(2018) LPELR-45328(CA)

Transcription

1 NEW HORIZON HOTELS LTD & ORS v. OKOYE CITATION: In the Court of Appeal In the Lagos Judicial Division Holden at Lagos ON WEDNESDAY, 13TH JUNE, 2018 Suit No: CA/L/208/2013 MOHAMMED LAWAL GARBA JOSEPH SHAGBAOR IKYEGH JAMILU YAMMAMA TUKUR 1. NEW HORIZON HOTELS LTD 2. NEW RESOURCES FINANCE & INVESTMENT COMPANY LIMITED 3. EJIKE ORANUSI EMMANUEL NNAMDI OKOYE Before Their Lordships: Between And Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Appellant(s) RATIO DECIDENDI - Respondent(s)

2 1. ACTION - TRAVERSE: Effect of averments not specifically traversed "On the argument by the learned Counsel for the Appellants that the avernment in paragraph 15 of the Further Amended Defence to the Counter Claim was not specifically traversed and so deemed admitted, the law is firmly settled that by the rules of pleadings, any positive and specific avernment of facts which called for but, was not specifically and effectively traverse and controverted by the party who disputes or intends to dispute those facts, would be treated as unchallenged and deemed admitted by such a party. The judicial authorities for the position are legion and include those cited by the learned Counsel for the Appellants supra. In addition, see Okomu Oil Palm Co. Ltd v. Iserhienirhen (1996) 1 NWLR (422) 94; Yusuf v. Oyetunde (1998) 12 NWLR (879) 483; Odiba v. Muemue (1999) 10 NWLR (622) 174; Balogun v. E. O. C. B. Nig. Ltd. (2007) 5 NWLR (1028) 584; Waziri v. Ali (2009) 4 NWLR (1130) 178; Bayam v. Agana (2010) 9 NWLR (1199) 215; Ezenwa v. k. S. H. S. M. B. (2011) 9 NWLR (1251) 89."Per GARBA, J.C.A. (Pp , Paras. E- D) - read in context

3 2. EVIDENCE - ORAL/DOCUMENTARY EVIDENCE: Whether oral evidence can be allowed to discredit or contradict a documentary evidence "...In any case, by Exhibit D1 and D2, the Appellant expressly and unequivocally admitted the amount claimed by the Respondent in his counter claim and being documents, the contents of the Exhibits cannot be contradicted or varied by the viva voce of the Appellants or mere unsubstantiated assertions in pleadings. See Section 128(1) of Evidence Act, 2011; Akinboni v. Akinboni (2002) 5 NWLR (761) 564; Larmie v. D.P.M.S. Ltd (2005) 18 NWLR (955) 438; Egharevba v. Osagie (2009) 18 NWLR (1173) 299; Ogundepo v. Olumesan (2011) 18 NWLR (1278) 54. Exhibit D1 and D2 being documents signed by the 2nd Appellant binds it and cannot be heard to resile from them orally. See S. S. GMBH v. T. D. Ind. Ltd. (2070) 11 NWLR (1206) 589; Emenike v. PDP (2012) 5 NWLR (1294) 555."Per GARBA, J.C.A. (Pp , Paras. E-C) - read in context

4 3. INTERPRETATION OF DOCUMENT - RULE OF INTERPRETATION OF DOCUMENT/JUDGMENT: Cardinal rule of interpretation of document or judgment "When words and language employed and specifically used by the maker of a document or legislature in a statute are expressly clear, straightforward and unambiguous leaving no room for any doubt about the purport or intention of the maker or the legislature, they do not require interpretation, but to be assigned and applied in their ordinary and simple grammatical meaning without the need for glosses or interpolation by the Court. See Uwazurike v. A. G. Federation (2007) 8 NWLR (1035) 1, (2007) 2 SC, 169; Dyktrade Ltd v. Omnia Nig. Ltd (2000) 12 NWLR (690) 7, Idika v. Uzoukwu (2008) 9 NWLR (1091) 34; Action Congress v. Tang (2009) 4 NWLR (1132) 475."Per GARBA, J.C.A. (Pp , Paras. C-A) - read in context

