CORAM

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James Gambo Abundaga JCA

Abdul-Azeez Waziri JCA

Jamilu Yammama Tukur JCA

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PARTIES

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GUARANTY TRUST BANK PLC

APPELLANTS 

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 PICO PROJECTS SERVICES LIMITED

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, BANKING, COMPANY, CONTRACT, EVIDENCE, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

This is an appeal against judgment of the High Court of the Federal Capital Territory, Abuja which revolves around a loan facility that was granted to the Respondent by the Appellant. During the course of the loan repayment in 2020 after the onset of the Covid-19 pandemic, the Appellant via email on 10th April, 2020 informed the Respondent that the Respondent was granted a “grace” or “holiday period” of 90 days within which it would not be required to pay interest on the loan. The Respondent saw this as meaning there would be no interest payable for the 90 days whereas the Appellant insisted that what it meant was that the payment was deferred. The Appellant then went on to deduct the sum of N175,138.25k (One Hundred and Seventy-Five Thousand, One Hundred and Thirty-Eight Naira, Twenty-Five Kobo) being the interest payable for the 90 days in question and the Respondent, acting on the belief that such deduction constituted a breach of the agreement between the parties instituted an action before the lower Court.

The learned trial Judge in a judgment held that the Appellant was in breach of the terms of the contract as varied by the Appellant and accepted by the Respondent, and consequently awarded the sum of N1,500,000.00 (One Million, Five Hundred Thousand Naira) as damages against the Appellant and 10% post judgment sum until the same is fully liquidated. Dissatisfied with the decision, the Appellant appealed to this Court.

 

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HELD

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Appeal dismissed

 

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ISSUES

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Whether the trial Court was correct in exercising jurisdiction on Guaranty Trust Bank Plc, a non-juristic person that is incapable of being sued in law?

Whether the trial Court was right to not take judicial notice of Central Bank of Nigeria Guideline as a subsidiary legislation which falls within the purview of Section 122 of the Evidence Act, 2011?

Whether the trial Court was right to enforce rights not contemplated by the agreement of the parties and award excessive damages against the Appellant not proportionate in any way whatsoever to the claims of the Respondent?

Whether the trial Court was right to totally ignore the case of the Appellant and give judgment against the weight of evidence?

 

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RATIONES DECIDENDI

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JURISDICTION – THE IMPORTANCE OF JURISDICTION – DETERMINANTS OF WHAT CONFER JURISICTION ON A COURT

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It is trite law that jurisdiction is fundamental to the valid adjudication of any dispute, that it is a threshold issue which ought to be determined once raised and that a matter regardless of how well conducted is a nullity if conducted in the absence of jurisdiction. The Apex Court in the case of IKPEKPE v. WARRI REFINERY & PETROCHEMICAL CO. LTD & ANOR (2018) LPELR- 44471(SC) per OKORO, J.S.C. (Pp. 13-14, Paras. E-D), reiterated the crucial nature of jurisdiction in the case thus: “The importance of the jurisdiction of a Court cannot be over-emphasized. The law is trite that jurisdiction is a threshold issue and livewire that determines the authority of a Court of law or Tribunal to entertain a case before it and it is only when a Court is imbued or conferred with the necessary jurisdiction by the Constitution or law that it will have the judicial power and authority to entertain, hear and adjudicate upon any cause or matter brought before it by the parties. Where a Court proceeds to hear and determine a matter without the requisite jurisdiction, it amounts to an exercise in futility and the proceedings and judgment generated therefrom are null, void and of no effect no matter how well conducted. See Nigeria Deposit Insurance Corporation v Central Bank of Nigeria & Anor (2002) 7 NWLR (pt. 766) 273, Shelim & Anor v Gobang (2009) 12 NWLR (pt. 1156) 435, Utih v Onoyivwe (1991) 1 NWLR (pt. 166) 205, Petrojessica Enterprises Ltd & Anor v Leventis Technical Co. Ltd (1992) 5 NWLR (pt 244) 675.”See: BARUWA v. APC & ORS (2019) LPELR-47723(CA); CHUKWUEKEZIE v. APGA & ANOR (2019) LPELR-47240(CA); and AMUSA & ANOR v. OGARA & ORS (2019) LPELR-48253(CA). The determinants of what would confer jurisdiction on a Court had been laid down in the locus classicus case of Madukolu v. Nkemdilim (1962) 1 ALL NLR 587, thus:

(1) it is properly constituted as regards number and qualification of members of the bench, and no such members is disqualified for one reason or another;

(2) the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and

(3) the case comes before the Court initiated by due process of the law and upon fulfillment of any condition precedent to the exercise of jurisdiction. – Per J. Y. Tukur, JCA

 

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MISNOMER – WHEN A MISNOMER IS SAID TO OCCUR

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The Supreme Court in the case of CALABAR MUNICIPAL GOVT & ORS v. HONESTY & ORS (2021) LPELR-58391(SC) (Pp 24 – 24 Paras A – F) per Tijjani Abubakar, JSC, gave a comprehensive exposition on misnomer thus: “let me address what constitutes a misnomer. Misnomer occurs where the appropriate party is brought to Court but the processes reflect wrong name of the appropriate party. This Court in REGISTERED TRUSTEES OF AIRLINE OPERATORS OF NIGERIA V. NAMA (2014) LPELR-22372 (SC) per my learned brother OKORO, JSC, held as follows:

“A misnomer can be said to be a mistake in name, i.e. giving incorrect name to a person in the writ of summons. It occurs when a mistake is made as to the name of a person who sued or was sued or when an action is brought by or against the wrong name of a person. In EMESPO J. CONTINENTAL LTD V. CORONA S. &  CO., (2006) 11 NWLR (pt. 991) 365, this Court held that a misnomer occurs when the correct person is brought to Court in a wrong name." From the above decision of this Court therefore, a misnomer occurs when the correct party is brought to Court under a wrong name. In my humble understanding therefore a misnomer occurs where a person clothed with juristic personality sues or is sued but there is mistake in stating the correct name of the party.” ​The Apex Court clearly stated when misnomer would vitiate proceedings, that is where there is a clear misapprehension as to parties- who is being sued and when a wrong person is sued. In the case of REGISTERED TRUSTEES OF THE AIRLINE OPERATORS OF NIG v. NAMA (Pp 21 – 21 Paras A – C) (2014) LPELR-22372(SC) the Apex Court per John Inyang Okoro, JSC stated thus:

“Let me state emphatically here that when both parties are quite familiar with the entity envisaged in a Writ of Summons and could not have been misled or have any real doubt or misgiving as to the identity of the person suing or being sued, then there can be no problem of mistaken identity to justify a striking out of the action. A misnomer that will vitiate the proceedings would be such that will cause reasonable doubt as to the identity of the person intending to sue or be sued. “See: ABIKOYE v. ABIKOYE (2022) LPELR-58779(CA); YOHANNA & ORS v. GABRIEL & ORS (2020) LPELR-49948(CA); and JAJI v. KWARA STATE TOWN PLANNING AUTHORITY & ANOR (2022) LPELR-58801(CA). This Court faced a similar situation in the case of KEYSTONE BANK LTD v. OKEFE (2014) LPELR- 22633(CA) (Pp 23 – 24 Paras D-C), where it held per Oyebisi Folayemi Omoleye, JCA thus:

“A misnomer occurs when the correct person is brought to Court under a wrong name. The pertinent poser here is, whether the error on the part of the respondent is a mistake as to the identity of the appellant? The learned trial Judge held that the mistake is not as to the identity of the appellant. That even the appellant itself used the same caption which they have now turned around to oppose. What is more, both parties have, at different time the trial Court, used Bank PHB (Platinum Habib Bank) Plc and Bank PHB Plc interchangeably. The law is trite that a mistake as to identity is definitely not a misnomer. In the case of: Emespo J, Cont. Ltd. v. Corona S. & Co. (2006) 11 NWLR (Pt. 991) p.365, this Court held that, a mistake as to name only is a misnomer, whereas an error as to identity of a party is not a misnomer. See also the cases of: (1) Njoku v. U.A.C. Foods (1999) 12 NWLR (Pt. 632) p.557 at p.564, paras. B-C and (2) Bajaga v. Govt., F.R.N. (2008) 1 NWLR (Pt.1069) p. 85 at pgs. 126 – 127, paras. G – A. In the case of: Njoku v. U.A.C. Foods (Supra), this Court equally held that a misnomer is a mistake in name, it occurs when there is a mistake as to the name of a party who sued or was sued or when an action is instituted by or against the wrong name of the party. In other words when a correct person is taken to Court under a wrong or an incorrect name is given to a party in an action, this is purely a misnomer." – Per J. Y. Tukur, JCA

