NIGERIAN BANKING LAW REPORTS

[2002 – 2004]

VOLUME 11 (PART I)

To be cited as: [2002 – 2004] 11 N.B.L.R. (PART I)

Nigeria Deposit Insurance Corporation

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© 2009 Nigeria Deposit Insurance Corporation, published by LexisNexis (Pty) Ltd under licence ISSN 1595-1030 All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, including electronic, mechanical, photocopying and recording, without the written permission of the copyright holder, application for which should be addressed to the publisher. Such written permission must also be obtained before any part of this publication is stored in a retrieval system of any nature. Whilst every effort has been made to ensure that the information published in this work is accu- rate, the editors, publishers and printers take no responsibility for any loss or damage suffered by any person as a result of the reliance upon the information contained therein.

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EDITORIAL BOARD

1. Professor J.O. Anifalaje Chairman Faculty of Law, University of Ibadan 2. Alheri Bulus Nyako Editor-in-Chief Board Secretary/Head of Legal Department N.D.I.C. 3. Michael Olufemi Olaitan Member Legal Practitioner 4. Ahmed Almustapha Member Registrar-General Corporate Affairs Commission 5. Gabriel Olukayode Kembi Member Legal Practitioner 6. Adekunle Oladapo Omowole Member Legal Practitioner Corporate Affairs Commission 7. Nasiru Tijani Member Legal Practitioner Senior Lecturer, Nigerian Law School 8. Belema A. Taribo Member Legal Practitioner NDIC 9. Moses Ter-llumun Adaguusu Member Legal Practitioner Corporate Affairs Commission 10. Dan Ike Agwu Secretary Legal Practitioner NDIC iii

LIST OF JUSTICES OF THE AS AT NOVEMBER 30TH, 2007

1. HON. JUSTICE IDRIS LEGBO KUTIGI, CON (Chief Justice of Nigeria) 2. HON. JUSTICE SYLVESTER UMARU ONU, CON 3. HON. JUSTICE ALOYSIUS IYORGYER KATSINA ALU, CON 4. HON. JUSTICE NIKI TOBI, CON 5. HON. JUSTICE , CON 6. HON. JUSTICE GEORGE ADESOLA OGUN- TADE, CON 7. HON. JUSTICE SUNDAY AKINOLA AKIN- TAN, CON 8. HON. JUSTICE ALOMA MARIAM MUKHTAR, CON 9. HON. JUSTICE MAHMUD MOHAMMED, CON 10. HON. JUSTICE WALTER SAMUEL NKANU ONNOGHEN, CON 11. HON. JUSTICE IKECHI FRANCIS OGBUAGU, CON 12. HON. JUSTICE FRANCIS FEDODE TABAI, CON 13. HON. JUSTICE IBRAHIM TANKO MUHAM- MAD, CON 14. HON. JUSTICE PIUS OLAYIWOLA ADEREMI, CON 15. HON. JUSTICE CHRISTOPHER MITCHELL CHUKWUMA-ENEH, CON

iv

SENIORITY LIST OF JUSTICES OF THE COURT OF APPEAL AS AT NOVEMBER 30TH, 2007

1. HON. JUSTICE UMARU ABDULLAHI, CON (President) 2. HON. JUSTICE ISA AYO SALAMI, (OFR) 3. HON. JUSTICE JAMES OGENYI OGEBE, (OFR) 4. HON. JUSTICE RABIU DANLAMI MUHAM- MAD, (OFR) 5. HON. JUSTICE RAPHAEL OLUFEMI ROW- LAND, (OFR) 6. HON. JUSTICE MUHAMMAD S. MUNTAKA COOMASSIE 7. HON. JUSTICE DALHATU ADAMU, (OFR) 8. HON. JUSTICE BABA ALKALI BA’ABA 9. HON. JUSTICE SAKA ADEYEMI IBIYEYE 10. HON. JUSTICE ZAINAB ADAMU BUL- KACHUWA 11. HON. JUSTICE SULEIMAN GALADIMA 12. HON. JUSTICE VICTOR AIMEPOMO O. OM- AGE 13. HON. JUSTICE JOHN AFOLABI FABIYI 14. HON. JUSTICE 15. HON. JUSTICE OLUFUNLOLA OYEOLA ADE- KEYE 16. HON. JUSTICE M. DATTIJO MUHAMMAD 17. HON. JUSTICE 18. HON. JUSTICE 19. HON. JUSTICE ISTIFANUS THOMAS 20. HON. JUSTICE JAFARU MIKA’ILU 21. HON. JUSTICE AMINAT ADAMU AUGIE 22. HON. JUSTICE ABUBAKAR ABDULKADIR JEGA 23. HON. JUSTICE STANLEY SHENKO ALAGOA 24. HON. JUSTICE MONICA DONGBAN-MENSEM

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25. HON. JUSTICE NWALE SYLVESTER NGWUTA 26. HON. JUSTICE GARBA 27. HON. JUSTICE JEAN OMOKRI 28. HON. JUSTICE TIJANI ABDULLAHI 29. HON. JUSTICE UWANI M. ABBA AJI 30. HON. JUSTICE MARY PETER ODILI 31. HON. JUSTICE KUDIRAT M.O. KEKERE-EKUN 32. HON. JUSTICE MOHAMMED LADAN TSAMIYA 33. HON. JUSTICE RAPHAEL CHIKWE AGBO 34. HON. JUSTICE BODE RHODES VIVOUR 35. HON. JUSTICE SOTONYE DENTON-WEST 36. HON. JUSTICE PAUL A. GALINJE 37. HON. JUSTICE JIMI OLUKAYODE BADA 38. HON. JUSTICE 39. HON. JUSTICE O. GEORGE SHOREMI 40. HON. JUSTICE HELEN M. OGUNWUMIJU 41. HON. JUSTICE OYEBISI FOLAYEMI OMOL- EYE 42. HON. JUSTICE ADZIRA GANA MSHELIA 43. HON. JUSTICE ABDU ABOKI 44. HON. JUSTICE AHMAD O. BELGORE 45. HON. JUSTICE ALFRED P.E. AWALA 46. HON. JUSTICE JUMMAI HANATU SANKEY 47. HON. JUSTICE IBRAHIM MOH’D M. SAU- LAWA 48. HON. JUSTICE ALI A.B. GUMEL 49. HON. JUSTICE HUSSEIN MUKHTAR 50. HON. JUSTICE MOJEED A. OWOADE 51. HON. JUSTICE UZO I. NDUKWE-ANYANWU 52. HON. JUSTICE JOHN I. OKORO 53. HON. JUSTICE CHIDI NWAOMA UWA 54. HON. JUSTICE IGNATIUS IGWE AGUBE vi

SENIORITY LIST OF JUSTICES OF THE FEDERAL HIGH COURT OF NIGERIA AS AT NOVEMBER 30TH, 2007

1. HON. JUSTICE R.N. UKEJE (Chief Judge) 2. HON. JUSTICE A. MUSTAPHA 3. HON. JUSTICE D.D. ABUTU 4. HON. JUSTICE I.N. AUTA 5. HON. JUSTICE M.A. EDET 6. HON. JUSTICE A.A. ABDU-KAFARATI 7. HON. JUSTICE SOBA 8. HON. JUSTICE O.J. OKEKE 9. HON. JUSTICE S. YAHAYA 10. HON. JUSTICE A. BELLO 11. HON. JUSTICE A.O. AJAKAIYE 12. HON. JUSTICE F.F. OLAYIWOLA 13. HON. JUSTICE ADAMU HOBON 14. HON. JUSTICE J.T. TSOHO 15. HON. JUSTICE S.J. ADAH 16. HON. JUSTICE CHUKWURA NNAMANI 17. HON. JUSTICE R.O. NWODO 18. HON. JUSTICE G.C. OKEKE 19. HON. JUSTICE G.K. OLOTU 20. HON. JUSTICE J.E. SHAKARHO 21. HON. JUSTICE L. AKANBI 22. HON. JUSTICE C.M. OLATOREGUN 23. HON. JUSTICE BINTA F.M. NYAKO 24. HON. JUSTICE A. LIMAN 25. HON. JUSTICE S. YAHUZA 26. HON. JUSTICE C. ARCHIBONG 27. HON. JUSTICE I. EJIOFOR 28. HON. JUSTICE A.I. CHIKERE 29. HON. JUSTICE M.L. SHUAIBU 30. HON. JUSTICE SALIU SAIDU

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31. HON. JUSTICE G.O. KOLAWOLE 32. HON. JUSTICE A.O. FAJI 33. HON. JUSTICE B. BELLO ALIYU 34. HON. JUSTICE B. I MOLOKWU 35. HON. JUSTICE A.F. ADETOKUNBO- ADEMOLA 36. HON. JUSTICE CHUDI NWOKORIE 37. HON. JUSTICE M.I. AWOKULEHIN 38. HON. JUSTICE R.N. OFILI-AJUMOGOBIA 39. HON. JUSTICE L. AllAGOA 40. HON. JUSTICE A.O. OGIE 41. HON. JUSTICE BABS KUEWUMI 42. HON. JUSTICE UMAR M. GARBA 43. HON. JUSTICE NYAURE BABA 44. HON. JUSTICE A.R. MOHAMMED 45. HON. JUSTICE T. ABUBAKAR

viii

THE NIGERIAN BANKING SYSTEM 1. The Development of Banking in Nigeria The historical development of the financial system in Nige- ria dates back to 1892 when modern banking business com- menced and a formal and institutional channel of saving mobilization was introduced into the economy with the es- tablishment of the African Banking Corporation (“ABC”). The operation of ABC was later taken over in 1894 by the British Bank of West Africa (which later became Standard Bank) and subsequently, First Bank of Nigeria. Owing to the colonial heritage, the pioneer commercial banks in Nigeria were of foreign origin and their operations favoured finance of foreign trade and commerce. Thereafter, several other foreign and a host of indigenous banks were established. The establishment of indigenous banks was initially propelled largely by nationalistic con- sciousness rather than the existence of relevant resources, including basic skilled manpower, for running such institu- tions. Consequently, most of the early indigenous banks col- lapsed in rapid succession. Banks that failed during the early stage of the evolution of the Nigerian financial system were largely those with problems of inadequate capital, poor management, and fraudulent practices, among other factors. An important feature of the Nigerian financial system, es- pecially before the establishment of the Central Bank of Ni- geria (“CBN”), was small scope of operations of participat- ing foreign institutions and the complete absence of any form of institutional regulatory framework which would provide the necessary guide for both the operations and or- derly development of the system. These were some of the reasons behind the slow development of the financial system during the pre-CBN era. The situation however changed from 1958 when the CBN was established. Since then, series of efforts have been made by the CBN and other relevant authorities to promote the ix [2002 – 2004] 11 N.B.L.R. (PART I)

Nigerian Banking Law Reports growth and development of the Nigerian financial system. For example, the need to develop the system and create an avenue for investment of short term funds informed the issue by the CBN in 1960 of Treasury Bills as a supplement to Commercial Papers that were already in the market. Other money market instruments after the establishment of the CBN but prior to the introduction of the Structural Adjust- ment Programme (“SAP”) in 1986 included Treasury Cer- tificates in 1968, Certificates of Deposit in 1975 and the Bankers’ Unit Fund as well as Stabilisation Securities in 1976. The establishment of the CBN also aided the devel- opment of the capital market. This was achieved by ensuring the emergence of the securities markets and instruments (primary and secondary) and by promoting the establishment of development banks. Following the adoption of the SAP in 1986, and the subse- quent deregulation of the financial system, the banking sys- tem witnessed radical changes. Apart from the introduction of measures and instruments to deregulate the financial ser- vices industry, the techniques and the range of products of- fered by the industry changed significantly. The major ob- jective of the deregulation was to enhance economic effi- ciency and effective resource allocation through service- driven competition and improvement in quality and spread of financial services delivery. On July 6th, 2004 the Governor of CBN announced a banking reform programme aimed at strengthening and con- solidating the banking system. The reform is expected to ad- dress the safety of depositor’s funds, enable the banking sec- tor play an active developmental role in the economy and transform Nigerian banks into competitive players in the Af- rican and Global financial system.

2. The Nigeria Deposit Insurance Corporation One of the key measures introduced during the era of deregula- tion of the banking sector was the establishment of the Nigeria x [2002 – 2004] 11 N.B.L.R. (PART I)

The Nigerian Banking System

Deposit Insurance Corporation (“NDIC”), with the promulga- tion of Decree No. 22 of 1988 now Cap 301 Laws of the Fed- eration 1990, (as amended). The NDIC was established to in- sure all the deposit liabilities of licenced banks, promote bank- ing stability and a sound financial system. Although the NDIC enabling Act was promulgated in 1988, the Corporation only commenced operations in March, 1989. The Nigeria Deposit Insurance Corporation scheme was introduced to provide a fur- ther layer of protection to depositors and complement the role of prudent bank management as well as the Central Bank of Nigeria’s (“CBN”) supervisory activities in ensuring a safe and sound banking system. It was also considered as an additional framework to serve as a vehicle for addressing some of the challenges that followed the deregulation of the financial sys- tem under the SAP. Prior to the establishment of the NDIC, the Government had played the role of what in industry parlance is referred to as an implicit insurer, by bailing out troubled banks in its bid to protect depositors. With deregulation, an explicit Deposit Insurance Scheme (“DIS”) became imperative. The establishment of NDIC was also informed by the change in government bank-support policy, the bitter experiences of prior bank failures in Nigeria and the lessons of other countries with bank deposit insurance schemes. The scheme aims at increas- ing the competitive efficiency of the banking system as well as reducing the system’s vulnerability to destructive runs, panic- induced shocks by reinforcing depositors’ confidence in the nation’s financial system. The mission of the Corporation is to protect depositors through effective supervision of insured institutions, provi- sion of financial and technical assistance to eligible insured institutions, prompt payment of guaranteed sums and the or- derly resolution of failed financial institutions. The Corporation currently acts as the Liquidator of thirty four (34) banks out of a total of thirty six (36) banks whose operating licenses were revoked by the Governor of the CBN. All depositors of the banks in liquidation who have come forward to file their claims have been paid their xi [2002 – 2004] 11 N.B.L.R. (PART I)

Nigerian Banking Law Reports insured deposits while liquidation dividends making up 100% of total uninsured deposits have been declared and paid to depositors of ten (10) banks in Liquidation. In September 1997, the Corporation commenced publica- tion of the Failed Banks Tribunals Law Reports (“FBTLR”) which contained only reported decisions of the Tribunal es- tablished under the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Act, 1994 and decisions of the Special Appeal Tribunal established under the Recovery of Public Property (Special Military Tribunal) Decree, 1984. In 1999, with the return to civil rule, the Corporation re- structured the publication into a compendium of decisions of all banking matters given by our superior courts of record from 1933 to date. This gave rise to the birth of the Nigerian Banking Law Reports (“N.B.L.R.”). Nigeria Deposit Insurance Corporation November, 2005

xii FOREWORD

Banking is the most important sub-sector of the economy of any nation. Banks facilitate economic transactions between various national and international economic units and by so doing encourage trade, commerce and industry. It is widely acknowledged that a sound and efficient finance industry, of which banks constitute the major segment, would promote growth of the real sector while the opposite is the case if the financial sector is repressed and inefficient. Therefore, the Law of Banking assumes a position of pre-eminence in eco- nomic development and this underscores the importance of a Law Report on the subject. The efforts of the Nigeria Deposit Insurance Corporation in the development of the Law of Banking through the pub- lication of a banking law report started over 8 years ago. It would be recalled that in September, 1997, the Corporation launched the Failed Banks Tribunal Law Reports (“FBTLR”) at the International Conference Centre, Abuja. Although the Failed Banks Law Reports were short-lived following the advent of civil rule in 1999, they nonetheless served as a veritable reference material for Judges, Legal Practitioners, Jurists, Bankers, Students and the general pub- lic. It is for the foregoing reason that when the Corporation de- cided to expand the scope of the publication by including the decisions of the Supreme Court and the Court of Appeal on banking matters and re-named it the Nigerian Banking Law Reports (“N.B.L.R.”), I did not hesitate in giving my con- sent. The N.B.L.R. is a compendium of case law on Nigerian banking from 1933 to date. The first batch of the compen- dium contains cases decided between 1933–2002 which I understand would continue to 2004. Thereafter, the reports would be published regularly. This initiative will prove in- valuable to users who would not have to wade through xiii [2002 – 2004] 11 N.B.L.R. (PART I)

Nigerian Banking Law Reports different law reports when conducting research on Nigerian banking case law. The publication of the N.B.L.R. is one reliable means of disseminating information and knowledge of banking law and practices to depositors and other members of the public as part of the Corporation’s contribution to safe and sound banking practices. Hence, it is well known that the Corpora- tion did not embark upon publication of the N.B.L.R. in or- der to make profit. Specialized law reports are very rare mainly because of the tedium, great expenses, time and labour required to produce them. However, when available, such reports generate con- siderable public interest. I am therefore pleased that the presentation of the Nigerian Banking Law Reports has be- come a reality. The laudable decision of the Management of the NDIC to shoulder this onerous burden for the Nigerian Banking industry is a practical example of the social as well as corporate responsibilities expected of modern Corpora- tions. I have no doubt in my mind that the publication will en- dure and I am therefore pleased to recommend the Nigerian Banking Law Report, which is a worthy and befitting legacy for posterity, especially the world of learning, to all and sundry.

Hon. Justice Mohammed Lawal Uwais, GCON Chief Justice of Nigeria November, 2005

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PREFACE TO THE NIGERIAN BANKING LAW REPORTS The decision of the Nigeria Deposit Insurance Corporation to publish the Nigerian Banking Law Report has its origin from its involvement in the implementation of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Act 1994. The Law was promulgated by the then Military Government with the combined objectives of re- covering the debts owed to failed banks and prosecuting di- rectors, officers and customers of banks who were suspected to have committed banking malpractices, which led to the collapse of most of the failed banks. Furthermore, in 1994, when the Corporation was appointed as the Liquidator to carry out the liquidation of some failed banks, it was observed that there were hardly any records relating to the winding up of banks that had failed in the past. There was also no sufficient data on the causes of the past bank failures. The Corporation therefore took the initia- tive, in September, 1997 to report and publish decisions of the Failed Banks Tribunal established under the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Act, 1994. This effort culminated into the publication of the Failed Banks Tribunal Law Reports (“FBTLR”). Thus, the Corporation was motivated by the need to place on permanent record the lessons from the new wave of bank failures/distress, particularly with regard to the causes of such failures/distress and efforts made to resolve such fail- ures. Hitherto, the absence of proper documentation relating to the bank failures experiences in the early fifties had made it exceedingly difficult for practitioners and researchers to make references to such failures. The decision to publish the FBTLR was to ensure that the mistakes of the past were not repeated, through elaborate documentation of the recent failures, the essence of which were captured in the decisions of the Failed Banks Tribunal.

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However, with the return to democratic rule in May, 1999, the Failed Banks Act was amended by the Tribunals (Certain Consequential Amendment, etc.) No. 62 of 1999, which ab- rogated the Tribunal. The civil and criminal jurisdictions of the Tribunal were accordingly transferred to the Federal High Court. Consequently, the title of the Publication was changed to Nigerian Banking Law Reports. Furthermore, in response to the new democratic dis- pensation, the Corporation decided to expand the scope of the publication into a compendium containing decisions of the Supreme Court, Court of Appeal as well as Federal and State High Courts on banking matters from 1933 to date in order to provide a comprehensive data base for all banking related cases decided by the superior courts of record. Also in order not to miss the tremendous achievements recorded by the Failed Banks Tribunal during their relatively short tenure, their decisions have been included in the com- pendium thereby making the N.B.L.R. very comprehensive. In addition, there is an index for the compendium up to 2002, which would soon be updated to 2004 and thereafter, it would be published on regular basis. It is therefore my hope that legal practitioners, my Lords the honourable justices and judges, distinguished scholars and law professors, bankers, students and the general public would find this initiative useful. I would like to express my profound appreciation to the Editorial Board of the Nigerian Banking Law Reports under the distinguished chairmanship of Prof. Anifalaje, an erudite professor of law and the Dean of the Faculty of Law, Uni- versity of Ibadan ably assisted by seasoned Legal Practitio- ners and staff of the Legal Department of the Corporation, for their patriotic commitment, diligence and ingenuity for details, that went into the production of the N.B.L.R.. They left no stone unturned in bringing the Corporation’s dream of making this worthy contribution to legal knowledge and xvi [2002 – 2004] 11 N.B.L.R. (PART I)

Preface to the Nigerian Banking Law Reports research a reality. Their commitment in ensuring the com- pletion of the project is highly commendable. Management will on its part do everything possible to en- sure that publication of the Nigerian Banking Law Reports (N.B.L.R.) is sustained.

