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In The
Supreme Court of Nigeria
On Friday, the
21st day of January 2005
Before Their Lordships
SC.
19/2001
Between
And
Judgement of the Court
Delivered by
Sunday
Akinola Akintan,
J.S.C.
This is an appeal from the judgment of the
Lagos Division of the Court of Appeal (Coram: Oguntade,
Galadima & Aderemi,
JJ.CA) delivered on 13th June, 2000 in suit No.
CA/L/380/96. The appellant and the respondent had entered into a
building contract out of which a dispute arose. The contract agreement
between them had provided for reference of disputes arising from the
contract to an arbitrator. To that end, the dispute was, by an order of the
Lagos State High Court, referred to Late Hon. Justice G.B.A. Coker as sole
arbitrator. The arbitrator published his report on 18th October, 1982. In
the report, the arbitrator ordered the appellant to pay
The two applications came before Ilori, J.,
as he then was. In his ruling delivered, on 9/5/86, on the two applications,
the learned Judge ordered the enforcement of the award and refused the
application to set aside the award. The appellant was dissatisfied with the
ruling of Ilori, J. An appeal to the Court of Appeal against the ruling was
dismissed. On a further appeal to this court, the appeal by the appellant
was also dismissed. But the cross-appeal by the respondent was successful in
that this court ordered that the case be remitted back to the High Court for
the purpose of determining the interest payable. Ilori, J. determined the
interest payable as ordered by this court. The appellant was again
dissatisfied and appealed to C the Court of Appeal.
The First Bank Plc, the 3rd party
respondent, came into the matter as a result of the bond it provided under
an order by Ilori, J., made on an application for stay of execution of the
award pending the appeal filed by the appellant. When the appeal was
dismissed, the respondent instituted an action at the Lagos High Court for
the enforcement of the bond.
The claim came before Desalu, J. as suit No.
LD/2185/90.Desalu, J. entered judgment against
the First Bank PLC to the extent of the limit of the amount guaranteed by
the bank and the interest due thereon. The bank has since fully settled the
judgment debt. The bank was brought into the proceedings before Ilori, J. by
the appellant issuing a third party notice by motion which the learned trial
Judge granted. But the High Court, in its ruling, awarded the interest
payable and dismissed the third party notice. The appellant did not appeal
against the dismissal of the third party notice to the Court of Appeal. The
bank is therefore strictly speaking not a party in the present appeal.
Briefs were filed by the appellant, the
respondent as well as the third party in this court. The appellant
formulated the following four issues for determination in the appellant's
brief:
"1.
Whether the court below was right in holding that there was no
conflict in the affidavit of interest
filed to warrant the taking of oral evidence by the trial court.
2.
Whether the court below was right in affirming the decision of the
trial court on the lumping together in the same judgment the determination
of interest payable to the respondent and the application for leave to set
aside the 3rd party notice filed by the 3rd party/respondent.
3.
Whether the court below was right in arriving at the conclusion that
there was no denial of fair hearing to the appellant by the failure
of the respondent to give the appellant the opportunity to respond or
be heard on the document relating to interest payable.
4.
Whether the court below was not in error in agreeing with the trial
court that the respondent is entitled to further interest on the judgment
sum of
The respondent adopted the issues formulated
by the appellant in its brief.
The procedure adopted by Ilori, J. in
determining the interest payable as directed by this court is contained in
the following order made on 10th January, 1995 by the learned
Judge:
"(i)
The principal sum comprised in the judgment shall be paid to the
plaintiff by the defendants and or
their guarantor before the adjourned date.
(ii)
The plaintiff shall file and serve an affidavit on interest claimed
within 14 days from this day.
(iii)
The defendants shall file and serve an affidavit on interest offered
within 10 days of service of the plaintiffs
affidavit."
The plaintiff filed its affidavit evidence
as directed by the court on 27th January, 1995 and the defendant filed its
own affidavit on 7th March, 1995.
