Union Bank of Nigeria PLC V. H.R.h. Eze Clifford C. Nwuche (2006)
LawGlobal-Hub Lead Judgment Report
ISTIFANUS THOMAS, J.C.A.
This appeal is against the judgment of Uriri, J., delivered on 7-11-2000 in suit No. PHC/63/93 between the same parties. This suit was commenced by writ of summons at Port Harcourt High Court before Akere. J. who was later dismissed from the Bench. The claims in the suit read:
“i) Specific performance of the Deed of Assignment dated 4th November 1988 between the plaintiff and the defendant to the plaintiff of all or the interest in certain property situate at and known as No. 6 Moscow Road, Plot 55A, Old GRA, Port Harcourt, Rivers State.
ii) Alternatively – a declaration that the defendant Union Bank Plc, is bound to convey the said property to the plaintiff in accordance with the terms of the said Agreement.
iii) Damages for breach of contract in addition to specific performance for N6 million.
iv) The plaintiff shall claim arrears of rents, rents and mesne profits from the defendant as specified below:
a)The sum of N450,000.00 being rental value of the Property from 1988 – 91 November at an annual rate of N150,000.00.
b) The sum of N300,000.00 being rental income on the properties for the year 1992.
c) Rental income at the rate of N500,000.00 from November 1992 till defendant effectively put the plaintiff in possession of the property.
v) If necessary, a vesting order.
vi) Further or other reliefs.
vii) Costs.”
The suit then was transferred to Uriri, J. who commenced de novo and concluded with the parties only giving evidence for themselves and called no other witness. After exchange of both counsels written address but before delivery of judgment, the plaintiff/respondent filed a motion on notice for further amended statement of claim by;
“1. In item 1 by deleting the words of the deed of assignment dated 4th November 1999 between the plaintiff and the defendant.”
Despite the vehement opposition of the defendant/appellant, the learned trial Judge granted the application and, in his judgment delivered on 7-11-2000, present respondent was in favour for Specific Performance and two Million (N2 million) Naira damages. It is against that judgment that the appellant Bank, filed their notice and grounds of appeal, which was later amended with seven grounds of appeal and was granted by the Court from which the learned counsel has formulated two issues for determination of the appeal. They read thus:
“Issue I
Whether the principal order of Specific performance ‘by procuring statutory Governor’s consent, and the other related judgment awards are regally sustainable against the back drop of the reliefs (as formed) the pleadings, body of evidence and state of the law (grounds 1-6).
Issue II
Whether the award of general damages in the sum of N2 million predicated on ‘loss of rent/profit, value of property, etc,’ being items of special damage, is sustainable in the absence of particulars and proof thereof, (ground 7).”
On the part of the respondent’s brief, seven issues were formulated as follows:
‘(Issue One (1) Ground One (1)
Was the learned trial judge right by including an Order for procurement of the Statutory Consent of the Executive Governor of the Rivers State to the assignment of the property in dispute by the defendant/appellant to the plaintiff/respondent within a specific time frame?
Issue, Two (2) Ground Two (2)
Was the learned trial Judge right in making an Order of Specific Performance when the Deed of Assignment of the Property in dispute was not produced before him?
Issue Three (3) Ground Three (3)
Was the learned trial Judge right in granting all Order of Specific Performance when the case before him was not based on contract, specific or implied?
Issue Four (4) Ground four (4)
Where the Order of Specific Performance and award of damages for breach of contract in this case mutually exclusive, was the learned trial Judge wrong in awarding both?
Issue Five (5) Ground Five (5)
Was the failure of the plaintiff/respondent, in the circumstances of this case, to file an amended claim fatal to his case or occasion any miscarriage of justice?
Issue Six (6) Ground Six (6)
Was the learned trial Judge right in his grant of alternative reliefs and unsolicited coercive orders in the case?
Issue Seven (7) Ground Seven (7)
Was the learned trial Judge right in awarding damages of N2.0 million in this case?”
It is settled law that issues to be formulated for determination in an appellate court, same ought to be distilled from the ground of appeal, although appellate courts have the discretionary power to reframe or formulate issues different from issues raised by the parties as adopted and relied upon in their briefs. But in such reframed or formulated issued they must be derived from the appellant’s or cross-appellants grounds of appeal; see AKINLAGUN V OSHOBOJA (2006) 12 NWLR (Pt. 993) 60, 80 para D – E, 81 para E _ G. AMADI v. NNPC (2000) 10 NWLR (pt. 674) 76; JATAU v. AHMED (2003) 4NWLR (Pt. 811) 498.
In the instant appeal, I am of the considered view that the respondent’s 7 issues can be conveniently encompassed into the appellant’s issues one and two completely and this is what I will consider in determining the parties determination in this appeal. The respondent’s seven (7) issues are piece meals and therefore are unnecessary to follow one by one the seven grounds of appeal.
Appellant’s issue number 1 which has encompassed respondent’s issues 1 – 6 is that in his principal relief as per the writ of summons, the plaintiff/respondent had originally claimed specific performance of the Deed of Assignment, but that after final addresses of both counsel, the respondent applied and was granted order of amending the aforesaid principal relief in such a manner as to delete all references to the deed of assignment or any contract at all. (Italics are mine).