G.A. Ogunleye, OFR Managing Director/Chief Executive November, 2005

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TABLE OF CONTENTS

Index of Table of Cases Reported...... xxi Index of Subject Matter ...... xxiii Index of Nigerian Cases referred to ...... xxxix Index of Foreign Cases referred to ...... lxv Index of Nigerian Statutes referred to ...... lxix Index of Foreign Statutes referred to ...... lxxiii Index of Nigerian Rules of Court referred to ...... lxxv Index of Foreign Rules of Court referred to...... lxxvii Index of Books referred to ...... lxxix

xix

TABLE OF CASES REPORTED

Page 1. ACB Plc v. Joessyka Bros. Nigeria Ltd ...... 1 2. Adalfa Agric Ind. (Nigeria) Ltd v. Afribank Nige- ria Plc ...... 100 3. Aiyetoro Community Trading Co Ltd v. N.A. and Co-op. Bank Ltd ...... 234 4. Akpan v. UBN Plc ...... 208 5. All States Trust Bank v. Nsofor ...... 481 6. Commercial Trust Bank Nigeria Ltd v. Ikarus Ind. Ltd ...... 13 7. Diamond Bank Ltd v. Partnership Investment Co Ltd ...... 499 8. FBN Plc v. Excel Plastic Ind. Ltd ...... 384 9. Jonpal Ltd v. Afribank Nigeria Ltd ...... 104 10. Kareem Nigeria Ltd v. The Federal Minister of Finance ...... 590 11. Kenfrank Nigeria Ltd v. UBN Plc ...... 290 12. Kolo v. FBN Plc ...... 80 13. Margarida Salvado De Lluch v. Sociète Bancaire Nigeria Ltd ...... 368 14. Mat Holdings Ltd v. UBA Plc ...... 189 15. NDIC v. A.B. Expellers Ind. Trading Co Ltd ...... 7 16. NDIC v. Akahall and Sons Co Ltd ...... 515 17. NDIC v. Ecobank Nigeria Plc ...... 170 18. Ndaforo v. N.A. and Co-Operative Bank Ltd ...... 653 19. Nzekwesi v. FRN ...... 466 20. Obijiaku v. NDIC ...... 63 21. Oku v. Banigo ...... 279 22. Onwuchekwa v. NDIC ...... 38 23. Oredola Okeya Trad. Co Ltd v. Bank of Credit and Commerce Int...... 437 24. Oti v. Oti ...... 53 25. Savannah Bank Nigeria Plc v. Biode Pharm. Ind. Ltd ...... 423

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26. Savannah Bank of Nigeria v. NDIC ...... 577 27. Songhai Ltd v. UBA ...... 333 28. Suberu v. Co-operative Bank Ltd ...... 143 29. Tempo Mills Ltd v. Abasi ...... 22 30. Trade Bank Plc v. Chami ...... 601 31. UBA v. Folarin ...... 118 32. UBA Plc v. Abdullahi ...... 263 33. UBA Plc v. Gbadebo ...... 453 34. UBA Plc v. Robertson Eng. Ltd ...... 180 35. UBA Plc v. Sani Abacha Foundation for Peace and Unity ...... 312 36. UBN Plc v. Ntuk ...... 548 37. Vony Maritime SA v. Green View Shipping Lines Ltd ...... 573

xxii INDEX OF SUBJECT MATTER

ACTION Commencement of on behalf of bank under the Failed Banks Decree No. 18 of 1994 (as amended) – Credi- tor Bank not a Failed Bank – Jurisdiction of Court to entertain – Locus standi of Nigeria Deposit Insurance Corporation to bring action – Competence of action ACB Plc v. Joessyka Bros. Nigeria Ltd [2002 – 2004] 11 N.B.L.R. (PART I) 1 Locus Standi – Meaning of – How determined Tempo Mills Ltd v. Abasi [2002 – 2004] 11 N.B.L.R. (PART I) 22

AGRICULTURAL GUARANTEE SCHEME FUND Beneficiary defaulting – Board the proper party to be sued Adalfa Agric Ind. (Nigeria) Ltd v. Afribank Ni- geria Plc [2002 – 2004] 11 N.B.L.R. (PART I) 100

ARBITRATION Award – Enforcement of – Jurisdiction of Federal High Court – Order 20 Rule 17 Federal High Court (Civil Procedure) Rules, 2000 Kareem Nigeria Ltd v. The Federal Minister of Finance [2002 – 2004] 11 N.B.L.R. (PART I) 590

BANKING Bank draft – Meaning of UBA Plc v. Folarin [2002 – 2004] 11 N.B.L.R. (PART I) 118 Bank draft – Undated bank draft – Effect of Mat Hold- ings Ltd v. UBA Plc [2002 – 2004] 11 N.B.L.R. (PART I) 189 Bank in liquidation – Depositor’s funds – Duty of court to preserve Savannah Bank of Nigeria v. NDIC [2002 – 2004] 11 N.B.L.R. (PART I) 577 xxiii [2002 – 2004] 11 N.B.L.R. (PART I)

Nigerian Banking Law Reports

Banker and customer relationship – Amount owed and due by customer on loan facility – How determined UBA Plc v. Gbadebo [2002 – 2004] 11 N.B.L.R. (PART I) 453 Banker and customer relationship – Customer drawing on account with insufficient funds – Application for over- draft Commercial Trust Bank Nigeria Ltd v. Ikarus Ind. Ltd [2002 – 2004] 11 N.B.L.R. (PART I) 13 Banker and customer relationship – Dishonour of cus- tomer’s cheque – Measure of damages UBA Plc v. Folarin [2002 – 2004] 11 N.B.L.R. (PART I) 118 Banker and customer relationship – Failure of bank to remit money deposited with it by customer to another bank abroad Onwuchekwa v. NDIC [2002 – 2004] 11 N.B.L.R. (PART I) 38 Banker and customer relationship – Letter by a bank to a third party to ascertain actual mandate – Whether breach of duty of confidentiality – Duty of banker to protect its customer funds – Exercise thereof UBN Plc v. Ntuk [2002 – 2004] 11 N.B.L.R. (PART I) 548 Banker and customer relationship – Nature of – Duties owed customer by bank – Right of a third party to sue bank UBA Plc v. Folarin [2002 – 2004] 11 N.B.L.R. (PART I) 118 Banker and customer relationship – Negligence by bank – What plaintiff must plead and prove – Order 17 Rule 5 High Court of (Civil Procedure) Rules, 1994 Diamond Bank Ltd v. Partnership Investment Co Ltd [2002 – 2004] 11 N.B.L.R. (PART I) 499 Banker and customer relationship – Unauthorised transfer of funds from one account to another – Both under control of same person – Effect Obijiaku v. NDIC [2002 – 2004] 11 N.B.L.R. (PART I) 63 Banker and customer relationship – Whether within juris- diction of State High Court – Section 230(1)(d) Decree xxiv [2002 – 2004] 11 N.B.L.R. (PART I)

Index of Subject Matter

No. 107 of 1993 Oku v. Banigo [2002 – 2004] 11 N.B.L.R. (PART I) 279 Bankers book – Entries in – Admissibility of – Section 97(1)(h) Evidence Act Cap 112 Laws of the Federation of Nigeria, 1990 FBN Plc v. Excel Plastic Ind. Ltd [2002 – 2004] 11 N.B.L.R. (PART I) 384 Banking licence – Revocation of – Power of Central Bank of Nigeria to so do – How exercised – Circumstances under which it can act, section 12 Banks and Other Financial Institution Act considered Savannah Bank of Nigeria v. NDIC [2002 – 2004] 11 N.B.L.R. (PART I) 577 Banking licence – Revocation thereof – Effect on bank Savannah Bank of Nigeria v. NDIC [2002 – 2004] 11 N.B.L.R. (PART I) 577 Contract – Breach of by banker – Failure to remit money deposited with it by customer to another bank abroad – Award of damages Onwuchekwa v. NDIC [2002 – 2004] 11 N.B.L.R. (PART I) 38 Debt – Proof of – Unchallenged oral evidence – Whether sufficient proof of debt Trade Bank Plc v. Chami [2002 – 2004] 11 N.B.L.R. (PART I) 601 Deed of legal mortgage – Invalidity thereof – Remedy available to mortgagee – Whether can claim for money lent UBA Plc v. Abdullahi [2002 – 2004] 11 N.B.L.R. (PART I) 263 Entry in a banker’s book – Contents – Admissibility thereof – Whether alone sufficient proof of liability of a debtor – Section 38 Evidence Act Cap 112 Laws of the Federation of Nigeria, 1990 considered Trade Bank Plc v. Chami [2002 – 2004] 11 N.B.L.R. (PART I) 601 Entry in a banker’s book – How proved – Section 38 Evi- dence Act Cap 112 Laws of the Federation of Nigeria, xxv [2002 – 2004] 11 N.B.L.R. (PART I)

Nigerian Banking Law Reports

1990 considered Trade Bank Plc v. Chami [2002 – 2004] 11 N.B.L.R. (PART I) 601 Entry in banker’s book – Computer print-out thereof – Whether admissible – Section 38 of the Evidence Act considered – Whether qualifies as document made dur- ing pendency of a suit – Section 91(3) of the Evidence Act Cap 112 Laws of the Federation of Nigeria, 1990 considered Trade Bank Plc v. Chami [2002 – 2004] 11 N.B.L.R. (PART I) 601 Entry in banker’s book – Computer produced statement of account – Admissibility of – Whether admissible in context of section 97 Evidence Act Cap 112 Laws of the Federation of Nigeria, 1990 UBA Plc v. Sani Abacha Foundation for Peace and Unity [2002 – 2004] 11 N.B.L.R. (PART I) 312 Foreign Exchange – Bank dealing in – Whether agent of Central Bank of Nigeria FBN Plc v. Excel Plastic Ind. Ltd [2002 – 2004] 11 N.B.L.R. (PART I) 384 Foreign Exchange allocation by Central Bank – Foreign Exchange cover – Whether means allocation of for- eign currency by Central Bank FBN Plc v. Excel Plastic Ind. Ltd [2002 – 2004] 11 N.B.L.R. (PART I) 384 Guarantee – Action for recovery of debt under contract of guarantee – Principal debtor – Whether a necessary party Trade Bank Plc v. Chami [2002 – 2004] 11 N.B.L.R. (PART I) 601 “Guarantee” Meaning of – Contract of guarantee – Nature of – Liability of guarantor thereunder – Scope of Trade Bank Plc v. Chami [2002 – 2004] 11 N.B.L.R. (PART I) 601 Indebtedness of a customer – How proven Obijiaku v. NDIC [2002 – 2004] 11 N.B.L.R. (PART I) 63 “Insured Institution” in section 23D NDIC (Amendment) Decree No. 5 of 1997 and “Insured Banker” in section xxvi [2002 – 2004] 11 N.B.L.R. (PART I)

Index of Subject Matter

46 NDIC (Amendment) Decree No. 5 of 1997 – Dis- tinction thereof – How construed NDIC v. Akahall and Sons Co Ltd [2002 – 2004] 11 N.B.L.R. (PART I) 515 Interest – Absence of rate of interest in mortgage deed – Whether precludes bank from charging interest – Bank not permitted to grant loans without interest – How rate determined Suberu v. Co-operative Bank Ltd [2002 – 2004] 11 N.B.L.R. (PART I) 143 Interest – Claim of – Principles governing FBN Plc v. Excel Plastic Ind. Ltd [2002 – 2004] 11 N.B.L.R. (PART I) 384 Interest – Compound and simple interest on loans and overdrafts – Right of bank to charge – Failure of cus- tomer to complain on various rates of interest – Effect Suberu v. Co-operative Bank Ltd [2002 – 2004] 11 N.B.L.R. (PART I) 143 Interest – Compound interest – Right of bank to charge Commercial Trust Bank Nigeria Ltd v. Ikarus Ind. Ltd [2002 – 2004] 11 N.B.L.R. (PART I) 13 Interest – Meaning of – Right of banks and other financial institutions to claim in respect of loan or other facili- ties NDIC v. Ecobank Nigeria Plc [2002 – 2004] 11 N.B.L.R. (PART I) 170 Interest – Not only be pleaded but also strictly proved UBA Plc v. Sani Abacha Foundation for Peace and Unity [2002 – 2004] 11 N.B.L.R. (PART I) 312 Interest – Right of bank to charge Ndaforo v. N.A. and Co-Operative Bank Ltd [2002 – 2004] 11 N.B.L.R. (PART I) 653 Interest – Right to charge by bank Nzekwesi v. FRN 466 Interest rate – Mortgage deed Savannah Bank Nigeria Plc v. Biode Pharm. Ind. Ltd [2002 – 2004] 11 N.B.L.R. (PART I) 423 xxvii [2002 – 2004] 11 N.B.L.R. (PART I)

Nigerian Banking Law Reports

Loan – Recovery of – Limitation of action – When does time begin to run – How discernible by the court Kolo v. FBN Plc [2002 – 2004] 11 N.B.L.R. (PART I) 80

Merger – Demerger – Definition of Obijiaku v. NDIC [2002 – 2004] 11 N.B.L.R. (PART I) 63 Negligence of banker – Issue of – Whether State High Court has jurisdiction section 251(1)(d) Constitution of the Federal Republic of Nigeria, 1999 Salvado De- Lluch v. Societe Bancaire Nigeria Ltd [2002 – 2004] 11 N.B.L.R. (PART I) 368 Opening of companies account – Who can authorise – Whether proper procedure is followed UBA Plc v. Robertson Eng. Ltd [2002 – 2004] 11 N.B.L.R. (PART I) 180 Overdraft – Demand notice necessary before right of action can arise Oredola Okeya Trad. Co Ltd v. Bank of Credit and Commerce Int. [2002 – 2004] 11 N.B.L.R. (PART I) 437 Person given a mandate to operate an account by a body of persons – Body of persons dissolved – Whether the person can still continue to operate the account UBN Plc v. Ntuk [2002 – 2004] 11 N.B.L.R. (PART I) 548 Signatory to an account – Authority to operate account on behalf of others – Whether mandate thereof entitles sig- natory to commence action in his personal capacity UBN Plc v. Ntuk [2002 – 2004] 11 N.B.L.R. (PART I) 548 Statement of account – Tendering in evidence – Procedure – Whether precise words in section 97(2)(e) of Evi- dence Act Cap 112 Laws of the Federation of Nigeria, 1990 must be used by witness or Judge Aiyetoro Community Trading Co Ltd v. N.A. and Co-op. Bank Ltd [2002 – 2004] 11 N.B.L.R. (PART I) 234 xxviii [2002 – 2004] 11 N.B.L.R. (PART I)

Index of Subject Matter

COMMERCIAL LAW Business letters – Where not replied by receiver – Presump- tion thereof – When can be rebutted Trade Bank Plc v. Chami [2002 – 2004] 11 N.B.L.R. (PART I) 601

COMPANIES Debentures – Charge over assets of company – Effect of – Whether outright alienation of proprietary rights of mortgagor Tempo Mills Ltd v. Abasi [2002 – 2004] 11 N.B.L.R. (PART I) 22 Receiver – Appointed under a debenture as agent of mortgagor – Fiduciary relationship of – Duty to act in utmost good faith Tempo Mills Ltd v. Abasi [2002 – 2004] 11 N.B.L.R. (PART I) 22 Receiver/Manager – Appointment of – Effect on right of Company to deal with assets in receivership Tempo Mills Ltd v. Abasi [2002 – 2004] 11 N.B.L.R. (PART I) 22

COMPANY LAW Sections 417 and 425(1) of Companies and Allied Matters Cap 59 Laws of the Federation of Nigeria, 1990 – Pur- port of – Whether oust the power of the liquidator to file action or being sued NDIC v. Akahall and Sons Co Ltd [2002 – 2004] 11 N.B.L.R. (PART I) 515

CONTRACT Illegality – Defence of – Basis and rationale for – Duty on defendant to plead – Where not pleaded – Effect of – Lawful contract – Whether necessarily affected by another separate illegal contract Onwuchekwa v. NDIC [2002 – 2004] 11 N.B.L.R. (PART I) 38 Privity of contract – Person not a party to a contract – Whether can raise the defence of illegality to defeat the contract Onwuchekwa v. NDIC [2002 – 2004] 11 N.B.L.R. (PART I) 38 xxix [2002 – 2004] 11 N.B.L.R. (PART I)

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DAMAGES Measure of damages in contract and tort – Distinction be- tween – Applicable principles UBA Plc v. Folarin [2002 – 2004] 11 N.B.L.R. (PART I) 118

DISHONOURED CHEQUES OFFENCES Imposition of fine for offence – Improper Nzekwesi v. FRN [2002 – 2004] 11 N.B.L.R. (PART I) 466

EVIDENCE Admissibility – Document showing fluctuating rate of in- terest – How proved Vony Maritime SA v. Green View Shipping Lines Ltd [2002 – 2004] 11 N.B.L.R. (PART I) 573 Admissibility – Entry in a banker’s book – Secondary evidence of – Procedures for tendering in evidence – Section 97(2)(e) of Evidence Act Cap 112 Laws of the Federation of Nigeria, 1990 Aiyetoro Community Trading Co Ltd v. N.A. and Co-op. Bank Ltd [2002 – 2004] 11 N.B.L.R. (PART I) 234 Documentary – How construed FBN Plc v. Excel Plastic Ind. Ltd [2002 – 2004] 11 N.B.L.R. (PART I) 384 Documentary evidence – Attitude of Court Ndaforo v. N.A. and Co-Operative Bank Ltd [2002 – 2004] 11 N.B.L.R. (PART I) 653 Documentary evidence – Computer print-out containing information stored in a computer before commence- ment of action – Whether admissible – Whether quali- fies as document made during pendency of a suit – Section 91(3) of the Evidence Act Cap 112 Laws of the Federation of Nigeria, 1990 considered Trade Bank Plc v. Chami [2002 – 2004] 11 N.B.L.R. (PART I) 601 Documentary evidence – Documents made during pend- ency of proceedings by interested party – Admissibility thereof – Section 91(5) Evidence Act Cap 112 Laws of xxx [2002 – 2004] 11 N.B.L.R. (PART I)

Index of Subject Matter

the Federation of Nigeria, 1990 considered Trade Bank Plc v. Chami [2002 – 2004] 11 N.B.L.R. (PART I) 601 Estoppel per rem judicatam – When does it apply UBA Plc v. Gbadebo [2002 – 2004] 11 N.B.L.R. (PART I) 453 Letter marked without prejudice – Admissibility of Kolo v. FBN Plc [2002 – 2004] 11 N.B.L.R. (PART I) 80

FAILED BANKS Cases in respect of – Jurisdiction of Federal High Court to entertain – Where derived – Section 2(1) and (3) Tribu- nals (Certain Consequential Amendment etc.) Decree No. 62 of 1999 NDIC v. A.B. Expellers Ind. Trading Co Ltd [2002 – 2004] 11 N.B.L.R. (PART I) 7 Commencement of action on behalf of bank under the Failed Banks Decree No. 18 of 1994 by Nigeria De- posit Insurance Corporation – Locus standi of – Bank not a failed bank – Jurisdiction of Court ACB Plc v. Joessyka Bros. Nigeria Ltd [2002 – 2004] 11 N.B.L.R. (PART I) 1 Meaning of – Section 29 Failed Banks Decree No. 18 of 1994 (as amended) ACB Plc v. Joessyka Bros. Nige- ria Ltd [2002 – 2004] 11 N.B.L.R. (PART I) 1

