⦿ CASE SUMMARY OF:
Khaled Barakat Chami v. United Bank for Africa Plc. (2010) – SC
by PipAr Chima
⦿ NOTABLE DICTA
* ISSUES OF DETERMINATION ARISE FROM APPEAL GROUNDS
It is settled law that issues for determination must be distilled from grounds of appeal which ground(s) must attack the ratio decidendi of the judgment not anything said by the way, or obiter dicta or be formulated in vacuo , as issue 5 in the instant case. – Onnoghen JSC. Chami v. UBA (2010)
* RESPONDENT RESTRICTED TO GROUNDS OF APPEAL
It is settled law that where a respondent filed neither cross-appeal nor respondent’s notice, he does not have an unrestrained or unbridled freedom to raise issues for determination which have no bearing or relevance to the ground(s) of appeal filed. – Onnoghen JSC. Chami v. UBA (2010)
* WHEN PLAINTIFF’S BURDEN IS MINIMAL
It is settled law that where the party offers no evidence in defence of the case of the plaintiff, the burden placed on the plaintiff is minimal, since there is no evidence to challenge the case of the plaintiff and the plaintiff can use the unchallenged evidence to establish his case. – Onnoghen JSC. Chami v. UBA (2010)
* FAIR HEARING IS AN OPPORTUNITY TO BE UTILIZED
Fair hearing is based on opportunity to meet the case of the other party. Where a party decides not to utilize the opportunity so offered, he cannot later be heard to complain of lack of fair hearing as in the instant case.
* GROUNDS OF APPEAL BASED ON DECISION OF LOWER COURT
The grounds of appeal must be based always on the reasons for the decision reached by the lower court which should in turn be based on the issues joined by the parties in their pleadings, evidence adduced in support thereof and submission of counsel on the applicable law to the facts so established by evidence.
Khaled Barakat Chami
United Bank for Africa Plc
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
– S.E. Elema Esq.
* FOR THE RESPONDENT
⦿ CASE HISTORY
The case of the plaintiff was that Rasha Enterprises Ltd was its customer at its Kano Branch and that credit facilities were extended to the company upon its application; that the said company provided collateral security by way of Bill of Sales Agreement and a personal guarantee executed by the appellant in favour of the plaintiff sometime in 1996; that as at 25 October 1999, the account of the said company had a debit balance of N171,452,649.52 (one hundred and seventy-one million, four hundred and fifty-two thousand, six hundred and forty-nine naira, fifty-two kobo); that in spite of repeated demands made on the said company, the debt remained unpaid, hence the action; that when the principal debtor failed to pay, plaintiff made a demand on the appellant being the guarantor but he refused to respond as a result of which the action was instituted to enforce the guarantee.
On his part, the appellant totally denied the transaction; that he never executed any guarantee in favour of the plaintiff on behalf of the company in question; that the plaintiff, and Rasha Enterprises Ltd were not duly incorporated and that the credit facility extended to Rasha Enterprises Ltd was not secured by any collateral.
At the conclusion of the trial, the learned trial Judge entered judgment against the plaintiff resulting in an appeal by the present respondent which was allowed and judgment entered in favour of the respondent as per their statement of claim. The instant appeal is against that judgment.
⦿ ISSUE(S) & RESOLUTION
1. Whether the lower court was right to hold that Rasha Enterprises Limited was not a necessary party to the proceedings at the court of first instance?
i. I hold the view that an appeal against the decision of the lower court with regards to the above holding must first of all attack the holding that the issue was raised suo motu before contesting any other matter. If it is true that the issue was never raised by the parties nor did their counsel address the court on same but the trial Judge raised same in its judgment without calling on counsel for both parties to address it on it and proceeded to base its judgment on it, then the law, which is now very settled, is that such a finding or holding cannot be sustained upon appeal as the said must be set aside. If the holding is in the circumstance set aside, it goes with every related issue or sub-issue. It follows therefore that before the appellant in this case can contest the issue of joinder or non-joinder of the principal debtor in the proceedings giving rise to this appeal and the legal effect(s) of that joinder or non-joinder, he must first question the finding/holding that the issue never arose for determination before the trial court but was raised suo motu and without address of counsel thereon. In the instant case, there is no ground attacking that finding/holding. What the appellant is attacking is the consequence of the non-joinder as if it was an issue properly brought for determination before the courts.
ii. The above notwithstanding, it is settled law that where a person personally guarantees the liability of a third party by entering into a contract of guarantee or suretyship, a distinct and separate contract from the principal debtor’s is thereby created between the guarantor and the creditor. The contract of guarantee so created can be enforced against the guarantor directly or independently without the necessity of joining the principal debtor in the proceedings to enforce same; see Olujitan v. Oshatoba (1992) 5 NWLR (Pt. 241) 326 at 329; Ekrebe v. Efeizomor II (1993) 7 NWLR (Pt.307) 588 at 601.
⦿ ENDING NOTE BY LEAD JUSTICE – Per
⦿ REFERENCED (STATUTE)
⦿ REFERENCED (CASE)
⦿ REFERENCED (OTHERS)
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