FIRST BANK OF NIGERIA LTD VS RESORT INTERNATIONAL LIMITED & ORS
April 3, 2025SAMBO TARIA AMAIMTIBI V MARTINS NNEBEDUM, ESQ.
April 3, 2025Legalpedia Citation: (2019) Legalpedia (CA) 11271
In the Court of Appeal
HOLDEN AT LAGOS
Thu Oct 17, 2019
Suit Number: CA/L/424M/2012
CORAM
PARTIES
UNITED BANK FOR AFRICA PLC APPELLANTS
IDERA – OLU TRADING COMPANY LIMITED ALHAJI (CHIEF) T. O MABIFA RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The 1st Claimant/Respondent as the customer of the Defendant/Appellant secured credit facilities from the Defendant/Appellant. The facilities were charged by way of a third party mortgage in favour of the Defendant/Appellant over the property of the 2nd Claimant/Respondent, who guaranteed the facilities with the property known as 3 Okunfolami Street, Anthony Village, Lagos. The parties executed a deed of legal mortgage, which was dated 16/6/1996, and registered as No. 68 at page 68 in volume 1872 at the Lands Registry, Lagos. At some point, the 1st Claimant/Respondent started defaulting in its repayment of the facilities, despite several letters of demand written to it by the Defendant/Appellant. Subsequently, after a series of event and correspondences exchanged between the parties, the 1st Claimant/Respondent instituted a suit against the Defendant/Appellant in the lower court claiming amongst other things that it was not indebted to the Defendant/Appellant in any amount but rather it was the Defendant/Appellant who was indebted to it. The Defendant/Appellant also counterclaim against the Claimants/Respondents. The trial Court dismissed the claims of the Claimants/Respondents and granted the counterclaims of the Defendant/Appellant, to the extent of the sum of N4, 849.10 as against the sum of N7, 624,276.69 claimed as counter-claim. Dissatisfied with the decision of the Court, the Defendant/Appellant has appealed to this court contending that the failure of the lower court to pronounce on the issue of whether the 1st Respondent was indebted to the Appellant for Seven Million, Six Hundred and Twenty-four Thousand, Two Hundred and Seventy-six Naira, Sixty-nine Kobo (N7, 624,276.69), has led to lack of fair hearing and consequently occasioned a miscarriage of justice.
HELD
Appeal Dismissed
ISSUES
Whether the lower court was right when it failed to consider and make a pronouncement on the Appellant’s Counterclaim for the sum of Seven Million, Six Hundred and Twenty-four Thousand, Two Hundred and Seventy-six Naira, Sixty-nine Kobo (N7,624,276.69) as the debit balance on the 1st Respondent’s overdrawn account as at 4 June. (Ground 1) Whether the lower court was right when it failed to consider and make a pronouncement on the Appellant’s Counterclaim for the cost of the action (Ground 2) Whether the lower court was right when it held that Exhibit 35 represents a common position between the parties and defines the financial position of the 1st Respondent to the effect that as at 31 January 2005, the 1st Respondent was indebted to the Appellant in the sum of Four Thousand, Eight Hundred and Forty-nine Naira, Ten Kobo (N4,849,10) (Ground 3) Whether the lower court was right when it awarded judgment in favour of the Appellant for the sum of Four Thousand, Eight Hundred and Forty-nine Naira, Ten Kobo (N4,849,10) in view of the pleadings and the evidence of the parties before the lower court (Ground 4 and 5)
RATIONES DECIDENDI
BRIEF OF ARGUMENT – LEGAL IMPLICATION OF A RESPONDENT’S FAILURE TO FILE ITS BRIEF OF ARGUMENT
“I must however state that the legal implication of no brief from the Respondents is that the Respondents are deemed to have admitted the issues canvassed in the Appellant’s brief but this does not mean automatic victory for the Appellant. It is not like a football match where the absence of the other team in the match means automatic victory for the team that is present. The court will still consider the merit of the appeal on the strength of the Appellant’s brief. In Willie & Ors vs. Ibiok (2012) LPELR-4417 (CA), this court per Akeju, JCA at pages 10-11 held:
“For this reason this appeal will be considered and determined only on the appellants’ brief. It is pertinent to state here that the effect of the respondent’s failure to file a brief is that he has conceded the issues raised and canvassed in the appellants’ brief in so far as the issues can be found on the record. This failure however does not translate to automatic success of the appeal or afford the appellant any undue advantage as the appeal must still be considered strictly on its merit. See Echere vs. Ezirike (2006) All FWLR (Pt. 323) 1597; Ogbu v. State (2007) All FWLR (Pt. 361) 1561; Ugboaja vs. Sowemimo (2008) 10 MJSC 105 .
