|JIMI OLUKAYODE BADA
IBRAHIM SHATA BDLIYA
BIOBELE ABRAHAM GEORGEWILL
MUTUAL BENEFIT ASSURANCE PLC
ACCESS BANK PLC
AREA(S) OF LAW
JUDGMENT AND ORDER
LAW OF CONTRACT
PRACTICE AND PROCEDURE
SUMMARY OF FACTS
The Respondent as Claimant before the High Court of Lagos State, claimed that the Appellant issued a Credit Guarantee in favour of the Respondent guaranteeing the repayment of a facility of N25, 000, 000, granted to one A. R. Rasaq Motors Ltd by the Respondent and at the expiration of the ‘Credit Guarantee’ bond issued by the Appellant, and upon the default of A. R. Rasaq Motors Ltd, to repay the facility, the Respondent demanded the Appellant to pay the N25, 000, 000 facility whose repayment was guaranteed by it. However, the Appellant refused to discharge its obligation under the Credit Guarantee to the Respondent and has failed or refused to repay the said sum of N25, 000, 000 despite repeated demands for payment by the Respondent. The Appellant as Defendant before the Court below in its Statement of Defense contended that the Appellant and one A.R. Rasaq Motors Limited entered into a Commercial Insurance Agreement for N25,000,000, made in favour of the Respondent in the event that A.R. Rasaq Motors Limited was unable to conclude the contract to finance LPO for Benue Cement Company Plc. However, the said N25, 000,000was issued as an Insurance Policy for which A.R. Rasaq Motors Limited paid a non- refundable premium and that the Appellant never at any time concluded any contract of guarantee with the Respondent neither did the Respondent ever paid any premium nor consideration to the Appellant for the transaction. It was also its case that neither A.R. Rasaq Motors Limited nor the Respondent ever disclosed at any time to the Appellant the full extent of A.R. Rasaq Motors Limited’s liabilities or the fact that they were already owing the Respondent any money and that if the Appellant had at anytime been made aware of such liability it would not have concluded the Contract of Insurance with A.R. Rasaq Motors. The Respondent in addition to the Writ of Summons and Statement of Claim filed an application for summary judgment. Upon service of the Writ of Summons and Statement of Claim, the Appellant filed its Statement of Defense and Counter – Claim. After a series of unsuccessful preliminary objections and applications by the Appellant challenging the competence of the Respondent’s Suit on several grounds; including lack of reasonable cause of action, lack of locus standi, lack of jurisdiction and stay of proceedings, the Respondent’s application for Summary Judgment against the Appellant on the ground that in its belief the Appellant has no defense to the Respondent’s claims was heard and in its considered Judgment, the Court below granted the Respondent’s claim against the Appellant under its Summary Judgment procedure Rules, hence this appeal.
Issues Of Determination
Whether the Court below was right when he proceeded to enter a final judgment without hearing the Appellant’s pending Application dated 21/10/2015 in breach of the Appellant’s right to fair hearing as guaranteed by the 1999 Constitution (as amended), Whether the Court below was right when it set aside the decision of A. O. Opesanwo J., dated 19/1/2009 and gave final Summary Judgment against the Appellant without addressing the issues which she had postponed to be heard at the trial, Whether the Court below was right when it delivered a decision with inconsistent dates which was not in compliance with Order 35 Rule 2 of the High Court of Lagos State (Civil Procedure)Rules 2004 (now 2012)?
“In law, the effect of a proved breach of the right to fair hearing is that it renders both the proceedings and resultant judgment a nullity. See Ekpenetu V. Ofegobi (2012) 15 NWLR (Pt. 1323) 276; Amadi V. INEC ( 2013) 4 NWLR (Pt. 1345) 595; Ovunwo&Anor. V. Woko &Ors (2011) 17 NWLR (Pt. 1277) 522; Pan African Incorporation &Ors. V. Shoreline Lifeboat Ltd & Anor. 92010) All FWLR (Pt. 524) 56; Acton Congress of Nigeria V. Sule Lamido & Ors (2012) 8 NWLR (Pt. 1303) 560 @ p. 593; Judicila Service Commission of Cross River State & Anor. V. Dr (Mrs) Asari Young (2013) 11 NWLR (Pt. 1364) 1”.