Appellant’s counsel went further and stated that the trial Court in its judgment, extended the principal relief beyond its specific claims as shown in the award of specific performance by procuring statutory consent (Governor’s consent) and that in addition, the trial Court granted reliefs i and ii whereas they were alternative relief as well as general damages of N2 million for “loss of rent and profit, etc.” The above position is the main issue for attack by the appellant.
Counsel submits that the award of specific performance as well as grant of a coercive order in place of alternative reliefs and the general damages award, which was not particularized nor established by evidence, should be dismissed and urges that same should be resolved in favour of the appellant.
Appellant’s counsel further submitted that the words “by procuring the statutory Governor’s consent”, same was never claimed by the plaintiff/respondent in both the original or the further amended principal relief or even in the pleadings and that therefore the final court had exceeded its powers or jurisdiction when it granted the award in the judgment and counsel relied on the decided authority in UITH v ONOYIVWE (1991) 1 NWLR (Pt. 166) 166 R 20 – 21; EKPENYONG v NYONG (1975) 2 SC 7; OLUROTIMI v IGE (1993) 8 NWLR (Pt. 311) 257 r 1.
Now, I had earlier on, reproduced the principal relief claimed by the respondent from the outset at the trial court. It is necessary at this stage to reproduce the further amended relief on which the trial court was bound to rely and consider in its decision. At page 110 of the record, it reads:
“Specific Performance to the plaintiff of all or the remainder of the interest in certain property situate at and known as No. 9 Moscow Road, Plot 55A Old GRA, Port Harcourt, Rivers State.”
(Italics are mine).
I specifically reproduced the principal reliefs and the amended or further amended reliefs. In law once a claim is filed as amended, the trial court’s jurisdiction to hear and determine the suit will be based on the writ of summons and the further amended claim.
In the instant appeal, the trial court Coram, Uriri, J., was bound to consider the further amended relief filed and granted on 6-11-2000 as contained at page 106 – 109 of the record of appeal. It was therefore wrong for the trial Judge to have awarded specific performance by procuring the statutory Governor’s consent because the respondent in his further amended relief, did not ask or claim by procuring the statutory Governor’s consent. The issue of procuring Governor’s consent was brought into this suit by the learned trial Judge suo motu, which is unacceptable in law. It is well-established principle of law that where a trial Judge has not adverted his mind to the further amended statement of claim, and in the instant appeal, where the trial Judge heard and granted the further amendment but not filed, the trial Judge has no jurisdiction to determine a former written specific performance which was never tendered let alone being admitted into evidence. see NDIC v KOLEOSHO (2006) All FWLR part 312, 2099, 2115 para A-D.
I am therefore satisfied that the learned trial Judge had arrived at his decision by awarding specific performance without adverting his mind to the plaintiff/respondent’s further amended statement of claim.
The effect of applying for and obtaining an order to further amend an existing statement of claim is to vacate the statement of claim and render it non-existent.
The respondent at the lower court had applied and was granted an order to further amend his statement of claim. The order was made on 6-11-2000, a day before final judgment. The respondent failed to file the statutory period required in River State High Court (Civil Procedure) Rules 1987 – Order 26 Rule 4 which provides:
“If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited, then within fourteen days from the date of the order, such order to amend shall, on the expiration of such limited time as aforesaid, or of such fourteen days, as the case may be, become ipso facto void, unless the time is extended by the Court or Judge.,’ (Italics are mine)
Failure to comply with the statutory provisions in order 26 Rule 4 above, I have no option, but to declare that the respondent’s further amended writ of summons and statement of claim, was a nullity; and I so declare. see AFRIBANK NIGERIA PLC v AKWARA (2006) I SC Pt. II 41, 52 per ogundare, JSC. The trial Judge ought to have been concerned with the claim before him which was the further amended claim or relief. See UTI & ORS v. ONOYIVWE (1991) 1 NWLR (pt.166) 166, 222; MULTI-PURPOSE VENTURES LTD v. ATTORNEY GENERAL, RIVERS STATE (1997) 9 NWLR (pt.522) 642.
It is to be noted also that the so-called “Specific performance” as claimed by the respondent though pleaded, same was never tendered. It is very much surprising in that respondent’s brief at page 4, said that, the appellant had relied heavily on the Deed of Assignment while cross-examining the respondent at the trial court, but that the appellant did not tender the document in evidence at any stage of the proceedings and that the respondent had rested its case on “implied” covenants in conveyancing and property law. If I may pose here, why did the plaintiff/respondent fail to tender the contract document he relied upon – “specific Performance” contract? In a situation where a party has refused to tender a document, Section 149(d) of the Evidence Act 1990 is that evidence which could be and is not produced, would, if produced, be unfavourable to the person who withholds it. See ADENIRAN v ALAO (2001) 18 NWLR (Pt.745) 351.
