PUC stepped up to the plate recently and registered another big win by successfully representing United Bank for African Plc at the Court of Appeal, Calabar Division in Appeal NO. CA/C/407/2018 vs. United Bank for Africa Plc and Sunday Udo Akpan & Anor.
In the Judgment delivered by the Court of Appeal, Calabar Division on 16 May 2021, the Court allowed the Appeal and set-aside the decision of the Akwa Ibom State High Court delivered on 27 July 2015, on the twin grounds that the Judgment was delivered by a Judge who did not hear the evidence himself and therefore null and void and on the ground that the Respondents also did not comply with a mandatory condition precedent prior to instituting the Suit thus robbing the trial Court of the jurisdictional competence to have entertained the Suit in the first place.
The Respondents who were the Plaintiffs at the Akwa-Ibom State High Court in Suit No: HU/485/2007, had sought declaratory reliefs and damages against United Bank for Africa Plc, totaling N3.8 Billion Naira (Three Billion, Eight Hundred Million Naira) being damages against the Appellant, who was the Defendant before the trial Court, for breach of contract and defamation over wrongfully dishonoring the Respondents’ Cheques in respect of an overdraft facility at Appellant’s Uyo branch. Pleadings were filed and exchanged, with the Appellant amending its Defence processes to incorporate a Counter-claim, wherein the Appellant denied the Respondents’ claims and counter-claimed for the sum of N63,548,275.00 (Sixty- Three Million, Five Hundred and Forty-Eight Thousand, Two Hundred and Seventy- Five Naira).
In its Judgement, the trial Court declared that the Appellant was liable for breach of contract between it and the Respondents, entered judgment in favour of the Respondents in the sum of N125,000,000.00 (One Hundred and Twenty- Five Million Naira) and dismissed the Appellant’s Counter Claim.
This is where PUC came into the picture as we were not responsible for the matter at the Trial Court level. Upon being briefed and after reviewing the entire case we came to the settled conclusion that the entire Proceedings could and should be vitiated on the ground inter alia that the Trial Judge that delivered the Judgment was not the Trial Judge that took evidence. Against this background, we filed an Appeal on six grounds and raised three issues for determination which were adopted by the Respondents and the Appeal Court to wit;
“Whether the entire proceedings of the lower Court and the subsequent judgment delivered in by His Lordship, Justice Stephen E.Okon are not vitiated and a nullity for lack of jurisdiction;
“Whether the local Court was right when it held that the Appellant violated its fiduciary duties and was negligent in the management of the Respondent’s account and in awarding general damages against the Appellant without any evidence in proof of the worth of the Respondent’s business and yearly income;
“Whether the trial Court was right when it dismissed the Appellant’s counter-claim despite the documentary and oral evidence adduced by the Appellant in proof of the Respondent’s Indebtedness.”
Our contention on behalf of the Bank was anchored on the clear and immutable principle of law that where there is a variation in the composition of a Court or Tribunal that heard a matter, from the composition of the one which subsequently delivers the Judgment in that matter, the Judgment is a nullity. We submitted that the philosophical underpinnings of the duty of the Trial judge to conduct trial and to write the judgment, is to allow such a Judge who has had the opportunity to observe, evaluate and assess the witnesses, their demeanour, and their testimonies at trial, to reach his decision on such testimonies and his assessment after hearing the parties and their final addresses. Therefore, we argued that the judgment in this instance ought to be set-aside as same is at variance with section 273 of the Nigeria Constitution 1999 (as amended). We also contended that the trial Court erred in law when it assumed jurisdiction to hear and determine the Suit in spite of the Respondents’ non-compliance with a fundamental condition precedent provided in Order 5 Rule 3 of the Akwa Ibom State (Civil Procedure) Rules, 1989. We argued that the Respondents failed to endorse on the Writ “For Service Outside Jurisdiction’’ as contained in Section 97 of the Sherriff and Civil Process Act (“SCPA”), Cap. 6 Laws of Federation 2004, and failure to endorse the writ in this manner is not a mere irregularity but a fundamental defect which renders the Writ incompetent.
It was on these premise that the Court of Appeal in its erudite Judgment unanimously allowed the Appeal and set aside the Judgment of the Trial Court. The Court agreed with our submissions and held that Judgment of the trial Court was defective on two grounds; first the evidence was taken by one judge, whilst the judgment was delivered by another judge. Secondly, the Writ of Summons was in fact not endorsed for service outside jurisdiction as provided under section 97 of SCPA. Upon resolving these issues, the Court did not indulge itself in other residual issues, to wit, considering the Appellant’s Counter-Claim.
What is significant about this PUC victory, apart from the illuminating questions of law and fact that were in issue, is the fact that PUC reaffirmed again, its remarkable ability to turn the tide in favour of its clients at appellate court level in circumstances where PUC was not involved in a matter that had been lost before a court of first instance.