“Now, by Order 11(1)of the High Court of Lagos State (Civil Procedure) Rules 2012, it is provided thus: “Where a Claimant believes that there is no defence to his claim, he may file with his Originating Process, the Statement of Claim, list of documents to be relied upon, the depositions of his witnesses and an application for summary judgment which application be supported by an affidavit stating the grounds for his belief, and a written brief in respect thereof.” The above Rule of the Court below, going by the several judicial authorities is principally geared towards the attainment of speedy but substantial justice in cases in which a Defendant really has no defence to the claim of the Claimant against him and there is nothing worth being further investigated by the Court. It is now a well settled principle of law that the Rules of Court providing for Summary Judgment are deliberately designed to allow for quick dispensation of justice to avoid unnecessary clogging of the legal system with proceedings which could otherwise have been easily and quickly disposed – off. See Delta Air Services Ltd V. Sudan Airways Ltd (2004) All FWLR (Pt 238) 697; See also G.M.O Nworam & Sons Co Ltd V. Akputa (2010) All FWLR (Pt. 524) @ pp. 101 – 102;Nnabude BV. G.N.G. (W/A) Ltd (2012) All FWLR (pt. 619) @ p. 1198; Mat Holdings Ltd V. U.B.A Plc. (2003) 2 NWLR (Pt. 803) 71 @ p. 90”.
“I had earlier observed that there is neither any valid ground of appeal nor any issue for determination relating to and or challenging the above findings of the Court below that the Appellant has no defense and since in law findings not appealed against are taken as valid, subsisting and binding on both the parties as well as the Court, I take these findings of the Court below as binding on the Appellant as well as the Respondent and thus requiring no further comment thereon in this Judgment. Suffice for me to simply refer to The Association of Senior Civil Servants of Nigerian & Ors V. Judiciary Staff Union of Nigeria & Ors(2014) LPELR-24185(CA), where Georgewill JCA, had reiterated inter alia thus: “It is now well accepted and indeed indisputable that where no grounds of appeal exists challenging finding of the lower Court, the finding is valid and subsisting. It is deemed admitted and undisputed and it will remain binding on the parties. It is thus the law that without a ground of appeal challenging the finding of a lower Court, the appellate Court will lack the jurisdictional competence to interfere with such finding. It remains rightly or wrongly, regrettably though if wrongly, the settlement of the issue as between the parties to the appeal. See Olukoyo V. Ashiru (2006) All FWLR (pt.322) 1479 @ P.1484; Institute of Health, A. B. U. H. M. B. v. ANYIP (2011) All FWLR (pt.586) 443; Onafowokan V. Wema Bank Plc (2011) All FWLR (pt.585) 201 @ P.205.”
“It has always been the practice in our Courts that when a counsel speaks to the Court from the Bar, it is his or her bond with which he or she is bound. I do not want to believe or even think that it is no longer so at the Bar! I hold firmly therefore, that the Appellant having through its counsel consented to be bound by whatever procedure adopted by the Court below on 21/10/2015 remains bound by that consent. See Ibator V. Barakuro (2007) 9 NWL9 (Pt. 1040) 475 @ p. 493 where Supreme Court succinctly stated inter alia thus: “The law is trite that when a party has adopted a procedure by consent, he will not be heard on appeal that the procedure he adopted is prejudicial to him or had occasioned a miscarriage of justice” See also in Lodibia V. Nigeria Cement Company limited (1997) 7 NWL (Pt. 512) 174 @ p. 190, where Supreme Court had reiterated inter alia thus: “Where a party has adopted a procedure by consent, he will not be heard of appeal that the procedure he adopted is prejudicial to him”
“My lords, in the adversarial system of administration of justice which we operate a Court is under a duty to determine every application brought before it one way or the other before proceeding to deliver its judgment, notwithstanding whether such an application was brought at a very late stage of the proceedings or patently irregular on its face or even frivolous or that the Court had already written its judgment and ready to deliver it. See Federal Airport Authority of Nigeria V. Wamal Express Services (Nig.) Ltd. (2011) 8 NWLR (1249) 219 @ p. 237. See also Dingyadi V. INEC (2010) 18 NWLR (Pt. 1224) 1; FAAN V. WES (Nig.) Ltd (2011) 8 NWLR (Pt. 1249) 219 @ p. 237; Ani V. Nna & Ors. (1996) 4 NWLR (Pt.440) 101 @ p. 120.