 

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JUDICIAL NOTICE – FACTS COURTS MUST TAKE JUDICIAL NOTICE OF

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The law is trite that the Court must take judicial notice of all laws and enactments made under them having the force of law. In line with the foregoing, Section 122 of the Evidence Act 2011 provides thus:

“(1) No fact of which the Court shall take judicial notice under this section needs to be proved.

(2) The Court shall take judicial notice of-

(a) all laws or enactments and any subsidiary legislation made under them having the force of law now or previously in force in any part of Nigeria;

(b) all public Acts or Laws passed or to be passed by the National Assembly or a State House of Assembly, as the case may be, and all subsidiary legislation made under them and all local and personal Acts or Laws directed by the National Assembly or a State House Assembly to be judicially noticed:

(c) the course of proceeding of the Notional Assembly and of the Houses of Assembly of the States of Nigeria;

(d) the assumption of office of the President, a State Governor or Chairman of a Local Government Council and of any seal used by any such public officer:

(e) the seals of all the Courts of Nigeria. the seals of notaries public. and all seals which any person is authorised to use by any Act of the National Assembly or other enactment having the force of law in Nigeria;

(f) the existence, title and national flag of every State or sovereign recognised by Nigeria;

(g) the divisions of time. the geographical divisions of the world, the public festivals lusts and holidays notified in the Federal Gazette or fixed by an Act:

(h) the territories within the Commonwealth;

(i) the commencement, continuance, and termination of hostilities between the Federal Republic of Nigeria and any other State or body of persons:

(j) the names of the members and officers of the Court and of their deputies and subordinate officers and assistants and also of all officers acting in execution of its process, and of all legal practitioners and other persons authorised by law to appear or act before it;

(k) the rule of the road on land or at sea:

(L) all general customs rules and principles which have been held to have the force of law in any Court established by or under the Constitution and all customs which have been duly certified to and recorded in any such Court; and

(m) the course of proceeding and all rules of practice in force in any Court established by or under the Constitution.

(3) In all cases in subsection (2) of this section and also on all matters of public history, literature, science or art, the Court may resort for its aid to appropriate books or documents or reference.

(4) If the Court is called upon by any person to take judicial notice of any fact it may refuse to do so unless and until such person produces any such book or document, as it may consider necessary to enable it to do so.” This Court in the case of JUDA & ANOR v. SALLAU & ORS (2019) LPELR-50979(CA) (Pp 14-15 Paras A-C) per Obietonbara Owupele Daniel-Kalio, JCA treated a similar issue and held thus:

“The appellants’ learned counsel as noted in this judgment submitted that the Regulations and Guidelines for the conduct of Elections 2019 cannot be relied upon by the 1st and 2nd respondents because same were not placed before the trial Tribunal. Now the Regulations and Guidelines for the conduct of Elections, 2019 was issued by the Independent National Electoral Commission in exercise of the powers conferred on it by the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the Electoral Act, 2010 (as amended). Specifically, Section 153 of the Electoral Act 2010 (as amended) provides that "the Commission may, subject to the provisions of this Act, issue regulations, guidelines or manuals for the purpose of giving effect to the provisions of this Act and for its administration thereof". Clearly therefore, the Regulations and Guidelines for the conduct of Elections, 2019, is a subsidiary legislation, and by virtue of Section 122 (2) (a) of the Evidence Act, 2011, same is a fact that a Court shall take judicial notice of. Being a subsidiary legislation, the Regulations and Guidelines for the conduct of Elections, 2019 will require no further proof. See generally, the case of Amusa v State (2003) LPELR-474 (SC). The argument of the appellants’ learned counsel that the 1st and 2nd respondents cannot rely on the said Regulations and Guidelines because, same were not placed before the trial Tribunal is with due respect to the appellants’ learned counsel, inane and entirely misconceived.”See:OMATSEYE v. FRN (2017) LPELR-42719(CA); and NRC v. OJO (2021) LPELR-55971(CA).

