relate the nature of the misdirection of law complained of. There is the duty upon the appellant to be specific especially where the particulars of the misdirection and error in the case at hand do not offer any help. For instance and in respect of the 2nd ground in particular, by the use of the phrase “in the huge sum of’, it gives a general and a vague concept of the ground, which ultimately does not relate anything specific. The particulars are also argumentative and thus offending the requirement~ as laid down in the rules as well as the judicial authorities relating to same. In the absence of such definitive clarity, I agree with the submission by the learned respondent’s counsel that the initial notice of appeal is incompetent.
The next question for determination is, despite the defective nature of the notice thereof,: what therefore is the legal effect of the order made by this court on the 22nd January, 2001, in amending the said notice of appeal? While the learned respondent’s counsel argued the order of no effect, the appellant’s counsel submitted the contrary and that same had a retrospective validating effect.
As rightly submitted by the learned appellant’s counsel on the reply brief, the amended notice of appeal was pursuant to this court’s order. The question however is in the light of the circumstances, what therefore is the legal effect of the order of amendment so made?
There is no question to the fact that the rules of this court vide order 3 rule 2(5) allows such an exercise of discretion. It is also trite law to state that an amended notice with the leave of the court relates back to the date of the filing of the original notice of appeal. In the case of First Bank of Nigeria Plc v Tsokwa (2000) FWLR (pt.25) 1653 cited by both counsel, their Lordships of the Court of Appeal at page 1662 restated the dissenting judgment of Kutigi JSC (as he then was) in the case of Coker v U.B.A. Plc. (1997) 2 NWLR (Pt.490) 641 wherein he said:- “It is settled law that once an appeal is competent as in this case, where the notice of appeal filed on 11/3/96 is valid, proper and competent, the existing grounds of appeal may be amended by an alteration, addition or a subtraction from the original grounds of appeal filed (Awote & Ors. vs Owodunni & Anor. (1986) 5 NWLR (Pt.46) 941).
But where an appeal is not competent, such as where leave to appeal which ought to have been originally obtained has not been obtained, no valid amendment can be made because one cannot put something on nothing.” On the same principle is the case of Global Trans. Oceanico v Free Ent. Ltd. supra, wherein Kalgo JSC said the following at page 162.
“I entirely agree with learned counsel for 2nd appellant, and I have no doubt in my mind about it that where a notice of appeal is defective in that there is no competent and valid ground of appeal in it, such defective notice of appeal cannot be cured by the filing of amended grounds out of time.”
Further related authority is the case of Atuyeye v Ashamu (1987) 1 NWLR (pt 49) 267.
Also in the case of Coker v UBA Plc (1997) 2 NWLR (pt.490) 641 at 670 it was held that,
“It is settled that once an appeal is competent, the existing grounds of appeal may be amended by alteration, addition or subtraction from the original grounds of appeal filed but where an appeal is not competent, no valid amendment can be made because one cannot put something on nothing.”
Confirming and supporting the chain of authorities well expounded supra, the case of Emecheta v Ogueri (1998) 12 NWLR (pt 579) 502 at 512 is also relevant wherein their Lordships held that:-
“It stands to reason and common sense that where there is no valid notice of appeal with competent grounds of appeal, there is no valid appeal, thereby the court will not so pronounce and one cannot amend additional grounds of appeal to a non-existing ground of appeal. A fortiori as Lord Denning rightly pronounced in Macfoy v UAC that you cannot put something on nothing, it is bound to collapse; once there is no valid notice of appeal, no amount of ingenuity by way of amendment can be used or employed to save the invalid notice of appeal.”
Oguntade JCA (as he then was) also made a related pronouncement in the case of Olarewaju v BON Ltd (1994) 8 NWLR (pt 364) 622 at 627 wherein the learned jurists said:-
“It is trite that a Notice of appeal which does not contain a valid ground of appeal is bad for all purposes. If a court thinks that all the grounds of appeal raised by an appellant on his notice of appeal are incompetent then there no valid notice of appeal, because there were incompetent grounds of appeal filed originally, and this is the foundation of the objection, then a fortiori there would be no Notice of Appeal capable of being amended by very nature of the application.”
Deducing from the: foregoing chains of authorities supra, it is obvious that a competent notice of appeal serves a life wire of an appeal, in the absence which, the purported appeal is something else and not an appeal, as it is incompetent and dead. For the appellant to see the order of this court made on the 22nd January, 2001 effecting a valid amendment would in my view tantamount to attempting the resurrection of a dead person into life. This would definitely take us out of the realms of normality and reality into the supernatural spheres alien to our usual everyday ongoing ways of life. As rightly pronounced by their Lordships in the case of Emeeheta v Ogueri supra.
“no amount of ingenuity by way of amendment can be used or employed to save the invalid notice of appeal.”
The notice of appeal is the initiating process of the appeal. Once same is defective, it is ab initio incompetent for all purposes and cannot therefore subsequently acquire competence no matter what form or nature of the amendment. The legal effect is, it is bad and incurable and therefore non- existent.
I would also wish to restate further that as at the date of the amendment on the 22nd January, 2001 the three months allowed by law within which to appeal as of right against the judgment delivered 3rd December, 1991, had elapsed. There is no umbrella of salvation under Section 241(1)(a) of the Constitution therefore. “.-
There was also no extension of time sought in respect of the purported amendment obtained. Same could not by any stretch of imagination therefore been competent. The Appellant sought to build a castle in the air. He thought he could get an easy ride without the rigour of having to lay a foundation. The construction would surely crumble before and without finding the ground. The consequential effect is that the preliminary objection is sustained. The notice of appeal in the circumstance is struck out for incompetence, while this court’s order, made 22nd January, 2001 and purporting to amend the said notice, is vacated.
In the result; and on the totality of this appeal, same in the absence of any valid notice of appeal has no foundation on the authority of Nsirim v Nsirim (1990) 3 NWLR (pt.138) 285.
The entire appeal is therefore struck out with costs of N10,000 to the respondent.
Other Citations: (2007)LCN/2302(CA)
