CORAM

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GEORGE S. SOWEMIMO, JUSTICE SUPREME COURT

GEORGE S. SOWEMIMO, JUSTICE SUPREME COURT

ANDREWS O. OBASEKI , A.G. JUSTICE, SUPREME COURT

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PARTIES

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MR. DANIEL PAT – OGHEONEMU

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OCEANIC INSURANCE COMPANY LIMITED

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AREA(S) OF LAW

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SUMMARY OF FACTS

The employment of the Appellant who was a senior officer in the Firm of the 1st Respondent was terminated by the 1st Respondent. Prior to the termination of his employment, he and other employees were granted a mortgage loan repayable over a period of time. Upon termination of his employment, the 1st Respondent by way of originating summons sought the determination of some questions and sought some orders if the questions were answered in the affirmative. The 1st Respondent sought an order for the immediate payment of the sum of N27, 500,000.00k (Twenty Seven Million, Five Hundred Thousand Naira Only), being the outstanding principal sum of the Mortgage Loan amount and interest at 25% per annum from the 18th day of February, 2010, until final judgment and post judgment interest at 10% until the final determination of this suit. The 1st Respondent also sought for an order for foreclosure of the Defendants’ Equity of Redemption in respect of the property lying, being and municipally known as No. 12c Atinuke Olugunde Crescent, G.R.A Ogudu , Lagos State and an order directing the Defendant to execute a deed of transfer of the property. The trial court granted the claim of the 1st Respondent as per relief one of the originating summons. Dissatisfied with the decision of the trial court, the Appellant has lodged the instant appeal before this court.

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HELD

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Appeal Succeeds in Part

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ISSUES

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Whether the learned trial judge had the jurisdiction to entertain and make a pronouncement in respect of relief 1 in the Claimants/Respondents’ 1st Amended Originating Summons for foreclosure dated 9th May, 2013 in view of the substantial dispute of facts which are in respect of the recovery of an outstanding debt (mortgage loan) the terms of which are in contention between the parties. Whether the non-filing of a further affidavit by the Claimants/ Respondents in opposition to or rebuttal of the deposition in paragraph 5 of the Defendant/Appellants Counter affidavit dated 6th November 2013 does not amount to an admission of same by the Claimants/Respondent. Whether it was proper for the Honourable trial court to hold that the 1st Claimant/1st Respondent is entitled to call in the loan after the Defendants? Appellant had ceased to be an employee where there was incontrovertible evidence to the fact that the duration of the loan as agreed to both parties was for 20 years and the said period had not lapsed. Whether from the facts of this case the Claimants/respondents presented cogent and satisfactory evidence before the Honourable trial court entitling them to be awarded the entire amount claimed in Relief 1 of the Claimants/ Respondents’ 1st Amended Originating Summons for Foreclosure dated 9th May, 2013 plus interest

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RATIONES DECIDENDI

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JURISDICTION – CONCEPT OF JURISDICTION

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“Jurisdiction is a fundamental element in any adjudication, it has been described as the life wire to any determination. It deals with and touches on the competency of a court to entertain a matter. See Drexel Energy And Natural Resources & Ors V Trans International Bank Ltd & Ors (2008) 18 NWLR (PT. 1119) 388 which held:
“Issue of jurisdiction, deals with and touches on competency or the competence of a court to entertain and deal with the case or matter before it as it has jurisdiction to decide whether it has jurisdiction or not.”

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JURISDICTION – TYPES OF JURISDICTION

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“Jurisdiction basically is of two types, these are jurisdiction as a matter of procedural law and jurisdiction as a matter of substantive law, see Attorney General Of Kwara State & Anor V Alhaji Saka Adeyemo & Ors (2016) LPELR- 41147. A litigant can waive a procedural requirement which is unable to confer jurisdiction on any court. Substantive law jurisdiction is donated by the Constitution, statute, legislation or common law. Jurisdiction is a radical and crucial question of competence because if a court has no jurisdiction to hear and determine the claim, the proceedings remain a nullity ab initio no matter how well it was conducted, see Dapianlong V Dariye (NO.2) (2007) 8 NWLR (PT. 1036) 332.; Obiuweubi V Central Bank Of Nigeria (2011) LPELR- 2185(SC). Generally, substantive jurisdiction can be raised at any time while procedural jurisdiction can only be raised timeously because it can be acquiesced by a party, see Unity Bank Plc V Plastic Nigeria Limited & Anor (2011) LPELR- 8839”.

