I.B.W.A. LTD (NOW AFRIBANK PLC) v HOTEL METROPOLE INTERNATIONAL LTD & 1 OTHER (CA/E/164/2003) [2010] NGCA 4 (2 June 2010)

In The Court of Appeal

(Enugu Judicial Division)

On Wednesday, the 2nd day of June, 2010

Suit No: CA/E/164/2003

Before Their Lordships

 Between

 And

MOHAMMED. L. TSAMIYA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Enugu State High Court, delivered on 24/9/2003 in the consolidated suit Nos. E/348/88 and E/249/88 in which all the reliefs sought for, except relief No.5 were granted.

In the Enugu State High Court (herein referred to as "the trial Court") the plaintiffs, claimed against the defendant the following:

1. An order for the immediate release/surrender of the plaintiffs' documents of title held by the defendant as security, to the plaintiff.

2. N6,633,772.00 (Six million, Six hundred and thirty-three Thousand, Seven hundred and seventy-two Naira only) as special damages for breach of contract occasioned by the acts of the defendant against the plaintiffs, or

IN THE ALTERNATIVE,

N10,000,000.00 (Ten Million Naira) general damages as compensation for all the losses so inflicted on the plaintiffs by the acts of the defendant.

3. N56,329.46 (Fifty-six thousand, Three hundred and twenty-nine Naira, fourty six naira) and interest at 18% from the date of wrong debiting until judgment delivered.

4. N100,000.00 (One hundred thousand Naira only) as general damages for breach of contract.

5. An order that the interest calculated and debited against the plaintiffs in respect of the sum of N56,329.46 was wrongly done and was not a proper charge on the account of the plaintiffs.

6. Release of the property (sic) of the plaintiffs deposited with the defendant as security for loan.

The defendant also filed action against the plaintiffs for payment of the over-draft facilities relating to the same transaction. Thus the two suits were consolidated.

The plaintiffs filed their Statement of Claim and reply to the Statement of defence filed by the defendant. The defendant therefore joined issues with the plaintiffs by filing the statement of defence to the action.

Thereafter, the action went on for trial. The plaintiffs, through their Managing Director, gave evidence and called one other witness, while the defendant called one witness who abandoned, in part his evidence, ship mid stream and the court did not conclude his testimony in-chief not to talk of cross-examination. And this led the defendant to apply to the trial court, to arrest the judgment and allow him to call another witness for their case. The trial Court refused.

The summary of the facts giving rise to this appeal is that, both plaintiffs maintained and operated... separate and distinct Bank Accounts with the appellant Bank Between 1978-1979, the 2nd respondent Company was in the process of executing 6 valuable contracts for various other concerns (see details at page 76 L. 21 - page 77 L. 1-8 of the Amended Record filed on 10/3/06), with the secured financial backing of the United Bank for Africa (U.B.A) Ltd. Then the appellant induced the Managing Director (M.D.) of the respondents (PW1 at the trial) to move their Accounts to the Appellant Bank, with the promise to avail the respondents with over draft facilities to the tune of N800,000.00 (Eight Hundred Thousand Naira), shared in one ratio of N300,000.00 and N500,000.00 between the 1st and 2nd respondents respectively. As at the time of these negotiations the UBA Ltd which had been the 2nd respondent's financiers in its projects was holding its title documents as collateral for such advances from the Bank and it was agreed that on the formalization of the arrangement with the appellant Bank, the respondents will close their separate accounts with the UBA Ltd, and withdraw the said collaterals accordingly and then pass them on to the appellant Bank as part of the backing for the over-draft of N800,000.00 agreed upon.

Towards this arrangement, the appellant Bank paid off the outstanding debt of the 2nd respondent with UBA Ltd to the tune of N56, 329. 46k (in two installments of N11,000.00 and 45,329.46k) and also advanced the sum of N20,000.00 to the 1st respondent towards the first stage of its Hotel facilities expansion.