From the above provisions, it is clear that the law expects the learned trial Judge to take judicial notice of subsidiary legislations, including the Guide to Charges by Banks, Other Financial and Non-Bank Financial Institutions 2020. I am not unaware of the provisions of Subsection (4) of Section 122 which is to the effect that the material housing such fact as a Party wants the Court to take judicial notice of should be placed before the Court, but that is only after the Court must have asked the party to place such material before it. It was not clearly stated either by the learned trial Judge or the Respondent that this was the case. Furthermore, Guidelines made by the Central Bank of Nigeria pursuant to the Central Bank of Nigeria Act are well publicized and failure of a party to provide the Guidelines after referring to them cannot constitute a proper ground not to take judicial notice of them. – Per J. Y. Tukur, JCA

 

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BURDEN OF PROOF – BURDEN AND STANDARD OF PROOF IN CIVIL PROCEEDINGS

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The law regarding the determination of civil suits is clear and to the effect that a party who is desirous of getting an order or relief from a Court of law has the duty of proving the existence of facts which establishes his entitlement to the grant of that order or relief. The foregoing is what is referred to as burden of proof in the law of evidence. See: UNION BANK v. RAVIH ABDUL & CO. LTD (2018) LPELR-46333(SC); and ADIGHIJE V. NWAOGU & ORS (2010) LPELR- 4941(CA).

The burden of proof in civil cases is discharged on the balance of probabilities or the preponderance of evidence. What this means is that once a party has successfully proven the existence of facts that support his claim to a satisfactory degree, the burden of proving that those facts do not exist shifts to the other party. This process repeats itself till the end of trial where the trial Judge has the duty of placing every relevant piece of evidence of both parties on an imaginary scale and decide in favour of whomsoever the weight preponderates towards. See: SECTIONS 131-134 OF THE EVIDENCE ACT 2011; ILORI & ORS v. ISHOLA & ANOR (2018) LPELR-44063(SC); PRESENTATION NATIONAL HIGH SCHOOL & ORS v. OGBEBOR (2018) LPELR- 44784(CA); and MARINE GLOBAL SERVICES LTD v. SOUTHERN IJAW LOCAL GOVT. COUNCIL (2018) LPELR-44175(CA). – Per J. Y. Tukur, JCA

 

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WAIVER – MEANING OF WAIVER

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Waiver of a right is of course well known to law. It involves voluntarily letting go or abandonment of the benefits of a right either expressly or by conduct. In the Black’s Law Dictionary 9th Ed., at page 1717, paragraph 4, waiver is defined as the voluntary relinquishment or abandonment: express or implied of a legal right or advantage. This Court in the case of OJIKPA v. BENUE STATE GOVT & ORS (2022) LPELR-56899(CA),(Pp 29 – 30 Paras D – C) per Yargata Byenchit Nimpar JCA, defined waiver thus: ‘’A waiver was defined in the case of UGWUANYI V. NICON INSURANCE PLC (2013) LPELR- 20092(SC) and ODU’A INVESTMENT CO. LTD V. TALABI (1997) LPELR-2232(SC) wherein the apex Court held as follows: “What is waiver? Defining the word "waiver", Idigbe J.S.C. at page 22 of the Ariori’s case said: “By way of a general definition, waiver is the intentional and voluntary surrender or relinquishment of a known privilege and/or right; it therefore implies a dispensation or abandonment by the party waiving off a right or privilege which, at his option, he could have insisted upon." Obaseki, J.S.C. at page 25 added: “Waiver is according to Words and Phrases Legally Defined Volume 5 p.301 1969 edition reprinted 1974 defined as the abandonment of a right. A person who is entitled to the benefit of a statutory provision may waive it and allow the transaction to proceed as though the provision did not exist. “See: BENUE STATE UNIVERSITY v. MOGAJI (2022) LPELR-56729(CA); and EMMANUEL v. FRN (2018) LPELR-50844(CA). – Per J. Y. Tukur, JCA

 

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CONTRACTS – THE BINDING EFFECT OF THE TERMS OF A CONTRACT – CONDUCT OF COURTS IN INTERPRETING CONTRACTS