5 MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): By the endorsements on the Appellants' Writ of Summons dated the 27th August, 1998 in Suit No. LD/2423/98 before the High Court of Lagos State, they claimed the following reliefs against the Respondent: - "1. Declaration that the Defendant's act of forceful entry, barricade and sealed off the 1st plaintiff's hotel premises, interfering and obstructing their business with armed Police personnel, thus and cohorts is unreasonable, arbitrary, unjustifiable, unlawful and illegal. 2. Declaration that the Defendant's act of intimidation, harassment and threat of physical harm to the 3rd Plaintiff and the 1st and 2nd Plaintiff's employees is unlawful and illegal. 3. The total sum of N2.5m representing general damages suffered by the 1st Plaintiff by the forced and illegal entry, closure and disruption of their business occasioned by the Defendants nefarious, unlawful and illegal action. 4. A Court order vide the disputed amount outstanding pursuant to the Defendants various high yield investments with the 2nd Plaintiff. 1

6 5. A declaration that the 3rd Plaintiff is not personally indebted to the Defendant in respect of the disputed sum or any sums of all. 6. An order of perpetual injunction against the Defendant." The Respondent denied the claims and made a counter claim against the Appellants in the Statement of Defence and Counter-Claim dated the 3rd July, At the end of trial, judgment was entered in favour of the Respondent on his counter-claim and the Appellants' claims were dismissed for lack of proof, on the 23rd November, Not satisfied with judgment, the Appellants brought this appeal by the Notice of Appeal dated 6th December, 2012 which was amended by the Amended Notice of Appeal dated and filed on the 22nd April, 2015, but deemed on the 14th June, 2016 by the Court. There are four (4) grounds on the Amended Notice of Appeal from which two (2) issues are distilled for determination in the Appellants' brief filed on the 22nd April, 2015 as follows: - 2

7 1. Whether the Respondent was lawfully entitled to the sum of N1,207, based on admission, as determined by the trial Court. 2. Whether the Respondent is liable to the Appellants for the destruction caused by thus in his company to the 2nd Appellant's Hotel for the ostensible reason of arresting one Ikechukwu Oranusi, now deceased." Two (2) issues are also set out in the Respondent's brief filed on the 29th July, 2016 for decision in the appeal in the following terms:- "1. Whether the Appellants have the burden of proof of their allegations that the Respondent invaded the premises of the 1st Appellant with thugs and armed police personnel and destroyed the properties of the 1st Appellant, harassed, intimidated and threatened the staff of the 1st and 2nd Appellants, and barricaded and sealed off the premises of the 1st Appellant and caused it to suffer colossal financial loss, so as to be entitled to their claim for General Damages in the sum of N2.5 million. This Issue is distilled from Grounds 1 and 2 of the Amended Notice of Appeal. 3

8 2. Whether by virtue of the provisions of the Central Bank of Nigeria's Monetary, Credit, Foreign Trade and Exchange Policy Guidelines for 1994 Fiscal year (Monetary Policy Circular No. 28), the Appellants have been absolved from their indebtedness to the Respondent in the sun of N1,207, less N55, This Issue is distilled from Ground 3 and 4 of the Amended Notice of Appeal. At the oral hearing of the appeal, learned Counsel for Appellants abandoned and withdrew the issue 2 set out in the Appellants' brief, which in substance, is the same as the Respondent's Issue 1. The said Appellants' Issue 2 and all arguments canvassed thereon in the Appellants' brief are hereby struck out for being abandoned. As a consequence, the Respondent's Issue 1 and the arguments thereon as contained in the Respondent's brief which are in respect of the Appellants' Issue 2, would be discountenance for being overtaken by the abandonment of the Appellants' issue 2. The appeal now rests on and would be determined on the Appellants' issue 1 which is similar to the Respondent's Issue 2. 5