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PROCEDURAL JURISDICTION – WHETHER PROCEDURAL JURISDICTION AFFECTS SUBSTANTIVE JURISDICTION

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“Procedural jurisdiction basically is governed by rules of practice and procedure and it is settled that they do not affect substantive jurisdiction. They are basically on procedure. The court in the case of Nigeria Ports Authority V Dr. Sama Ekpo Sama &Ors (2016) LPELR-40126 held:
“The High court of Cross River Sate (Civil Procedure) Rules, 2008, most especially Order 6 Rule 4 thereof are mere rules of procedure and practice governing administration of justice in the court below. Likewise, in the conduct of proceedings other procedural laws or rules such as the Evidence Act (supra) shall also apply to the court below. Such procedural laws or rules do not confer jurisdiction upon the court. This is absolutely so, because, as aptly asserted by the apex court, jurisdiction is only donated by the Constitution of the Federal Republic of Nigeria, 1999, as amended; Belgore V Ahmed (2013) 8 NWLR (PL 1355) 60 at 91; Saeed V Yakowa (2013) 7 NWLR (Pt 1352) 124…………………………..the apex Court aptly asserted thus: And as I stated in the recent decisions of Saeed & Anor V Patrick Yakowa & Anor delivered on the 8th February, 2012,…………….being that, rules do not confer jurisdiction. Jurisdiction is only donated by the Constitution and /or statute.”

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JURISDICTION – WHEN IS THE JURISDICTION OF A COURT ACTIVATED

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“It is settled that jurisdiction is activated at the point when a claim is filed, so the claim of the claimant or Plaintiff and not the Defendant’s facts usually determines jurisdiction. Jurisdiction is determined at the point of filing and not at the decision stage where the claim has been determined by the court”.

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ORIGINATING SUMMONS – RATIONALE FOR COMMENCING AN ACTION BY ORIGINATING SUMMONS PROCEDURE

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“The procedure known as Originating Summons is used for non-contentious actions, that is, those actions where facts are not likely to be in dispute or where the action is founded on the interpretation of the constitution, documents or statutes. The nature of the procedure is to make things easy for a party who is claiming an interest under a deed, Will, or other written instrument whereby he will apply by way of originating summons, see Famfa Oil V A. G. Federation (2003) 18 NWLR (Pt. 852) 453”.

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COMMENCEMENT OF ACTION – WHETHER COMMENCING AN ACTION BY A WRONG PROCEDURE CONSTITUTES JURISDICTIONAL ISSUE

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“Commencing an action by a wrong procedure does not constitute a jurisdictional issue since the lapse, except where specifically stated in the rules of court, does not defeat the claimant’s cause of action. If the subject matter of the plaintiff’s action is within the jurisdiction of the court, the cause of action would not be abrogated simply because it has been commenced by way of wrong procedure. The lapse in that regard is only an irregularity that gives the defendant the right to insist that the plaintiff adopts proper procedure in approaching the court, see Helen Johnson Udo V The Registered Trustees Of The Brotherhood Of The Cross & Star (2013) LPELR- 19910(SC).

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AFFIDAVIT EVIDENCE – WHETHER AN ALLEGATION OF CONFLICT IN AFFIDAVIT CAN INVALIDATE AN ORIGINATING SUMMONS

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“The position of the law on conflicting affidavit has been made clear by the apex court in the case of Emezi V Osuagwu & Ors (2005) 12 NWLR (PT. 939) 340 and applied by the court in Nigerian Re Insurance Corporation V Hon. Justice Rahila Cudjoe & Anor (2008) ALL FWLR (Pt. 414) 1532 in the following words:
“Moreover nowadays whether originating summons are incompetent on the allegation of conflict in the affidavits, the position of the law is that such conflicts do not invalidate an originating summons.”
The settled position of law concerning conflict in affidavit and counter affidavit is settled by a long line of authorities where the court held:
“When a court is faced with affidavits which are irreconcilable in conflict, the judge hearing the case in order to resolve the conflict properly, should first hear oral evidence from the deponents or such other witnesses as the parties may be advised to call”. See Falobi V Falobi (1976) 9 and 10 S. C. 1; Nwosu V Imo State Environmental Sanitation Authority (1990) 2 NWLR (PT. 135) 688; Ebong V Ikpe (2002) 17 NWLR (797) 504; Akinsete v Akindutire (1966) 1 ALL NLR 147; Group Danone V Voltic (Nig) Ltd (2008) 7 NWLR (Pt. 1087) 637 S.C. and Uku & Ors V Okumagba & Ors (1974) 3 S.C. 35.

