ILORIN SOUTH LOCAL GOVERNMENT
SAMAD PAPER CONVERTING CO. LTD
IN THE COURT OF APPEAL OF NIGERIA
ON WEDNESDAY, THE 25TH DAY OF APRIL, 2007
BEFORE THEIR LORDSHIPS
TIJJANI ABDULLAHI, J.C.A
HELEN MORONKEJI OGUNWUMIJU, J.C.A
IGNATIUS IGWE AGUBE, J.C.A
ILORIN SOUTH LOCAL GOVERNMENT Appellant(s)
SAMAD PAPER CONVERTING CO. LTD Respondent(s)
AbdulGaiiyu Bello with ABDULKADIR T. E. For Appellant
O. J. ADESEKO For Respondent
Sam Eleanya, Agboola Omolola Oluwafolakemi, Vincent Kalu Eleanya and Ugochi Vine Eleanya]
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of Hon. Justice J. F. Gbadeyan sitting at Ilorin High Court Kwara State delivered on 16/11/2005. The facts which led to this appeal are stated as follows:
The Respondent as Plaintiff/Claimant instituted the action culminating into this appeal under the undefended list procedure. By the endorsement on the writ of summons, the Respondent claimed the following reliefs against the Appellant:
a) The Plaintiff claim is for the sum of one million, three hundred and thirty five thousand, four hundred naira - (N1,335,400) only, being the unpaid balance of one Million, Nine Hundred and Thirty Thousand, Four Hundred Naira (N1,930,400) only of the contract sum for the supply of various text books to the Defendant
b) 21% interest per annum from 23rd of August, 2000 till the date of judgment.
c) 10% interest from the date of judgment until the whole money is finally liquidated.
The Appellant filed her Notice of intention to defend and supported same with a nine paragraph affidavit in which she admitted owing the Respondent only to the tune of N635,400 as against N1,335,400. See pages 19-25 of the Record.
The Respondent also filed a counter affidavit of 8 paragraphs. See Pg. 26 of the Record.
The trial court, based on the admission of the Appellant as regards the sum of N635,400, in its ruling delivered on 13th July, 2005 entered judgment for the Respondent for the sum of N635,400 and adjourned the case to 21st July 2005 for hearing on the balance claimed, as contained at pages 73-74 of the Record of proceedings.
On 21st July, 2005, the Defendant/Appellant canvassed argument in support of her notice of intention to defend dated 13th June 2005 and the trial court ruled that in view of the dispute in respect of the claimed balance and interest, same should be transferred to the General Cause List or ordinary cause list. The matter was adjourned to 27th September 2005 for hearing.
On 27/9/2005 Appellant's Counsel was not in court, but Respondent's Counsel was in court and the case was adjourned to 27/10/2005. On 27/10/2005, the Appellants Counsel was also not in court and the Respondent's Counsel applied for Fresh Hearing Notice to issue and the said Hearing Notice was served on the Appellant's Counsel and the case adjourned to 9/11/2005. On 9/11/2005 neither the Appellant nor his Counsel were in court and Fresh Hearing Notice was ordered to be served on the Appellant and the case adjourned to 16/11/2005 at the instance of the learned trial judge.
On 16/11/2005, despite proof of service, the Appellant was not in court and the court proceeded to hearing. One S.B. Adebayo Managing Director of the Respondent testified as CW1 and the Respondent's counsel asked that the case be closed and judgment given.
Judgment was given in favour of the Respondent the same day. Thereafter, the Appellant brought a motion to set aside the judgment on the ground that it was a judgment in default. The application was refused, hence this appeal.
Learned Respondent's Counsel in his brief of argument for the first time raised a preliminary objection to the appeal on the ground that the Appellant's grounds of appeal involves questions of mixed law and facts and that the Appellant should have sought and obtained leave of the court below or this court before filing the said grounds of appeal.
To my mind, all the grounds of appeal filed are grounds of law and the question raised by the first ground of appeal relates to whether or not the Respondent discharged the burden of proof required by law to entitle it to the award of the sum and interest claimed thereon. In that regard, only a question of law was raised and no leave was needed before the grounds of appeal can be filed and argued.