The plaintiff's affidavit was deposed to by
Adegboyega Adetokunbo Edu, a legal practitioner in Chief
Rotimi Williams Chambers. He deposed
inter alia, in
paragraphs 3, 4, 5, 6, & 7 of the said affidavit as follows:
"1.
The Afribank Nigeria Plc is a reputable
bank duly licensed to carryon the business of commercial banking in
Nigeria.
2.
Chief Rotimi Williams Chambers did make
inquiries from the aforementioned bank to ascertain the amount of interest
payable on a sum of
3.
Now shown to me and marked exhibit 1 is the photocopy of amount of
interest computed by the said bank from 9.5.86 to 31.10.94.
4.
I have also requested the Chief Accountant in Chief
Rotimi Williams Chambers, Mr. David
Adekunle Araoye who
is an Associate of the Institute of Charted Accountants of Nigeria to make a
computation of the amount so payable up to 23rd February, 1995. A photocopy
of that computation is now shown to me and marked exhibit 2.
5.
Exhibit 2 shows that the gross amount which would have been paid by
the bank as at 23rd February, 1995 is
The defendant's affidavit was, on the other
hand, deposed to by Abayomi
Bisuga, a legal practitioner in the chambers of B. O. Benson, SAN. He
too deposed as follows in paragraph 3 to 11 of his said affidavit:
"3.
That judgment was given on 9/5/86 for
4.
That on 11/6/86 stay of execution granted on condition that a bond
guaranteeing the payment of the judgment debt and interest on judgment being
given by the Court of Appeal against the defendant.
5.
Bond was entered into by 1st Bank of Nigeria PLC for the
payment plus interest at 5% per annum from 9/5/86.
6.
The plaintiff on 22/10/90 filed an action against the 1st Bank, the
guarantor as contained in the writ of summons copy attached hereto as
exhibit 1.
7.
That on 6/5/92 judgment was delivered as follows:
(i)
For the sum of
(ii)
Interest on the said amount at 5% per annum from 9/5/86 to
25/9/90 amounting to
(iii)
Interest on the total sum of
8.
That attached hereto and marked exhibit 2 is copy of the judgment of
late Hon. Justice Desalu in favour of the plaintiff.
9.
That the plaintiff appealed against the portion of the judgment
relating to 6% per annum interest from
2/10/90 and attached hereto
is copy of the N/ A as exhibit 3.
10.
That the appeal on exhibits 2 and 3 has not been dealt with.
11.
That there is no need to determine fresh interest on the judgment
debt and cost, the same having been determined in suit No.
LD/2185/90,
Adold Stamm International Nigeria Limited v.
The First Bank of Nigeria Limited".
Ruling on the facts deposed to in the two
affidavits and the written addresses submitted by learned counsel for the
parties, the learned trial Judge (Ilori, J.) found as a fact in his judgment
delivered in the matter on 7/10/96 that no interest was awarded in favour of
the application in his earlier judgment in the case and that the 5% interest
which appeared on the bond was the limit of interest the third party bonded
itself to pay. The learned Judge then said further as follows in his said
judgment:
"No interest was awarded in favour of the
applicant in the earlier judgment of this court. The 5 % interest which
appeared on the bond was the limit of interest the third party bonded
itself to pay. While the respondent appealed
against the whole decision, the appellant herein appealed against this
court's failure to award interest. The Supreme Court dismissed the
respondent's appeal and remitted this suit back to this court for interest
payable to be determined.