In return for these advances, the two respondents' Companies gave in various title documents alongside those collected by the appellant from UBA Ltd, as security by way of a Legal Mortgage in favour of the appellant's Bank. Soon after the appellant Bank received and took in the aforesaid title documents of developed Properties in Enugu, the Appellant Bank reneged on its obligation for the balance of the overdraft facilities, and, further, went on to debit the accounts of the respondent companies consistently with a Compound interest over the years, notwithstanding the Bank's breach in the transaction had in effect demobilized and destroyed the business operations of the respondents concerns, both of whom were cash strapped and left with no other collaterals to seek any alternative funding loan. 

On the persistence of the appellant Bank to redeem this actions, despite several requests orally and in writing, the respondents instituted suit No. E/348/88 in reaction to which the appellant Bank filed suit No. E/349/88 both of which were subsequently consolidated for hearing and determination.

Hearing on the 1st suit were repeatedly frustrated by the Appellant Bank action. The hearing was to start on 21/2/2001 but did not start until 11/10/2001. The hearing of plaintiffs case ran through 18/10/2001, 28/11/2001 12/12/2001 and 23/1/2002 at the end of which counsel for the defence asked for adjournment for cross-examination of the witness (PW1). The cross-examination commenced on 30/1/2002 and on the adjourned date of 2/5/2002, defence Counsel was absent. An adjournment then made to 16/5/2002 when the PW1 completed his evidence with his Re-examination. PW2 stepped in on 28/5/2002, after which PW1 again re-testified on the 2nd consolidated suit No. E/349/88 on 17/6/2002, and was cross-examined on 28/6/2002, bring in the plaintiffs case to a close.

The defence took an adjournment to open its case on 17/7/2002 but was again unable to proceed. Then hearing was adjourned to 18/7/2002, 25/7/2002 and 31/7/2002 for defence and address as follows: On 18/7/2002 counsel for the defence came up with another excuse for adjournment, for which the case was adjourned to 25/7/2002 when the said counsel apologised for the absence of the defendant from the Court, and gave some excuses. The hearing then was further adjourned to 31/7/2002 when the Defence opened its case with DW1. Midway in his evidence in-chief, further hearing was adjourned to 5/11/2002, on which date the counsel for Defence wrote for a stand down till 11.00 am but when the case was called later, after that time, the said counsel was nowhere to be seen and the matter was adjourned to 6/11/2002 when the defence evidence continued, and at a point, the Defendant counsel asked for adjournment to enable the DW1 bring the documents pleaded but which he did not come to court with, because the Manager in whose custody these documents were kept travelled before the witness could come back from the previous day sitting. The case was again adjourned to 28/11/2002 on which date the same counsel after amending parts of their defence pleadings brought back DW1 to continue his evidence and at the end of that day's hearing, the matter was adjourned and later resumed on 25/3/2003 with the defence coming up with another application for adjournment. The application was granted and the case was adjourned and on 12/5/2003 the matter was resumed at which the defence openly confessed her frustration and asked for one more adjournment to conclude the defence case. The request was granted but on 17/6/2003 to which the hearing was adjourned, yet another defence application was presented to the court to enable the defence to get at the DW1 to conclude the case failing which the defence will definitely close its case and renders its address.

The application for adjournment was opposed but the court granted it with caveat that, "if on the adjourned date the defence is not ready to conclude its evidence the court will take it that the defence has at this stage of the proceedings decided to abandon its defence. The court will do no other thing other than to close the case of the defence for it to take the address of counsel."

Despite this warning, the court on the next date of 25/6/2002 acceded the defence request for adjournment, which was on health grounds, until 10/7/2003 when the defence counsel informed the court that, the defence is closing its case and relies on the evidence already put forward by the defence witness who did not even make himself available for cross-examination as he did not even conclude his evidence in-chief.

