Nigeria-Arab Bank Limited v. Barri Engineering Nigeria Ltd.

The appellant was the defendant at the trial High Court. It was sued for damages in negligence by the respondent who claimed that the appellant negligently handled the processing of three letters of credit whereby the respondent suffered substantial loss and damages. After offering of evidence by both parties on their pleadings, and addresses by their respectivecounsel, the learned trial Judge who heard the case up to this stage in the open court adjourned for judgment to 29th August 1991. On that day, he, for no reasons advanced to either party, called the counsel to his chambers and delivered his judgment
there granting all the prayers of the plaintiff, now respondent. The appellant then appealed to the Court of Appeal which upheld the judgment given by the trial Court in Chambers but reduced the claim for general damages from five million Naira (N5,000,000.00) to five hundred thousand Naira(N500,000.00).The Court of Appeal upheld the special damages awarded by the trial court in the sum of N88,074.55 (eighty eight thousand seventy-four Naira and fifty five kobo). The Court of Appeal upheld the judgment of the trial Judge given in chambers by relying on the dictum of Obaseki J.S.C. in Oyeyipo v. Oyinloye (1987) NWLR (Pt.50) 356, 357 believing that it overruled the earlier decision in Oviasu v. Oriasu (1973) 11 S.C. 315 (also reported in (1973) NSCC 502) . The appellant to this court, who lost in the two courts below, filed two grounds of appeal, both on law, with particulars, as

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follows:

“Grounds of Appeal
1. The Court of Appeal erred in law in holding that the part of the proceedings (the judgment) in the chambers of the Judge was in public when on the admitted deposition before the court there is no evidence that the public was invited thereby contravening Order 36 Rule 14 of the High Court of Lagos Rules and Section 33 of the Constitution of the Federal Republic.

2. That the Court of Appeal erred in law on the issue of the liability when on the letters of credit the liability to pay in foreign exchange arose only on the granting of foreign exchange by the Central Bank on which did not happen in this case.

3. That the Court of Appeal erred in holding that no question of contributory negligence arose in the present case when the respondent was dilatory in complying with the conditions required by the Central Bank of Nigeria and their Overseas supplier failed to meet with the requirement of Chase Manhattan Bank London (appointed by the Central
Bank on the refinancing exercise) and thereby misdirected itself of the issue of damages.

4. That the judgment is against the weight of evidence.”

The respondent also cross-appealed as follows:
“Grounds of Appeal

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Ground 1
The Court of Appeal erred in law when it held that the plaintiff’s loss of goodwill and loss of business were not necessary and immediate consequence of the respondent’s negligence act of failing to process the appellant’s application for foreign exchange in time.
Particulars of Error
(a) The Court of Appeal found in concurrence with the trial court’s findings of fact that the respondent is liable for its negligence in failing to diligently process the appellant’s application for foreign exchange.
(b) The appellant had given uncontroverted and unchallenged evidence of the cancellation of its credit facility of 1.5 Million Pounds Sterling by its foreign suppliers.
(c) The appellant had given uncontroverted evidence of its consequential inability to take and perform huge contracts in the then developing city of Abuja.
(d) Whereas the Court of Appeal found as a fact that the appellant’s “………access to supplies which it needed for its business was also no doubt interrupted as regards its suppliers, Oakland”.
(e) Whereas the Court of Appeal found that the respondent will need to negotiate new credit facility with its suppliers and rehabilitate whatever dent has been occasioned to its standing.
(f) The Court of Appeal held as follows:
“There cannot be any doubt that the respondent in addition to exchange fluctuation loss, had suffered loss directly resulting from the appellant’s negligent act”(Italics added)

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Ground 2
The Court of Appeal erred in law when it reduced the amount of general damages awarded in favour of the appellant from N5 million to N500,000.00 when there was nothing before the court to justify such reduction.
Particulars of Error
(a) There was no burden on the appellant to adduce further evidence of the general damages suffered once the respondent’s liability had been established by the court.
(b) The general damages claimed by the appellant was a necessary, direct and immediate consequence of the respondent’s negligent act.
(c) The Court of Appeal found as a fact that the appellant had suffered loss directly resulting from the respondent’s act.
(d) Whereas the Court of Appeal consequently held as follows:
“Qualification of such loss is difficult”
(e) The Court of Appeal failed to give any convincing reason why the general damages awarded in the appellant’s favour by the trial court should be reduced.”
In support of the grounds of appeal the appellant formulated the following issues for determination in this appeal as follows:
“1. Whether the Court of Appeal was right in holding that a judgment of a High Court delivered in Chambers for no explicable reason and which is contrary to the express provisions of the rules of court and the Constitution of the Federal Republic of Nigeria is regular and valid in law.
2. Whether the Court of Appeal was right in law in