Chief F.R.A. Williams, SAN learned counsel for the appellant placed
before this court, vide affidavit deposed to by Adegboyega Adetokunbo Edu,
Esq., interest payable as calculated by the Afribank PLC if a sum of
The learned Judge also held further that
exhibit 1 to the applicant affidavit was calculated on the basis of the
information supplied by Afribank while exhibit 2 was also a calculation of
interest on the same basis up to 23rd February, 1995. He then held that the
net interest after deducting withholding tax amounted to
" ...... On the premises, my judgment is
that the defendant/ respondent shall pay interest on the judgment debt from
9th May, 1986 as calculated in the schedule of interest payable exhibited
with the further affidavit of Adegboyega Adetokunbo Edu dated 27th January,
1995. It is ordered that the defendant/respondent shall pay to the
plaintiff/applicant the sum of
As I have stated earlier above, the
plaintiff was not satisfied with the ruling and an appeal filed against it
in the Court of Appeal was dismissed hence, the present appeal to this
court. The judgment of the lower court is attacked in the appellant's brief
on three grounds as set out in the issues formulated in the brief -
viz: (1) that the affidavit
evidence placed before the learned trial Judge contained conflicting
averments and as such the learned Judge ought to have called for oral
evidence to resolve the conflicts. The court's failure has led to denial of
fair hearing; (2) that the lower court was wrong in fixing the amount of
interest payable based on the figures obtained from documents not properly
before the court; and (3) the learned Judge was in error in lumping together
in his judgment the application to set aside the 3rd party notice by the 3rd
party respondent and the interest payable.
It is submitted in the appellant's brief, on
the conflicts in the affidavit filed, that since the only issue to be
determined by the trial court was interest payable by the
defendant/appellant and there being no admission but rather apparent
conflict, the conflict ought to have I been resolved by no other means than
by calling evidence on how the figures of principal sum and interest payable
were arrived at, probably evidence from the Central Bank of Nigeria on fixed
range (floor to ceiling of lending rate given to Commercial and Merchant
Banks for their customers). The learned Justices of the Court of Appeal are
therefore said to have acted wrongly when they agreed that the appellant was
not denied fair hearing because the trial court could have calculated the
figures on the basis of the data provided in exhibits 1 and 2.
On the admission and reliance on the figures
in exhibits 1 and 2 in arriving at the interest payable without giving the
defendant/ appellant an opportunity to react to same is said to be a breach
of the principle of natural justice of audi
alteram partem.
The result of the breach of that principle is that the entire proceedings
should be declared null and void. It is also submitted that since the rate
of interest used in arriving at the amount payable is above 5%, the sum
fixed is said to be contrary to the directive of this court to the High
Court and therefore the amount fixed is illegal.
It is also submitted in respect of the
lumping of the proceedings in respect of the interest payable and that in
respect of the application to set aside the 3rd party notice that the way
and manner and the stage the said two separate proceedings were lumped
together and hurriedly concluded was far from being fair to the defendant/
appellant.
It is submitted in reply in the respondent's
brief that there was ( no conflict in the
affidavit of interest filed to waITant the
taking of oral evidence by the trial court. Reference is made to the order
of this court of 5/8/94 to the effect that:
"the case be
remitted for the interest payable to be determined by the High Court (Ilori,
J)."
It is argued that since the principal sum
involved was
The defendant's case, on the other hand, on
the affidavit filed by him, was that the plaintiff had sued the First Bank
of Nigeria PLC on the bank's guarantee by bond to secure the judgment debt
for which the defendant was liable. It was alleged by the defendant that
judgment was entered in favour of the plaintiff on 6/5/92 on its claim on
the guarantee for the sum of
"there is no need
to determine fresh interest on the judgment debt and costs, the same having
been determined in suit No. LD/2185/90”
It is argued that the defendant did not
directly or indirectly dispute either the quantum or the rate
of interest claimed by the
plaintiff. It is submitted that all it did was to contend that having
obtained judgment for
The real matter in controversy between the
parties is said to be whether or not there was any need for the High Court
to embark upon the determination of what amount of interest should be paid
by the defendant when the plaintiff had already obtained judgment for
interest at 6% per annum from 2/10/90 in suit No LD/2185/90. The
issue as to the correctness or otherwise of the quantum or rate of interest
payable by the defendant was therefore, not raised nor did it ever arise in
the High Court.