FAILED BANKS TRIBUNAL Judgment or decision of Failed Banks Tribunal – En- forcement of by Federal High Court – Procedure – Section 2(5) Tribunals (Certain Consequential Amendment, etc.) Decree No. 62 of 1999 NDIC v. A.B. Expellers Ind. Trading Co Ltd [2002 – 2004] 11 N.B.L.R. (PART I) 7 Power to levy execution on properties pledged as security – Where derived and how exercised – Sections 13(2) and 15 of the Failed Banks Decree No. 19 of 1994 (as amended) NDIC v. A.B. Expellers Ind. Trading Co Ltd [2002 – 2004] 11 N.B.L.R. (PART I) 7 xxxi [2002 – 2004] 11 N.B.L.R. (PART I)

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Procedure therein – Jurisdiction of – Condition precedent to exercise of – “Debt” – What Constitutes – Section 3(1) Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree No. 18 of 1994 (as amended) NDIC v. Ecobank Nigeria Plc [2002 – 2004] 11 N.B.L.R. (PART I) 170

GARNISHEE Decree nisi or absolute – When it can subsist – Section 109 Sheriffs and Civil Process Act Cap 407 Laws of the Federation of Nigeria, 1990 Jonpal Ltd v. Afribank Nigeria Ltd [2002 – 2004] 11 N.B.L.R. (PART I) 104 Meaning of – Nature of – Liability of guarantor – Scope of Trade Bank Plc v. Chami [2002 – 2004] 11 N.B.L.R. (PART I) 601 Proceedings – Principles applicable Kareem Nigeria Ltd v. The Federal Minister of Finance [2002 – 2004] 11 N.B.L.R. (PART I) 590 Proceedings against State of the Federation – In Federal High Court – Whether maintainable Kareem Nigeria Ltd v. The Federal Minister of Finance [2002 – 2004] 11 N.B.L.R. (PART I) 590 When consent of Attorney-General to be sought – Section 84 Sheriff and Civil Process Act Cap 407 Laws of the Federation of Nigeria, 1990 Kareem Nigeria Ltd v. The Federal Minister of Finance [2002 – 2004] 11 N.B.L.R. (PART I) 590

ILLEGALITY Fraud – Court not to aid UBA Plc v. Abdullahi [2002 – 2004] 11 N.B.L.R. (PART I) 263

JUDGE Relying in his judgment on point of want of jurisdiction or competence of plaintiff to bring an action – How judge xxxii [2002 – 2004] 11 N.B.L.R. (PART I)

Index of Subject Matter

to proceed Savannah Bank Nigeria Plc v. Biode Pharm. Ind. Ltd [2002 – 2004] 11 N.B.L.R. (PART I) 423

JUDGMENT AND ORDERS Interlocutory – Judgment on admission – Judge later dis- covering that the ruling on admission was incorrect – Whether can revisit the order – Whether such inter- locutory judgment can ground estoppel per rem judi- catam UBA Plc v. Gbadebo [2002 – 2004] 11 N.B.L.R. (PART I) 453 Judgment or decision of Failed Banks Tribunal – En- forcement of by Federal High Court – Procedure – Section 2(5) of the Tribunals (Certain Consequential Amendment, etc.) Decree No. 62 of 1999 NDIC v. A.B. Expellers Ind. Trading Co Ltd [2002 – 2004] 11 N.B.L.R. (PART I) 7

JURISDICTION Banker/customer relationship – Whether within jurisdic- tion of State High Court – Section 230(1)(d) Decree No. 107 of 1993 Oku v. Banigo [2002 – 2004] 11 N.B.L.R. (PART I) 279 Federal High Court – Action by bank which is not a failed bank under the Failed Banks Decree No. 18 of 1994 (as amended) – Competence of ACB Plc v. Joessyka Bros. Nigeria Ltd [2002 – 2004] 11 N.B.L.R. (PART I) 1 Federal High Court – Entertaining Failed Bank cases – Where jurisdiction derived – Section 2(1) and (3) of the Tribunals (Certain Consequential Amendments, etc.) Decree No. 62 of 1999 NDIC v. A.B. Expellers Ind. Trading Co Ltd [2002 – 2004] 11 N.B.L.R. (PART I) 7 Issue of – Very fundamental – What Court to do Salvado De-Lluch v. Societe Bancaire Nigeria Ltd [2002 – 2004] 11 N.B.L.R. (PART I) 368 xxxiii [2002 – 2004] 11 N.B.L.R. (PART I)

Nigerian Banking Law Reports

Negligence of banker – Issue of – Whether State High Court has Jurisdiction – Section 251(1)(d) Constitu- tion of the Federal Republic of Nigeria, 1999 Salvado De-Lluch v. Societe Bancaire Nigeria Ltd 368 Of Court – Federal High Court – Garnishee proceedings against State Government whether court can enforce Kareem Nigeria Ltd v. The Federal Minister of Fi- nance [2002 – 2004] 11 N.B.L.R. (PART I) 590 LAND USE ACT Section 22 – Import of Oredola Okeya Trad. Co Ltd v. Bank of Credit and Commerce Int. [2002 – 2004] 11 N.B.L.R. (PART I) 437 LIMITATION OF ACTION Recovery of loan – When does time start to run Kolo v. FBN Plc [2002 – 2004] 11 N.B.L.R. (PART I) 80 Whether accrued right can be suspended UBA Plc v. Ab- dullahi [2002 – 2004] 11 N.B.L.R. (PART I) 263 MORTGAGE Charge over assets of borrower as security – Whether out- right alienation of proprietary rights of mortgagor Tempo Mills Ltd v. Abasi [2002 – 2004] 11 N.B.L.R. (PART I) 22 Deed of legal mortgage – Action to void deed of mort- gage – Limitation period thereof – How determined – Whether an accrued right can be suspended – Section 4 of Limitation Law of , 1991 consid- ered UBA Plc v. Abdullahi [2002 – 2004] 11 N.B.L.R. (PART I) 263 Effect of – Power of Mortgagee Oredola Okeya Trad. Co Ltd v. Bank of Credit and Commerce Int. [2002 – 2004] 11 N.B.L.R. (PART I) 437

xxxiv [2002 – 2004] 11 N.B.L.R. (PART I)

Index of Subject Matter

Mortgagee without notice of fraud – Entitled to realise its money Oti v. Oti [2002 – 2004] 11 N.B.L.R. (PART I) 53 Nature of Songhai Ltd v. UBA [2002 – 2004] 11 N.B.L.R. (PART I) 333 Power of sale – Amount owed in dispute – Foreclosure not affected because amount owed under the mortgage agreement in dispute – Principles governing All States Trust Bank v. Nsofor [2002 – 2004] 11 N.B.L.R. (PART I) 481 Power of sale – Defect in sale – Whether affects buyer Songhai Ltd v. UBA [2002 – 2004] 11 N.B.L.R. (PART I) 333 Power of sale – Duty of mortgagee to deal with honestly and in good faith – Mortgagee’s power of sale – Remedy of mortgagor where mortgagee’s power of sale improperly exercised Tempo Mills Ltd v. Abasi [2002 – 2004] 11 N.B.L.R. (PART I) 22 Power of sale – Exercise of – For mortgagee’s benefit All States Trust Bank v. Nsofor [2002 – 2004] 11 N.B.L.R. (PART I) 481 Power of sale – Mortgagor alleging abuse of power con- ferred by the mortgage – What to show Songhai Ltd v. UBA [2002 – 2004] 11 N.B.L.R. (PART I) 333 Power of sale – When exercisable Ndaforo v. N.A. and Co-Operative Bank Ltd [2002 – 2004] 11 N.B.L.R. (PART I) 653 Power of sale – When mortgagee would be restrained All States Trust Bank v. Nsofor [2002 – 2004] 11 N.B.L.R. (PART I) 481 Sale of mortgaged property – Lis pendens – What mort- gagor must prove to defeat a valid sale Akpan v. UBN Plc [2002 – 2004] 11 N.B.L.R. (PART I) 208

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Sale of property – Principle applicable Ndaforo v. N.A. and Co-Operative Bank Ltd [2002 – 2004] 11 N.B.L.R. (PART I) 653

NEGLIGENCE Proof of UBA Plc v. Robertson Eng. Ltd [2002 – 2004] 11 N.B.L.R. (PART I) 180

PRACTICE AND PROCEDURE Action – Commencement thereof – Application for writ of summons and issuance of writ of summons – Dis- tinction thereof NDIC v. Akahall and Sons Co Ltd [2002 – 2004] 11 N.B.L.R. (PART I) 515 Action by an unincorporated association – How com- menced – Duty on party to indicate the capacity in which he sues UBN Plc v. Ntuk [2002 – 2004] 11 N.B.L.R. (PART I) 548 Exhibit – Release of by court – Order 33 Rule 21(1) and (2) of High Court of Lagos State (Civil Procedure) Rules, 1994 UBA Plc v. Gbadebo [2002 – 2004] 11 N.B.L.R. (PART I) 453 Judge relying in his judgment on point of want of juris- diction or competence of plaintiff to bring an action – How judge to proceed Savannah Bank Nigeria Plc v. Biode Pharm. Ind. Ltd [2002 – 2004] 11 N.B.L.R. (PART I) 423 Limitation of action – Cause of action – When does it arise – How discernible by the court Kolo v. FBN Plc [2002 – 2004] 11 N.B.L.R. (PART I) 80 Lis pendens – Attitude of court Akpan v. UBN Plc [2002 – 2004] 11 N.B.L.R. (PART I) 208 Locus standi – Meaning of – How determined Tempo Mills Ltd v. Abasi [2002 – 2004] 11 N.B.L.R. (PART I) 22 Pleadings – Amendment – Writ of summons and statement of claim – Where introduces statute barred claim – xxxvi [2002 – 2004] 11 N.B.L.R. (PART I)

Index of Subject Matter

Court not to allow UBA Plc v. Abdullahi [2002 – 2004] 11 N.B.L.R. (PART I) 263 Pleadings – Negligence – How pleaded – How proved – Order 17 Rule 5 High Court of Lagos State (Civil Procedure) Rules, 1994 Diamond Bank Ltd v. Part- nership Investment Co Ltd [2002 – 2004] 11 N.B.L.R. (PART I) 499 Res – Preservation thereof – Duty of court thereto Savan- nah Bank of Nigeria v. NDIC [2002 – 2004] 11 N.B.L.R. (PART I) 577

RECEIVER Instituting proceeding in his own name – Action incom- petent – Defect not curable by Order 2 Rule 2(2) Fed- eral High Court (Civil Procedure) Rules, 2000 Sa- vannah Bank Nigeria Plc v. Biode Pharm. Ind. Ltd [2002 – 2004] 11 N.B.L.R. (PART I) 423

WORDS AND PHRASES “Interest”, “Debt” in section 3(1) section 3(1) Failed Banks (Recovery of Debts) and Financial Malprac- tices in Banks Decree No. 18 of 1994 (as amended) – Meaning of NDIC v. Ecobank Nigeria Plc [2002 – 2004] 11 N.B.L.R. (PART I) 170 Failed Bank – Meaning of – Section 29 Failed Banks De- cree No. 18 of 1994 (as amended) ACB Plc v. Joessyka Bros. Nigeria Ltd [2002 – 2004] 11 N.B.L.R. (PART I) 1 Garnishee – Definition of Kareem Nigeria Ltd v. The Federal Minister of Finance[2002 – 2004] 11 N.B.L.R. (PART I) 590 Lis pendens Akpan v. UBN Plc [2002 – 2004] 11 N.B.L.R. (PART I) 208 Merger – De-merger Obijiaku v. NDIC [2002 – 2004] 11 N.B.L.R. (PART I) 63

xxxvii

INDEX OF NIGERIAN CASES REFERRED TO A Abacha v Fawehinmi (2000) 6 NWLR (Part 660) 228 118 Abakaliki L.G.C. v Abakaliki R.M.O. (1990) 6 NWLR (Part 155) 182 548 Abaye v Ofili (1986) 1 NWLR (Part 15) 134 653 Abbas v Commissioner of Police (1998) 12 NWLR (Part 577) 308 515 Abdullahi v Elayo (1993) 1 NWLR (Part 268) 171 499 Abiodun v Adehin (1962) 2 SCNLR 305 601 Abisi v Ekwealor (1993) 6 NWLR (Part 302) 643 208, 653 Abusomwan v Mercantile Bank (Nigeria) Ltd (1987) 3 NWLR (Part 60) 196 208 ACB Ltd v Henshaw (1990) 1 NWLR (Part 129) 646 104 ACB Ltd v Oba (1993) 7 NWLR (Part 304) 173 234 ACB Ltd v Yesufu (1976) 1 All NLR 328 234 ACB Plc v Emostrade Ltd (1998) 2 NWLR (Part 536) 19 180 ACB Plc v Haston (Nigeria) Ltd (1997) 8 NWLR (Part 515) 110 118, 234 Acme Builders Ltd v KSWB (1999) 2 NWLR (Part 590) 288 548, 601 Adamu v Ikharo (1988) 4 NWLR (Part 89) 474 515 Adehi v Atega (1995) 5 NWLR (Part 398) 656 143 Adejumo v Ayantegbe (1989) 3 NWLR (Part 110) 417 118, 208, 515 Adejuwon v Cooperative Bank Ltd (1992) 3 NWLR (Part 228) 251 63 Adelaja v Fanoiki (1990) 2 NWLR (Part 131) 137 601 Adenibi v Laojo (1998) 4 NWLR (Part 544) 168 143 xxxix [2002 – 2004] 11 N.B.L.R. (PART I)

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Aderemi v Adedire (1966) NMLR 398 601 Aderounmu v Olowu (2000) 4 NWLR (Part 652) 253 208 Adesanoye v Akinwale (1997) 3 NWLR (Part 496) 664 548 Adesanya v President of Nigeria (1981) 2 NCLR 358 548 Adesokan v Adetunji (1994) 5 NWLR (Part 346) 540 548 Adewuyi v Odukwe (2000) 4 NWLR (Part 654) 616 234 Adigun v Attorney-General of (1987) 18 NSCC (Part 1) 346 515 Adimora v Ajufo (1988) 3 NWLR (Part 80) 1 80, 234, 263 Adonri v Ojo-Osagie (1994) 6 SCNJ (Part 11) 192 653 Aduke v Aiyelabola (1942) 8 WACA 43 601 Afolabi v Adekunle (1983) 2 SCNLR 141 548 Afolayan v Ogunrinde (1990) 1 NWLR (Part 127) 369 263 Aforka v ACB (Nigeria) Ltd (1994) 3 NWLR (Part 331) 217 143 Aganran v Olushi (1907) 1 NLR 66 118 Agba v Okogbue (1991) 3 NWLR (Part 204) 391 208 Agbaje v Adigun (1993) 1 NWLR (Part 269) 261 384 Agbaje v Ibru Sea Food Ltd (1972) 2 SC 50 189 Agbaje v National Motors Ltd (1971) 1 UILR 119 118 Agbaka v Amadi (1998) 11 NWLR (Part 572) 16 515 Agbanelo v UBN Ltd (2000) 7 NWLR (Part 666) 534 118 Agbetoba v Lagos State Executive Council (1991) 4 NWLR (Part 188) 664 263 Agbonifo v Aiwereoba (1988) 1 NWLR (Part 70) 325 653

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Index of Nigerian Cases referred to

Agih v Ejimkonye and Bros. Ltd (1992) 3 NWLR (Part 228) 200 653 Agro Millers Ltd v CMB (1997) 10 NWLR (Part 525) 469 189 Agu v Nnadi (2002) 18 NWLR (Part 798) 103 601 Agundo v Gberbo (1999) 9 NWLR (Part 617) 71 208 Agunwa v Onukwue (1962) 2 SCNLR 275 118 Agwuna v Attorney-General of Federation (1995) 5 NWLR (Part 396) 418 368 Agwunedu v Onwumanse (1994) 1 NWLR (Part 321) 375 290, 653 Agwuneme v Eze (1990) 3 NWLR (Part 137) 242 290 Aina v UBA Plc (1997) 4 NWLR (Part 498) 181 601 Aja v Okoro (1991) 7 NWLR (Part 203) 260 601 Ajayi v Fisher (1956) 1 FSC 90; (1956) 1 SCNLR 279 384, 601 Ajero v Ugorji (1999) 10 NWLR (Part 621) 333 Ajomale v Yaduat (No. 2) (1991) 5 NWLR (Part 191) 266 80 Ajuwon v Akanni (1993) 1 NWLR (Part 316) 182 118, 208 Akanbi v Alatede (2000) 1 NWLR (Part 639) 125 80 Akapo v Hakeem-Habeeb (1992) 6 NWLR (Part 247) 266 481 Akinbobola v Plison Fisco (Nigeria) Ltd (1991) 1 NWLR (Part 167) 270 515 Akinloye v Eyiyola (1968) NMLR 92 653 Akinola v Faseun and 2 others (1973) All NLR (Reprint) 146 SC 290 Akinola v Olowu (1962) 1 SCNLR 352; (1962) 1 All NLR 224 601, 653 Akpabuyo L.G. v Duke (2001) 7 NWLR (Part 713) 557 548 Akpan v Otong (1996) 10 NWLR (Part 476) 108 466

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Alade v Olukade (1976) 1 ANLR (Part 1) 67 384 Alakija v Abdulai (1998) 6 NWLR (Part 552) 1 208 Alawode v Semoh (1959) 4 FSC 27 515 Alegbe v Abimbola (1978) 2 SC 93 208 Alfotrin Ltd (The owners of MV Fotiri) v At- torney-General of the Federation (1996) 12 SCNJ 236; (1996) 9 NWLR (Part 475) 634 384, 653 Allied Bank (Nigeria) Ltd v Akubueze (1997) 6 NWLR (Part 509) 375 63 Amadi v Nwosu (1992) 5 NWLR (Part 241) 273 653 Amadi v Okoli (1977) 7 SC 57 208 American Cyanamid Co Ltd v Vitality Pharm. Ltd (1991) 2 NWLR (Part 171) 15 118 Amokomowo v Andu (1985) 1 NWLR (Part 3) 530; (1985) 5 SC 28 423, 601, 653 Anadi v Okoli (1977) 7 SC 57 143 Angyu v Malami (1992) 9 NWLR (Part 264) 242 80 Anuforo v Obilor (1997) 11 NWLR (Part 530) 661 601 Anukanti v Ekwonyeaso (1978) 1 SC 37 234 Anyaduba v NRTC Ltd (1992) 5 NWLR (Part 243) 535 601 Anyaebosi v R.T. Briscoe (1987) 6 SCNJ 9 384 Anyaoke v Adi (1986) 3 NWLR (Part 31) 731 208, 234 Anyeabosi v Ughede (1976) 9–10 SC 179 601 Are v Adisa (1967) NMLR 304 601 Ariori v Elemo (1983) 1 FNR 20 63 Aromire v Awoyemi (1972) 2 SC 1; (1972) 1 All NLR 101 601, 653 Arowolo v Fabuyi (2002) 4 NWLR (Part 757) 356 333 Artra Industries (Nigeria) Ltd v NBCI (1998) 4 NWLR (Part 546) 357 118 Ashibuogwu v Attorney-General of Bendel State (1988) 1 NWLR (Part 69) 138 80 Asiemo v Amos (1975) 2 SC 57 601 Atane v Amu (1974) 10 SC 237 601

xlii [2002 – 2004] 11 N.B.L.R. (PART I)

