➥ CASE SUMMARY OF:
United Bank for Africa (UBA) v. Samuel Igelle Ujor (CA/C/134/99, 20 Feb 2001)
by Branham Chima.
➥ ISSUES RAISED
Motion not heard by trial court;
➥ CASE FACT/HISTORY
In 1989, the respondent applied for and was granted an overdraft of the sum of N10,000.00. As a result of this, a deed of legal mortgage was executed over the respondent’s building situate off Agiga Road, Ogoja and the certificate of occupancy in respect of the said property was deposited with the appellant. After the respondent had fully paid the mortgage debt, the respondent on 5th July, 1996, applied for another overdraft of the sum of N200,000.00 to trade on cocoa for 1997 cocoa season but the application was refused. The respondent then applied to the First Bank of Nigeria Plc. who was ready to grant the money and the respondent then wrote and requested the appellant to release the certificate of occupancy and also execute a deed of release of same. The appellant returned the certificate of occupancy but did not execute a deed of release. First Bank of Nigeria Plc did not grant the respondent the said facility because the appellant had not executed the deed of release.
It is as a result of this that the respondent, as plaintiff, filed a suit against the appellant, as defendant, claiming as endorsed in paragraph 24 of the statement of claim, seeking the following reliefs:- “24. Whereof the plaintiff claims from the defendants – The sum of N32,000.00 being consequential loss suffered by the defendant as a result of the refusal of the defendant to take steps to discharge the legal mortgage by refusing to execute a deed of release or reconveyance in favour of the plaintiff.”
On 13/7/99, the learned trial Judge Edem J., delivered his judgment in which he found in favour of the respondent and awarded him the sum of N10,000,000.00 as damages.
➥ ISSUE(S) & RESOLUTION(S)
I. (RECORDS). Whether an affidavit is the competent way to challenge record of proceedings?
RESOLUTION: IN APPELLANT’S FAVOUR. (Yes).
[AFFIDAVIT IS TO BE USED TO CHALLENGE RECORD OF PROCEEDINGS
‘In Ogun v. Akinyelu and Ors. (supra), that was cited by the respondent’s counsel at Pp. 692 – 693, It was observed as follows:- “The appellant contended that an appellate court has inherent power to amend the record of the trial court to prevent an occurrence of substantial injustice … However, the power is only exercisable through properapplication and not by mere filing of an affidavit as wrongly done by the respondents” In the appellant’s brief, the learned counsel for the appellant has submitted that the authority cited above is not applicable to the instant case as it dealt with amendment of the records. I agree with him on this point. If a counsel seeks an order to amend the record of proceedings, obviously he should come by a motion praying the court for an order to amend the records but this is entirely different from the instant case, where the appellant is challenging the record of proceeding. I am of the view that the procedure adopted by the appellant is the right one.’]
I. (FAIR HEARING). Whether the Appellant were denied fair hearing when its application was not heard or ruled upon by the Court?
RESOLUTION: IN APPELLANT’S FAVOUR. (Yes. Fair hearing was denied).
[THE TRIAL COURT SHOULD HAVE HEARD THE APPLICATION OF THE APPELLANT BEFORE GIVING FINAL JUDGEMENT
‘The proceedings of that day shows that the appellant’s counsel asked for a stand down while the respondent’s counsel asked for judgment and the learned trial Judge adjourned the matter to 13/7/99 for ruling but most surprisingly on 13/7/99, the learned trial Judge delivered his judgment in which he found for the respondent. On a perusal of the records of proceedings set out above, it can easily be seen that what the learned trial Judge did can be very easily faulted. It is not the duty of the counsel after filing a suit, or motion or any document in the High Court Registry and also paying the necessary fees to see that those court processes are in the Judge’s file. This is the duty of the Registrar of the court. When a counsel informs the court that he has filed a motion and if such a motion is not in the court’s file, it is incumbent on the trial Judge to stand the matter down for some minutes or adjourn it so that the Registrar or the clerk of the court could go to the court registry and find out if the said motion is in the court’s Registry. In the instant case, the appellant’s counsel told the court that they could not proceed with the defence and referred to paragraph 5 of their affidavit where they stated that it is impossible for them to go on without the amendment and that there is a notice of appeal and then asked for a stand down while the respondent’s counsel asked for a judgment. The learned trial Judge in page 115 of the records asked: “A stand down for what? for the preparation of the process for filing in the Registry or their being brought from the Registry if filing had been accomplished.” I must say that that is a wrong place and time for him to ask such a question because he cannot get an answer for that question. When the appellant’s counsel asked for stand down, he would have asked him what the stand-down was for. The appellant’s counsel said that he requested the court to stand down the matter for 2 minutes so that he could sort out the matter at the court’s Registry. Obviously, the stand down could not have been for any purpose other than to trace the motion papers at the Registry. If the learned trial Judge had been patient enough, he would have stood down the case for four minutes or adjourned it to any convenient date so that the matter would have been sorted out in the Registry. It was the contention of the respondent’s counsel that the ploy is to wrest an adjournment and thus further frustrate the determination of the matter; the learned trial Judge was swayed by this argument when he adjourned the matter to the following day for the ruling. On that day, he did not deliver the ruling but a judgment.’