The Appellant identified two issues for determination. They are:
i) Whether the trial court was right to have entered judgment for the Respondent for the principal sum when she failed to proof her entitlement to same as required by law?
ii) Whether the trial court was not in error in proceeding to close by implication the defence of the Defendant/Appellant and without following the rules of court and rules of natural justice proceeded to enter judgment for the Respondent on a date fixed for hearing of the case and whether the approach of the trial court has not occasioned a miscarriage of justice?
Learned Respondent's Counsel on the other hand identified two similar issues for determination. They are:
"1. Whether the trial court was right to have given the judgment for the sum of N500,000 with interest when there was no contrary evidence on Record (Ground 1).
2. Whether the Appellant was given fair hearing in this Suit (Ground 2 & 3)."
I will adopt for the purpose of deciding this appeal, the issues identified by the Appellant's Counsel.
On the first issue, learned Appellant's Counsel argued that the Respondent's case at the lower court was for special damages being unpaid balance of the contract sum with interest. He argued that since the Respondent claimed special damages, they must be specifically pleaded and strictly proved. In such a case, credible evidence must be adduced by the claimant in support of the claim. He relied on Brig - Gen. BAM Adekunle Rtd. v. Rockview Hotel Ltd (2004) FWLR Pt. 188 Pg. 1037 at 1047; Shell Petroleum Dev. Co. of Nig. v. Chief GBA Tiebo VIII (2005) All FWLR Pt. 265 Pg. 990 at 1008-1009 and 1018-1019.
He argued that the Respondent failed to produce and tender documents i.e. receipts of collection of goods supplied to the Appellant for the disputed sum and any invoice evidencing delivery of such goods. He submitted that it was wrong of the learned trial judge to depend on the ipsi dixit of CW 1 to find the indebtedness proved.
He further argued that the transaction that led to this appeal was not in the nature of such that an interest obligation could be implied and that there was no agreement between the parties to pay interest. He submitted that CW 1 did not give any explanation about the 21% interest rate claimed by the Respondent. He cited Henkel Chemicals Nig. Ltd v. A.G. Ferraro & Co. Ltd (2004) FWLR Pt. 188 Pg. 1078 at 1088.
He submitted that the judgment was given without taking cognizance of Or. 39 r. 3 and Or 39 r 16 (1) of the Kwara State High Court Rules. He argued that parties were not given the opportunity to file their written addresses within 21 days after completion of evidence and that the judgment was liable to be set aside. He submitted that the learned trial refused to be guided by the rules of court and did not examine the evidence of CW1 clearly. He cited Magna Maritime Services Ltd v. S.A. Oteju (2005) All FWLR Pt. 270 Pg. 1995 at 2016 and Baridan v. The state (1994) 1 NWLR Pt. 250 Pg. 260.
Learned Respondent's Counsel argued in reply, that the issue of damages never arose at the trial court and the whole argument of learned Appellant's Counsel on this point is completely misplaced since the claim before the court is for payment of contract sum and not a claim for damages. He submitted in reply to the argument that no credible evidence was led in support of the Respondent's claim, that the Managing Director of the Respondent who gave evidence as CW1 swore in court to how he was paid the money and that on each occasion he was paid, he signed vouchers that were kept with the Appellant. He submitted that since the evidence was unchallenged uncontroverted it was right for the lower court to believe it. He cited LEADINWAY Com. Ltd v. ZECO Nig. Ltd (2004) 18 NSCQR 394 at 405 and Cappa v. Akintilo (2003) 14 NSCQR 469 AT 487.
The claim of the Respondent as contained in the writ of summons is already set out above. The judgment of the lower court dated 16/11/2005 in this regard is contained in Pg. 80 of the Record as follows:
"This is a claim for an outstanding sum of N500,000.00 owed the claimant on a contract executed in year 2000.
The Defendant though served has not defended this suit.
Consequently judgment is hereby accordingly entered for the claimant for the sum of N500,000.00 with 21% interest p.a. from 2000 to date and from today 10% interest per annum."
First of all, let me say I agree with learned Respondent's Counsel that the arguments and authorities proffered by the Appellant's Counsel with regard to the question of damages is completely out of place and irrelevant to this appeal.