9 Appellants' Submissions: It is submitted that the basis of the decision by the High Court to grant the Respondent's counter claim, was the admission by the Appellants as contained in the certificate reflecting the balance due to the Respondent, and a Guarantee Trust Bank post dated cheque issued to the Respondent, admitted in evidence as Exhibits D1 and D2 respectively, by which the Appellants committed themselves to be indebted to the Respondent. Counsel argued that the debt came about as result of the interest rate of between 30-45% per annum on the Respondent's investment with the 2nd Appellant which was agreed to by the parties in 1991 when interest rates payable by financial institutions on deposits was deregulated by the CBN and left for parties to agree on. He said, in 1994, the CBN issued Guidelines regulating such interest rate payable/chargeable on deposit/loans by Financial Institutions/Customers and fixed it at 21% per annum; admitted in evidence as Exhibit C4. According to Counsel, from 1994 when the CBN Guidelines on interest rates were issued, the parties continued to implement the 30-45% interest rate per annum agreement and that the 5

10 High Court relied on it to find for the Respondent even though it was in contravention of the Guidelines and so illegal. In further argument, learned Counsel said that the rate of interest agreed to by the parties which was beyond or higher than the rate of 21% per annum fixed by the CBN in Exhibit C4, was illegal and it did not matter that the Appellants admitted liability on the illegal rates, relying on Alao v. ACB Ltd. (1998) 3 NWLR (542) 339 and ACB Ltd v. Alao (1994) 7 NWLR (358) 634. In addition, it is the contention of counsel that since the High Court found the CBN rate to be applicable in 1994, the interest charged for the year would reduce the sum counter claimed by the Respondent, but that the High Court did not take that into account in the award of the counter claim of the Respondent. He also argued that the Respondent did not controvert the Appellants' paragraph 15 of the Further Amended Reply to the Statement of Defence and Defence to the counter claim that the Exhibit C4 was operational from 1994 to 1998, since there was no specific traverse of the facts from the Respondent. 6

11 Respondent is deemed to have admitted same, on the authority of Salisu v. Odumade (2010) 6 NWLR (1190) 228 and Bamgbegbin v. Oriare (2009) 13 NWLR (1158) 370, among other cases, it is submitted further. The High Court was said not to have properly evaluated the evidence before and cases, including Awuse v. Odili (2005) 16 NWLR (952) 506 and Isu v. Uche (2009) LPELR-8855(CA) on the purport of evaluation of evidence, were cited Nzekwu v. Nzekwu (1989) 2 NWLR (104) 393; Mogaji v. Odofin (1978) 4 SC, 94 and Anyaoke v. Adi (1986) 3 NWLR (31) 731 were referred to on when an appellate may embark on evaluation of evidence adduced before a trial Court and the Court is urged to resolve the issue in the negative. Respondent's Submissions: The submissions are that there was no dispute that the Appellants were indebted to the Respondent as shown in Exhibits D1 and D2 as well as Exhibit C6; Investment Certificate No dated 7th January,1998. That the Exhibit C4, by the title and Section 1(4), was issued to operate for the year 1994 and it is clear and unambiguous that plain and ordinary meaning should be ascribed to 7

12 the words used there, which cannot be altered by oral evidence. UBN Ltd v. Ozigi (1994) 3 NWLR (333) 385; African Newspapers Ltd v. FRN (1985) 2 NWLR (6) 137 and Section 132(1) of the 2011 Evidence Act were referred to and it is submitted further that Exhibit C4 cannot be interpreted as operating beyond According to Counsel, from the statement of Account of the Respondent's investment with the 2nd Appellant, there was no indication of the rate of interest paid to the Respondent and the Appellants did not produce evidence that it paid the Respondent interest at the rate of between 30-45% as claimed for any particular period to enable the High Court to calculate the interest paid in That it was not the duty of the High Court to speculate, on the authority of Sodipo v. Lemminkainen Oy (1986) 1 NWLR (15) 220, in the absence of facts and evidence from the Appellants as to what was the excess interest paid to the Respondent in It is also the case of Counsel that the Appellants' sole witness was challenged under cross-examination on the application of Exhibit C4 beyond and that since the 8