The Supreme Court has earlier held a similar position in Unity Bank Plc vs. Bouari (2008) 7 NWLR (Pt. 1086) 372 held:
“In a line of decided authorities, it has been held that the failure of a Respondent to file a Reply Brief, is immaterial. This is because, an Appellant, will succeed on the strength of his case. But a Respondent, will be deemed to have admitted the truth of everything stated in the Appellant’s Brief in so far as such is borne out by the Records. In other words, it is not automatic. An Appellant, must succeed or fail on his own Brief. See the cases of John Holt Venture Ltd. v. Oputa (1996) 9 NWLR (Pt. 470) 101 CA.;Onvejekwe v. The Nigeria Police Council (1996) 7 NWLR (Pt. 463) 704 C.A. Waziri v. Waziri (1998) 1 NWLR (Pt. 533) 322 C.A. and UBA PLC v. Ajileye (1999) 13 NWLR (Pt. 633) 116 C.A. just to mention but a few.”
COURT- DUTY OF THE COURT OF LAW TO DO JUSTICE
“A court is not just a court of law but a court of justice. Where is the justice of a case if a defaulting party in a loan transaction is made to pay a loan he was owing when the case started which he paid off before the end of the case. That will be complete injustice and will be offending the rule against double jeopardy and double compensation. See Mabamije vs. Otto (2016) (Pt v)1; Agu vs. General Oil Ltd (2015) 17 NWLR (Pt. 1488) 327. The duty of a court is to do justice between the parties that are before it. This is the oath of the judge and therefore a court must always put that standard before him while deciding cases. See Green vs. Green (1987) 3 NWLR (Pt.61) 480; Nishizawa Ltd vs. Jethwani (1984) 1 ANLR 470; Ali vs. NDIC (2015) All FWLR (Pt. 780) 1209.”
RELIEF – WHETHER COURTS ARE OBLIGATED TO GRANT THE RELIEFS OF PARTIES
“A court is not under obligation to grant the reliefs of the parties as couched in the claim or counter-claim. If a court feels greater justice will be served, it can grant a relief in a way to produce justice.”
ISSUES BEFORE THE COURT – DUTY ON COURTS TO PRONOUNCE ON ALL ISSUES BEFORE IT
“The law as to the duty of a court to make pronouncement on all issues presented before it is trite. A court is under obligation to address every issue canvassed before it. In C.N. Okpala & Sons Ltd vs. N.B. Plc (2018) 9 NWLR (Pt. 1623) 16, Okoro JSC held:
“In several decisions of this Court, it has been repeatedly held that all lower Courts, as a general rule, must pronounce on all issues properly placed before them for determination in order, apart from the issue of fair hearing not to risk the possibility that the only issue or issues not pronounced upon are crucial, failure to pronounce on them will certainly lead to a miscarriage of justice. There is therefore need for every Court or Tribunal to make findings and pronounce on material and fundamental issues canvassed before it by the parties because failure to do so, as I said earlier, may result in a miscarriage of justice. See Brawal Shipping (Nig) Ltd v. F.I. Onwadike Co. Ltd (2000) 6 SCNJ 508 at 522, Ojogbue V. Nnubia (1972) 6 SC 227, Katto V. CBN (1991) 9 NWLR (pt.214) 126, Yakassai v. Incar Motors Ltd. (1975) 5 SC 107; Citec International Estate Limited & Ors v. Josiah Oluwole Francis & Ors (2014) LPELR-22314 (SC).”