The Respondent asked for interest on debt due and not damages. The judgment of the learned trial judge was not based on the issue of special damages. This is a novel importation by the Appellant's Counsel. It merely confuses the matter as the issue of damages raised in the particulars to ground 1 of the grounds of appeal did not emanate or arise from the judgment of the lower court.
The main thrust of Appellant's Counsel's argument in this regard is that the evidence of CW1 was not sufficient to find the indebtedness proved and that the issue of interest on the contract sum was not agreed on by the parties and therefore the learned trial judge should not have found for the Respondent.
As for the argument whether the learned trial judge was right in believing the determining the case in favour of the Respondent on the evidence of CW1, I agree with Respondent's Counsel, that generally, where a party is given opportunity to be heard and is unable or unwilling to utilize that opportunity, testamentary or affidavit evidence tendered by the adverse party not controverted or challenged in any way must be regarded as proven.
"The law in this regard is settled. Where evidence given by a party to any proceedings was not challenged by the opposite party who had opportunity to do so. The court of trial has a duty to act on the unchallenged evidence before it, in the instant case, it was opened to the trial judge to act on the unchallenged and uncontradicted evidence " Per KATSINA-ALU JSC in LEADINGWAY COM. LTD VS. ZECO NIG. LTD (2004) 18 NSCQR 394 at 405. See also CAPPA VS. AKINTILO (2003) 14 NSCQR 469 at 487 per NIKI TOBI JSC where he had this to say: ''Although a Defendant who did not give evidence in defence of his pleading can question the failure of a court to evaluate the evidence adduced, he has bigger burden in the matter. This is because where evidence in contradiction of a claim is not given, the burden of evaluation of evidence on the part of a court, trial or appellate, is less unless a fact is so notorious to the common knowledge and experience of the court, so much will be taken for granted in the evaluation of evidence since there is no competing evidence to evaluate."
The evidence of CW1 is contained on Pg. 75 - 76 of the Record and is as follows:
CW1: Christian, sworn on Holy bible in English.
I am Samson Babatunde Adebayo, Managing Director of the Claimant Company behind Olak Petroleum Company, Offa Garage Road, Ilorin.
I am a paper converter. The Defendant paid me N200,000.00 out of N1,335,400.00 and promised to pay N1,135,400.00 which they have not paid. I used to sign the payment voucher whenever they paid. The balance is N500,000.00 after the ones they promised to pay instalmentally to my lawyer. The payment voucher are in the Defendant's possession. I now owe my bank N800,000.00 as interest in their indebtedness. I executed the contract in year 2000 with a bank loan attracting interest of over N800,000.00. "
Where there is no credible and contrary evidence, minimal proof is required in discharging the burden of proof placed upon the Plaintiff. There was no burden on the learned trial judge to evaluate the evidence of both parties with a view to finding where the scale of justice tilts. I am of the view that the Respondent had only to adduce minimal evidence of the balance of debt due to the company. I agree with the learned trial judge that the Respondent adequately proved the balance of contract sum of N500,000.00 due to the company.
As regards the issue of interest, the Respondent claimed interest in the writ of summons by way of a vested right. The law is that where interest is claimed as of right there is the need for the claimant to prove the right as one arising by contract or equity or merchantile custom. See Texaco Overseas Nig. Pet. Unlimited v. Pedumar Nig. Ltd (2002) 7 SCNJ 358. Thus the basis of the claim for interest must be pleaded and proved - whether based on contract or statute or mercantile usage. See Saeby Jernstoberi Maskinfabric A/S v. Olaogun Enterprises Ltd (1999) 12 SCNJ 171.
It is not proper to read into a contract, terms other than those which have been expressly provided for in the agreement and those which apply by implication of law or practice in respect of which there is no express provision varying of negativing them in the agreement. See Afrotec Technical Services Nig. Ltd v. MIA & Sons Ltd & Anor (2000) 12 SCNJ 298.