13 evidence of the Appellants' evidence was self defeating, the High Court was not obliged to act on it, citing Artra Ind. Nig. Ltd a. U.B.C.I. Ltd (1998) 4 NWLR (546) 357. The High Court was said to be right in holding that Exhibit C4 operated in 1994 only in the absence of other evidence from the Appellants who had the burden of proof. The Court is urged to discountenance the Appellants' arguments and resolve the issue in the negative. From the arguments by the learned Counsel for the parties, there is no dispute about the authority or power of the CBN to issue Exhibit C4 for the regulation of interest rates payable/chargeable by financial institutions in Nigeria under Section 15 of the Central Bank of Nigeria Act, Laws of the Federation of Nigeria, There is also no dispute that 2nd Appellant at the material time, was a financial institution engaged in the business of accepting deposits/savings from customers for which interest was payable and so the provisions of Exhibit C4 was applicable to and bound it in the payment of interests on such deposits/savings by customers. The narrow issue of dispute is whether Exhibit C4 applied only 9

14 for the year 1994 or beyond for the purpose of the interest rate payable by the 2nd Appellant on the admitted Respondent's investment with it. In its judgment, the High Court dealt with the issue succinctly and concisely at pages thereof (pages of the Record of Appeal) thus:- I have carefully perused Exhibit C4. Exhibit C4 is the CENTRAL BANK OF NIGERIA MONETARY CREDIT, FOREIGN TRADE AND EXCHANGE POLICY OUTLINES FOR 1994 FISCAL YEAR". The relevant portion which prescribes the maximum interest rate of page 5 is reproduced for each of reference: In the light of the need to evolve a more appropriate interest rate regime and informed by the above consideration, the Federal Government has decided to set the following interest rate structure for 1994 for all financial institutions: (1) Savings/Deposit rate per cent per annum.. (2) Maximum lending rate... inclusive of all charges - 21 per cent Fr annum. The new rates will apply from 1st January, 1994 to all new and existing savings/term deposits and loans/advances....the stipulated deposit rates apply to Savings and term/time deposits, 10

15 certificate of deposit, Investment Certificate, Interbank deposits including money at call, Bankers Acceptances/Commercial Papers sold and any of the so-called 'New Products' issued by the banks for the purpose of raising funds. "The maximum lending rate applies to all Loans and Advances, Bills Discounted, Bankers Acceptance/Commercial Papers and Promissory Notes. purchased, Equipment Leasing, Factored Debts and any other credit/investment Instrument." I find that the interest rate as stipulated by the central Bank of Nigeria in the CENTRAL BANK OF NIGERIA MONETARY, CREDIT, FOREIGN TRADE AND EXCHANGE POLICY GUIDELINES FOR 1994 FISCAL YEAR only applies to 1994 fiscal year. I find that there is no provision for its extension to another fiscal year. I find that the document speaks for itself. I find that there is no evidence before the Court showing the interest rate applicable in 1998 fiscal year. I find that the central Bank circular cannot therefore be interpreted as operating beyond 1994 as to adversely affect the claims of the Defendant/counter-claimant in respect of subsequent years from 1995 up till 1998 when the cause of action of this suit arose." 11

16 All that needs to be said is that indeed, Exhibit C4 speaks with mellificiously eloquent clarity for itself to be beyond any reasonable doubt about the period of time it was meant to operate and apply. As stated in plain, straightforward and unambiguous words and language, "the Federal Government has decided to set the following interest rate structure for 1994 for all financial institutions: The new rates will apply form 1st January, " (underline supplied). When words and language employed and specifically used by the maker of a document or legislature in a statute are expressly clear, straightforward and unambiguous leaving no room for any doubt about the purport or intention of the maker or the legislature, they do not require interpretation, but to be assigned and applied in their ordinary and simple grammatical meaning without the need for glosses or interpolation by the Court. See Uwazurike v. A. G. Federation (2007) 8 NWLR (1035) 1, (2007) 2 SC, 169; Dyktrade Ltd v. Omnia Nig. Ltd (2000) 12 NWLR (680) 7, Idika v. Uzoukwu (2008) 9 NWLR (1091) 12