‘In the present case, the appellant’s counsel applied for stand-down and the respondent’s counsel applied for judgment and the matter was adjourned for ruling. It is the duty of the trial court to rule on the application for a stand-down and it is after he has done this that he would rule on the respondent’s application for judgment. It must be observed that the appellant’s witness was still giving evidence and before the court would proceed to judgment, the appellant must have closed his case or the court must have ruled that it deemed that the appellant had closed his case and it is after this that the court would call for address from both counsel. In the instant case, the appellant’s witness was still testifying and the trial court did not rule that the appellant’s counsel’s application for a stand- down or even an adjournment is refused. The trial court cannot adjourn a case for ruling and on the day for the ruling, he would deliver a final judgment. A ruling and judgment are two different things. The appellant’s counsel had stated that if they knew that the matter was adjourned for judgment that they would have filed a motion to arrest the judgment. There is a weight in that argument because they came for ruling and not for judgment. When the respondent’s counsel applied for judgment, it is the duty of the trial court to ask the appellant’s counsel if he had anything to say. It is shown in the records that the trial court adjourned the matter for ruling immediately after the respondent’s counsel applied for judgment, and he did not give him an opportunity to reply to that application.’
LEARNED COUNSEL FOR THE DEFENDANT/APPELLANT WAS NOT GIVEN THE OPPORTUNITY TO GIVE FINAL ADDRESS
‘By virtue of section 294(1) of the 1999 Constitution, the addresses are to be given before judgment is delivered. When the right to address the court exists, a party must be accorded that right and a denial of such a right renders the whole proceeding a nullity. The right of final address by counsel is constitutionally guaranteed, it is optional and therefore can be expressly or impliedly waived. See Ariori v. Elemo (1983) 1 SCNLR 1. In the instant case, the appellant’s counsel was not given an opportunity to address the court and the issue of such being waived does not arise at all.’
⦿ THE APPELLANT SHOULD HAVE BEEN ALLOWED TO PUT UP ITS DEFENCE
‘The appellant never said that they had no defence. The matter is not as straightforward as the respondent’s counsel had submitted. The appellant is entitled to be given an opportunity to put up his defence no matter how stupid or foolish the counsel or the court thinks it would be. It is after that that any reasonable tribunal can give a valid judgment. In the instant case, the appellant was clearly denied that right of fair hearing as entrenched in section 36(1) of 1999 Constitution. This has occasioned a miscarriage of justice. Miscarriage of justice vitiates a judgment and renders it a nullity. In view of the fact that the whole trial is a nullity, it will be wrong to deal with the last issue which touches the merits of the substantial matter in view of the nature of the order that I will make in this appeal.’]
‘In the circumstances, I hold that there is merit in the appeal and it is hereby allowed. I set aside the judgment of the High Court of Cross River State delivered on 13th July, 1999, by Edem J. I also order that this matter be remitted to the High Court of Cross River State where it will be tried de novo by another Judge. The appellant is entitled to costs, which I assess and fix at the sum of N5,000.00.’
➥ FURTHER DICTA:
⦿ RESPONDENT CANNOT RAISE ISSUES OUTSIDE THE GROUNDS OF APPEAL
It is settled law that issues for determination must relate to and arise from the grounds of appeal filed by the appellant and any issue that is not distilled from the grounds of appeal is incompetent and must be struck out. A respondent must formulate his issues from the grounds of appeal and he has no business to raise any issue outside them when he did not file a cross appeal or a respondent’s notice that the judgment of the court should be affirmed on other grounds. See:- “ Carlen (Nig.) Ltd. v. University of Jos and Anor (1994) 1 SCNJ 72 Agwundu and Ors v. Onwumere (1994) 1 SCNJ 106 Godwin v. C.A.C. (1998) 14 NWLR (Pt. 584) 162 Shitta Bey v. Attorney-General of the Federation (1998) 10 NWLR (Pt. 570) 392. — Opene JCA.