Thereafter, the defence open its address, which was replied to by the plaintiffs in the consolidated cases on 15/7/2003 with the defence opting for another date for reply on law against 21/7/2003. On that date the defence after hedging with some rather strange applications involving one Adolphus Nwankwo, eventually delivered the reply on point of law, and judgment in the two consolidated suits was adjourned from that 21/7/2003 to 24/9/2003. The ensuring theatrical continued on that judgment dated 24/9/2003 when as the record shows at page 120, that, one Ike Akaraiwe Esq. (the present counsel in the appeal) appeared and informed the court that he had just been briefed to come into the matter, and had filed a motion on notice to arrest the judgment.

From what appears in the records, the former defence counsel resisted the interjection, yet the court conceded Akaraiwe Esq the right to move his motion, the Ruling of which was delivered, dismissing the same. 

It was thereafter that the judgment was read, in which the court after analyzing the evidence, came to the conclusion now the subject of this appeal.

Being dissatisfied with the decision of the trial court, the defendant (herein referred to as the appellant Bank) appealed to this court on three grounds of appeal as contained in its Notice and Grounds of Appeal dated 4/3/2004 and filed on 25/3/2004. With the leave of this Court granted on 10/5/2007 two more additional grounds of appeal were filed on 7/12/2005 and were deemed filed with effect from 10/5/2007.

In accordance with the rules of this Court, both Appellant Bank and the respondents filed their respective Briefs of argument. The Appellant on 8/11/2006 filed its Brief of argument and on 2/11/2007 an extension of time to file its brief was granted and same was deemed filed with effect from 2/1/2007. The Brief of argument contains four issues distilled from the five grounds of appeal for determination. They are as follows: 

a) Was the trial court not in error when it did not suspend delivery of its judgment in order to allow the appellant call additional witness since appellant's, only witness jumped ship mid-stream and was unavailable to testify further?

b) As a corollary, was the Appellant Bank not denied fair hearing thereby?

c) Was the trial court not in error when it granted to the Respondent the entire special damages of N6,633,772.00 (Six Million Six Hundred and Thirty-three Thousands Seven Hundred and Seventy-two Naira) in the light of (a) and (b) above and without strict proof thereby?

d) Did the trial court not misdirect itself when it held that the Appellant's Exhibits Z, Z1 - Z3 were unhelpful because nothing was placed before the court to show how the figures (contained in the exhibits) were arrived at?

The respondents on their own part, and with leave of this court granted on 31/5/2007, filed their brief of argument and deemed as properly filed and served with effect from 31/5/2007. In their brief of argument two issues from the five grounds of appeal were formulated for consideration in this appeal. The issues read:

a) Whether there was any feature (sic) in the proceedings to warrant the complaints of the absence of fair-hearing against the appellant Bank at the hearing.

b) Whether the damages awarded can be justified on the evidence before the court.

Taking into consideration the circumstances of this appeal, including the grounds of appeal filed, the issues formulated by each party to this appeal, the issues as formulated by the respondents are direct and can answer the issues raised by the appellant. I shall therefore determine this appeal on the issues formulated by the respondents.

ISSUE NO. 1 OF THE RESPONDENTS

In its brief of argument, the appellant Bank argued that, by refusing to grant appellant Bank's application to suspend delivery of its judgment to enable appellant Bank's call one more witness, in addition to its only witness who testified and did not complete his evidence-in-chief before abandoning the Court, the appellant Bank was denied fair hearing. That the trial court failed to take into consideration before refusal the newness of the counsel in the matter and the purpose of the application itself which intended, if granted, to fill the lacuna created by DW1's suspicious disappearance from the trial court. It was further argued by the appellant Bank that, irrespective of a number of adjournments granted in this matter to the previous counsel to the appellant Bank, the demand of justice required the court's discretion be exercised in favour of the appellant Bank since DW1's suspicious misconduct/disappearance from the court, will lead to no witness whatsoever for the appellant Bank's defence. It was also argued that, refusal to grant the application, had the effect of visiting the sins of previous counsel on the litigant, notwithstanding previous counsel having closed her case and addressed the court. This act of refusal also amounted to a denial of a fair hearing. It was argued further that, the trial court's refusal was predicated upon its desire not to further delay the suit, after having started de novo in the trial court and having suffered delays at the instance of the appellant Bank. It was further submitted that speedy disposal of cases should not be in a manner that will deny a litigant his right of fair hearing. That hearing a matter on the merit should not be trampled over the fast lane. It was finally submitted by the appellant Bank that to have given a bench ruling by the learned trial judge, on the motion praying the trial court to suspend delivery of its judgment, without going into chamber to consider authorities cited, and to follow up that bench ruling immediately with the judgment, indicated that the learned trial judge had made up his mind, was evidently irritated and consequently biased against the appellant.