Index of Nigerian Cases referred to

Atolagbe v Shorun (1985) 1 NWLR (Part 2) 360 234, 653 Attorney-General of Lagos State v Dosunmu (1989) 3 NWLR (Part 111) 552 368, 515 Attorney-General of Oyo State v Fairlakes Hotel Ltd (1988) 5 NWLR (Part 92) 1 63, 515 Attorney-General of Oyo State v Fairlakes Hotel Ltd (No. 2) (1989) 5 NWLR (Part 121) 255 118, 384, 601 Atoyebi v Governor of Oyo State (1994) 5 NWLR (Part 344) 290; (1994) 5 SCNJ 62 63, 515, 601 Attahiru v Bagudu (1998) 3 NWLR (Part 543) 656 104 Aubergine Collections Ltd v Habib Nigeria Bank Ltd (2002) FWLR (Part 128) 1276; (2002) 4 NWLR (Part 757) 338 515 Awojugbagbe Light Industries Ltd v Chinukwe (1995) 4 NWLR (Part 390) 379 437 Ayanlere v FMB Nigeria Ltd (1998) 11 NWLR (Part 575) 621 653 Ayinde v Abiodun (1999) 8 NWLR (Part 616) 587 208 Ayoola v Adebayo (1969) 1 All NLR 159 80 Azumi v Pan African Bank Ltd (1996) 8 NWLR (Part 467) 462 515 B BAC Enterprises Ltd v Car Ploetner (Nigeria) Ltd Suit No. FCA/K140/83 of 15/3/84 (Un- reported) 189 Badejo v Federal Ministry of Education (1996) 8 NWLR (Part 464) 15 263 Balewa v Muazu (1999) 7 NWLR (Part 609) 124 104 Balogun v Agboola (1974) 10 SC 111 384 Balogun v Labiran (1988) 6 SCNJ 71 333 Balogun v National Bank (Nigeria) Ltd (1978) 3 SC 155 118

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Bamgboye v Olarewaju (1991) 4 NWLR (Part 184) 132 234 Bamgboye v Olusoga (1996) 4 NWLR (Part 444) 520 208 Bank of the North v Aliyu (1999) 7 NWLR (Part 612) 622 333 Bank of the North v Ichrisu (2000) 3 NWLR (Part 649) 373 143 Bank of W.A. Ltd Sapele v Nwakuba (1967– 68) MSNLR 116 290, 653 Barclays Bank (Nigeria) Ltd v Ashiru (1978) 6–7 SC 99 208 Barclays Bank Ltd v Abubakar (1977) All NLR 278; (1977) 10 SC 13 143, 653 Barclays Bank of Nigeria v Abubakar (1971) 10 SC 13 290 Bello v Alao (1989) 3 NWLR (Part 118) 333 Bello v Attorney-General of Oyo State (1986) 5 NWLR (Part 45) 828; (1986) 17 NSCC (Part 11) 1257 263, 515 Bello v Eweka (1981) 1 SC 101 333, 423, 601 Bello v Fayose (1999) 11 NWLR (Part 627) 510 80 Ben Thomas Hotel v Sebi Furniture Co Ltd (1989) 5 NWLR (Part 123) 523 515 Bi Zee Bee Hotels Ltd v Allied Bank Nigeria Ltd (1996) 8 NWLR (Part 465) 176 279 Bolaji v Bamgbose (1986) 4 NWLR (Part 37) 632 515 Braimoh v Abasi (1998) 13 NWLR (Part 581) 167 601 Broadline Ent. Ltd v Monetary Maritime Cor- poration (1995) 9 NWLR (Part 417) 1 499 Bronik Motors Ltd v Wema Bank (1983) 1 SCNLR 296 368 Bucknor Maclean v Inlak Ltd (1980) 7–11 SC 1 653 Buraimoh v Adeniyi (1990) 4 SCNJ 1 333 xliv [2002 – 2004] 11 N.B.L.R. (PART I)

Index of Nigerian Cases referred to

Buraimoh v Esa (1990) 2 NWLR (Part 133) 406 499 C Cardoso v Executors of Doherty (1938) 4 WACA 78 601 Caribben Trading and Fidelity Corporation v NNPC (1991) 6 NWLR (Part 197) 352 208 Carlen (Nigeria) Ltd v Unijos (1994) 1 NWLR (Part 323) 653 384 CBN v Ahmed (2001) 11 NWLR (Part 724) 369 577 CCB (Nigeria) Plc v Mbakwe (2002) FWLR (Part 109) 1678; (2002) 3 NWLR (Part 755) 522 515 CCB (Nigeria) Plc v Onwuchekwa (2002) 3 NWLR (Part 647) 64 515 Chiekweilo v Nwali (1998) 8 NWLR (Part 560) 114 548 Chigbu v Tonimas (Nigeria) Ltd (1993) 3 NWLR (Part 593) 115 384 Chime v Ude (1993) 3 NWLR (Part 279) 78 601 Chinwendu v Mbamali (1980) 3–4 SC 31 234 Chrisdon Industrial Co. Ltd v African Interna- tional Bank Ltd (2002) FWLR (Part 128) 1355; (2002) 8 NWLR (Part 768) 152; (2002) 36 WRN 52 515 Chukwu v Nitel (1996) 2 NWLR (Part 430) 290 466 Ciroma v Ali (1999) 2 NWLR (Part 590) 317 601 Clay Industries (Nigeria) Ltd v Aina (1997) 8 NWLR (Part 516) 208 208 Commissioner for Local Government v Ezemokwe (1991) 3 NWLR (Part 181) 615 515 Co-operative and Commerce Bank (Nigeria) Plc v Samed Investment Co Ltd (2000) 4 NWLR (Part 651) 19 515

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D Da Rocha v Hussain (1958) 3 FSC 89; (1958) SCNLR 280 653 Damina v State (1995) 8 NWLR (Part 204) 513 208 Dibiamaka v Osakwe (1989) 3 NWLR (Part 152) 107 601 Doma v Ogiri (1998) 3 NWLR (Part 541) 246 653 Dukur v Dapal (1998) 10 NWLR (Part 571) 573 653 Duriminiya v C.O.P. (1961) NNLR 70 234 Duru v Nwosu (1989) 4 NWLR (Part 113) 24 601 E Ebba v Ogodo (1984) 1 SCNLR 372 208, 466, 601, 653 Eboh v Ogbu (1994) 5 NWLR (Part 347) 703 548 Eboigbe v NNPC (1994) 5 NWLR (Part 347) 649 263 Eboni Finance and Securities Ltd v Wale Ojo Tech. Services (1996) 7 NWLR (Part 461) 464 601 Egbase v Oriaregham (1985) 10 SC 80; (1985) 2 NWLR (Part 10) 884; (1986) NLTR 156 653 Egbe v Adefarasin (1985) 1 NWLR (Part 3) 549 263 Egbe v Adefarasin (No. 2) (1987) 1 NWLR (Part 47) 1 80, 263 Egbe v Alhaji (1990) 1 NWLR (Part 128) 546 601 Egbue v Araka (1996) 2 NWLR (Part 433) 688 312 Egbuna v Egbuna (1989) 2 NWLR (Part 106) 773 208 Egeonu v Egeonu (1978) 11–12 SC 111 653 Egonu v Egonu (1978) 11–12 SC 111 180 Enang v Adu (1981) 11–12 SC 25 653 Ejifodomi v Okonkwo (1982) 11 SC 74 515 Eke v Eluwa (2000) 14 NWLR (Part 688) 560 104 xlvi [2002 – 2004] 11 N.B.L.R. (PART I)

Index of Nigerian Cases referred to

Ekerebe v Efeizomor 11 (1993) 7 NWLR (Part 307) 588 601 Ekwunife v Wayne (West Africa) Ltd (1989) 5 NWLR (Part 122) 422; (1989) 12 SCNJ 99 499, 653 Elias v Omo Bare (1982) 5 SC 25 208, 234 Emaphil Ltd v Odili (1987) 4 NWLR (Part 67) 915 601 Emiator v Nigerian Army (1999) 12 NWLR (Part 631) 362 80 Enang v Adu (1981) 11–12 SC 25 234, 653 Esika v Medolu (1997) 2 NWLR (Part 485) 54 333 Esso West Africa Inc. v Oyegbola (1969) NMLR 194 601 Ezegbu v FATB (1992) 7 NWLR (Part 251) 89 577 Ezeoke v Nwagbo (1988) 1 NWLR (Part 72) 616 601 Ezeonwu v Onyechi (1986) 3 NWLR (Part 438) 499 384 F Fadare v Attorney-General of Oyo State (1982) 4 SC 1 80, 515 Famuroti v Agbeke (1991) 5 NWLR (Part 189) 1 653 Fashanu v Adekoya (1974) 1 All NLR (Part 1) 35 208, 234 Fasoro v Beyioku (1988) 2 NWLR (Part 76) 263 515 Fawehinmi v NBA (No. 2) (1989) 2 NWLR (Part 105) 558 80, 548 FBN v Fashar (2000) 6 NWLR (Part 662) 573 22 Federal Mortgage Bank of Nigeria v NDIC (1999) (Part 591) 333 515 Federal Mortgage Bank of Nigeria v Nigeria Deposit Insurance Corporation (Liquidators of United Commercial Bank Limited) in Liquidation (1999) SC (Part 3) 412 279 Finnih v Imade (1992) 1 NWLR (Part 219) 511 234

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First Bank of Nigeria Ltd v Njoku (1995) 3 NWLR (Part 384) 472 143 FMG v Sani (1990) 4 NWLR (Part 147) 688 189 Folami v Cole (1990) 2 NWLR (Part 133) 455 653 Franchal Nigeria Ltd v Nigeria Arab Bank Limited (1995) 8 NWLR (Part 412) 176 189 G G.O.C. v Adio (1995) 2 NWLR (Part 379) 570 80 Gambari v Gambari (1990) 5 NWLR (Part 152) 572 104 Garba v Federal Civil Service Commission (1988) 1 NWLR (Part 71) 449 515 Gbadamosi v Kabo Travels Ltd (2000) 8 NWLR (Part 668) 243 384 Gbegu v Gbegu (1996) 6 SCNJ 167 208 George v Dominion Flour Mills Ltd (1963) 1 All NLR 71 601 Geosource Nigeria Ltd v Birdgbora (1997) 5 NWLR (Part 506) 607 143 Giwa-Amu v Guardian Newspapers Ltd (1999) 8 NWLR (Part 616) 568 143 Globe Fishing Industries Ltd v Coker (1990) 7 NWLR (Part 162) 265 189 Gomwalk v Okwuosa (1996) 3 NWLR (Part 439) 681 577 Green v Green (1987) 3 NWLR (Part 61) 480 601 Guda v Kaita (1999) 12 NWLR (Part 629) 21 22 Gurara Security and Finance Ltd v T.I.C. Ltd (1999) 2 NWLR (Part 589) 29 601 H Hausa v EBN (2000) 9 NWLR (Part 671) 64 143 Highgrade Maritime Services Ltd v First Bank Ltd (1991) 1 NSCC 119; (1991) 1 NWLR (Part 167) 290 384 Himma Merchants Ltd v Aliyu (1994) 5 NWLR (Part 347) 667 384 Honika Sawmill (Nigeria) Ltd v Hoff (1994) 2 NWLR (Part 326) 252; (1994) 2 SCNJ 86 63, 515, 601 xlviii [2002 – 2004] 11 N.B.L.R. (PART I)

Index of Nigerian Cases referred to

Hydroworks Ltd v Rimi L.G. (2002) 1 NWLR (Part 749) 564 601 I Ibanga v Usanga (1982) 5 SC 103 653 Ibrahim v JSC (1998) 14 NWLR (Part 584) 1 601 Ibrahim v Osim (1987) 4 NWLR (Part 67) 965 80 Igwe v Kalu (1990) 5 NWLR (Part 149) 155; (1993) 4 NWLR (Part 285) 1 104, 601 Ihekwoaba v ACB Ltd (1998) 10 NWLR (Part 571) 590 653 Ikabala v Ojosipe (1988) 4 NWLR (Part 86) 119 189 Ike v Ugbaja (1993) 6 NWLR (Part 301) 539 653 Ikeanyi v ACB Ltd (1991) 7 NWLR (Part 205) 626 208 Ikpeazu v ACB Ltd (1965) NMLR 374 118 Ilesa Local Planning Authority v Olayide (1994) 5 NWLR (Part 342) 91 118 Imana v Robinson (1979) 3–4 SC 1 208, 234, 333, 437, 601 Incar Nigeria Ltd v Adegboye (1985) 2 NWLR (Part 8) 453 653 In Re: Benson (2003) 1 NWLR (Part 802) 570 601 In Re: Diamond Bank Ltd (2002) 17 NWLR (Part 795) 120, 134 590 Intercontractors Nigeria Ltd v UAC of Nige- ria Ltd (1988) 1 NSCC (Vol. 19) 739 22 Invienagbor v Bazuaye (1999) 6 SCNJ 235 653 IOM Nwonye and Sons Ltd v CCB Plc (1993) 8 NWLR (Part 310) 210 13 Iriri v Erhurhobara (1991) 2 NWLR (Part 173) 252 118 Ishola v SGBN Ltd (1997) 2 NWLR (Part 488) 80, 437, 405 601, 653 Isichei v Allagoa (1998) 12 NWLR (Part 577) 196 548 Ivienagbor v Bazuaye (1999) 9 NWLR (Part 620) 552 208

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Iwuoha v Okoroike (1996) 2 NWLR (Part 429) 231 601 Iyizoba v Olanipekun (1979) 2 FNR 130 515 J Jack v Whyte (2001) 6 NWLR (Part 709) 266 208 Jammal Engineering (Nigeria) Ltd v Wrought Iron (1970) NCLR 295 118 Jammal Steel Structures v ACB (1973) 1 All NLR (Part 2) 208 368 John Holt and Company (Liverpool) Ltd v Fa- jemirokun (1961) 1 All NLR 492; (1961) 1 All NLR 427 189, 290 Johnson v State (1981) 2 SC 29 515 Joy v Dom (1999) 9 NWLR (Part 620) 538; (2001) FWLR (Part 62) 2026 515 K Kadpingi v Odu (1936) 2 WACA 337 333 Kaiyaoja v Egunla (1974) 2 SC 55 601 Kalu v State (1998) 12 SCNJ 1 515 Kate Enterprises Ltd v Daewoo (Nigeria) Ltd (1985) 2 NWLR (Part 5) 116 601 Katsina L.A. v Makudawa (1971) 1 NMLR 200 601 Kigo (Nigeria) Ltd v Holman Bros. (Nigeria) Ltd (1980) 5–7 SC 60 577 Kodilinye v Odu 2 WACA 336 653 Koiki v Magnusson (1999) 5 SCNJ 296 653 Koya v United Bank for Africa (Nigeria) Ltd (1997) 1 NWLR (Part 481) 251; (1997) 1 SCNJ 1 63, 118, 499 Kuti v Jibowu (1972) 6 SC 147 234 Kwajaffa v BON Ltd (1999) 1 NWLR (Part 587) 423 573 L L.P.D.C. v Fawehinmi (1985) 2 NWLR (Part 7) 300 263 l [2002 – 2004] 11 N.B.L.R. (PART I)

Index of Nigerian Cases referred to

L.S.D.P.C. v N.L. and S.F Ltd (1992) 5 NWLR (Part 244) 653 118 Labaran v Okoye (1995) 4 NWLR (Part 389) 303 368 Lagricom Co Ltd v UBN Ltd (1996) 4 NWLR (Part 441) 185 118 Lawal v Dawodu (1972) 8–9 SC 83 384 Lawal v UBN (1995) 2 NWLR (Part 378) 407 601 Lekwot v Judicial Tribunal (1997) 8 NWLR (Part 515) 22 208 Lemonu v Lawson (1977) 2 SC 89 601 Lewis v Bankole (1908) 1 NLR 81 118 Lijadu v Lijadu (1991) 1 NWLR (Part 169) 627 80 Liman v Mohammed (1999) 9 NWLR (Part 17) 116 170 Lion Buildings Ltd v Shodipe (1976) Vol. 2 FNLR (Part 282); (1976) 12 SC 15 208 M Macaulay v NAL Merchant Bank Ltd (1990) 21 NSCC (Part 2) 433 290 Madukolu v Nkemdilim (1962) 1 All NLR 587; (1962) 2 SCNLR 341 368, 515 Mark v Eke (1997) 11 NWLR (Part 529) 501 601 MCC Ltd v Azubuike (1990) 3 NWLR (Part 136) 74 601 Metalimpex v A.G. Leventis and Co Ltd (1976) 2 SC 91 601 Misr (Nigeria) Ltd v Ibrahim (1975) 5 SC 55 653 Missini v Balogun (1968) 1 All NLR 318 481 Mobil Producing Nigeria Unlimited v LASEPA (2002) 18 NWLR (Part 798) 1 601 Mogaji v Odofin (1978) 4 SC 91 234, 601, 653 Momoh v Olotu (1970) 1 All NLR 117 548 Mora v Nwalusi (1962) 1 All NLR 681 80 Muobike v Nwigwe (2000) 1 NWLR (Part 642) 620 189

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Musa v Ehidiamhen (1994) 3 NWLR (Part 334) 544 423 Musa v Yerima (1997) NWLR (Part 511) 27 653 N NAA v Orjiakor (1998) 6 NWLR (Part 553) 265 53 Narumal and Sons Nigeria Ltd v Niger Benue Transport Co Ltd (1989) 2 NWLR (Part 106) 730 653 National Bank of Nigeria Ltd v Shoyoye (1977) 5 SC 181 515 National Bank of Nigeria Ltd v Standard Con- solidated Dredging Construction Co Ltd (1999) 5 NWLR (Part 548) 144 333 National University Commission v Oluwo (2001) 3 NWLR (Part 699) 90 515 NBC Plc v Borgundu (1999) 2 NWLR (Part 591) 408 601 NBCI v Alfijir Mining (Nigeria) Ltd (1993) 4 NWLR (Part 287) 346 22 NBTC Ltd v Narumal Ltd (1986) 4 NWLR (Part 33) 117 653 NDIC v FMB (1997) 2 NWLR (Part 490) 735 423 Necha v INEC (2001) 3 NWLR (Part 699) 74 515 NEPA v Akpata (1991) 2 NWLR (Part 175) 536 118 Nfor v Ashaka Cement Co Ltd (1994) 1 NWLR (Part 319) 222 263 Nicholls v General Manager Nigerian Rail- way (1938) 14 NLR 87 515 NIDB v De Easy Life Electronic (1999) 4 NWLR (Part 597) 8 653 Niger Construction Limited v Ogungbemi (1987) 11–12 SCNJ 133 333 Nigeria General Ins. v Bello (1994) 1 NWLR (Part 319) 207 104 Nigeria Housing Dev Society Ltd v Mumuni (1979) NSCC (Vol 11) 65 481 lii [2002 – 2004] 11 N.B.L.R. (PART I)

Index of Nigerian Cases referred to

Nigeria Ports Plc v Ntiero (1998) 6 NWLR (Part 555) 640 515 Nigerian Advertising Services Ltd v UBA Plc (1999) 8 NWLR (Part 616) 546 22 Nigerian Housing Development v Mumuni (1977) 2 SC 57 653 Nigerian Maritime Services Ltd v Afolabi (1978) 2 SC 79 499 Nigerian Merchant Bank Plc v Aiyedun In- vestment Ltd (1998) 2 NWLR (Part 537) 221 170 NIPC v Thompson Organisation (1969) 1 All NLR 138 601 Nisbizawa Ltd v Jethwani (1984) 12 SC 234 290 NITEL Plc v Rockonoh Prop. Co Ltd (1995) 2 NWLR (Part 378) 473 601 Nnajiofor v Ukonu (1986) 4 NWLR (Part 36) 505 601 Nneji v Chukwu (1996) 10 NWLR (Part 478) 265 466 Nnorodim v Ezeani (2001) 5 NWLR (Part 706) 203 653 Noibi v Fikolati (1987) 1 NWLR (Part 52) 619 104 Nsirim v Nsirim (1990) 3 NWLR (Part 138) 285 143 Nta v Anigbo (1972) 1 All NLR (Part 2) 74 208 Nteogwuije v Ikuru (1998) 10 NWLR (Part 569) 267 208 Nwabuoku v Ottih (1961) 2 SCNLR 232 601 Nwadike v Ibekwe (1987) 4 NWLR (Part 67) 718 143, 208 Nwakanma v Iko Local Government of (1996) 3 NWLR (Part 439) 732 104 Nwankwo v EDCS (2002) 1 NWLR (Part 749) 513 601 Nwobodo v Onoh (1984) 2 SCNLR 1 63 Nwosu v Udeaja (1990) 1 NWLR (Part 125) 185 104