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implying by its judgment that the dictum of Obaseki J.S.C. (as he then was in Oyeyipo v. Oyinloye) (1987) 1 NWLR (Pt.50) 356, 377 overruled the Supreme Court decision in the case of Oviasu v.Oviasu (1973) 11 S.C. 315 .
3. Whether from the totality of the evidence adduced in trial, the Court of Appeal was right in affirming that the appellant was negligent.
4. Whether from the totality of the evidence, the lower courts misdirected themselves in fact by not holding that the respondent was contributory negligent to the inability of the appellant to obtain exchange cover under the Central Bank financing scheme.
5. Whether the award of damages by the Court of Appeal was not excessive and unreasonable in the
circumstances.”
It is clear the issue of the judgment given in Chambers is very important as the respondent in his issues for determination alluded to it as follows:
“Whether or not the Court of Appeal was right in holding that the judgment of the Lagos High Court delivered in chambers in this suit on 29/8/91 did not in anyway vitiate or invalidate the said judgment vis a vis the cases ofOyeyipo v. Oyinloye (1987) 1 NWLR (Pt.50) 356 at p. 377 and Oviasu v. Oviasu (1973) NSCC (Vol. 8) 502 .”
At the hearing of the appeal it became obvious that the judgment given in Chambers as opposed to the one given in open court is very weighty and we asked the counsel to the parties to address us only on that issue in view of the provisions of the 1979 Constitution in S. 33(3) (as re-enacted in Cap. 62 Laws of the Federation of Nigeria 1990 which read:

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33(3) The proceedings of a court or the proceedings of any tribunal relating to the matters mentioned in subsection (1) of this section (including the announcement of the decisions of the court or tribunal) shall be held in public.”
It is in my view better to set out the provisions of sub-section (1) of section 33 of the same Constitution so as to appreciate the purport of sub-section (3) (supra).
“33(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such a manner as to ensure its independence and impartiality.”
For the avoidance of any doubt the words of the Constitution in a civilian regime give effect to the
existence of all laws and institutions and procedures. As a temporary measure, the Military regimes have always made their decrees superior to the Constitution, see Decree No. 28 of 1970. and Decree No. 13 of 1984. this is for obvious reasons of protecting their very existence remembering what Lakanmi v. A.-G, Western Region (1974) 4
ECSCR 713; (1977) would have meant. But even in a Military regime those portions of the Constitution as are deemed necessary to retain or modify take force and are superior to any other laws – Governorof Ondo State v. Adewunmi (1985) 3 NWLR (Pt.13) 493.
The Court of Appeal took refuge in the case of Oyeyipo v. Oyinloye (1987) 1 NWLR (Pt.50) 356. 377 where Obaseki

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J.S.C. opined:
“When the court sits in chambers, all that it means is that the Judges of the court are transacting the business of the court in chambers instead of open court (see Hartmont v. Foster (1881) 8 OBD 82, 84 . It does not mean that the court is not sitting in public. A court can sit in open court and yet decide to exclude members of the public other than the parties or their legal representatives from the hearing in exercise of its statutory powers. See proviso to section 33 (13) of the Constitution of the Federal Republic of Nigeria 1979. A Judge may sit in chambers without excluding members of the public. It is therefore not unconstitutional to sit in chambers.”

The learned Justices proceeded from, that statement of Obaseki J.S.C, which unfortunately was obiter, and looked at as a whole with his concurring judgment, has not in the least derogated from the provisions of the Constitution and Oviasu v. Oviasu (supra) to hold that sitting in chambers to deliver judgment out of view of the public was right. As the leading judgment of Karibi- Whyte J.S.C. bears out and concurred to by the other Justices on the panel, Oyeyipo v. Oyinloye (supra) was decided in the light of the provisions of the Constitution and Rules of Supreme Court as to certain matters that could be dealt with in Chambers.

Learned counsel for the respondent pointed out that the High Court of Lagos State (Civil Procedure) Rules 1972 Order 43 rules 1, 2 and 13 permitted the practice of judgment in chambers. The rules cited provide:

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“1. In any proceeding before the Judge in Chambers any party may, if he so desire, be represented by a legal practitioner.
2. The business to be disposed of in chambers by the judges shall consist of the following matters, in addition to the matters which under any other Rule or by Statute may be disposed of in chambers-
(1) Applications for payment or transfer to any person of any cash or securities standing to the credit of any cause or matter where there has been a judgment or order declaring the rights or where the title depends only upon proof of the identity or the birth, marriage, or death of any person.
(2) Applications for payment or transfer to any person of any cash or securities standing to the credit of any cause or matter.
(3) Applications in partnership actions with the consent of all the partners for payment or transfer to any person of all cash or securities standing to the credit of the action.
(4) Applications for payment to any person of the dividend or interests of any securities standing to the credit of any cause or matter, whether to a separate account or otherwise.
(5) Applications on behalf of infants, where the infant is a ward of court, or the administration of the estate of the infant, or the maintenance of the infant, is under the direction of the court.
(6) Applications as to the guardianship and maintenance or advancement of infants.
(7) Applications connected with the management of property.