“However, it must be pointed out at once that there are some excepted circumstances in which failure to determine a pending application would not ipso facto amount to a breach of the right to fair hearing. These exceptions include cases in which an Applicant is himself in contempt of the Orders of the Court, See Mobil Producing Unlimited V. Simeon Monokpo (2003) 18 NWLR (Pt. 852) 346; cases in which an Applicant fails or neglects to draw the attention of the Court to the pending application and is thus deemed to have abandoned same, See Elemchukwu Ibator V. Chief Bali Bakakuro (2007) 9 NWLR (Pt. 1040) 475; cases in which though the application was not formally heard but the issues raised therein are ruled upon in the judgment, See Newswatch Communications Limited V. Alhaji Ibrahim Atta (2006) 12 NWLR (Pt. 993) [email protected] p. 170; cases in which an Applicant is in breach of the Rules of the Court in filing the application, See Abia State Transport Corporation & Ors. V. Quorum Consortium Limited (2009) 3 – 4 SC 187. In Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR -45528(CA), where this Court per Georgewill JCA, had reiterated inter alia thus: “It is the law that though a Court is enjoined to hear and determine every application before it notwithstanding how out rightly frivolous or patently irritating to the Court it may be, yet it is also the law that it is not in all cases that failure of a Court to hear and determine every application before delivering its judgment is fatal to the proceedings and the judgment delivered therein. The real essence of this principle of law is to ensure that by the failure to hear and determine the pending application the Court has not occasioned any breach of the right to fair hearing of the party or miscarriage of justice to the party. Thus, where either both or any of these twin elements are absent, a failure to hear and determine a pending application before delivery of judgment would not render the judgment a nullity.” I still and fully subscribe to the above view of the trite position of the law and accept it to represent the extant position of the law on this vexed issue of when failure to hear an application would amount to a breach of the right to fair hearing and when in excepted circumstances it would not amount to denial of fair hearing.I think I should add at once that in all cases the issue of fair hearing must be raised with all seriousness and in good faith. It must never be raised in bad faith or merely intended as a red herring to raise a storm in a tea cup without any factual basis. See Adegbesin V. The State (2014) 9 NWLR (Pt. 1413) 609 @ pp. 641 – 642”.
“My lords, in considering whether or not a proceeding of a Court was in breach of the right to fair hearing of a party, it is the law that each case of allegation of breach of the right to fair hearing must be scrutinized and decided on the peculiar facts and circumstances of each case. This is so because fair hearing is primarily a matter of fact. It is only when the facts are ascertained that the law would be applied to the facts so established to see whether or not such established facts constituted a breach of the party’s right to fair hearing. See Newswatch Communications Limited V. Alhaji Ibrahim Attah (2006) 12 NWLR (Pt. 993) 144.
“In law the issue of fair hearing is a two – way traffic as well as a two – edged sword since both parties are equally entitled to the protection of the law affording them their guaranteed right to fair hearing. It is never meant to aid an indolent, lazy and or cunning litigant who is merely interested in and bent on frustrating the other party and distracting the Court. It is also not available to a party who relies on it merely for the sole purpose of delaying the ends of justice or postponing the day of reckoning or judgment. See Newswatch Communications Limited V. Alhaji Ibrahim Atta (2006) 12 NWLR (Pt. 993) [email protected] p. 151”.
“In law, it is not enough to merely allege an error or mistake in a Judgment, it must be shown that the error or mistake was substantial and had occasioned a miscarriage of justice or was likely to occasion a miscarriage of justice to the Appellant, and failing which such an error or mistake will not warrant the overturning of the Judgment appealed against. See Eyiboh V. Abia (2012) 16 NWLR (Pt. 1325) 51 @ pp. 82 -83. See also Opa V. Attorney General Of The Federation (2017) 9 NWLR (Pt. 1569) 61 @ p. 115; Ogboru V. Okowa (2016) 11 NWLR (Pt. 1522) 84 @ p. 123; Ge International Operations (Nig) Ltd V.0-Oil & Gas Services Ltd (2016) 10 NWLR (PT. 1520) 304 @ p. 330. In Godwin Ohuaunwa V. Basil Duru & Ors (2008) LPELR – 4699 (CA), this Court per Abdullahi JCA, had succinctly stated inter alia thus: “It is only where such error or mistake is so fundamental as to occasion a miscarriage of justice. It is my view and I also hold that the mistake of dating the judgment 31/10/2007 has not occasioned a miscarriage of justice; far from it particularly when the Tribunal stated on record that the judgment was read on 1/11/2007” There is no doubt in my mind that the contention by the Appellant used to be the position of the law in years gone by, which is now gone for good, when technicality held sway over and above substantial justice. See Adis Ababa V. Adeyemi (1976) 12 SC 51.