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AFFIDAVIT EVIDENCE – EXCEPTION TO THE RULE IN CALLING ORAL EVIDENCE TO RESOLVE CONFLICT IN AFFIDAVIT

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“There are exceptions to the general rule particularly where the conflict is not on material facts that are live in the determination of the dispute, the court in Ikpeazu V Ekeagbara & Ors (2016) LPELR-40847 (CA) held:
“It must be noted that the mere filing of a counter affidavit in response to the supporting affidavit of an originating summons does not automatically make the matter one in which oral evidence must be adduced and thereby necessitating the ordering of pleadings. Where the conflicts in the affidavit evidence of the parties are not material to the case or where the facts therein are inadmissible, the court is not saddled with the responsibility of calling oral evidence. Where the areas of conflict are so narrow and insignificant, the need to call oral evidence and thereby necessitating the ordering of pleadings will not arise. Also where the conflict in the affidavit evidence can be resolved on available documentary evidence before the court, oral evidence need not be called and a fortiori pleadings need not be ordered.”
“Where the conflict is not crucial and does not affect material aspects of the dispute but is flimsy, distractive or generally irrelevant, the court will disregard it and resolve the issue on the materials before the court. The locus classicus on when to resort to oral evidence was settled in Falobi V Falobi (1976) 9-10 SC 1. On when the court can also resolve the conflict from other materials before the court which support one of the affidavits in conflict with another and where the court has enough documentary evidence at its disposal, it can suo motu resolve conflicting affidavit by resort to those documents. The need to call oral evidence cannot arise, see Ran Gaza V Micro Plastice Company Limited (2013) LPELR- 20303(CA). Therefore, it is not what a party thinks or considers to be a conflict that may actually be a conflict.

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AFFIDAVIT – DEFINITION OF AFFIDAVIT – EFFECT OF NOT FILING A FURTHER AND BETTER AFFIDAVIT IN REACTION TO A COUNTER AFFIDAVIT

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“Affidavit is defined as a statement of fact or declaration made either on oath or affirmation before an authorized person. The averments in the affidavit are admissible as a fact until dis-proved because the averments are sworn before a commissioner for oaths. The life of an affidavit is the declaration on oath, see Onujabe V Idris (2011) LPELR- 4059. It is trite also that facts contained in an affidavit form part of documentary evidence before the court. Where an affidavit is filed deposing to certain facts, and the other party does not file a counter- affidavit denying the said facts expressly or by necessary implication, the said facts deposed to in the affidavit would be deemed unchallenged and un-disputed. See Badejo V Fed. Min. Education (1996) 8 NWLR (Pt. 464) 15; Agbaje V Ibru Sea Foods Ltd (1972) 5 S.C. 50 and Ezechukwu V Onwuka (2006) 2 NWLR (Pt. 963) 151. It is also settled that those facts not controverted are deemed as admitted, true and correct. The effect of not filing a further and better affidavit in reaction to a counter affidavit is that facts deposed to in the counter affidavit are deemed unchallenged and such would be admitted as true requiring no further proof, but such evidence must be cogent and relevant in sustaining a material point in the dispute”.

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CONTRACT OF EMPLOYMENT – CONCEPT OF A CONTRACT OF EMPLOYMENT

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“It is settled that employment is a personal contract which is circumscribed by the terms in the employment letter and worker’s handbook if incorporated by reference into the contract of employment”.