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Nwoye v UBN Plc (1993) 8 NWLR (Part 310) 210 143 Nzekwu v Nzekwu (1989) 2 NWLR (Part 104) 373 234 O Obada v Military Governor, (1990) 6 NWLR (Part 157) 482 80 Obasuyi v Business Ventures Ltd (2000) FWLR (Part 10) 1722 333 Obi v Nkwo Market Community Bank Ltd (2001) 2 NWLR (Part 696) 113 515 Obi v Owolabi (1990) 5 NWLR (Part 153) 702 208 Obmiami Brick and Stone (Nigeria) Ltd v ACB Ltd (1992) 3 NWLR (Part 229) 260 437, 601 Obodo v Ogba (1987) 2 NWLR (Part 54) 1 601 Obodo v Olomu (1987) 3 NWLR (Part 59) 111 170 Obot v Akpan (1998) 4 NWLR (Part 546) 409 548 Ochonma v Unosi (1965) NMLR 321 234 Odebunmi v Abdullahi (1997) 2 NWLR (Part 498) 526 601 Odedeyi v Odedeyi (2000) 3 NWLR (Part 650) 655 577 Odiase v Agho (1972) 3 SC 71 601 Odiba v Azege (1998) 9 NWLR (Part 566) 370 208 Odife v Aniemeka (1992) 7 NWLR (Part 251) 25 189 Odubeko v Fowler (1993) 7 NWLR (Part 308) 637 515 Oduka v Kasumu (1968) NMLR 28 601 Odukwe v Ogunbiyi (1998) 8 NWLR (Part 561) 339 208 Odulaja v Haddad (1973) 11 SC 357 548, 601 Odumosu v ACB Ltd (1976) 11 SC 55 118 Oduola v Coker (1981) 5 SC 197 601

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Index of Nigerian Cases referred to

Ofomaja v Commissioner for Education (1995) 8 NWLR (Part 411) 69 601 Ogbaki v Arewa Textile Plc (2000) 11 NWLR (Part 678) 322 234 Ogbuehi v Gov of (1995) 9 NWLR (Part 417) 53 22 Oguchi v FMB Nigeria Ltd (1996) 6 NWLR (Part 156) 330 333 Ogudu v FMB Nigeria Ltd (1990) 6 NWLR (Part 156) 330 653 Oguma Associated Co Ltd v IBWA Ltd (1988) 1 NWLR (Part 72) 658 384 Ogunbiyi v Ogundipe (1992) 9 NWLR (Part 263) 24 653 Ogundiani v Araba (1978) 1 LRN 280 208 Ogundipe v Attorney-General of Kwara (1993) 8 NWLR (Part 313) 653 Ogundulu v Philips (1973) 1 NMLR 267; (1973) 2 SC 71 601, 653 Ogunlade v Adeleye (1992) 10 SCNJ 58 653 Ohanaka v Achugwo (1998) 9 NWLR (Part 564) 37 53 Oje v Babalola (1991) 4 NWLR (Part 185) 267 601 Ojemen v Momodu (The Ogirrua of Irrua) (1983) 3 SC 173 437 Ojibah v Ojibah (1991) 6 SCNJ 156 653 Ojo v Babalola (1991) 4 NWLR (Part 185) 267 653 Ojogbue v Nnubia (1972) 1 All NLR (Part 2) 226 601 Ojokolobo v Alamu (1987) 3 NWLR (Part 61) 377; (1987) 7 SCNJ 98 384, 515 Ojukwu v Governor of Lagos State (1986) 3 NWLR (Part 26) 39 481 Okafor v Attorney-General of (1991) 6 NWLR (Part 200) 659 104 Okafor v Ibeziako (1965) 1 All NLR 37 515

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Okafor v Idigo (1984) 1 SCNLR 481; (1984) 6 SC 1 466, 601, 653 Okafor v Okpala (1995) 1 NWLR (Part 374) 749 234 Okamba Ltd v Alhaji Sule (1990) 7 NWLR (Part 160) 1; (1990) 11 SCNJ 1 290 Okaroh v State (1990) 1 NWLR (Part 125) 218 601 Okechukwu v Onuorah (2000) 12 SCNJ 146 653 Okeke v Attorney-General of Anambra State (1992) 1 NWLR (Part 215) 60 515 Okeke v Obidife (1965) NMLR 113 601 Okenwa v Military Governor of Imo State (1996) 6 SCNJ 221 63, 515 Okobia v Ajanya (1998) 6 NWLR (Part 554) 348 601 Okonkwo v CCB Nigeria Plc (1997) 6 NWLR (Part 507) 48 481 Okonofia v State (1981) 6–7 SC 1 653 Okorodudu v Okoromadu (1977) 3 SC 21 104 Okoroji v Ezumah (1961) SCNLR 187 118 Okoya v Santili (1990) 2 NWLR (Part 131) 172 601 Okoye v Lagos State Government (1990) 3 NWLR (Part 136) 115 22 Okoye v NCFC Ltd (1991) 2 NWLR (Part 433) 656 104 Okpiri v Jonah (1961) 1 SCNLR 174 384 Okpokpo v Uko (1997) 11 NWLR (Part 527) 94 601 Okulate v Awosanya (2000) 2 NWLR (Part 646) 530 170 Okupe v Ifemebi (1974) 3 SC 97 601 Okuwobi v Ishola (1973) 3 SC 43 234 Okwelune v Anolief (1996) 1 NWLR (Part 425) 468 481 Olaloye v Balogun (1990) 5 NWLR (Part 148) 24; (1990) 5 NWLR (Part 148) 241 143, 653 lvi [2002 – 2004] 11 N.B.L.R. (PART I)

Index of Nigerian Cases referred to

Olanloye v Fatumbi (1999) 8 NWLR (Part 614) 203 653 Oloriode v Oyebi (1984) 1 SCNLR 390 548 Olubusola Stores v Standard Bank Nigeria Ltd (1975) 4 SC 51 515 Oludeinde v Oduwole (1962) WNLR 41 601 Olujinle v Adeagbo (1988) 2 NWLR (Part 75) 238 384 Olujitan v Oshatoba (1992) 5 NWLR (Part 241) 326 601 Omo Bare v New Nigeria Bank Ltd (1986) 1 SC 73 653 Omoboriola v Mil. Govt, (1998) 14 NWLR (Part 584) 89 234 Omonuwa v Wahabi (1976) 4 SC 37 118 Omoregbee v Lawani (1980) 3–4 SC 108 234, 499, 601 Omorhirhir v Enatevwere (1988) 1 NWLR (Part 73) 746 653 Onagoruwa v Akinremi (2001) 13 NWLR (Part 729) 38 437 Onajobi v Olanipekun (1985) 4 SC (Part 2) 156 653 Onayemi v Okunubi (1965) 1 All NLR 362 601 Oniah v Onyia (1989) 1 NWLR (Part 99) 514 234 Onibudo v Akibu (1982) 7 SC 60 208 Ononuju v Attorney-General of Anambra State (1998) 11 NWLR (Part 573) 304 548 Onuaguluchi v Ndu (2001) 7 NWLR (Part 712) 309 515 Onuoha v National Bank of Nigeria Ltd (1999) 13 NWLR (Part 636) 621 143 Onwuama v Ezeokoli (2002) 5 NWLR (Part 760) 353 601 Onwuchekwa v NDIC (2002) FWLR (Part 101) 1615; (2002) 5 NWLR (Part 760) 371 515 Onwugbufor v Okoye (1996) 1 NWLR (Part 424) 254 104 Onwuka v Ediala (1989) 1 NWLR (Part 96) 182 208

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Onyekaonwu v Ekwubiri (1966) 1 All NLR 32 601 Onyekwuluje v Animashaun (1996) 3 NWLR (Part 439) 637 143 Onyekwulunne v Ndulue (1997) 7 NWLR (Part 512) 250 234 Onyemeh v Egbuchulam (1996) 5 NWLR (Part 448) NWLR (Part 636) 621 143 Onyesoh v Nnebedum (1992) 3 NWLR (Part 229) 315 481 Onyiuke v Okeke (1976) ANLR 148 384 Oredoyin v Arowolo (1989) 4 NWLR (Part 114) 172 548 Orie v UBA (1976) 9–10 SC 123 234 Orizu v Anyaegbunam (1978) 5 SC 21 601 Osagie v Adonri (1994) 6 NWLR (Part 349) 131 118 Osagie v Oyeyinka (1987) 3 NWLR (Part 59) 144 208 Osayande v Osagie (1965) NMLR 205 515 Oshinjinrin v Elias (1970) 1 ANLR 153 118, 548 Osho v Ape (1998) 8 NWLR (Part 562) 492 548 Osunrinde v Ajamogun (1992) 6 NWLR (Part 246) 156 601 Otapo v Sunmonu (1987) 2 NWLR (Part 58) 587 548 Otuo v Nteogwuile (1996) 4 NWLR (Part 440) 56 234, 466 Owena Bank (Nigeria) Plc v Punjab National Bank (2000) 5 NWLR (Part 658) 635 368 Owodunni v Registered Trustees of CCC (2000) 10 NWLR (Part 675) 315 22 Owoniyin v Omotosho (1961) 2 SCNLR 57; (Vol. 2) (1961) NSCC 179; (1961) 1 All NLR 304 234, 384 Oye v Gov of Oyo State (1993) 7 NWLR (Part 306) 437 481 Oyebamiji v State Civil Service Commission, Oyo State (1997) 5 NWLR (Part 503) 113 515 lviii [2002 – 2004] 11 N.B.L.R. (PART I)

Index of Nigerian Cases referred to

Oyadeji v Adenle (1993) 9 NWLR (Part 316) 224 333 Oyegbola v Esso West Africa Inc. (1966) 1 All NLR 170 104 Oyovbiare v Omamurhomu (1999) 9 NWLR (Part 621) 23 208 Ozuruoke v Okolie (2000) 1 NWLR (Part 642) 569 548 P Paico (Press and Books) Ltd v Central Bank of Nigeria (2001) 3 NWLR (Part 700) 347 515 Pan Bisbilda Nigeria Ltd v First Bank (2000) 1 NWLR (Part 642) 684 384 Panache Communication Ltd v Aikhomu (1994) 2 NWLR (Part 327) 420 290 Peenok Investment Ltd v Hotel Presidential Ltd (1982) 12 SC 1 515 Petrojessica Enterprises Ltd v Leventis Tech- nical Co. Ltd (1992) 5 NWLR (Part 244) 675 143 Pharmatek Industries Projects Ltd v Trade Bank (Nigeria) Plc (1997) 7 NWLR (Part 514) 639 22 Pinnock v G.B. Ollivant and Co Ltd 2 WACA 158 653 Progress Bank (Nigeria) Ltd v Ugonna (Nige- ria) Ltd (1996) 3 NWLR (Part 435) 202 118 Provisional Council University v Makinde (1991) 2 NWLR (Part 175) 613 104 R R. v Essien (1938) 4 WACA 112 601 Raimi v Akintoye (1986) 3 NWLR (Part 20) 97 384 Raji v Williams and others XVI NLR 14 653 Re: Adetona (1994) 3 NWLR (Part 333) 481 423 REAN v Aswani Textiles Ltd (1992) 3 NWLR (Part 227) 1 601 Rickett v B.W.A. Ltd (1960) 5 FSC 113 143, 384 lix [2002 – 2004] 11 N.B.L.R. (PART I)

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Renolds Construction Co Ltd v Okpegboro (2000) 2 NWLR (Part 645) 367 170 Resolution Trust Corporation v FOB Invest- ment and Property Ltd (2001) 6 NWLR (Part 708) 246 515 RTEA v NURTW (1992) 2 NWLR (Part 224) 381 548 S SCOA (Nigeria) Ltd v Bourdex Ltd (1990) 3 NWLR (Part 138) 380 653 Sabbagh v Bank of West Africa (1962) ANLR (Part 2) 1153 481 Saeby Jernstoberi M.F. A/S v Olaogun Enter- prises Ltd (1999) 14 NWLR (Part 637) 128 384, 499 Saidu v State (1982) 9 SC 41 208 Saipem SPA v Tefa (2002) 16 NWLR (Part 793) 410 548 Salami v Chairman LEDB (1989) 20 NSCC (Part 3) 427; (1989) 5 NWLR (Part 121) 519 515 Salawa Motors House Ltd v Lawal (1999) 9 NWLR (Part 620) 692 601 Salzgitter Stahi GMBH v Tunji Dosunmu In- dustries Ltd (Unreported) Appeal No. CA/L/169/90 delivered on 8/9/96 118 Sanusi v Ameyogun (1992) 4 NWLR (Part 237) 527 601 Saraki v S.G.B (1995) 1 NWLR (Part 371) 325 601 Saude v Abdullahi (1989) 4 NWLR (Part 116) 387 80, 104, 601 Savage v Uwaechia (1972) 3 SC 214 263 Seaview Investments Ltd v Munis (1991) 6 NWLR (Part 195) 67 118 Seismograph Ltd v Akporuvo (1974) 6 SC 119 208 Seismograph Ltd v Ogbeni (1976) 4 SC 85 234 Seismograph Services (Nigeria) Ltd v Mark (1993) 7 NWLR (Part 304) 203 118, 499

lx [2002 – 2004] 11 N.B.L.R. (PART I)

Index of Nigerian Cases referred to

Sentinel Assurance v Societe General Bank (1992) 2 NWLR (Part 224) 495 80 Shaibu v Bakare (1984) 10 SC 187 548 Shell v Otoko (1990) 6 NWLR (Part 159) 208–209 653 Shell BP v Jammal Steel (1974) 4 SC 33 548 Shell BP v Pere Cole (1978) 3 SC 183 653 Shitta Bey v Federal Public Service Commis- sion (1981) 1 SC 40 601 Skenconsult v Ukey (1981) 1 SC 6 104, 515 Slac Transport Ltd v Oluwasegun (1973) 9–10 SC 7 653 Sodipo v Lemminkainen OY (No. 2) (1986) 1 NWLR (Part 15) 220 189 Solanke v Abed (1962) 1 All NLR (Part 2) 230 437 SON Okafor and Sons Ltd v Nigeria Housing Development Society Ltd (1972) 4 SC 175 653 State v Aibangbee (1988) 3 NWLR (Part 84) 548 234 State v Commission for Boundaries Settle- ment, Oyo State (1996) 37 LRCN 603 208 STB Ltd v Contract Resources (Nigeria) Ltd (2001) 6 NWLR (Part 708) 115 590 T Taiwo v Princewill (1961) ANLR 240 118 Tasha v UBN Plc (2002) 3 NWLR (Part 753) 99 100 Tecno Mechanical (Nigeria) Ltd v Ogunbayo (2000) 1 NWLR (Part 639) 150 170 Tella v Usman (1997) 12 NWLR (Part 531) 168 601 Temile v Awani (2001) 12 NWLR (Part 728) 726 601 Tewogbade and Co v Arasi Akande and Co (1968) NMLR 404 601 Thadani v National Bank Ltd (1972) 1 SC 105 290

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The Federal Military Govt. of the Federation and others v Sani (1990) 4 NWLR (Part 147) 688 290 Thomas v Olufosoye (1986) 1 NWLR (Part 18) 669, 682 263, 548 Trenco (Nigeria) Ltd v African Real Estate and Investment Co Ltd (1978) 1 LRN 146 437 Tsalibawa v Habiba (1991) 2 NWLR (Part 174) 461 601 Tsokwa Motors Nigeria Ltd v UBN Ltd (1996) 9 NWLR 129 653 U UBA Ltd v Achoru (1990) 6 NWLR (Part 16) 254 180 UBA Ltd v Ibhafidon (1994) 1 NWLR (Part 318) 90 118, 499 UBA Ltd v Salami (1998) 3 NWLR (Part 543) 544 13 UBA Plc v Samba Pet. Co Ltd (2002) 16 NWLR (Part 793) 361 548 UBA Trustees Ltd v Niger Grob Ceramic Ltd (1987) 3 NWLR (Part 62) 600 22 UBN Ltd v Penny Mart (1992) 5 NWLR (Part 240) 228 263 UBN Plc v Scpok (Nigeria) Ltd (1998) 12 NWLR (578) 439 118 UBN Plc v Sparkling Breweries Ltd (1997) 3 NWLR (Part 491) 29 118 Udeorah v Wakonobi (2003) 4 NWLR (Part 811) 643 653 Udeze v Chidebe (1990) 1 NWLR (Part 125) 141 80 Udoh v Eshiet (1994) 8 NWLR (Part 363) 483 601 Ugu v Tabi (1997) 7 NWLR (Part 513) 368; (1997) 7 SCNJ 222 515 Ugwu v Barclays Bank (Nigeria) Ltd (1979) 1 MSLR 441 653 UITHMB v Aluko (1996) 3 NWLR (Part 434) 74 601 lxii [2002 – 2004] 11 N.B.L.R. (PART I)

Index of Nigerian Cases referred to

Ukatta v Ndinaeze (1997) 4 NWLR (Part 499) 251 548 Uku v Okumagba (1974) 4 SC 35; (1974) 9 NSCR 118 104 Unilife Development Co Ltd Adeshogbu (2001) 4 NWLR (Part 704) 609 384 Union Bank of Nigeria Ltd v Ozigi (1991) 1 NWLR (Part 176) 677; (1991) 2 NWLR (Part 176) 677 170, 481 Union Bank of Nigeria Ltd v Ozigi (1994) 3 SCNJ 42; (1994) 3 NWLR (Part 333) 385 143, 290, 653 Union Bank of Nigeria Ltd v Sax (Nigeria) Ltd (1994) 9 SCNJ 1; (1994) 8 NWLR (Part 361) 150 143, 653 Union Bank of Nigeria Plc v Governor, Anambra State (2001) 12 NWLR (Part 726) 155 515 United Africa Co Ltd v Taylor (1936) 2 WACA 170 653 United Nigeria Co Ltd v Nahman (2000) 9 NWLR (Part 671) 177 22 Unity Life Insurance Ltd v IBWA Ltd (2001) 7 384 NWLR (Part 713) 610 UNN v Orazulike Trading Co Ltd (1989) 5 NWLR (Part 119) 11; (1989) 5 NWLR (Part 119) 19 189, 290 Useh v BMA Ltd (1965) 1 ANLR 244, 247 653 Usenfowokan v Idowu Bros (1969) NSCC 108 653 Uwa Printers Ltd v Investment Trust Ltd (1988) 5 NWLR (Part 92) 110 118 V Viatonu v Odutayo 19 NLR 119 653 Victory Merchant Bank v Pelfaco (1993) 9 NWLR (Part 317) 340; (1993) 9 NWLR (Part 340) 354 333 Vincent Standard Trading Co Ltd v Xtodeus Trading Co Nigeria Ltd (1992) 5 NWLR (Part 296) 675 104

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Vulcan Gases Ltd v G.F. Ind. A.G. (2001) 9 NWLR (Part 719) 610 234 W Weide and Co Nigeria Ltd v Weide and Co Harmburg (1992) 6 NWLR (Part 249) 627 234 West African Breweries Ltd v Say Ltd (2002) 5 SCNJ 269 653 West African Shipping Agency v Kalla (1978) 11 NSCC 114 118 Whyte v Jack (1996) 2 NWLR (Part 431) 407 601 Wilson v Oshin (2000) 9 NWLR (Part 673) 442 263 Woluchem v Gudi (1981) 5 SC 291 63, 234, 601, 653 Y Yassin v Barclays Bank D.C.O. (1968) NMLR 380; (1968) 1 All NLR 171 63, 234 Yesufu v ACB Ltd (1976) 1 ANLR 264; (1976) All NLR (Part 1) 328 312, 384

lxiv

INDEX OF FOREIGN CASES REFERRED TO B Belton v Bass and others (1922) 2 Ch. 449 653 Blay v Pollard (1930) 1 KB 628 653 Bower v Turner (1863) L.J. Ch. 54 466 C Chapman v CFAO 9 WACA 18 548 Coburn v Collins (1887) 35 Ch.D. 373 38 Crosswill v Bower v Turner (1863) L.J. Ch. 540; (1863) 3 W. Ch 540 653 D Davy Bros. v Carpet (1887) 7 Ch.D. 489 653 Denning v Edward (1961) AC 245 437 Dredger Liesbosch v S.S. Edison (1933) AC 449 118 Dunlop Pneumatic Tyre Co Ltd v Selfridge (1915) AC 847 118 E Esso Petroleum Co Ltd v Alstonbridge Prop- erties (1975) 3 AER 358 601 F Fallon v Calvert (1960) 2 QB 201 234 Ferguson v Fyfte (1841) 8C. 8F. 121 143 G Gaskill v Skene (1850) 14 QB 664 601 Gibbons v Westminster Bank Ltd (1939) 3 All ER 577 118 H Hadley v Baxendale (1854) 9 Exch. 341 38, 118 Hawkesbury Development Co Ltd v Lanmark Functions Properties Co Ltd (1969) 2 NWLR 782 22