17 34; Action Congress v. Tang (2009) 4 NWLR (1132) 475. The High Court was in the firm terrain of the law that Exhibit C4 was made, meant and intended, by the Federal Government to and applied to the rates of interest s payable and chargeable by all financial institutions on savings/deposits or loans/advances for the year 1994 alone, only, beginning from the 1st of January and not any other year or period. The provisions of Exhibit C4 was applicable and only operated from the first day of the first month; January, to the last day of the last month; December, of the year 1994 for the purpose of the interest rate payable on deposits/savings by customers of financial institutions in Nigeria. Exhibit C4 was not applicable and did not apply outside of or beyond the year 1994 as rightly found by the High Court. On the argument by the learned Counsel for the Appellants that the avernment in paragraph 15 of the Further Amended Defence to the Counter Claim was not specifically traversed and so deemed admitted, the law is firmly settled that by the rules of pleadings, any positive and specific avernment of facts which called for but, was 13

18 not specifically and effectively traverse and controverted by the party who disputes or intends to dispute those facts, would be treated as unchallenged and deemed admitted by such a party. The judicial authorities for the position are legion and include those cited by the learned Counsel for the Appellants supra. In addition, see Okomu Oil Palm Co. Ltd v. Iserhienrhien (1996) 1 NWLR (422) 94; Yusuf v. Oyetunde (1998) 12 NWLR (879) 483; Odiba v. Muemue (1999) 10 NWLR (622) 174; Balogun v. E. O. C. B. Nig. Ltd. (2007) 5 NWLR (1028) 584; Waziri v. Ali (2009) 4 NWLR (1130) 178; Bayam v. Agana (2010) 9 NWLR (1199) 215; Ezenwa v. k. S. H. S. M. B. (2011) 9 NWLR (1251) 89. Learned Counsel for the Appellants is correct that the Respondent did not specifically traverse or even deny the paragraph 15 of the Appellants' Amended Reply to Statement of Defence and Defence to the counter claim and so is deemed to have admitted the paragraph. But what is contained in the avernment in the said paragraph? For an answer, here is the paragraph: - 14

19 15. The account of transaction between the 2nd Claimant and the Defendant material to this suit are as set out below: DATE DETAILS DEBIT CREDIT BALANCE 30/09/91 Deposit 50, , /12/91 Interest 5, , /12/91 Withdrawal 5, , /01/91 Deposit 41, , /01/92 Deposit 9, , /01/92 Interest 1, , /01/92 Withdrawal 1, , /03/92 Interest 10, , /03/92 Withdrawal 10, , /07/92 Interest 12, , /07/92 Withdrawal 12, , /09/92 Interest 12, , /09/92 Withdrawal 12, , /12/92 Interest 12, , /12/92 Withdrawal 12, , /12/92 Deposit 100, , /02/93 Deposit 60, , /02/93 Interest 19, , /04/93 Interest 21, , /04/93 Deposit 19, , /06/93 Interest 40, , /06/93 Deposit 50, , /08/93 Interest 74, , /08/93 Deposit 14, , /10/93 Interest 71, ,167.00

20 15

21 01/11/93 Deposit 150, , /01/94 Interest 151, , /01/94 Withdrawal 151, , /04/94 Deposit 67, , /04/94 p.a 54, , /04/94 Withdrawal 54, , /09/94 Interest 54, , /09/94 Withdrawal 90, , /10/94 Interest 26, , /10/94 Withdrawal 90, , /01/95 Interest 35, , /01/95 Withdrawal 90, , /04/95 Interest 32, , /07/95 Interest 34, , /07/95 Withdrawal 100, , /10/95 Interest , /01/96 Interest 32, , /04/96 Interest 34, , /04/96 Withdrawal 133, /0796 Interest 29, , /07/96 Withdrawal 133, , /10/96 Interest 23, , /10/96 Withdrawal 133, , /11/96 Interest 6, , /11/96 Withdrawal 34, , /11/96 Withdrawal 100, ,