On the joint trial of the two matters raised
in the appellant's second issue, it is submitted that it is at the
discretion of the trial Judge, on the application of the parties, to
determine whether or not he will try the issue in the original matter and
that raised in the third party notice jointly or
separately. That since the appellant has not shown that he suffered any
prejudice as a result of the joint trial of the two questions, we are urged
to hold that the Court of Appeal was correct in holding that the High Court
was right in deciding to try the two questions together.
The question raised in the appellant's third
issue is whether there was not denial of fair hearing by the failure of the
respondent' to give the appellant the opportunity to respond or be heard on
the document relating to the interest payable. It is submitted that there
was nothing wrong in a trial Judge looking at a document which he was asked
to look at in the presence of the other side who raised no objection to his
doing so. That since the said document was purely a question of arithmetic
calculation making use of a rate of interest, the accuracy of which was
never challenged, it is submitted that there is totally no merit in the
point now raised on the matter.
On the question raised in issue 4 whether
the Court of Appeal was not in error in agreeing with the trial court that
the respondent is entitled to further interest on the judgment sum of
The question to be resolved in the
appellant's first issue is whether there are conflicts in the affidavits
filed by the parties. The two affidavits are already reproduced earlier
above. The sum total of the appellant's case as set out in the affidavit
filed by it was that there was no need for a new interest to be determined
outside the one awarded earlier by Desalu, J. On the other hand, the
respondent sought the assistance of Afribank, a commercial bank, on the rate
of interest payable on the judgment debt had-the sum been placed in a fixed
deposit in a commercial bank within the time specified in the request made
to the bank. The reply from the bank was exhibited as an annexure to the
affidavit filed by the respondent. The second document also produced by the
respondent is another calculation made by a Chartered Accountant but based
on the same principle adopted by the bank and it was aimed at covering the
period not covered by the calculation made by the bank. This was the
document later produced in court. But it was also exhibited with the
respondent's motion as exhibit 2.
The question in this case therefore is
whether one can say that the contents of the two affidavits filed by the
parties can be said to be conflicting. In deciding whether or not the
contents of the two documents are conflicting, one must look at the issue in
controversy in the particular case before the court. This is because where,
for example, the conflicts in affidavits are not material to the case before
the court or where the facts are inadmissible, or are flimsy and are on an
issue irrelevant and alien to the matter before the court, the need to call
oral evidence to resolve the conflicts would not arise: See
Falobi v.
Falobi (1976) 9-10 SC 1; Okupe
v. F.B.I.R. (1974) All NLR 314
(Reprint); Garba v. University
of Maiduguri (1986) 1 NWLR (Pt. 18) 550; and L.S.D.P. C. v.
Adold Stamm
Int. Ltd. (1994) 7 NWLR (Pt. 358) 545. As already shown above, while the
facts set out in the respondent's affidavit relate to the interest due on
the judgment debt which was what the Supreme Court directed Ilori, J. should
determine, the appellant on the other hand, did not controvert or challenge
the accuracy or otherwise any of the figures put forward in the affidavit
filed by the respondent. Instead, it was claiming that there was no
need for the appellant to pay any other interest
other than the one based on the judgment of Desalu, J. It is therefore
correct to say that there was in fact no conflict in the affidavit evidence
placed before the trial court since the alleged conflicts are in fact not
relevant to the case before the court. There is therefore no merit in the
appeal as it relates to that issue.
The question whether it was proper for the
learned trial Judge to handle the issue of third party
joinder along with the substantive case before the court, being
queried in the appellant's second issue, is to me very ridiculous. This is
because the third party joinder issue arose in
the same suit before the court. Both parties were duly heard in respect of
both the third party issue and the substantive matter before the court
delivered its judgment or ruling in the two matters before the court. The
appellant's complaint was not that he was not heard or was not given the
opportunity of being heard in respect of both matters. I therefore see no
reason to support< or justify the contention that the appellant's right to
fair hearing was infringed upon. The appeal as it relates to this issue also
lacks merit and I accordingly dismiss it.