COUNSEL- DUTY OF A COUNSEL CONDUCTING A CASE
“A counsel conducting a case is supposed to assist court by adequately addressing all the issues raised either by evidence if it is a question of fact or by counsel’s address if it is a question of law. Counsel or parties should not leave issues for the court to assist it by providing missing evidence or to carry out research for them. This is not allowed as a court is an unbiased umpire. See Maersik Line & Anor vs. Addide Investment Ltd & Anor (2002) 11 NWLR (Pt. 778) 317; Addah & Ors vs. Ubandawaki (2015) 1 SC 1; Buhari vs. INEC & Ors (2009) 1 FWLR (Pt. 459) 1461; Kaydee Ventures Ltd vs. The Hon. Minister FCT & Ors (2010) 7 NWLR (Pt. 1192) 171.
The point I am laboring to make here is that if a party in a litigation places before the court a relief for the cost of the action, the party has more than a casual duty to show the cost of the action. I make bold to say that, this comes more as a special damage as the party will be required to show how much he has spent in the course of prosecuting the case. This will include legal fees and out of pocket expenses. This must be proved for the party to have any reasonable amount for the cost of the action. Let me make bold to say cost follows events and making a specific relief for the cost of the action is completely different. The considerations and the requirements are different.”
AWARD OF COST – DISCRETIONARY POWER OF A COURT TO AWARD COST
“It is trite that cost follows events. The law places cost at the discretion of the court which does not require any specific proof by the winning party. This is a discretionary power. See Ekunola vs. CBN & Anor (2006) 1 FWLR (Pt. 305)1488; G.K.F. Investment (Nig) Ltd vs. NITEL Plc (2009) 3 FWLR (Pt. 488) 7507.
This is a discretionary power of a court and like all discretions, must be exercised judicially and judiciously and an appellate court will not interfere with such powers unnecessarily otherwise it losses the whole sense of discretion except it is wrongly applied. See Akamnonu & Anor vs. Ibenye (2016) LPELR-41023 (CA); Layinka & Anor vs. Makinde (2002) 5 SC (Pt. 1) 109.”
AWARD OF COST- RATIONALE FOR THE AWARD OF COST
“The purpose of cost is to compensate the winning party for the expenses in pursuing the case and it is not meant to be a punishment. In exercising the discretion to give cost the court will take a holistic picture and determine whether the winning party was made to waste his time in court. In Ladega vs. Akinliyi (1975) 2 SC (reprint) 83, the apex court held:
“By virtue of the provisions of Order 30 Rule 1 of the High Court (Civil Procedure) Rules of the Western State , a trial Judge had a discretion whether to award costs or not and also as regards the person by whom they are to be paid. This discretion must, however, be exercised judicially: (See Donald Campbell and Co. v. Pollak (1927) AC 732 at p. 811: also Worbi v. Asamanvuah 14 WACA 669). Consequently, this court will not interfere unless satisfied that the trial Judge did not exercise his discretion, or did not do so judicially. (See Wurno v. United Africa Co. Ltd . (1956) 1 FSC 33 at p. 34).
Moreover, we would like to reiterate that the object of awarding costs is not to punish the unsuccessful litigant, but to compensate the successful party for the expenses to which he has been put by having to come to court: (see Inneh v. Obaraye 2 FSC 58). Lastly, this view would appear to accord with theprovisions of Order 30 Rule 5 of the same High Court Rules referred to earlier and it reads:-
“In fixing the amount of costs, the principle to be observed is that the party who is in the right is to be indemnified for the expenses to which he has been unnecessarily put in establishing his claim, defence or counter-claim, but the court may take into account all the circumstances of the case.”
EXHIBITS – POWER OF COURTS TO REFER TO EXHIBITS BEFORE IT
“The court has power to refer to exhibits which are tendered in court because it has become part of the record of the court. See: Unical & Ors vs. Effiong & Ors (2019) LPELR-47976 (CA); Fagunwa & Anor vs. Adibi & Ors (2014) 7 SC (Pt. II) 99”.
CASES CITED
Not Available
STATUTES REFERRED TO
High Court of Lagos State (Civil Procedure) Rules, 2004