22 10/01/97 Interest 16, , /01/97 Withdrawal 3, ,807,74 26/01/97 Withdrawal 30, , /02/97 Interest 14, , /02/97 Withdrawal 106, , /04/97 Interest 9, , /04/97 Withdrawal 83, , /07/97 Interest 5, , /07/97 Withdrawal 25, , /07/97 Withdrawal 58, , /10/97 Withdrawal 50, ,837.96DR DETAILS OF OVERPAYMENTS DATE AMOUNT 09/10/97 18, /10/97 3, /10/97 30, /03/98 30, /03/98 18, /04/98 20, /04/98 10, /04/98 19, /04/98 4, /06/98 30, TOTAL N182, As can easily be observed, the above table merely set out details of the deposits made by the Respondent with the 2nd Appellant withdrawals, amounts of interest paid and positions of the account from the 30th September, 1991 to 9th October, 1997 and then details of alleged

23 17

24 overpayments for the period between 9th October, 1997 and 9th June, 1998, The Appellants however did not indicate the rate at which each of sums indicated to be interest and paid to the Respondent on the table, were calculated or based. It should be remembered that the crucial issue of dispute is whether Exhibit C4, which fixed the interest rate payable by the Appellants on the deposits made by the Respondent, was applicable only in 1994 or even beyond and the claims for overpayment is based on the interest rate set out in Exhibit C4 for the period of 9th October, 1997 to 9th June, With the finding; that the Exhibit applied only for the year 1994 and not beyond the avernment in paragraph 15 would not avail the Appellants in the absence of other evidence that in fact, Exhibit C4 was applicable and applied beyond the year 1994, even if not challenged by the Respondent in his pleadings. In any case, by Exhibit D1 and D2, the Appellant expressly and unequivocally admitted the amount claimed by the Respondent in his counter claim and being documents, the contents of the Exhibits 18

25 cannot be contradicted or varied by the viva voce of the Appellants or mere unsubstantiated assertions in pleadings. See Section 128(1) of Evidence Act, 2011; Akinboni v. Akinboni (2002) 5 NWLR (761) 564; Larmie v. D.P.M.S. Ltd (2005) 18 NWLR (955) 438; Egharevba v. Osagie (2009) 18 NWLR (1173) 299; Ogundepo v. Olumesan (2011) 18 NWLR (1278) 54. Exhibit D1 and D2 being documents signed by the 2nd Appellant binds it and cannot be heard to resile from them orally. See S. S. GMBH v. T. D. Ind. Ltd. (2010) 11 NWLR (1206) 589; Emenike v. PDP (2012) 5 NWLR (1294) 555. The High Court was right to have found and held the Appellants bound by the admission in Exhibits D1 and D2. In the result I find no merit in the arguments of the Appellants on the sole issue for determination and it is resolved against them. The appeal, for lacking in merit is dismissed and the judgment delivered by the High Court on the 23rd November, 2012 in the Appellants' Suit No. LD/2423/98 is hereby affirmed. 19

26 There shall be costs of Two Hundred Thousand Naira (N200,000.00) assessed in favour of the Respondent to be paid by the Appellants. JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the privilege of reading in print the judgment prepared by my learned brother, Mohammed Lawal Garba, J.C.A. (Hon. P.J.), with which I agree with nothing useful to add. JAMILU YAMMAMA TUKUR, J.C.A.: I read before now the draft copy of the lead judgment just delivered by my Lord MOHAMMED LAWAL GARBA JCA. and I agree that the Appeal lacks merit and I also join my brother in dismissing same and I abide by the consequential order made therein. 20

27 Appearances: Chuks Nwachukwu For Appellant(s) Chris Abugo For Respondent(s)