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Hayward v Lely (1887) 56 LT 418 38 J Jacob v Booth’s Distillery Co (1901) 85 L.T. 262; (1900–03) All ER 1427 189 Jenkins v Jones (1860) 2 giff 99 653 K Kennedy v De Trafford (1897) AC 180 653 Koufos v C. Czarnikow Ltd (1969) 1 AC 350 38 Kpoharor v National Building Society (1996) 4 All ER 119 118 Kuma v Kuma (1936) 5 WACA 4 234 L Lennard’s Carrying Co v Asiatic Petroleum Co. Ltd (1915) AC 705 437 Letang v Cooper (1994) 2 All ER 929 80 London Chatham and Dover Railway v South Eastern Railway (1893) AC 249 653 M Moschi v Lep Air Services Ltd (1973) AC 331 601 P Pritam Kaur v Russel and Sons Ltd (1973) 1 All ER 617 263 R Re: Duncan and Co (1905) 1 Ch. 307 653 Rhodes v Smethurst 150 ER 1335 263 S Salomon v Salomon (1897) AC 22 118 Seldon v Davidson (1968) 1 WLR 1083 466 Sounders v Ancila Building Society (1971) AC 1004 653 St. John Shipping Corporation v J. Rank Ltd (1956) 3 All ER 683 38

lxvi [2002 – 2004] 11 N.B.L.R. (PART I)

Index of Foreign Cases referred to

T The Gold Coast and Ashanti Electric Power Development Corp. Ltd v Attorney-General of the Gold Coast (1937) 3 WACA 215 437 V Victoria Laundry (Windsor) Ltd v Newman Ltd (1949) 1 All ER 997 38 W Wallingford v Mutual Society 5 AC 685 481 Waring (Lord) v London and Manchester As- surance Co Ltd (1935) Ch.D. 310 653 Warner v Jacob (1882) 2 Ch.D. 220 481, 653 Warner v Sampson (1959) 1 QBD 297 263 Wiedemann v Walpole (1891) 2 QB 534 601 Y Younell v Hibernian (1918) AC 372 466

lxvii

INDEX OF NIGERIAN STATUTES REFERRED TO

Banking Act Cap 28 Laws of the Federation of Nigeria, 1990 s 15...... [2002 – 2004] 11 N.B.L.R. (PART I) 143, 653

Banks and Other Financial Institutions Decree No. 25 of 1991 (as amended) by Decree No. 38 of 1998 s 12...... [2002 – 2004] 11 N.B.L.R. (PART I) 577

Banks and Other Financial Institutions Decree No. 25 of 1991 s 23...... [2002 – 2004] 11 N.B.L.R. (PART I) 170 s 38(3)...... [2002 – 2004] 11 N.B.L.R. (PART I) 423, 515

Bills of Exchange Act Cap 35 Laws of the Federation of Nigeria, 1990 s 2(1)(c)...... [2002 – 2004] 11 N.B.L.R. (PART I) 118 s 5(2)...... [2002 – 2004] 11 N.B.L.R. (PART I) 118 s 51(2)...... [2002 – 2004] 11 N.B.L.R. (PART I) 118 s 57...... [2002 – 2004] 11 N.B.L.R. (PART I) 118 s 72(c) ...... [2002 – 2004] 11 N.B.L.R. (PART I) 118

Companies and Allied Matters Act Cap 59 Laws of the Federation of Nigeria, 1990 s 208...... [2002 – 2004] 11 N.B.L.R. (PART I) 22 s 209...... [2002 – 2004] 11 N.B.L.R. (PART I) 22 s 293...... [2002 – 2004] 11 N.B.L.R. (PART I) 22 s 303...... [2002 – 2004] 11 N.B.L.R. (PART I) 22 s 304...... [2002 – 2004] 11 N.B.L.R. (PART I) 22 s 393...... [2002 – 2004] 11 N.B.L.R. (PART I) 22 s 417....[2002 – 2004] 11 N.B.L.R. (PART I) 38, 423, 515 s 425(1)(a) .....[2002 – 2004] 11 N.B.L.R. (PART I) 1, 38, 423, 515

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Constitution (Suspension and Modification) Decree No. 107 of 1993 s 230(1)...... [2002 – 2004] 11 N.B.L.R. (PART I) 368 s 230(1)(d)..[2002 – 2004] 11 N.B.L.R. (PART I) 279, 515

Constitution of the Federal Republic of Nigeria, 1979 s 6(6)(a) ...... [2002 – 2004] 11 N.B.L.R. (PART I) 263 s 230(1)...... [2002 – 2004] 11 N.B.L.R. (PART I) 368 s 236...... [2002 – 2004] 11 N.B.L.R. (PART I) 263

Constitution of the Federal Republic of Nigeria, 1999 s 241...... [2002 – 2004] 11 N.B.L.R. (PART I) 143 s 251(1)(d)..[2002 – 2004] 11 N.B.L.R. (PART I) 368, 515

Dishonoured Cheques Offences Act Cap 102 Laws of the Federation of Nigeria, 1990 s 1(b)(i) ...... [2002 – 2004] 11 N.B.L.R. (PART I) 466

Evidence Act Cap 112 Laws of the Federation of Nigeria, 1990 s 38...... [2002 – 2004] 11 N.B.L.R. (PART I) 601 s 91(3)...... [2002 – 2004] 11 N.B.L.R. (PART I) 384, 601 s 91(5)...... [2002 – 2004] 11 N.B.L.R. (PART I) 601 s 97...... [2002 – 2004] 11 N.B.L.R. (PART I) 312 s 97(1)(h) ....[2002 – 2004] 11 N.B.L.R. (PART I) 63, 384 s 97(2)(e).....[2002 – 2004] 11 N.B.L.R. (PART I) 63, 234 s 132...... [2002 – 2004] 11 N.B.L.R. (PART I) 118 s 132(1)(b) ...... [2002 – 2004] 11 N.B.L.R. (PART I) 143 s 135...... [2002 – 2004] 11 N.B.L.R. (PART I) 143, 208, 234, 601 s 136..[2002 – 2004] 11 N.B.L.R. (PART I) 208, 234, 601 s 137..[2002 – 2004] 11 N.B.L.R. (PART I) 208, 234, 601 s 138(1)...... [2002 – 2004] 11 N.B.L.R. (PART I) 653 s 139...... [2002 – 2004] 11 N.B.L.R. (PART I) 208 s 151...... [2002 – 2004] 11 N.B.L.R. (PART I) 189 s 227(2)...... [2002 – 2004] 11 N.B.L.R. (PART I) 601

lxx [2002 – 2004] 11 N.B.L.R. (PART I)

Index of Nigerian Statutes referred to

Exchange Control (Anti-Sabotage) Act Cap 114 Laws of the Federation of Nigeria, 1990 s 1(1)...... [2002 – 2004] 11 N.B.L.R. (PART I) 38

Failed Banks (Recovery of Debts) and Financial Mal- practices in Banks Decree No. 18 of 1994 (as amended) s 3(1)...... [2002 – 2004] 11 N.B.L.R. (PART I) 1, 170 s 11(1)...... [2002 – 2004] 11 N.B.L.R. (PART I) 1 s 13(2)...... [2002 – 2004] 11 N.B.L.R. (PART I) 7 s 15...... [2002 – 2004] 11 N.B.L.R. (PART I) 7 s 29...... [2002 – 2004] 11 N.B.L.R. (PART I) 1

Federal High Court Act Cap 134 Laws of the Federation of Nigeria, 1990 s 7(1)...... [2002 – 2004] 11 N.B.L.R. (PART I) 368

Federal High Court (Civil Procedure) Rules Decree No. 23 of 1999 s 3...... [2002 – 2004] 11 N.B.L.R. (PART I) 515 s 5...... [2002 – 2004] 11 N.B.L.R. (PART I) 515

Foreign Exchange (Monitoring and Miscellaneous Provi- sions) Decree No. 17 of 1995 s 38(1)...... [2002 – 2004] 11 N.B.L.R. (PART I) 38

Illiterates Protection Law Cap 74 Laws of Kaduna State, 1991 generally ...... [2002 – 2004] 11 N.B.L.R. (PART I) 263

Land Registration Law Cap 85 Laws of Kaduna State, 1991 s 8...... [2002 – 2004] 11 N.B.L.R. (PART I) 263 s 24...... [2002 – 2004] 11 N.B.L.R. (PART I) 263

Limitation Law Cap 89 Laws of Kaduna State, 1991 s 4...... [2002 – 2004] 11 N.B.L.R. (PART I) 263 s 11...... [2002 – 2004] 11 N.B.L.R. (PART I) 263

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NDIC (Amendment) Decree No. 5 of 1997 s 15...... [2002 – 2004] 11 N.B.L.R. (PART I) 515 23D ...... [2002 – 2004] 11 N.B.L.R. (PART I) 515

Sheriffs and Civil Process Act Cap 407 Laws of the Fed- eration of Nigeria, 1990 s 84...... [2002 – 2004] 11 N.B.L.R. (PART I) 590 s 109...... [2002 – 2004] 11 N.B.L.R. (PART I) 104

Stamp Duties Act Cap 411 Laws of the Federation of Nigeria, 1990 generally ...... [2002 – 2004] 11 N.B.L.R. (PART I) 601

Tribunals (Certain Consequential Amendments, etc.) Decree No. 62 of 1999 s 2(1)...... [2002 – 2004] 11 N.B.L.R. (PART I) 7 s 2(3)...... [2002 – 2004] 11 N.B.L.R. (PART I) 7 s 2(4)...... [2002 – 2004] 11 N.B.L.R. (PART I) 7 s 2(5)...... [2002 – 2004] 11 N.B.L.R. (PART I) 7

lxxii

INDEX OF FOREIGN STATUTES REFERRED TO

Conveyancing Act, 1881 s 19...... [2002 – 2004] 11 N.B.L.R. (PART I) 653 s 21(2)...... [2002 – 2004] 11 N.B.L.R. (PART I) 653

lxxiii

INDEX OF NIGERIAN RULES OF COURT REFERRED TO

Court of Appeal Rules 1981 Order 3 rule 2....[2002 – 2004] 11 N.B.L.R. (PART I) 143 Order 3 rule 15..[2002 – 2004] 11 N.B.L.R. (PART I) 143

Court of Appeal Rules, 1981 (as amended) Cap 62 Laws of the Federation of Nigeria, 1990 Order 6...... [2002 – 2004] 11 N.B.L.R. (PART I) 189

Court of Appeal Rules, 2000 Order 1 rule 7....[2002 – 2004] 11 N.B.L.R. (PART I) 577

Court of Appeal Rules, 2002 Order 3 rule 2....[2002 – 2004] 11 N.B.L.R. (PART I) 548

Federal High Court (Civil Procedure) Rules, 1976 Order XL rule 4..[2002 – 2004] 11 N.B.L.R. (PART I) 170 Order XL rule 5..[2002 – 2004] 11 N.B.L.R. (PART I) 170 Order XL rule 6..[2002 – 2004] 11 N.B.L.R. (PART I) 170 Order 3 rule 9 .....[2002 – 2004] 11 N.B.L.R. (PART I) 515 Order 23 rule 4 ...[2002 – 2004] 11 N.B.L.R. (PART I) 515

Federal High Court (Civil Procedure) Rules Cap 134 Laws of the Federation of Nigeria, 1990 Order II ...... [2002 – 2004] 11 N.B.L.R. (PART I) 515 Order III ...... [2002 – 2004] 11 N.B.L.R. (PART I) 515 Order 5(15) ...... [2002 – 2004] 11 N.B.L.R. (PART I) 515 Order 24 rule 2..[2002 – 2004] 11 N.B.L.R. (PART I) 515 Order 24 rule 2..[2002 – 2004] 11 N.B.L.R. (PART I) 515

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Order 24 rule 2 ...[2002 – 2004] 11 N.B.L.R. (PART I) 515 Order 27 rule 1 ...[2002 – 2004] 11 N.B.L.R. (PART I) 515 Order 27 rule 3 ...[2002 – 2004] 11 N.B.L.R. (PART I) 515

Federal High Court (Civil Procedure) Rules, 2000 Order 43 rule 2 ...[2002 – 2004] 11 N.B.L.R. (PART I) 7 Order 44 rule 1 ...[2002 – 2004] 11 N.B.L.R. (PART I) 590

High Court of Kaduna State (Civil Procedure) Rules, 1987 Order 24 rule 6 ...[2002 – 2004] 11 N.B.L.R. (PART I) 263

High Court of (Civil Procedure) Rules, 1988 Order 11 rule 5 ...[2002 – 2004] 11 N.B.L.R. (PART I) 601 Order 23 rule 3 ...[2002 – 2004] 11 N.B.L.R. (PART I) 189

High Court of Lagos State (Civil Procedure) Rules, 1994 Order 17 rule 5 ...[2002 – 2004] 11 N.B.L.R. (PART I) 499 Order 17 rule 6 ...[2002 – 2004] 11 N.B.L.R. (PART I) 499 Order 33 rule 21.[2002 – 2004] 11 N.B.L.R. (PART I) 453 Order 33 rule 21.[2002 – 2004] 11 N.B.L.R. (PART I) 453

Procedure for Recovery of Debts at the Failed Banks Tribunal rule 27...... [2002 – 2004] 11 N.B.L.R. (PART I) 7

lxxvi

INDEX OF FOREIGN RULES OF COURT REFERRED TO

Judicature Act, 1875 Order XIV rule 1(a) ...... [2002 – 2004] 11 N.B.L.R. (PART I) 189

lxxvii

INDEX OF BOOKS REFERRED TO

Black’s Law Dictionary page 201...... [2002 – 2004] 11 N.B.L.R. (PART I) 263

Black’s Law Dictionary (5ed) page 1053...... [2002 – 2004] 11 N.B.L.R. (PART I) 548

Black’s Law Dictionary (6ed) generally ...... [2002 – 2004] 11 N.B.L.R. (PART I) 208 page 705...... [2002 – 2004] 11 N.B.L.R. (PART I) 601 page 1189...... [2002 – 2004] 11 N.B.L.R. (PART I) 601

Chitty on Contract (24ed) Volume 2 page 4801...... [2002 – 2004] 11 N.B.L.R. (PART I) 601 page 4804...... [2002 – 2004] 11 N.B.L.R. (PART I) 601 page 4809...... [2002 – 2004] 11 N.B.L.R. (PART I) 601 page 4810...... [2002 – 2004] 11 N.B.L.R. (PART I) 601 page 4811...... [2002 – 2004] 11 N.B.L.R. (PART I) 601

Civil Procedure in Nigeria by Fidelis Nwadialo page 385...... [2002 – 2004] 11 N.B.L.R. (PART I) 263

Commentaries from the Bench by O. Onalaja page 135...... [2002 – 2004] 11 N.B.L.R. (PART I) 548

Halsbury’s Laws of England (4ed) Volume 20 page 116...... [2002 – 2004] 11 N.B.L.R. (PART I) 601 page 154...... [2002 – 2004] 11 N.B.L.R. (PART I) 601 page 159...... [2002 – 2004] 11 N.B.L.R. (PART I) 601 page 160...... [2002 – 2004] 11 N.B.L.R. (PART I) 601 page 163...... [2002 – 2004] 11 N.B.L.R. (PART I) 601

Halsbury’s Laws of England (3ed) Volume 24 article 196 ...... [2002 – 2004] 11 N.B.L.R. (PART I) 80 pages 200-201...[2002 – 2004] 11 N.B.L.R. (PART I) 263

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Paget’s Law of Banking page 312...... [2002 – 2004] 11 N.B.L.R. (PART I) 118

Paget’s Law of Banking (8ed) page 134...... [2002 – 2004] 11 N.B.L.R. (PART I) 143

Rowlatt on Principal and Surety (3ed) page 102...... [2002 – 2004] 11 N.B.L.R. (PART I) 601

Stroud’s Judicial Dictionary of Words and Phrases Volume 2, (4ed) page 1095...... [2002 – 2004] 11 N.B.L.R. (PART I) 653

Supreme Court Practice, 1979 Volume 1 page 339...... [2002 – 2004] 11 N.B.L.R. (PART I) 263

Words and Phrases Volume 25a page 12...... [2002 – 2004] 11 N.B.L.R. (PART I) 208 page 13...... [2002 – 2004] 11 N.B.L.R. (PART I) 208

lxxx [2002 – 2004] 11 N.B.L.R. (PART I) (FEDERAL HIGH COURT, LAGOS DIVISION)

African Continental Bank Plc v. Joessyka Brothers Nigeria Ltd 1 a African Continental Bank Plc v Joessyka Brothers Nigeria Limited and another b FEDERAL HIGH COURT, LAGOS DIVISION ABUTU J Date of Judgment: 28 JANUARY, 2002 Suit No.: FHC/L/FB/243/2000 c Action – Commencement of on behalf of bank under the Failed Banks Decree No. 18 of 1994 (as amended) – Credi- tor Bank not a Failed Bank – Jurisdiction of Court to enter- tain – Locus standi of Nigeria Deposit Insurance Corpora- tion to bring action – Competence of action d Failed Bank – Commencement of action on behalf of bank under the Failed Banks Decree No. 18 of 1994 by Nigeria Deposit Insurance Corporation – Locus standi of – Bank not e a failed bank – Jurisdiction of Court Failed Bank – Failed Banks – Meaning of – Section 29 Failed Banks Decree No. 18 of 1994 (as amended) Jurisdiction – Federal High Court – Action by bank which is f not a failed bank under the Failed Banks Decree No. 18 of 1994 (as amended) – Competence of Words and Phrases – Failed Bank – Meaning of – Section g 29 Failed Banks Decree No. 18 of 1994 (as amended) Facts The respondents by a Notice of Objection dated 7 Decem- ber, 1998 are seeking for an order striking out the suit on the h grounds:– 1. That the applicant has no locus standi to institute the suit before the Failed Banks Tribunal. 2. That the second respondent who is the Managing i Director of the first respondent company is not liable for the debt owed by the Company to African Conti- nental Bank Plc. 3. That the originating application was not served on j the respondents.