The next question to be resolved is the
allegation that the appellant's right of fair hearing was breached when the
court accepted the document prepared by the chartered accountant and
produced in court in respect of calculations of interest due on the judgment
debt. The said calculation was based on the same principle used by the
Afribank Plc. and it was meant to cover the period immediately after that
which was prepared by Afribank Plc up to the date the entire judgment debt
was settled. The content of the document in question is merely an
arithmetical calculation based on the same principle I adopted in the
document prepared by Afribank PLC which the
respondent had earlier attached to its affidavit as exhibit 2, a copy of
which had earlier been served on the appellant. As I have already mentioned
above, the appellant did not raise an objection to the content of that
document prepared by Afribank PLC. The second document prepared by the
Chartered Accountant, which is the subject-matter of the present complaint,
could as well be prepared by the court itself since its contents were based
on the principles in an uncontroverted evidence
before the court. I therefore also see no merit in that issue and I dismiss
it.
Finally, the question raised in the
appellant's fourth issue is whether the respondent was entitled to more
interest over the amount that was assessed in the judgment of Desalu, J.
which has since, been paid. The directive by this court to Ilori, J. was to
assess the additional interest now being queried in the issue. The fact that
Desalu, J. had earlier made some assessment of
interest was in existence and known to the Supreme Court at the time it made
its order directing Ilori, J. to embark on assessing the interest payable.
It was not open to Ilori, J. to act as an appellate court over the clear and
unambiguous directive given by the Supreme Court in the matter. In the
result, I hold that there is also no merit in the appeal as it relates to
that issue.
In the final conclusion and for the reasons
I have given above, the appeal lacks merit and I accordingly dismiss it with
Judgment delivered by
Sylvester Umaru
Onu. J.S.C.
Having been privileged to read before now
the judgment of my learned brother, Akintan,
JSC just delivered, I am in entire agreement
with him that the appeal lacks substance and ought therefore to fail.
I adopt the Judgment as mine and have
nothing further to add thereto.
Judgment delivered by
Akintola
Olufemi Ejiwunmi.
J.S.C.
I have had the privilege of reading before
now the draft of the leading judgment just delivered by my learned brother,
Akintan, J.S.C. In
that judgment, it is clear to me that the facts and the issues raised
thereon have been carefully considered, and I have no reason to differ from
the conclusions reached thereon by my learned brother,
Akintan, JSC. For reasons given in the
said judgment, the appeal is also dismissed by me and I award costs in the
sum of
Judgment delivered by
Niki
Tobi. J.S.C.
The facts of this case are very complicated.
I will try to state them with less complication. I do hope I succeed. Let me
try.
On 18th October, 1982, the late
Justice G. B. A. Coker, acting as an arbitrator appointed by the court under
a contract between the parties, awarded consequential damages to the
plaintiff/respondent together with interest on the damages at 5% per annum.
Dissatisfied with the award, the appellant instituted
proceedings to set it aside. The respondent, on the other hand,
instituted proceedings for an order to enforce the award as judgment of the
court.
The trial Judge, Ilori, J. (as he then was)
refused to set aside the award made by the Arbitrator, but granted leave to
enforce it as judgment of the court for
In compliance with the order, the 3rd
party/respondent, the First Bank of Nigeria PLC, executed a bond to pay to
the plaintiff/respondent any amount so adjudged not exceeding the sum
of
An appeal was lodged in this court. The
court dismissed the appeal but ordered inter alia that "this case be
remitted for the interest
payable to be determined by the High Court (Ilori, J.)". And
so this case has come to this court twice in the light of the present
appeal.