⦿ BRIEFS SHOULD BE CONCISE AND DEAL WITH THE ISSUES ARISING
On another look at the whole of the respondent’s brief, it can be seen that the brief is not elegantly written, besidesthis, it is very verbose and full of a lot of repetitions. The trial court’s judgment is only fourteen pages, it is from this that the respondent’s counsel wrote a brief of 62 pages. This no doubt defeats the essence of brief writing. Briefs should be concise and deal with the issues that arose from the appeal and relate to the word “Brief”. It defeats the whole intendment of brief writing if one will spend the whole day or night reading one brief. This can be excusable in a very complicated matter where there are so many appellants with many notices of appeals and also cross-appeals or where many cases are consolidated but not in this case which is a very simple matter. — Opene JCA.
⦿ PROCESS OF CHALLENGING A RECORD OF APPEAL; AFFIDAVIT IS TO BE USED
When a party intends to challenge the correctness of the record of proceeding, the normal procedure is for that party to swear to an affidavit challenging the said record of proceedings. It is his duty to set out the facts or partof theproceedings which is wrongly stated in records or what happened during the proceeding which is not included in the proceedings by the trial court. This affidavit will then be served on the trial Judge and/or registrar of the court and also on the counsel on the other side. When they are served, it is entirely up to them to file the counter-affidavit affirming that what was recorded by the trial Judge is correct and it reflects exactly what took place during the proceedings. In sommer v. Federal Housing Authority (supra) at 558, it was observed:- “Counsel for the appellant must be fully aware that to challenge the record, an affidavit has to be filed, which was done in this A case.” In Mokwe v. Williams (1997) 11 NWLR (Pt.528) 309 at 321, Tobi, JCA, opined:- “By the practice of the courts, the affidavit challenging the record of proceedings ought to be served on the Judge who can exercise his legal right to defend himself.” In Agwaramgbo v. Nakanda (2000) 9 NWLR (Pt. 672) 341 at 360, Edozie, JCA, observed:- “A party who seeks to challenge the correctness of the record must swear to an affidavit setting out the fact or part of the proceedings wrongly stated in the record, such affidavit mustbe served on the trial Judge and/or on the registrar of the court who must then if he desires to contest the affidavit swear to and file a counter-affidavit”. I am of the view that the above is the correct exposition of the law and this is exactly what has been done in this case. — Opened JCA.
⦿ LITIGANT HAS NO DUTY TO PAY BAILIFF TO EFFECT SERVICE ON THE OTHER PARTY
[W]hen a litigant files a document in the court registry and pays all the fees, it is not his duty to pay the bailiff any money for transport or otherwise so that he could effect service on the other party, if he gives the bailiff any money it is only to speed up the services on the other party. — Opene JCA.
⦿ NO NEED TO APPEAL SPECIFIC FINDINGS WHEN WHOLE DECISION HAS BEEN APPEALED
It has been argued by the respondent’s counsel that the appellant did not appeal against this finding and some other findings made by the learned trial Judge, I must say that she was not given a fair hearing and has appealed against the whole judgment and does not need to appeal against everything said or every observation made by the learned trial Judge. — Opene JCA.
⦿ EFFECT OF COUNSEL STATEMENT FROM THE BAR
It is settled that a statement by a counsel from the Bar has the character of an oath and the court is bound to take this into consideration. See Tika Tore Press Ltd. v. Umar (1968) 2 ALL NLR 107. — Opene JCA.
⦿ DUTY OF REGISTRAR TO MAKE SURE DOCUMENTS FILED APPEAR IN THE COURT’S FILE
It is not the duty of the counsel after filing a suit, or motion or any document in the High Court Registry and also paying the necessary fees to see that those court processes are in the Judge’s file. This is the duty of the Registrar of the court. When a counsel informs the court that he has filed a motion and if such a motion is not in the court’s file, it is incumbent on the trial Judge to stand the matter down for some minutes or adjourn it so that the Registrar or the clerk of the court could go to the court registry and find out if the said motion is in the court’s Registry. — Opene JCA. .
⦿ WHERE A MOTION SEEKS TO TERMINATE VS ONE SEEKING TO CURE DEFECT
It is pertinent to observe that there is an order of precedence for hearing motions or applications before the court. Where a motion or application seeks to terminate an action on account of irregularity and the other one seeks to cure the defect, it is the duty of the court to hear the later first see:- Nalsa and Team Associates v. N.N.P.C. (1991) 11 SCNJ 5; Consortium M.C. 3632, Lot 4 Nigeria v. National Electric Power Authority (1991) 7 SCNJ 1. — Opene JCA.