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There is no gainsaying the fact that the terms of a contract bind the parties to the contract and the Courts are not permitted to read into the agreement what the parties have not put there. The Supreme Court in the case of BFI GROUP CORPORATION v. BUREAU OF PUBLIC ENTERPRISES (2012) LPELR-9339(SC) per ARIWOOLA, J.S.C, (as he then was now CJN) restated this settled position of the law thus: “In Baker Marine (Nig) Ltd v. Chevron (Nig.) Ltd. (2006) 8-9 SCM 103 at…; (2006) 13 NWLR (pt.997) 276 at 287-288, this Court, per Ogbuagu, JSC opined thus: "It has been stated and restated in a number of decided authorities that in the interpretation of contracts or documents, the basic principle of law, is that, it is not the duty of any Court or Tribunal to make contract for parties. See; Fakorede & Ors. v. Attorney General of Western State (1972) 1 All NLR 178 at 189. Contract as a rule are made by the parties thereto who are bound by the terms thereof and the Courts are always reluctant to read meaning into a contract terms on which there is no agreement. See; Alhaji Baba v. Nigeria Civil Aviation Training Centre & Anor (1995) 5 NWLR (Pt.192) 388 at 413; (1991) 7 SCNJ 1. In other words, a Court or Tribunal cannot write a new contract for the parties.” See: AMAIZU v. MTN (2017) LPELR-43947(CA); IBE & ANOR v. BONUM (NIG) LTD (2019) LPELR- 46452(CA); and OLANREWAJU COMMERCIAL SERVICES LTD v. SOGAOLU & ANOR (2014) LPELR- 24086(CA). – Per J. Y. Tukur, JCA

 

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DAMAGES – MEANING AND TYPES OF DAMAGES – CONDUCT OF COURTS IN AWARDING DAMAGES

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Damages have been defined as compensation in money, that is an amount of money awarded by a Court of law to a successful plaintiff/claimant as compensation for loss or harm of any kind which result either from the commission of tort by the other party or breach of contract. Unlike special damages, general damages do not have to be particularly pleaded and proved by a Claimant, rather it is awarded as part of the natural consequences of the Tortfeasor’s actions.

See: IFESINACHI INDUSTRIES NIGERIA LTD & ANOR v. VINEE OIL LTD (2015) LPELR-25130(CA). ​The Supreme Court in the case of Okala v. Udah (2019) 9 NWLR (Pt.1678) 562 (P. 223, paras. C-D), per Samuel Onnoghen, JSC (as he then was but later CJN) shed some light on the various types of damages thus:

“General damages are monetary recovery in a lawsuit for injuries suffered such as pain, suffering, opportunity cost, economic loss and inability to perform certain functions, or breach of contract for which there is no exact monetary value which can be calculated. General damages are distinct from special damages which are specific costs and so is different from punitive (exemplary) damages for punishment when malice, interest or gross negligence was a factor and to punish the defendant for his conduct in inflicting that harm.” It is elementary that damages, regardless of specie, whether special, general, or exemplary, are usually awarded upon a successful claim by a party, who has successfully established injury arising from the conduct of the person against whom the damages are awarded. See:Mekwunye v. Emirates Airlines (2019) 9 NWLR (Pt.1677); British Airways v. Atoyebi (2014) 13 NWLR (Pt.1424) 253; and Rematon Service Ltd v. NEM Ins. Plc (2020) 14 NWLR (Pt.1744) 281.

The grounds upon which an appellate Court would interfere in a trial Court’s award of damages include where the trial Court proceeds upon a wrong principle or on no principle of law at all and makes an award which is apparently unwarranted, extravagant, unreasonable, and unconscionably excessive, in comparison with the greatest loss that would possibly flow from the breach of contract in question and without stating the basis of the assessment. See: B.A.L Co. Ltd v. Landmark University (2020) 15 NWLR (Pt.1748) 465 (CA); E.B. Plc, Awo Omamma v. Nwokoro (2012) 14 NWLR (Pt1321) 488. – Per J. Y. Tukur, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Evidence Act, 2011

2. Companies and Allied Matters Act, 2020

3. The Guide to Charges by Banks, Other Financial and Non-Bank Financial Institutions,

2020

 

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