Following the above order, the trial Judge,
Ilori, J. (as he then was) directed the parties to prepare oral evidence in
view of the nature of the application before the court. On 7th October,
1996, the trial Judge gave judgment, relying on affidavit evidence. He
ordered as follows:
"It is ordered that the defendant/respondent
shall pay the plaintiff/applicant the sum of
Dissatisfied, the appellant went to the
Court of Appeal. That court dismissed the appeal. The appellant has come to
this court. Briefs were filed and duly exchanged. The appellant formulated
four issues for determination:
"3.1
Whether the court below was right in the holding that there was no
conflict in the affidavit of interest filed to warrant the taking of oral
evidence by the trial court.
3.2
Whether the court below was right in affirming the decision of the
trial court on the lumping together in the same judgment the determination
of interest payable to the respondent and the application for leave to set
aside the 3rd party notice filed by the 3rd party/respondent.
3.3
Whether the court below was right in arriving at the conclusion that
there was no denial of fair hearing to the appellant by the failure
of the respondent to give the appellant the opportunity to respond or
be heard on the document relating to interest payable.
3.4
Whether the court below was not in error in agreeing with the trial
court that the respondent is entitled to further interest on the judgment
sum of
The respondent adopted the issues formulated
by the appellant. The main argument advanced by counsel for the appellant,
Mr. Segun Fabunmi, is that the affidavits were irreconcilably in conflict
and that what the court should have done in the circumstances was to take
oral evidence to resolve or reconcile the conflict. He cited
Falobi v.
Falobi (1976) 9 - 10 SC 1;
Akinsete v. Akindutire
(1966) 1 All NLR 147 at 148; Ibukun
v. Ibukun (1974) 2 SC 41 at 64
and LS.D.P.C v. Adold/Stamm (1994) 7 NWLR (Pt.358) 545, (1994)
7 - 8 SCNJ 625, He urged the court to allow the appeal.
Learned counsel for the respondent, Mr.
Williams, SAN, did not see any conflict. He submitted that there was in fact
no conflict (not to talk of irreconcilable conflict) between the affidavit
evidence of the plaintiff and that of the defendant to warrant a resolution
by cross-examination of the deponent or by calling of any testimony from
witnesses. The real matter in controversy between the parties is whether or
not there was any' need for the court below to embark upon the determination
of what amount of interest should be paid by the defendant when the
plaintiff had already obtained judgment for interest at 6% per annum from
2nd October, 1990 in suit No. LD/2185/90, learned
Senior Advocate explained. On the issue as to the correctness or otherwise
of the quantum or rate of interest payable by the defendant, learned Senior
Advocate argued that the issue was never raised nor did it ever arise in the
court below, as all the evidence on that point was one way. Counsel
submitted that the issue is not open to the defendant to be raised in this
appeal. He urged the court to dismiss the appeal.
For conflict in affidavit to receive the
attention of the court, the conflict must really affect the live issues
involved in the case. The conflict must be tangible, not intangible; it must
be material not immaterial; and it must be substantial and fundamental to
the live issues in the case. Where conflicts are peripheral, cosmetic,
inarticulate or a mere farce orchestrated by the
party, a court of law will not order that oral evidence be led to resolve or
reconcile the "conflicts" in inverted commas.
Learned Senior Advocate for the respondent
has clearly stated in the respondent's brief the matter in controversy. Like
him, I do not also see any conflicts deserving oral evidence. If at all
there are conflicts, they are not material, thus not deserving oral evidence
in the matter. I think the learned trial Judge was right in making his order
of damages on the affidavit evidence and I cannot fault him. I ' do not
intend to take the other issues.
It is in the light of the above, and the
more detailed reasons given by my learned brother,
Akintan, JSC that I too dismiss the
appeal. I award
Judgment delivered by
Dennis Onyejife
Edozie. J.S.C.
The leading judgment of my learned brother,
Akintan, JSC was
made available to me before now. I agree with him that the appeal lacks
substance. Accordingly I dismiss it with
Counsel
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