⦿ FINAL ADDRESS OF COUNSEL IS ALWAYS RELEVANT
Learned counsel for the respondent had argued that a trial Judge can in certain circumstances dispense with final addresses and that one of such circumstances is where, as in this case, the facts are straightforward and in the main not in dispute. Reference was made to: Niger Construction Company Ltd. v. Okugbeni (1987) 11/12 SCNJ 135 at 139; Donatus Ndu v. The State (1990) 12 SCNJ 50 at 60. Nemi and Ors. v. The State (1994) 10 SCNJ 1. He submitted that in the present case, the facts are straightforward and that the evidence of the plaintiff is undisputed and that addresses in the circumstances would have been a mere formality and that there is nothing to show that the appellantsuffered a miscarriage of justice as a result of the counsel not addressing the court. I have read the cases cited by the respondent’s counsel and it appears to me that those cases are not in line with the current decisions of the Supreme Court and this court as well. This case is not straightforward as the respondent’s counsel had submitted. I must observe that a trial court does not call for addresses just for a fun or as a matter of course. An address is a part and parcel of the trial and its immense and enormous value is unquantifiable and its absence can tilt the balance of the trial court’s judgment as much as the delivery of an address after the conclusion of evidence can. It will be therefore erroneous on the part of the court to hold that a case is straightforward, that an address is not necessary or that even if an address was delivered, that the decision could not be different as this is nothing more than a mere speculation. — Opene JCA.
⦿ WHERE COUNSEL SAYS THERE IS MOTION FOR APPEAL, BUT MOTION NOT BEFORE JUDGE
What the appellant’s counsel said was that they could not proceed because it is impossible for them to go on without the amendment and that there is an appeal and that they wanted the case to be stood down. Where a counsel says that there is a notice of appeal and a motion for stay of proceedings, the only option for the trial court is to stand down the case so that it could be checked at the court registry if there is notice of appeal and a motion for stay of proceedings. If there is a motion for stay of proceedings, it is incumbent on the trial court to take the motion and it is after he had refused the application that he can call on the defence to go on with their defence. — Opene JCA.
⦿ MOTION THAT SAVES PROCEEDING SHOULD BE HEARD FIRST
It is a settled principle of practice that where there are two motions before the court requiring to be heard, the interest of justice demands that the motion, the determination of which would save the substantive action, should first be heard. See Abiegbe and 2 ors. v. Ugbodume (1973) 1 ALL NLR 52; (1973) 1 SC 133; Nalsa and Team Associates v. N.N.P.C. (1991) 8 NWLR (Pt. 212) 652 at 676; Long John v. Black (1998) 6 NWLR (Pt. 555) 524 at 550. — Edozie JCA.
⦿ DENIAL OF PARTY TO GIVE FINAL ADDRESS MAY RENDER ENTIRE PROCEEDING VOID
In the case of Ndu v. State (1990) 7 NWLR (Pt. 164) 550 at 560, it was held that the hearing of address from counsel before delivery of judgment is an important exercise in the judicial proceedings in our courts and the denial of that right to a party may render the entire proceedings a nullity if a miscarriage of justice occurs. It is my very view that the judgment entered in favour of the respondent against the appellant without the latter closing its case and presenting through its counsel its final address is a serious violation of the appellant’s right to fair hearing, which renders the entire proceedings a nullity. This being the position, it is not necessary to consider whether the damages awarded can be justified. — Opene JCA.
United Bank for Africa Plc
Samuel Igelle Ujor
➥ LEAD JUDGEMENT DELIVERED BY:
⦿ FOR THE APPELLANT(S)
M. Ojuah, Esq.,
⦿ FOR THE RESPONDENT(S)
A. Agim, Esq.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ ADDRESS OF COUNSEL ARE INTEGRAL PART OF THE TRIAL
In Obodo v. Olomu (1987) 3 NWLR (Pt.59) 111 at page 121, Belgore, JSC, observed as follows: “Addresses of counsel form part of the case and failure to hear the address of one party, however overwhelming the evidence on the one side, vitiates the trial because in many cases, it is after the addresses that one finds the law on the issue fought not in favour of the evidence adduced … By holding that the decision could not have been different if all the address were before the trial court, the Court of Appeal was attempting to read the mind of the trial Judge. He heard the evidence and saw the witnesses, the addresses might have thrown a new light on his view on the evidence. For a totality of a case heard entails not only the evidence but also the addresses.” At pages 123 and124, Obaseki, JSC, stated:- “The hearing of addresses by every court established by the Constitution of the Federal Republic of Nigeria is recognised by the constitution. It is to be given before judgment. See section 258 (1) – “Its beneficial effect and impact on the merit of the case is enormous and unquantifiable. The value is immense and its assistance to the Judge in arriving at just and proper decision though dependent on the quality of the address cannot be denied … until the learned trial Judge’s mind is exposed to an address, no one can say what effect it will have on his mind. It cannot be said that in the light of the above, the failure to hear the address of counsel for the plaintiff has not occasioned a miscarriage of justice. It certainly has not served the interest of justice. Miscarriage of justice vitiates a judgment and renders it a nullity.”
➥ REFERENCED (OTHERS)