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2 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I)

4. That African Continental Bank Plc is not a failed a bank. It was argued that the applicant, not being a creditor, has no locus standi to institute the action. Furthermore, African b Continental Bank Plc is not a failed bank within the contem- plation of section 29(1) Failed Banks Decree No. 18 of 1994 (as amended). The applicant did not contest the application. c Held – 1. By section 11(1) of the Failed Banks (Recovery of Debts) and Financial Malpractices in Bank Decree No. 18 of 1994, the Nigeria Deposit Insurance Corporation is d one of the institutions empowered, when a Liquidator or Receiver has not been appointed for a failed bank, to bring an action to recover a debt owed to a failed bank. The power vested in Nigeria Deposit Insurance Corpora- e tion is no more than the powers of a Receiver or a Liqui- dator in relation to the assets of the company. 2. Under section 425(1)(a) of the Companies and Allied Matters Act, 1990 a liquidator is empowered to institute f an action to recover a debt owed to the company in liq- uidation in the name and on behalf of the company, cer- tainly not in his own name. He is not the creditor. The Nigeria Deposit Insurance Corporation has no locus g standi to present the application. 3. There is no averment in the originating application to the effect that African Continental Bank Plc is a failed bank within the contemplation of section 29 of Decree No. 18 h of 1994. By the present application the applicant has been called upon to show that African Continental Bank Plc, is a failed bank. The applicant has not responded. 4. A failed bank within the purview of section 29 of i the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree No. 18 of 1994 is a bank whose licence has been revoked or which has been de- clared closed, placed under receivership or otherwise taken over by the Central Bank of Nigeria or the Nigeria j

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African Continental Bank Plc v. Joessyka Brothers Nigeria Ltd 3 a Deposit Insurance Corporation or whose liquid capital is below the maximum specified by the regulatory author- ity. b 5. In this case there is no evidence which shows that Afri- can Continental Bank, Plc has been declared closed or that its licence has been revoked or that its liquid capital together with the value of its assets is below the mini- mum specified by the regulatory authority. c 6. By section 3(1) of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree No. 18 of 1994 (as amended), the tribunal’s power with regard to recovery of debts was limited to debts owed to a failed d bank. That being the case it must be shown in every ap- plication brought before the Tribunal for recovery of a debt owed to a bank that the bank is a failed bank. The present action brought under Decree No. 18 of 1994 e when the bank is not shown to be a failed bank is in- competent. Action struck out. f Nigerian statutes referred to in the judgment Companies and Allied Matters Act Cap 59 Laws of the Fed- eration of Nigeria, 1990, section 425(1)(a) Failed Banks (Recovery of Debts) and Financial Malprac- g tices in Banks Decree No. 18 of 1994 (as amended), sections 3(1), 11(1) and 29

Counsel h For the applicant: S.C. Igwudia, Esq. For the defendants: P.E.M. Alenkhe, Esq. Judgment i ABUTU J: The respondents by a Notice of Objection dated 7 December, 1998 are seeking for an order striking out the suit on the grounds:– 1. That the applicant has no locus standi to institute the j suit before the Failed Banks Tribunal.

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2. That the second respondent who is the Managing a Director of the first respondent company is not liable for the debt owed by the company to African Conti- nental Bank Plc. b 3. That the originating application was not served on the respondents. 4. That African Continental Bank Plc is not a failed bank. c The application is supported with an affidavit of 18 para- graphs to which three documents were annexed as exhibits A and A1. No counter affidavit was filed in opposition to the application. d In arguing the application, learned Counsel for the respon- dents/applicants placed reliance on the affidavit in support. He submitted that the applicant, not being the creditor, has e no locus standi to institute the action. It is his further sub- mission that the originating application, not having been served on the respondents, it is illegal to continue further hearing in the case. f On the issue of locus standi, learned Counsel drew the at- tention of the Court to section 11 of the Failed Banks (Re- covery of Debts) and Malpractices in Banks Decree No. 18 of 1994. Learned Counsel submitted that African Continen- g tal Bank Plc is not a failed bank within the contemplation of section 29(1) of Decree No. 18 of 1994. He cited in Re: Vico Agro Allied Industries Group Co Ltd (1998) 4 FBTLR 11 at 16 and 17 Thomas v Olufosoye (1985) 3 NWLR (Part 13) 505 at 506 in support of his submission. He finally urged the h Court relying on SkenConsult v Ukey (1981) SC 25; Madu- kolu v Nkemdilim (1961) 1 All NLR 587 at 54 and African Continental Bank Plc v Udoma Egba (2001) FWLR (Part 40) 178 to hold that having regard to the points raised and i canvassed in this application that it has no jurisdiction to en- tertain the suit. The applicant has not contested this application. The document captioned “statement/particulars of indebtedness” j

[2002 – 2004] 11 N.B.L.R. (PART I) (FEDERAL HIGH COURT, LAGOS DIVISION) Abutu J African Continental Bank Plc v. Joessyka Brothers Nigeria Ltd 5 a filed in support of the originating application shows that the creditor is African Continental Bank Plc. In paragraph 1 of that document African Continental Bank Plc is referred to as the applicant even though the action is one commenced by b the Nigeria Deposit Insurance Corporation on behalf of Af- rican Continental Bank Plc. The originating application is headed as follows:– “The application of Nigeria Deposit Insurance Corporation of 23A c Marina, Lagos whose names are subscribed.” The applicant certainly is Nigeria Deposit Insurance Corpo- ration. The issue in this case is whether Nigeria Deposit In- surance Corporation which is not the creditor has locus d standi to present the application. By section 11(1) of the Failed Banks (Recovery of Debts) and Financial Malprac- tices in Bank Decree No. 18 of 1994, the Nigeria Deposit Insurance Corporation is one of the institutions empowered, e when a Liquidator or Receiver has not been appointed for a failed bank, to bring an action to recover a debt owed to a failed bank. The power vested in Nigeria Deposit Insurance Corporation is no more than the powers of a receiver or a f liquidator in relation to the assets of the company. Under section 425(1)(a) of the Companies and Allied Mat- ters Act, 1990 a Liquidator is empowered to institute an ac- g tion to recover a debt owed to the company in liquidation in the name and on behalf of the company; certainly not in his own name. He is not the creditor. The Nigeria Deposit In- surance Corporation has no locus standi to present the appli- h cation. The next issue is whether or not African Continental Bank Plc, the creditor is a failed bank within the contemplation of the provision of section 29 of Decree No. 18 of 1994. There i is no averment in the originating application to the effect that African Continental Bank Plc is a failed bank within the contemplation of section 29 of Decree No. 18 of 1994. By the present application the applicant has been called upon to show that African Continental Bank Plc is a failed bank. The j applicant has not responded.

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A failed bank within the purview of section 29 of the a Failed Banks (Recovery of Debts) and Financial Malprac- tices in Banks Decree No. 18 of 1994 as a bank whose li- cence has been revoked or which has been declared closed, b placed under receivership or otherwise taken over by the Central Bank of Nigeria or the Nigeria Deposit Insurance Corporation or whose liquid capital is below the maximum specified by the regulatory authority. c In this case there is no evidence which shows that African Continental Bank Plc, has been declared closed or that its licence has been revoked or that its liquid capital together with the value of its assets is below the minimum specified by the regulatory authority. That being the case it has not d been shown, that African Continental Bank Plc is a failed bank. As stated in section 3(1) of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree No. 18 e of 1994 (as amended), the tribunal’s power with regard to recovery of debts was limited to debts owed to a failed bank. That being the case it must be shown in every application brought before the Tribunal for recovery of a debt owed to a f bank that the bank is a failed bank. The present action brought under Decree No. 18 of 1994 when the bank is not shown to be a failed bank is incompetent and I so hold. I hold having regard to the conclusions I have reached on g the issue of locus standi and the issue of jurisdiction that this action ought to be and it is hereby struck out.

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Nigeria Deposit Insur Corp v. A.B. Expellers Ind. Trading Co Ltd 7 a Nigeria Deposit Insurance Corporation v A.B. Expellers Ind. Trading Co Limited b FEDERAL HIGH COURT, ENUGU DIVISION SENLONG J Date of Judgment: 31 JANUARY, 2002 Suit No.: FHC/EN/CS/352/2001 c Failed Bank – Cases in respect of – Jurisdiction of Federal High Court to entertain – Where derived – Section 2(1) and (3) Tribunals (Certain Consequential Amendment, etc.) De- cree No. 62 of 1999 d Failed Banks Tribunal – Judgment or decision of Failed Banks Tribunal – Enforcement of by Federal High Court – Procedure – Section 2(5) Tribunals (Certain Consequential Amendment, etc.) Decree No. 62 of 1999 e Failed Banks Tribunal – Power to levy execution on proper- ties pledged as security – Where derived and how exercised – Sections 13(2) and 15 of the Failed Banks Decree No. 19 of 1994 (as amended) f Judgment and Orders – Judgment or decision of Failed Banks Tribunal – Enforcement of by Federal High Court – Procedure – Section 2(5) of the Tribunals (Certain Conse- g quential Amendment, etc.) Decree No. 62 of 1999 Jurisdiction – Federal High Court – Entertaining Failed Bank cases – Where jurisdiction derived – Section 2(1) and (3) of the Tribunals (Certain Consequential Amendments, h etc.) Decree No. 62 of 1999 Facts The plaintiff/judgment creditor application was for an order i to levy execution on the properties of the respon- dent/judgment debtor wherever they might be found within the territory of the Federal Republic of Nigeria for the pur- pose of selling the same towards eventual liquidation of the respondent’s/judgment debtor indebtedness to the appli- j cants/judgment creditors.

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8 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I)

Judgment was entered in this case on 30 November, 1998 a against the applicant/judgment debtor by the Failed Banks Tribunal, Enugu Zone II in the sum of N3,320,707.92 (Three Million, Three Hundred and Twenty Thousand, Seven Hundred and Seven Naira, Ninety Two Kobo) with b interest at the rate of 21% from 30 April, 1995 to 30 No- vember, 1998. The judgment debtors failed to liquidate the said judgment debt, whereupon the applicant/judgment creditor brought the c instant application. The applicant’s Counsel stated that the mortgaged property had been sold prior to this proceedings but that the proceeds d could not satisfy the indebtedness of the respondent and thereafter when the lending bank was declared a Failed Bank the applicant instituted proceedings to recover the out- standing debt and judgment was entered in its favour. He urged that since the judgment debt has not been liquidated e this application be granted to enable the judgment creditor levy execution against the judgment debtor’s properties wherever they might be found within Nigeria. Held – f 1. The Federal High Court derives its jurisdiction to enter- tain Failed Bank cases by virtue of the provisions of sec- tion 2(1) and (3) of the Tribunals (Certain Consequential Amendments, etc.) Decree No. 62 of 1999 and by the g provisions of subsection 4 thereof any order, decision or judgment made by a Tribunal before the commencement of the Decree, as in this case, is preserved. h 2. By section 2(5) of the Tribunals (Certain Consequential Amendments, etc.) Decree No. 62 of 1999, a decision or judgment of a Tribunal made before the commencement of the Decree shall be enforced in accordance with the procedure or law relating to the enforcement of a deci- i sion or judgment of the Tribunal before the commence- ment of this Decree. 3. From the provision of section 13(2) of the Failed Banks (Recovery of Debts) and Financial Malpractices in j

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Nigeria Deposit Insur Corp v. A.B. Expellers Ind. Trading Co Ltd 9 a Banks Decree No. 18 of 1994 (as amended), the Failed Banks Tribunal is empowered to order execution only on those properties pledged as security for the loan. Under section 15 of the same Decree the Tribunal may order b execution on other properties but only if the properties pledged as security against which it has made an order cannot satisfy the judgment debt. In the present case there was no order of the Tribunal in respect of the prop- c erty pledged as security for the loan because as deposed to in paragraphs 4 and 5 of the “further affidavit” in sup- port of this application the mortgaged property had al- ready been disposed of or sold by the creditor bank even d before the bank was declared a Failed Bank and before the proceedings in the Failed Banks Tribunal. Conse- quently, as at the time of the judgment of the Tribunal there was no pledged property to be sold. Sections 13(2) and 15 are therefore inapplicable. e 4. By Order 43, Rule 2(1)(d) of the Federal High Court (Civil Procedure) Rules, 2000 the judgment creditor could levy execution upon the properties of the judgment debtor wherever they may be found within the territory f of the Federal Republic of Nigeria for the purpose of selling same towards the eventual liquidation. Application granted. g Nigerian statutes referred to in the judgment Failed Banks (Recovery of Debts) and Financial Malprac- tices in Banks Decree No. 18 of 1994 (as amended), sections h 13(2), 15 Tribunals (Certain Consequential Amendments, etc) Decree No. 62 of 1999, section 2(1), (3), (4) and (5) i Nigerian rules of court referred to in the judgment Federal High Court (Civil Procedure) Rules, 2000, Order 43 Rule 2(1)(d) Procedure for Recovery of Debts at the Failed Banks Tribu- j nal, Rule 27

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Judgment a SENLONG J: This ruling is sequel to a motion ex parte dated 5 September, 2001 filed by the plaintiff/judgment creditor praying in the main for an order to levy execution on the b properties of the respondent/judgment debtor’s wherever they may be found within the territory of the Federal Repub- lic of Nigeria for the purpose of selling the same towards eventual liquidation of the respondent’s/judgment debtor’s indebtedness to the applicants/judgment creditors. c Judgment was entered in this case on 30 November, 1998 against the judgment debtor by the Failed Banks Tribunal, Enugu Zone II in the sum of N3,320,707.92 (Three Million, Three Hundred and Twenty Thousand, Seven Hundred and d Seven Naira, Ninety Two Kobo) with interest at the rate of 21% from 30 April, 1995 to 30 November, 1998. The judgment debtor’s have failed to liquidate the said judgment debt, whereupon the applicant/judgment creditor e has brought the instant application. Moving the application, learned Counsel for the applicant submitted that the application is brought pursuant to section 13(2) of the Failed Banks (Recovery of Debts and Financial f Malpractices in Banks) Decree as amended by the Tribunals (Certain consequential Amendments, etc) Decree No. 62 of 1999, Order 43(2)(1)(d) of the Federal High Court (Civil Procedure) Rules, section 20(2) of the Sheriffs and Civil g Process Act, and the inherent jurisdiction of the Court under section 6(6)(a) of the 1999 Constitution. Learned Counsel referred to the affidavit of 9 paragraphs, a further affidavit of 7 paragraphs, and a further affidavit of 11 h paragraphs in support of the motion. He relied on all the af- fidavits and urged the Court to grant the application. He noted that the mortgaged property had been sold prior to this proceeding but that the proceeds could not satisfy the in- i debtedness of the respondent and thereafter when the lend- ing bank was declared a Failed Bank, the applicant instituted proceedings to recover the outstanding debt and judgment was entered in its favour. He urged that since the judgment debt has not been liquidated this application be granted to j

[2002 – 2004] 11 N.B.L.R. (PART I) (FEDERAL HIGH COURT, ENUGU DIVISION) Senlong J Nigeria Deposit Insur Corp v. A.B. Expellers Ind. Trading Co Ltd 11 a enable the judgment creditor levy execution against the judgment debtors’ properties wherever they may be found within Nigeria. b This Court derives its jurisdiction to entertain failed bank cases by virtue of the provisions of section 2(1) and (3) of the Tribunals (Certain Consequential Amendment, etc.) De- cree No. 62 of 1999 and by the provisions of subsection (4) c thereof any order, recomand, decision or judgment made by a Tribunal before the commencement of the Decree, as in this case, is preserved. Subsection (5) thereof further pro- vides that a decision or judgment of a Tribunal made before d the commencement of the Decree shall be enforced in ac- cordance with the procedure or law relating to the enforce- ment of a decision or judgment of the Tribunal before the commencement of this Decree. e In the instant application, learned Counsel relied on section 13(2) of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree No. 18 of 1994 for this appli- cation. That provision reads thus:– f “Where the Tribunal makes an order for payment of the loan and interest and the debtor fails to comply within the time specified in the order, the Tribunal shall make an order to levy execution on all the properties of the debtor pledged as security for the loan.” (Italicising for emphasis.) g From the above provision the Tribunal is empowered to order execution only on those properties pledged as security for the loan. Under section 15 of the same Decree the Tribunal may order execution on other properties but only if the properties h pledged as security against which it has made an order cannot satisfy the judgment debt. In the present case there was no order of the Tribunal in respect of the property pledged as se- curity for the loan because as deposed to in paragraphs 4 and i 5 of the “further affidavit” in support of this application the mortgaged property had already been disposed of or sold by the creditor bank even before the bank was declared a failed bank and before the proceedings in the Failed Banks Tribu- nal. Consequently, as at the time of the judgment of the Tri- j bunal there was no pledged property to be sold.

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Thus it is my view that the provisions of sections 13(2) and a 15 of Decree No. 18 of 1994 have no application in the in- stant motion. However, Rule 27 to Schedule 1 of Decree No. 18 of 1994 b (as amended) provides as follows:– “Where these Rules contain no provision in respect of any matter relating to or connected with the hearing of a case under this Decree, the provisions of the Civil Procedure Rule of the Federal High Court shall, with such modifications as may be necessary to c render them conveniently applicable as if the applicant and the re- spondent were respectively the plaintiff and the defendant in a civil action.” Learned Counsel for the judgment creditor/applicant has re- d ferred me to Order 43 Rule 2(1)(d) of the Federal High Court (Civil Procedure) Rules, 2000 which provides as fol- lows:– “A writ of execution to enforce a judgment or order may not issue without the leave of the Court in the following cases, that is to say, e where-under the judgment or order any person is entitled to relief subject to the fulfilment of any condition which it is alleged has been fulfilled.” By exhibit B annexed to the affidavit in support of the mo- f tion the judgment debtors were ordered to pay the judgment debt plus interest within 14 days thereof and the judgment creditor was ordered to file an undertaking to refund the said judgment debt plus interest if the judgment debtor, appeal g succeeded. The said undertaking was duly filed by the judgment creditor and this fact is deposed to in paragraph 9 of the further affidavit in support of the motion. I do think that this application is therefore covered by Order 43 Rule 2(1)(d) of the Rules of this Court. h Consequently, this application succeeds and leave is hereby granted to the judgment creditor to levy execution upon the properties of the judgment debtor wherever they may be found within the territory of the Federal Republic of i Nigeria for the purpose of selling same towards eventual liquidation of the judgment debtor’s indebtedness to the judgment creditor/applicant.

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Comm Trust Bank Nigeria Ltd v. Ikarus Industries Ltd 13 a Commercial Trust Bank Nigeria Limited v Ikarus Industries Limited and others b FEDERAL HIGH COURT, LAGOS DIVISION NWODO J Date of Judgment: 19 FEBRUARY, 2002 Suit No.: FHC/L/FBC/174/99 c Banking – Banker and customer relationship – Customer drawing on account with insufficient funds – Application for overdraft Banking – Interest – Compound interest – Right of bank to d charge Facts The plaintiff filed an application for Recovery of Debts claim- ing against the defendants jointly and severally as follows:– e 1. The sum of N8,857,482.72 (Eight Million, Eight Hundred and Fifty Seven Thousand, Four Hundred and Eighty Two Naira, Seventy Two Kobo) only be- ing the amount outstanding on the first defendant’s f account as at 31 January, 1996. 2. Interest at the rate of 21% from 1 February, 1996 un- til final liquidation of the judgment debt. Mr Nkem, for the plaintiff, on application was allowed to g call his witness PWl Mr Victor Osifo, in evidence stated that he knew the first and second and third respondents because the second and third respondent opened an account on 22 April, 1994 on behalf of the first respondent. The second h and third signed their signature on the mandate card and are Directors of the first respondent, the certified true copy of the mandate card dated 22 April, 1994 was tendered marked exhibit A.He averred that on the 12 May, 1994 the second i and third respondents brought a Central Bank of Nigeria cheque for N12.8 Million and paid it into the first defendant account for clearance by Commercial Trust Bank. Copy of the cheque no. 01014 was tendered admitted marked exhibit B. The cheque was sent to the Central Bank of Nigeria clear- j ing

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14 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) house. On 19 May, 1995 the customer requested in writing a for Managers cheque to be issued in favour of one Maryam Fuja for N5 million and also N2.8 Million in favour of the second defendant because the chequebook for first respon- b dent was still being processed. The requests were made by written application. The letter dated 19 May, 1995 was ten- dered and marked exhibit C. On 22 May, 1995 other series of withdrawals were made via letter by the second respon- c dent wherein she authorised the Manager to issue cheque in favour of Nasir Samiu for N2.4 Million and a further N2.5 Million in favour of Mrs Toyin Badamosi. The letter of request dated 22 May, 1995 was tendered d marked exhibit D2 whilst letter of request dated same 22 May, 1995 marked exhibit E. PW1 stated that on the 24 May, 1995 the Central Bank of Nigeria wrote a letter to N Commercial Trust Bank notifying them that the 12.8 Mil- e lion Central Bank of Nigeria cheque was suspected forged. Certified copy of the letter was tendered marked exhibit F. He averred that as at today, total of N12,750,000.00 has been withdrawn by first defendant. PW1 further stated that f on receipt of exhibit F the Commercial Trust Bank stopped one of the cheques that was still pending. They informed the police about the matter and reversed the entries and debited the Account of the first respondent. The Manager’s cheque issued in favour of one Maryam for N5 Million was stopped. g On demand for payment of this money the defendants paid 1 Million in 1997. He contended that as at the time the Com- mercial Bank was closed on 16th of January, 1998, the bal- ance outstanding on that date is N7,857,482.72K and inter- h est generated N17 Million. He prayed the Court to award judgment in favour of the Bank in the sum of N17 Million outstanding as at 30 September, 2001 and accrued interest in the judgment sum. i Held – 1. Once a customer and banker relationship exists, a cus- tomer can borrow from the Bank on terms such as col- lateral mortgages and debentures. j

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Comm Trust Bank Nigeria Ltd v. Ikarus Industries Ltd 15 a Also a customer can borrow from a Bank by way of overdraft instead of loan in which case it may not require any special agreement. It could be an indirect or implied overdraft. This kind of situation arises where the cus- b tomer is aware or may not be aware that he does not have sufficient funds in his account and yet goes to the Bank to withdraw. 2. A bank has power to charge compound interest on loans c or other advances granted to a customer even if there were no express agreements on the rate for interest to be charged. Therefore once a customer takes on an over- draft he should expect some consideration and this could d be in form of interest. Funding for the plaintiff.