I can find no basis for the learned trial judges' assessment and order of pre judgment interest at the rate of 21% per annum from 2000 till date of judgment. That finding is not proved by the evidence on oath of the Respondent's witness CW1 who only said in aid of that fact in issue that he took a loan from the Bank and that the interest on the loan was then N800,000.00. The pre judgment interest awarded by the learned trial judge is in my humble view not claimable or payable on debt arising from a contract where the subject matter of the contract was not a loan, in the absence of express agreement or course of dealing or custom between the parties. See Broadline Enterprises Ltd v. Monterey Maritime Corporation & Anor (1995) 10 SCNJ 1, Alfotrin Ltd v. Att. Gen. Federation & Anor (1996) 12 SCNJ 236, G.S. Pascutto v. Adecentro Nig. Ltd (1997) 12 SCNJ 1.
I am obliged to find partially for the Respondent in respect of issue I to the extent that the learned trial judge was right in entering judgment for the Respondent on the principal sum of N500,000.00.
However, for reasons given above, I cannot find the interest awarded by the court on the judgment sum proved on a balance of probabilities by the claimant's witness.
The 2nd issue simply and succinctly put is whether or not the procedure adopted by the learned trial judge in arriving at his ruling of 16/12/2005 was in accord with the High Court Civil Procedure Rules 2005 of Kwara State. Learned Appellant's Counsel submitted that at the close of the evidence of CW1, the Appellant was entitled both under the constitution and the rules of court to be afforded the opportunity of cross-examining CW1, and of calling her own witness and of addressing the court. See Order 39 of the Kwara State High Court (Civil Procedure) Rules 2005. He argued that the Respondent had failed to comply with the mandatory provisions of Rule 16 (1) of the same Order 39 before proceeding to ask for judgment on 16/11/2005 as contained on page 76 of the Record and the trial court fell into serious error in entering judgment for her.
He argued that the rules of court are to be obeyed and where the rules of court are disobeyed by a party that party is not entitled to succour of the court. He cited Or 17 r.1 of the Kwara State Rules. He argued that in accordance with Or. 17 r. 1, where the Defendant fails to appear, a Plaintiff may proceed upon default of appearance under the appropriate provisions of the rules upon proof of service of the originating process. However Or. 17 r. 13 provides that "notice of any application under this order shall be served on the other party."
He argued that the mandatory procedures under r. 13 which afforded the Defendant further opportunity to be heard was not followed.
He submitted that the word "shall" in the rules made it mandatory for it to be obeyed. He cited Ogualaji v. A.G. Rivers (1997) 6 NWLR Pt.508 Pg. 233. He submitted that there has been a breach of S. 36 (1) of the 1999 Constitution in that the Appellant was not given fair hearing since all legal rules formulated to ensure justice was not followed. He cited Ailo Nig. Ltd v. Ankpa Coop. Credit & Market Union Ltd (2004) All FWLR pt.210 Pg. 1336 at 1347 - 1348. He argued that the procedure adopted by the learned trial judge in defiance of procedural rules has occasioned miscarriage of justice and should be declared a nullity. He cited Igbobahi v. Chief Eokpayi Aifuwa (2006) All FWLR Pt 303 Pg. 202 at 217 and Daniel Tayer Ent. Co. v. Liadi Busari (2005) All FWLR Pt. 268 at Pg.1708 -1709.
Learned Respondent's Counsel on this second issue argued that Or. 17 relates to default of appearance and the consequence upon which default judgment can be given. He submitted that this was not a case of judgment in default because Hearing Notice was served on the Appellant for the Hearing on 9/11/2005 and 15/11/2005 but the Appellant refused to come and the case was thus heard on the merit and judgment delivered on the merit. He argued that it is only where the Appellant as Defendant had not appeared by entering memorandum of appearance and the writ of summons or originating summons had been served on her that the issue of filing a motion for judgment can arise and Or. 17 r. 13 can become applicable. He argued that in this case, the Appellant who had been appearing just decided without any excuse or reason to abandon the trial. He submitted that there had been no breach of fair hearing of the parties as the parties were aware of the pendency of the suit on that day. He also argued that there is no rule that judgment cannot be given on the day a case was heard. He cited Urogbo & Ors. v. Bulara Una (2002) 11 NSCQR 537 at Pg. 565 and Magna Martime Ltd v. Oteju (2005) 22 NSCQR 395 at 320.