“However, nowadays, Courts of law do not concern themselves with trifles but with the substance and justice of the case which are weightier matters. Thus, a wrong date of judgment alone is not of such a serious nature that should bug down the Court and be allowed to become a clog in the wheels of rendering substantial justice to the parties, more so when the judgment was delivered in the open Court and in the presence of counsel to the parties. The long accepted Latin maxim is ‘de minimis non curat lex.’ In Nigeria today, substantial justice is king as was so admirably demonstrated by the Supreme Court in 1981, when its earlier decision in Adis Ababa V. Adeyemi (1976) 12 SC 51 was overruled by its decision in Nofi Surakat V. Nigeria Development Society Ltd & Anor (1981) 4 SC. 26. See also Jeric Nigeria Ltd V. Union Bank Nig Plc. (2000) 15 NWLR (Pt. 691) 477; Chief Adebisi Adegbuyi V. All Progressives Congress & Ors (2013) LPELR – 22799 (CA)”.
These days the Courts do conserve their energies to be expended on matters of substance and on real and substantial issues in contention between the parties. Long gone are the heydays of technicality riding roughshod over substantial justice! The Courts have since charted a new path aimed at consolidating substantial justice between the parties and would sparingly accord technicality any pride of place except in very well deserving cases where the alleged incompetence is fundamental and goes to the root of the jurisdiction of the Court itself to hear and determine such a matter on the merit. Thus, the stand of the Appellant under issue three resonates more with undue technicality than with substance and sincerity. The law nowadays lays more emphasis on the overriding need to render substantial justice over and above technical justice by the Courts. See Yusuf V. Adegoke (2007) LPELR – 3534 (SC). See also Dangote General Textile Products Ltd & Ors V. Hascon Associates Nig. Ltd. & Anor. (2013) LPELR – 20665 (SC); Duke V. Akpabuyo L.G. (2005) 19 NWLR (Pt. 959) 130 @ pp. 142-1 43; U.TC. (Nig.) Ltd V. Pamotei (1989) 2 NWLR (Pt.103) 244. It is for the above reasons, and in the light of the extant position of the law, that I hold firmly that the alleged inconsistencies in the dates of the Judgment of Court below, incidentally delivered on 4/12/2015 in the open Court and in the presence of both counsel for the parties, did not in any legal manner vitiate the validity of or render as null the Judgment of the Court below. See Nofi Surakat V. Nigeria Development Society Ltd & Anor (1981) 4 SC. 26. See also Joseph Afolabi & Ors V. Jihn Adekunle & Anor (1983) 2 SCNLR 141; Ekereke V. The State (1981) NSCC 79.
“I now come to the purport and effect of Order 35 Rule 2 of the High Court of Lagos State (Civil Procedure) Rules 2004 (now 2012), which provides thus: “Where any judgment is pronounced by a Judge the Judgment shall be dated as of the day on which such Judgment is pronounced and shall take effect from that date unless the Judge otherwise orders.” Now, whilst I subscribe fully to the fundamental prerequisites on the place of Rules of Court as essential for orderly conduct of matters in the litigation process and are thus not made for the fun of it but should be obeyed, I remain convinced that Rules of Court are mere hand maid of the Court and must remain so. The Court is the master of the Rules and not the other way round. Therefore, whenever strict adherence to a Rule of Court is likely to result into injustice, the Court will refuse to be slavishly bound to such a Rule of Court, being the master of the Rules and will rather move on to cast its lot on the side of rendering substantial justice to the parties as dictated by the circumstances of the particular case. The Court, most especially the one in whose hallowed Chambers I sit to render substantial justice to all manner of persons without fear or favor ill-will or affection, should never or ought not to, raise its hands as hopeless and or helpless or even tied on the face of any Rules of Court engendering injustice in the peculiar circumstances of any given case and thereby surrendering its mastership to the Rules of Court to endanger the rendering at all times of substantial justice to the parties by the Courts.
“Courts in this Country (Nigeria) have been enjoined in plethora of cases that technicality should not and must not be used in arriving at a just, fair and equitable decision. In Adebesin Vs State (2014) LPELR – 22694 (SC) Page 25; (2014) 9 NWLR Part 1413 Page 609 Paragraphs B – E, the Supreme Court held among others thus:- “……………….this is a minor technical point that has no effect on the Judgment of the Court below. At this stage in our jurisprudence, technicality must ……….yield place to reality. See – Broad Bank Nig Ltd Vs Alhaji S. Olayiwola & Sons Ltd & Another (2005) ALL FWLR PART 251 PAGE 235 AT 249 – 251 (SC). Appellant cannot be allowed to boost his case to the detriment of substantial justice…………..”
STATUS(ES) REFERRED TO
High Court of Lagos State (Civil Procedure) Rules 2004 (now 2012)|
Miss F. R. A. Williams, with D. O. Adejobi Esq, for the Appellant.|Nick Omeye Esq., for the Respondent.|