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ACTION – DUTY OF A PARTY IN THE CONDUCT OF HIS CASE

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“A party cannot blow hot and cold in the same case, he must be consistent in his claim or defence in a matter, see Abeke V Odunsi (2013) LPELR-20640 (SC) which held:
“It is trite that parties as litigants are not permitted to approbate and reprobate in the conduct of their case.” See also Ezomo V AG Bendel (1986) 4 NWLR (PT. 36) 448; Osuji V Ekeocha (2009) 10 SCM 72 at 93; Continental Bank Ltd V Brifina Ltd (2012) 13 NWLR 1 at 22 and Suberu V State (2010) 8 NWLR (PT. 1197) 586 (SC).

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TERMS OF AGREEMENT – PARTIES ARE BOUND BY THE TERMS OF THEIR AGREEMENT

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“I agree with the submission of the Appellant that the parties are bound by the terms of the agreement entered into in respect of the loan as settled in a plethora of cases, such as Evbuomwan V. Elema (1994) 6 NWLR (PT. 353) 638, Hilary Farms Ltd. V. M/V “Mahtra” (2007) 14 NWLR (PT. 1054) 210”.

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TERMS OF AN AGREEMENT – EFFECT OF BREACH OF COVENANT TERMS OF AN AGREEMENT

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“The law is that parties are presumed to have intended what they have in fact said in the agreement and should be so interpreted to give effect to the intention of the parties, see J.E. Oshevire Ltd V Tripoli Motors (1997) 5 NWLR (PT. 503) 1; Minaj Holding Limited V Asset Corporation Of Nigeria (2015) LPELR- 24650 (CA) and Arjay V A.M. S. Ltd (2003) 7 NWLR (PT. 820) 577 which held that where parties have entered into an agreement, they are bound by the provisions of the agreement. Consequently, the Appellant is bound by the clauses quoted above. Breach of covenant terms have implications, the effect of a breach entitles the other party to repudiate the contract, see Dakour & Ors V. Lagos State Urban Renewal Board & Ors (2015) LPELR-24806(CA)”.

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CONTRACT – MEANS OF DISCHARGING A CONTRACT

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“A contract is discharged by breach in several ways, some of which are, by non performance, by performing the contract but not in accordance with the terms of contract and by wrongful repudiation of the contract. Wrongful repudiation is relevant here but I have said that by the occurrence of such breach, the other side is discharged and in this case, the Respondents can call in any outstanding sum against the Appellant, see Obmiami Brick & Staone (Nig) Ltd V A. C. B. Ltd (1992) NWLR (Pt. 229) 260,Ahmed V CBN (2012) LPELR-9341(SC) and Olaopa V O.A.U. Ile- Ife (1997) LPELR-2571(SC)”.

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DEBT – RESPONSIBILITY OF A DEBTOR WHO ACKNOWLEDGES HIS INDEBTEDNESS

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“The general principle in law of debtor and lender is that once you acknowledge a debt, the burden is on you to show when and how you have settled same, this is also the requirement of the section 135 of the Evidence Act that the burden is on he who asserts, see Awieh & Ors V Fada Owofio (2012) LPELR- 9472; Biosola Nigeria Ltd & Anor V Mainstreet Bank Limited & Ors (2010) LPELR- 3878 (CA) and Okoli V Morecab Finance Ltd (2007) LPELR- 2463(SC) which held that once the defendant admits the indebtedness or receipt of the loan, the burden as to repayment or as to the reasons for non-payment, is on the defendant”.

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PRE- JUDGMENT INTEREST – CIRCUMSTANCES UNDER WHICH PRE-JUDGMENT INTEREST CAN BE AWARDED

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“It is trite that prejudgment interest is a specie of special damages which must be strictly pleaded and proved, see Midas Bank Plc V Commerce Progetti (Nig ) Limited (2009) LPELR-8263 which stated the condition under which pre-judgment interest can be awarded and is only where there is sufficient fact of an agreement between the parties that such interest would be paid. Usually, the agreement should clearly state the following:
a. rate of interest
b. date of commencement
c. date due; whether weekly, monthly, yearly or other specified period
Circumstances under which pre-judgment interest can be awarded is usually in line with the following:
i. express agreement of the parties or
ii. existence of mercantile or trade custom,
iii. under a principle of equity such as a breach of fiduciary relationship.

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Lagos State High Court Rules, 2004

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