The invocation of the principle of fair hearing is completely inapplicable to the facts of this case. The Appellant was served with hearing notices to attend court on 27/9/2005, 9/11/2005 and 16/11/2005 and no reason was given for the absence of the litigant and her counsel. Court proceedings are not conducted according to the whims and caprices of litigants and their counsel. The continued confidence of the public in the effectiveness and relevance of the judicial process depends on respect for the judicial process by all stakeholders in the process. Justice is a two way street and one party cannot be held to ransom by the other.
D. O. EDOZIE JSC had this to say in the case of MAGNA MARTIME LTD VS OTEJU (2005) 22 NSC QR 395 at 320: "Where a party to a suit has been accorded a reasonable opportunity of being heard and in the manner prescribed under the law and for no satisfactory explanation it fails or neglects to attend the sitting of the court or boycotts same, that party cannot thereafter be heard to complain about lack of fair hearing."
I agree with learned Respondent's Counsel that there is a difference between the scenario envisaged in Or. 17 of the Rules and Or. 39 of the Rules. Order 17 conceives of a situation where the Defendant has not joined issues with the Plaintiff at all by filing a memorandum of appearance. In such an event, judgment cannot be entered in favour of the Plaintiff until a motion on notice for judgment in default has been filed and served on the Defendant. See Or. 17 r. 3, Or. 17 r. 13. In the circumstances of this case, the proceedings were ongoing, parties had appeared with their counsel and certain representations and orders had been made to the knowledge and acquiescence of both parties. The Defendant/Appellant unilaterally decided to stop participating in the judicial process. The court was entitled to proceed on to hear the matter on a date it was set down for hearing when all the parties had been served with Hearing Notice.
Or. 39 r. 3 provides that:
"When a cause is called for hearing, if the claimant appears and the defendant does not appear, the claimant may prove his claim, so far as the burden of proof lies upon him."
The learned trial judge proceeded in accordance with the above provision of the Rules of court.
Or. 39 r. 5 provides that in any event judgment by default may be set aside. Thus a judgment obtained under the circumstances provided for under Or. 39 r. 3 may be set aside. However, that is not the issue before us since the Appellant has not appealed against the refusal of the learned trial judge to set aside the default judgment which ruling was delivered on 16/12/2005.
It is pertinent to note here that there is a substantial difference in the rules between default of appearance provided for by Or. 17 and nonappearance of the parties - particularly the Defendant provided by Or. 39 of the rules. In Or. 17 a motion on notice for judgment must be brought before the court can proceed to judgment. In Or. 39, the court may proceed to judgment if the case is called for hearing and the defendant is absent without an excuse. Judgment can be entered by the court under either circumstance in the sense that only one party was heard who then got judgment because of the "default" of the other party. In appropriate cases, such judgments can be set aside on application.
I am of the humble view that the learned trial judge was quite right to have allowed the Respondent to prove her claim on the date the case was called for hearing since the Appellant was aware of the said hearing day. I also agree with Respondent's Counsel that there was absolutely nothing wrong in the learned trial judge giving judgment promptly the same day. In my view his Lordship is to be commended for it. After all there is no rule of law or practice that prevents him from doing so, particularly with the current trend encouraging speedy dispensation of justice.
Suffice it to say that under Order 39 of the Rules and in the circumstances of this case the Respondent was not obliged to file a motion for judgment in default before the court can proceed to trial.
In the circumstances, this appeal partially succeeds. The judgment in the principal sum of N500,000.00 is affirmed. Prejudgment interest rate of 21% ordered by the learned trial judge to be paid by the Appellant is hereby set aside. Post judgment interest as ordered by the learned trial judge. I do not feel that in the circumstances of this case an order for cost would be appropriate. I therefore make no order as to costs.
JUSTICE TIJJANI ABDULLAHI, J.C.A.:
I was privileged to have read in advance the lead judgment of conclusion. Consequently, I endorse the reasons and conclusion my learned brother Ogunwumiju J.C.A. and I entirely agree with her. She has comprehensively and satisfactorily dealt with all the live issues raised and argued in the appeal and arrived at a right reached therein.