In the instant appeal, the respondent knew that an unregistered Deed of assignment was inadmissible and that was why he could not and in fact, did not tender same before learned trial Judge.
The respondent’s principal relief had an alternative, which is thus:
“Alternatively, a declaration that the defendant Union Bank Plc is bound to convey the said property to the plaintiff in accordance with the terms of the said agreement.”
By the words ‘alternative’, it means only one may be granted but not to award both at the same time. It is well settled law that grant of one arm of an alternative relief dispenses with the other arm. The trial Judge was aware of this position as contained in his judgment at page 147, lines 3 – 6 of the record where he asserted thus:
“Similarly because declaratory relief was sought in the alternative, I shall equally ignore the treatment of same …”, but either by way of misconception, or unintentional, the trial Judge granted the two alternative reliefs and in the later alternative, the Judge at page 149 of the record made a grant of specific performance by compelling statutory Governor’s consent; grant of the alternative declaratory relief by coercive order to be carried out on or before 31st day of January, 2001 by procuring the statutory consent. The specific period order was not claimed or pleaded by the respondent at the trial proceedings. Still, the trial Judge was aware that the further amended relief sought in the alternative relief (ii) – “accordance with the terms of the said agreement” was never tendered before the court. I am therefore of the considered view that the lower court had no power to make a coercive declaration in respect of a deed of written agreement that was not before it. As far as the proceedings of the suit before trial judge is examined, it was a mere allegation of existence of mutual contract, which was never tendered. In the final analysis of appellant’s issue I, which has encompassed respondent’s totality of issue 1 to 6, I hereby set aside the trial Judge’s unsolicited declaration at page 149 lines 12 – 20. I also set aside the final order for specific performance by procuring the statutory (Governor’s) consent, which was coercively made on the appellant on or before 31st day of January 2001. In awarding two arms of an alternative relief, only one arm will be granted. See AGIDIMGBI v. AGIDIMGBI (1996) 6 NWLR (pt.454) 300; NEPA v. ANGO (2001) 15 NWLR (pt.737) 627; U.I.C. LTD v. HAMMOND NIG LTD (1998) 9 NWLR (Pt.565) 340; KUSTA v. UNITED BAWO CONST. COY LTD (1994) 4 NWLR (pt.336) 1. Based on the above position of law and the Supreme Court as well as the Court of Appeal authorities referred to above, I resolve issue I in favour of the appellant.
ISSUE TWO
The parties’ issue two is whether the learned trial Judge was right in awarding damages of N2 million in this case.
Appellant’s argument as adopted in his brief, is that, the trial Judge should not have awarded general damages as a remedy in cases of breach of contract because the issue before the court was not on tort. counsel referred to and relied on the decided cases of P.Z. & CO. LTD v OGEDENGBE (1972) All NLR 206; UBA LTD v. ODUSOTE BOOKSTORES LTD (1995) 9 NWLR (Pt.421) 588; NDINWA v. IGBINEDION (2001) 5 NWLR (pt.705) 140. Appellant’s counsel further argued that the trial Judge made a grave error when in awarding general damages; he took into consideration matters, which could only be considered in an award of specific damages. Counsel urged that the award of general damages being unsustainable in the case, the award of N2 million should be set aside. Counsel relied on the authorities of UBN PLC v ODUSOTE BOOKSTORES LTD (supra) and YALAJU-AMAYE v A.R.E.C. LTD (1990) 4 NWLR (Pt. 145) 122. YA’U v DIKYA (2001) 18 NWLR (Pt.714) 127.
The respondent’s brief of argument on issue number seven is contained at pages 10 – 13. Counsel argued that the pleading was merely “damages” because there was no specification of whether such damages were general or special. Respondent still referred to the evidence made by PW1 at the lower court as contained on pages 57 – 59 and 65 – 66 of the record of appeal. Counsel argued that the lower court had properly considered the relief of damages which was for N5 million and that the trial Judge was right in awarding general damages of N2 million. The respondent further argued that the claims for specific performance and damages for breach of contract in the suit were not alternative claims and therefore the trial Judge was right in granting both.
I have carefully considered parties argument on damages of N2 million. It is settled law that appellate court has no time for academic exercise. See OKWOCHE V. NIGERIAN AIRWAYS LTD (2003) 10 NWLR (PT.829; MACAULAY V. R.Z.B., AUSTRIA (2003) 18 NWLR (Pt.852) 282; BUHARI V. OBASANJO (2003) 17 NWLR (Pt.850) 587.
In issue one of the appellant’s brief, I had earlier resolved that the entire relief one and two being claims for specific performance of the deed of assignment was set aside because the plaintiff/respondent failed to tender the written contract agreement before the trial court. Since respondent’s principal relief has been dismissed, then on what ground could the trial court award general damages? It will amount to academic exercise to consider the award of general damages for the trial court’s finding in respondent’s relief 3 in his further amended claim being a nullity. Issue two is resolved in favour of the appellant. The award of general damages in the sum of N2 million is hereby set aside.
In the final analysis the appeal is meritorious and is allowed.
I make no order on costs.
Other Citations: (2006)LCN/2082(CA)