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(8) Applications for or relating to the sale by auction or private contract of property, and as to the manner in which the sale is to be conducted, and for payment into court and investment of the purchase money.
(9) All applications for the taxation and delivery of bills of costs and for the delivery by any legal practitioner of deeds, documents, and papers.
(10) Applications for orders on the further consideration of debenture holders’ actions or of any cause or matter where the order to be made is for the distribution of the estate of an intestate.
(11) Applications for time to plead, for leave to amend pleadings, for discovery and production of documents, for substituted service, and generally all applications relating to the conduct of any cause or matter.
(12) Applications by the Public Trustee under section 10 of the Public Trustee Law.
(13) Such other matters as a Judge may think fit to dispose of at chambers.
13. It shall not be obligatory on the court or judge in Chambers to pronounce or make a judgment or order, whether on summons or otherwise, for the administration of any trust or of the estate of any deceased person. if the questions between the parties can be properly determined without such judgment or order.”

From the above quoted rules of High Court there is nothing covering a case that was heard ab initio in open court in the full glare of the public that permits the judgment to be given out of public view in chambers. “Hearing in public” entails a situation where the public is

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not barred. A Judge’s Chambers is not open court or “in public” because only those invited therein by the Judge are permitted to be present. Oviasu v. Oviasu (supra) is a case under Matrimonial Causes Act with its own peculiar procedure. But in accordance with the Constitution of 1963, provision similar to S. 33(3) of 1979 Constitution was in issue. Unless the parties to the petition for divorce apply and leave was granted it has not been the business of the Judge to hear the petition out of the view of the public. In that case there was no such application and Sowemimo J.S.C. (as he then was) held that learned trial Judge should not have decided, on his own, to hear the petition in chambers because a judge’s chambers is not a court hall to which the public would normally have access.”

Oyeyipo v. Oyinloye (supra) was decided solely on the law and rules as applied in the Supreme Court.
The Constitution of the Federal Republic of Nigeria in S. 213(4) provides:
“The Supreme Court may dispose of any application for leave to appeal from any decision of the Court of Appeal in respect of any civil or criminal proceedings in which leave to appeal is necessary after consideration of the record of the proceedings if the Supreme Court is of opinion that the interests of justice do not require an oral hearing of the application.”
In S. 216 of the same Constitution it is provided that:
“216 Subject to the provisions of any Act of the National Assembly the Chief justice of Nigeria may make rules for regulating the practice and procedure of the Supreme

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Court.”
The Supreme Court Rules 1985 provides in Order 6 r 3(1):
“3(1) Without prejudice to the powers of the court to hear oral argument, an application under rule 2 of this order may be considered and determined by the court in Chambers, only on the written argument and documents as required by the rule, submitted by the applicant in support without hearing oral argument either in open court or in
Chambers. The court may, under this rule, refuse such application, only if in its opinion the application is completely devoid of merit.”
The aforementioned constitutional provisions and rules of court made thereunder are peculiar to the Supreme Court: they do not extend to other superior courts of record. Therefore the provisions of S. 33(3) of the Constitution are fundamental and must be adhered to strictly by all courts of record subject to the exception explained above in respect of certain applications before the Supreme Court.
The Supreme Court itself is confined to such applications as enumerated in Order 6 rule 2(1),(2). (3) and (4) and also order 6 r 3(1), (2) and (3) to decide on documents filed, and in other cases apart from such applications, it must hear matters and give judgments and rulings upon them in the open court or in public.

I regret that this issue has vitiated the trial through the error of the trial Judge and misapplication of the error by the Court of Appeal. On this issue alone of giving

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judgment not in public as demanded in section 33(3) under Fundamental Rights in Chapter IV of 1979 Constitution, but in chambers, the judgment is a nullity and vitiates the entire proceedings. I therefore allow this appeal and order a retrial before another Judge of Lagos State High Court. I award N1,000.00 as costs in this court. N500.00 as costs in the Court of Appeal and costs awarded in the trial court if already paid to be refunded to the appellant and an equal sum is awarded as costs in that court to the appellant against the respondent.