In response, the respondents submitted that the complaints of the appellant Bank raise two components issues pertaining to:

(a) the said interjection of another counsel (Akaraiwe Esq.) in the proceeding, and

(b) the merits of the application for one more (or another) witness, and

2. The blanket plea of denial of fair hearing in the circumstances of the case.

In respect of (a) and (b) above, they submitted that the first counsel to the appellant Bank has been Miss C.C. Echetebu and she protested the undue interference with her brief in the case and she has every reason to see that incursion as an abuse of judicial process. And notwithstanding that interference, yet the trial court reading offered accommodation thereto for arguments on the application which application was refused on the authority of Bob Manuel vs. Briggs (1995) 7 NWLR (Pt.409) 537, on Merits. The procedure evolved, said the respondents, accepted as strange and alien to our jurisprudence. 

On the second arm of the application to Wit; to call a vital witness, the respondents submitted that the records is emphatic on the fact that the Defence counsel had since 21/7/2003 closed their case and addressed the court, therefore, the application was not asking for the defence to recall DW1 to complete his defence but rather for another witness to be brought in without as much stating the so called vital nature of his testimony. That the Court's tolerance in that regard was boundless, but in accord with the requirement of justice, and the case of Akume Vs. Ezikpe (2001)8 NWLR (Pt.916) 547 at 556-7 was referred to in support of this point. They finally, submitted that the issue of fair hearing raised in the appeal merely flies a kit for a bird and cannot but misconceived. That the sins derivable from the said conducts were clearly that of the appellant Bank and had nothing whatsoever to do with the counsel in the case. 

Having stated the submissions of both the parties to this appeal, the question is whether a denial of fair hearing has been occasioned by the refusal of the trial court to enable the appellant to replace an absconding witness (DW1) at judgment stage? I must say that, the law is that, the duty of a trial judge hearing a civil case is limited to that of an impartial umpire who ensures that the norms of law and procedure are complied with. In the case of Chief Kalu Igwe & Ors Vs. Chief Onwuka Kalu 5 NWLR (Pt.149) 155, the Supreme Court observed as follows:

"The Judge's role in adjudication is that of umpire. A trial judge should not abandon this role and plunge into the arena of contest and take side with any of the parties to the case before him."

From the records of this appeal, it can be seen that hearing in this 1958 Consolidated suit commenced on 11/10/2001. At the conclusion of the case for the respondents, the appellant Bank on 31/7/2002 began giving evidence. After two appearances and giving evidence, the appellant Bank's witness (DW1) abandoned court and refused to make himself available for cross-examination. The court had to adjourn the matter for over 10 times for the appellant Bank's witness (DW1) to come and conclude his evidence in-chief and be cross-examined, but the appellant Bank (witness) did not care to come to court again. Then the counsel to the appellant Bank on 10/7/2003 voluntarily closed their case and addressed the trial court. The counsel in her address even thanks the court for being so patient with her client - the appellant Bank. She also apologise for the behaviour of the said DW1. Thereafter, the case was adjourned for judgment on 24/9/2003.

On that date of 24/9/2003, suddenly, one Ike Akaraiwe Esq. (the present counsel in the appeal) appeared and informed the trial court that he had just been briefed to come into the matte