The Court of Appeal, Lagos Division has set aside the Ruling of Justice Lateefat Okunnu of the high court of Lagos state in a suit filed by a law firm, A.O.S Practice against Asset Management Corporation of Nigeria, (AMCON) over alleged nonpayment N711, 018,752.68 professional fee for legal services it rendered on the account of Dansa Oil & Gas Limited.
The Appellate Court in its judgment delivered on June 23, 2023, held that the Appellant was ‘clearly denied’ opportunity to respond to the new issue and claims by the Respondent; contrary to the provisions of section 36 of the constitution.
Justice I B Gafai in his lead judgment stated that a trial cannot be said to be fair when, one of the parties in the trial is denied an opportunity to present his own version of the fact or issue in dispute, adding that it was not a mere procedural lapse but a fundamental, constitutional breach which, without more, vitiates the trial as a nullity.
The court ordered that the suit be remitted to the lower court to be heard afresh by another Judge other than Justice Lateefat Okunnu.
Other member of the panel, Justice J. S. Ikyegh (presided), Justice Ebiowei Tobi Justice aligned with the lead judgement.
The Appellant had approached the lower court, and vide its statement of claim sought a declaration that the truncation of the its mandate, as Debt Recovery Agent to recover on contingent basis, the outstanding indebtedness of Dansa Oil & Gas Limited to Intercontinental Bank (now Access Bank), which was subsequently acquired by the AMCON, by abandoning the Claimant as Debt Recovery Agent without any justification or notice, constitutes a breach of the contract of debt recovery between the Claimant and the Defendant.
Consequently, it demanded for the sum of N711, 018,752.68 for professional services rendered by the Claimant based on quantum on the account of Dansa Oil & Gas Limited, and additional sum of 820,000.000.00 representing necessary reimbursement for expenses incurred by the Claimant in the course of prosecuting the mandate to recover the debt.
Besides, it also urged the court to grant a pre-judgment interest on the sum of N711, 018,752.68 at the rate of 21 percent per annum till the final liquidation of the judgment debt by the Defendant, and n10million as cost of instituting the suit in the sum.
The Respondent (AMCON)denied these Claims and joined issues with the Appellant vide its Statement of Defence together with a Notice of Preliminary Objection to which the Appellant also filed a Reply as well as a Counter affidavit with Written Address respectively.
However, the lower Court decided to hear the Respondent’s Preliminary Objection first, and thereafter in its Ruling struck out the Appellant’s suit for being an abuse of Court process.
Peeved by the lower Court’s Ruling, the Appellant in its Notice of Appeal asked the appellate court to determine the following, “whether the Appellant’s right to fair hearing was not breached when the lower Court based its decision to strike out the Appellant’s suit solely on a perceived admission of the Appellant to an issue raised newly by the Respondent at a point where the Appellant had no right of reply.
‘’Whether the decision of the trial court was not perverse when it held that suit no. LD/1068/2012-A.0.S. Practice v Access Bank Plc. and suit before trial court that is, suit no. LD/4170CMW/2020, between A.0.S. Practice and AMCON are predicated on the same contract, same set of facts and same circumstances in the absence of any evidence in support thereof.
‘’Whether the Lower Court was right when it held that the Appellant’s action before the lower Court that is Suit No. LD/4170CMW2020 A.O.S Practice V AMCOM amounts to an Abuse of Court process in light of suit no. LD/1063/2012 — A.O.S. Practice v Access Bank Plc.”
Resolving the issues, Justice I B Gafai in his lead judgement held ‘’I have carefully examined the entire processes filed by both. In particular, I have read the Appellant’s Statement of Claim, the Respondent’s Statement of Defence and the Appellant’s Reply at pages 45-69, 446-453 and 583-585 of the Record respectively. The Respondent’s Notice of Preliminary Objection with its supporting Affidavit and Written Address as well as the Appellant’s Counter’ Affidavit and Written Address on the Preliminary Objection are at pages 583-756 and 760-856 of the Record respectively. In none, I repeat in none of these processes, more particularly as filed by the Respondent is there any allegation or issue of the Appellant’s suit being an abuse of Court process vis-à-vis its earlier suit no. LD/1063/2012 A.O.S. Practice vs. Access
‘’the Appellant was clearly denied opportunity to respond to the new Issue and claims by the 7 Respondent; contrary to the provisions of section 36 of the constitution FRN 1999 as amended. A trial cannot be said to be fair when, as in this case, one of the parties in the trial is denied an opportunity to present his own version of the fact or issue in dispute. It is not a mere procedural lapse but a fundamental, constitutional breach which, without more, vitiates the trial as a nullity.
“That the lower court err is further exposed by its refusal to release the records of proceedings for the 28th of March 2022 despite the Appellant’s application for same (see letter dated 17″ May 2022 at page 1015 of Records of Appeal). We submit that a perusal of the records of proceedings of 28th March 2022, had the lower court agreed to release same, will reveal that appellant indeed challenged the credibility of the new issue raised by the Respondent, thereby rendering the lower court’s decision premised on the perceived admission of the Appellant a complete nullity.”
A trial Court’s record of proceedings is as much an integral and crucial part of the trial as are the processes filed by the parties in the case and the decision of the trial Court in it. Thus, it is not enough to compile and transmit to an appellate Court only the processes and the decision of the trial Court but omitting therein the record of proceedings in the trial as has now happened in this Appeal.
‘’The Record of Appeal as transmitted for the purpose of the Appeal without a record of any proceedings by the lower Court is therefore incomplete; more particularly as it is those proceedings that constitute the main issue in this Appeal and the lower Court is bound to compile and transmit same promptly in the Record of Appeal.
‘’Apart from denying the Appellant the copy of the proceedings of the 28th of March 2022 which it applied for and which was duly acknowledged by the lower Court as shown on page 1015 of the Record, the lower Court worst still refused or omitted to compile and transmit its record of proceedings to this Court although the Appellant had filed its Notice of Appeal in that Court by which it signified its appeal against those proceedings. This, in my humble view, is a clear case of denial of justice by the lower Court because those proceedings, which the lower Court is unwilling to transmit to this Court, are the only material by which this Court can safely determine this Appeal fully.
The lower Court’s denial of the Appellant’s right to fair hearing by refusing to allow it respond to the new issue raised in the Respondent’s Further Affidavit and Reply on Points of Law transcended also to the lower Court’s denial of justice against the Appellant for its refusal or omission to transmit its record of proceedings on this Appeal. Either way, the Appellant’s arguments under this Issue are valid and sustainable. The decision of the lower Court cannot be sustained.
‘’Arising from the foregoing determinations, this Issue is resolved in favour of the Appellant. In the circumstances, the Ruling of the lower court delivered on 11th of May 2022 in suit no. LD/4170MW/2020 is hereby set aside. The suit is remitted to the lower court to be heard afresh by another Judge other than honourable Justice Okunnu’’