Cases referred to in the judgment e Nigerian I.O.M. Nwonye and Sons Ltd v CCB Plc (1993) 8 NWLR (Part 310) 210 f UBA Limited v Salami (1998) 3 NWLR (Part 543) 544

Counsel g For the applicant: Nkem Oke

Judgment NWODO J: The plaintiff filed an application for recovery of h debts claiming against the defendant jointly and severally as follows:– 1. The sum of N8,857,482.72 (Eight Million Eight Hundred and Fifty Seven Thousand, Four Hundred i and Eighty Two Naira, Seventy Two Kobo) only be- ing the amount outstanding on the first defendant’s account as at 31 January, 1996. 2. Interest at the rate of 21% from 1 February, 1998, j until final liquidation of the judgment debt.

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The application was initially filed before the Defunct Failed a Bank’s Tribunal and was subsequently transferred to the Fed- eral High Court and assigned to this Court. The record from the file reflects that the defendants filed a memorandum of appearance and reply to the application. They appeared and b were represented before the Failed Bank Tribunal. When the matter was assigned to this Court hearing notices were issued and served on the parties. The Counsel for the c first and second respondents, Mr Oke, was in attendance in court for not less than three adjournments. He filed an appli- cation to withdraw from the case, same was struck out for failure to move the motion. Subsequently, Mr Oke appeared d and made an Oral application which after due consideration the court discharged him. The third respondent never ap- peared and was not represented. Mr Nkem for the plaintiff on application was allowed to e call his witness PWl, Mr Victor Osifo in evidence stated that he knew the first and second and third respondents because the second and third respondent opened an Account on 22 April, 1994 on behalf of the first respondent. The second f and third signed their signature on the mandate card and are Directors of the first respondent, the certified true copy of the mandate card dated 22 April, 1994 was tendered marked exhibit A. g He averred that on the 12 May, the second and third re- spondents brought a CBN cheque for N12.8 Million and paid it into the first defendant account for clearance by Commercial Trust Bank. Copy of the cheque no. 01014 was h tendered admitted marked exhibit B. The cheque was sent to the CBN clearing house. On 19 May, 1995 the customer re- quested in writing for Managers cheque to be issued in fa- vour of one Maryam Fuja for N5 Million and also N2.8 Mil- lion in favour of the second defendant. Because the cheque- i book for the first respondent was still being processed the request were made by written application. The letter dated 19 May, 1995 was tendered and marked exhibit C. On 22 May, 1995 and other series of withdrawals j

[2002 – 2004] 11 N.B.L.R. (PART I) (FEDERAL HIGH COURT, LAGOS DIVISION) Nwodo J Comm Trust Bank Nigeria Ltd v. Ikarus Industries Ltd 17 a were made via letter by the second respondent wherein she authorised the Manager to issue cheque in favour of Nasir Samiu for N2.4 Million and a further N2.5 Million in favour of Mrs Toyin Badamosi. b The letter of request dated 22 May, 1995 was tendered marked exhibit D2 whilst letter of request dated same 22 May, 1995 marked exhibit E. PWl stated that on the 24 May 1995 the CBN wrote a letter to Commercial Trust Bank noti- c fying them that the N12.8 Million CBN cheque was sus- pected forged. Certified copy of the letter was tendered marked exhibit F. N d He averred that as at today total of 12,750,000 has been withdrawn from first defendant, PWl further stated that on receipt of exhibit F, the Commercial Trust Bank stopped one of the cheques that was still pending. They informed the po- lice about the matter and reversed the entries and debited the e Account of the first respondent. The Manager’s cheque is- sued in favour of one Maryam for N5 Million was stopped. On demand for payment of this money the defendants paid N1 Million in 1997. He contended that as at the time the f Commercial Bank was closed on 16 January, 1998, the bal- ance outstanding on that date is N7,857,482.72K and inter- est generated N17 Million. He prayed the court to award judgment in favour of the Bank in the sum of N17 Million g outstanding as at 30 September, 2001 and accrued interest in the judgment sum. This closed the case for the plaintiff. Mr Nkem Oke in addressing the Court formulated the is- sues for determination as follows:– h 1. Whether the defendant’s withdrawal on 19 May, 1995 and 22 May, 1995 amounted to a request for overdraft. 2. Whether the second and third respondents can be held liable along with the first respondent for the sum outstanding. N i 3. Whether the payment of 1 Million by the second respon- dent can be taken as an acknowledgement of the debt and liability. 4. Whether the applicant is justified to charge interest on the sum owed. j 5. Whether the Court can award interest on the judgment sum.

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In respect of issue one Mr Nkem Oke submitted that where a a customer does not have sufficient funds for the withdrawal of his money from the Bank and he withdraws it amounts to a request for overdraft. In support he cited the Court of Ap- peal decision in UBN v Prof A. Ozigi (1991) 2 NWLR (Part b 176) 677 at page 695. He also referred to I.O.M. Nwonye and Sons Co Limited v CCB Plc (1993) 8 NWLR (Part 310) 210 at 221. c He submitted that the written request made on 19th and 22 May, 1995 was made by second and third respondents fully aware that CBN cheque deposited were forged. He urged the court to hold the withdrawals were overdrafts. d On Issue 2, whether the second and third defendants can be held liable with the first respondent. He referred to the deci- sion in Public Finance Securities Limited v Jelia (1998) 3 NWLR (Part 543) 602. He submitted that the withdrawal was made not for the benefit of first defendant but for the e second and third defendants. He urged the Court to lift the veil and hold the second and third respondents liable. f On the issue of N1 million paid by second respondent. He stated the amount was paid in 1997 after the applicant ob- tained an injunction against, the property of second respon- dent. He contended that the part payment made by second defendant connotes an acceptance of liability because she g knew the cheque was forged otherwise she would have pur- sued her defence. On issue of interest he submitted that the Bank has right to charge interest. He cited case of UBA v Salami (1998) 3 h NWLR (Part 543) 544 where the Court of Appeal stated that the Bank has power to charge compound interest even where there was no express agreement on interest to charge. Fi- nally, he submitted that the Court can award interest. i The foregoing is a summary of the plaintiffs’ case and the submission of the learned Counsel for the plaintiff. The issues for determination have been formulated by the plaintiff. Counsel and I will adopt the issues as formulated in j

[2002 – 2004] 11 N.B.L.R. (PART I) (FEDERAL HIGH COURT, LAGOS DIVISION) Nwodo J Comm Trust Bank Nigeria Ltd v. Ikarus Industries Ltd 19 a considering this application from the facts presented before the court by PW1 and the statement of claim. The second and third defendants are Directors of the first defendant and they opened an Account on behalf of first defendant with the b Commercial Trust Bank (now failed) and both signed the Mandate Form. On the first issue of whether the defendant’s withdrawal amounted to a request for overdraft, once a customer and c Banker relationship exists a Customer can borrow from the Bank on terms such as collateral Mortgages and debentures. Also a customer can borrow from a bank by way of over- draft instead of loan in which case it may not require any d special agreement it could be an indirect or implied over- draft, this kind of situation arises where the customer is aware or may not be aware that he does not have sufficient funds in his Account and yet goes to the Bank to withdraw – e I.O.M. Nwonye and Sons Limited v CCB Plc (supra). The Court of Appeal held that drawing cheque or accepting a Bill payable at the Bankers where there are no sufficient funds to meet it amounts to a request on the part of a cus- tomer for an overdraft. The second defendant deposited a f cheque for N12,800,000 on 12 May, 1995. The plaintiff con- tended in paragraph 8 of statement of claim that after the requisite 5 days they credited account of the first defendant on the 19 May, 1995 on that same date the Bank approved g the payment in Cash of N2,800,000 and N5 Million draft in favour of one Maryam Fuja. By 22 May, 1995 another open draft for N2.4 Million and N50,000 were withdrawn and ap- proved. The same date second defendant applied to draw h N2.5 Million. The Manager of Commercial Trust Bank kept approving written applications until CBN letter dated 24 May, 1995. This letter clearly stated and I produce “The cheque is suspected forged”. The bank on instruction by Central Bank of Nigeria debited the first defendant account. i There is also a letter in the file that they wrote to the police to investigate, the outcome of this investigation has not been presented before this Court. However, it will not be right if I fail to make the point that j Commercial Trust Bank exhibited negligence in the entire

[2002 – 2004] 11 N.B.L.R. (PART I) (FEDERAL HIGH COURT, LAGOS DIVISION) Nwodo J 20 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) transaction. The rate at which the defendants withdraw the a money and on each occasion approved by the bank Manager regardless of the fact that the Central Bank of Nigeria had not cleared the cheques by Communicating to them has shown clear, incompetence and negligence on the part of b bank officials concerned. However, having made this observation it does not mean the court should encourage a customer who knowing the status of a cheque presents same and knowing it will not be c cleared goes on to withdraw without money in the Bank. The application made by the second defendant dated 19 May, 1995, 22 May, 1995 and accepted by the bank before payment amount to implied grant of overdraft since the de- d fendant CBN cheque had not cleared by the time the bank authorised the payment to the defendants, the Bank Man- ager’s cheques on the basis that cheque was cleared and on discovery cheque had a problem was right to debit the Ac- e count and same will be described as acceptance of overdraft. On Issue 2 raised as to the liability of the second and third respondents. The fact before the court is that the second and third respondents are Directors of the first respondent and f they have been the ones applying for the withdrawal. They both signed the mandate card and from the entire scenario in this case they have been active participants as to the CBN cheque lodged, which is suspected forged and second defen- g dant in particular had written letters for payment. Both sec- ond and third defendants are liable for the Debt established. In respect of the payment of N1 Million by the second de- fendant, this fact has remained uncontroverted and unchal- h lenged. The statement of account of the first defendant shows that on 30 June, 1997 a Gulf Bank cheque for N1 Million was paid into the first defendant’s account with the Commercial Bank. The details as to who paid the sum and for what has been supplied in the evidence of the PW1. In i the absence of any contradiction I accept same as money ad- vanced in payment for the overdraft. In respect of whether the applicant is entitled to interest. The Court of Appeal in UBN Limited v Salami (supra) held j

[2002 – 2004] 11 N.B.L.R. (PART I) (FEDERAL HIGH COURT, LAGOS DIVISION) Nwodo J Comm Trust Bank Nigeria Ltd v. Ikarus Industries Ltd 21 a that a bank has power to charge compound interest on loans or other advances granted to a customer even where there were no express agreements on the rate of interest to be charged. Therefore, once a customer takes on an over- b draft he should expect some consideration and this could be inform of interest. The account of the first defendant was debited because the CBN cheque did not clear. The plaintiff is entitled to interest in the overdraft enjoyed by the defen- c dant. PWl in evidence seeks an order of court for N17 Million as the outstanding sum. This is not in cognisance with the claim before the court. The claim is for N8,857,482.72 being d the amount outstanding on first defendant’s account as at 31 January, 1996. I will not award a sum different from the claim before the court as per statement of claim. I refer to the statement of account of first defendant, which reflects N e that on payment of 1 Million the debit reduced to N7,857,482.72. I therefore enter judgment in favour of the plaintiff for the sum of N7,857,482.72 being the outstanding balance against f defendants severally and jointly. I also Order interest at the rate of 21% from 1 February, 1996 until date judgment was awarded.

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a Tempo Mills Limited v Victor Uko Abasi and others FEDERAL HIGH COURT, ENUGU DIVISION b SENLONG J Date of Judgment: 21 FEBRUARY, 2002 Suit No.: FHC/EN/CS/136/2001

Action – Locus standi – Meaning of – How determined c Companies – Debentures – Charge over assets of Company – Effect of – Whether outright alienation of proprietary rights of mortgagor Companies – Receiver – Appointed under a debenture as d agent of mortgagor – Fiduciary relationship of – Duty to act in utmost good faith Companies – Receiver/Manager – Appointment of – Effect on right of Company to deal with assets in receivership e Mortgage – Charge over assets of borrower as security – Whether outright alienation of proprietary rights of mortga- gor f Mortgage – Power of sale – Duty of Mortgagee to deal with honestly and in good faith – Mortgagee’s power of sale – Remedy of mortgagor where mortgagee’s power of sale im- properly exercised g Practice and procedure – Locus standi – Meaning of – How determined Facts The defendants, by a notice of preliminary objection, sought h for an order striking out the entire suit herein as being vexa- tious, frivolous and constitutes an abuse of the process of Court in that the plaintiff lacks the requisite locus to institute the suit herein. i The grounds upon which the preliminary objection is based are set out in the notice as follows:– 1. By the provisions of the Deed of Fixed and Floating Debenture dated 6 March, 1998 and registered on 27 j

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Tempo Mills Ltd v. Victor Uko Abasi 23 a March, 1998 at the Corporate Affairs Commission, Abuja which said Debenture was executed by the plaintiff in favour of the second defendant/applicant and especially Clauses 1(3), 2, 3, 4, 6, 7, 8, 10, 13 b and 14 thereof, the plaintiff lacks locus standi to in- stitute the suit herein. 2. By the combined effects of sections 208, 209 and 293, subsections (2), (3) and (4) and Schedule 11 to c the Companies and Allied Matters Act, 1990, the plaintiff has divested itself of any control, power or proprietary rights over its assets covered by the Deed of Fixed and Floating Debenture dated 6 March, d 1998 and cannot ipso facto set aside, challenge or in- stitute any action to challenge the exercise of the power of sale or any power whatsoever exercised by the first and second defendants in favour of the third e defendant over the said assets. 3. Under and by virtue of the doctrine of pacta sunt servanda, the plaintiff cannot approbate or reprobate the provisions of the Deed of Fixed and Floating De- f benture dated 6 March, 1992 which she freely and voluntarily entered into with the second defendant. 4. The plaintiff did not comply with the mandatory provisions of sections 303 and 304 of the Companies g and Allied Matters Act, 1990 which are conditions precedent to be fulfilled prior to the institution of the suit herein. The gravamen of the objection was that the mortga- h gor could not bring an action against mortgagee in respect of the mortgaged property since no proprie- tary might remained in him. Held – i 1. “Locus Standi” or the standing to sue is defined as the legal right of a party to an action to be heard in a litiga- tion before a Court of Law or Tribunal. The term entails the legal capacity of instituting, initiating or commenc- j ing an action in a competent Court of Law or Tribunal

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without any inhibition, obstruction or hindrance from a any person or body whatsoever. Consequently, for a per- son to have locus standi in an action he must be able to show that his civil rights and obligations have been or b are in danger of being infringed. Thus, the fact that a person may not succeed in an action does not have any- thing to do with whether or not he has standing to sue. 2. The question whether or not a plaintiff has a locus standi c in a suit is determinable from a totality of all the aver- ments in his statement of claim and that where the aver- ments in a statement of claim disclose the rights or inter- ests of the plaintiff which have been or are in danger of d being violated, invaded or adversely affected by the act of the defendant the complaint of such a plaintiff would be deemed to have shown sufficient interest to give him the locus standi to litigate over the subject matter in is- sue. e 3. Where an individual shows that he has a vested interest in a property or he disputes the ownership of same in another person, then he has the competence to institute f an action to preserve the property until the question of the ownership of the said property is resolved. In the instant case, the plaintiff’s claim has sufficiently shown that it has a vested interest in its assets charged g under a debenture deed in favour of the second defen- dant and has therefore established a standing or locus to maintain this action. 4. A charge created over the assets of a borrower as secu- h rity for a loan is not an outright alienation of the proprie- tary rights of the borrower to the lender. It is for this rea- son that the borrower or mortgagor has a reversionary right in the goods upon the loan being discharged as provided for in clause 12 of exhibit AE2. i 5. Clause 4(2) clearly shows that a Receiver appointed un- der the debenture Deed is an agent of the mortgagor, i.e. the plaintiff, in dealing with the charged assets. Being an agent of the plaintiff, the first defendant herein stands in j

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Tempo Mills Ltd v. Victor Uko Abasi 25 a a fiduciary relationship with the plaintiff and is expected to act with utmost good faith in respect of the plaintiff’s assets charged under the debenture deed and where he b fails to so act as is alleged in this case, the plaintiff cer- tainly can sue or maintain an action against him. 6. A mortgagee in dealing with the mortgaged property is required to act honestly and in good faith and that a c mortgagor will be protected from unreasonable conduct on the part of the mortgagee, such as fraud or a sale at a price considered unconscionable. d 7. The remedy of the mortgagor arising out of improper or irregular exercise of the mortgagee’s power of sale is in damages against the person exercising it. 8. A mortgagor does not lose his right to initiate proceed- e ings in respect of the mortgaged property merely be- cause the mortgagee is vested with the power of sale in the event of the mortgagor failing to repay the loan. 9. Upon the appointment of a Receiver/Manager for a reg- f istered company, that Company and its Directors cease to have any right to deal with the assets in receivership. The Company, however, does not lose its legal entity nor its title to the goods and can indeed institute proceedings g in its name challenging the security under which the Re- ceiver was appointed as well as his appointment and subsequent acts, as in this case. h 10. The appointment of a Receiver/Manager does not vest in him any legal estate in the assets or goods in receiver- ship, and thus since the Company retains its title and le- gal personality but does not have powers to deal with the i assets it can nonetheless maintain an action in respect of the property if there is fraud perpetrated against it or if the Receiver does not act in good faith since he is an agent of the company. j Dismissing the preliminary objection

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Cases referred to in the judgment a

Nigerian FBN v Fashar (2000) 6 NWLR (Part 662) 573 b Guda v Kaita (1999) 12 NWLR (Part 629) 21 Intercontractors Nigeria Ltd v UAC Nigeria Ltd (1988) 1 NSCC (Vol. 19) 739 c NBCI v Alfijir Mining (Nigeria) Ltd (1993) 4 NWLR (Part 287) 346 Nigerian Advertising Services Ltd v UBA Plc (1999) 8 NWLR (Part 616) 546 d Ogbuehi v Gov of Imo State (1995) 9 NWLR (Part 417) 53 Okoye v Lagos State Government (1990) 3 NWLR (Part 136) 115 e Owodunni v Registered Trustees of Celestial Church of Christ (2000) 10 NWLR (Part 675) 315 Pharmatek Industries Projects Ltd v Trade Bank (Nigeria) Plc (1997) 7 NWLR (Part 514) 639 f UBA Trustees Ltd v Niger Grob Ceramic Ltd (1987) 3 NWLR (Part 62) 600 United Nigeria Co Ltd v Nahman (2000) 9 NWLR (Part 671) 177 g

Foreign Hawkesbury Development Co Ltd v Lanmark Functions properties Co Ltd (1969) 2 NWLR 782 h

Nigerian statute referred to in the judgment Companies and Allied Matters Act Cap 59 Laws of the Fed- eration of Nigeria, 1990, sections 208, 209, 293, 303, 304, i 393

Counsel For the defendants/applicants: A.M. Oduntan, Esq. j

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Tempo Mills Ltd v. Victor Uko Abasi 27 a Judgment SENLONG J: This ruling is sequel to a notice of preliminary objection filed by the defendants against this suit instituted b by the plaintiff. The notice of preliminary objection dated 30 November, 2001 and filed on 3 December, 2001 prays for an order striking out the entire suit herein as being vexatious, frivolous and constitutes an abuse of the process of Court in that the plaintiff lacks the requisite locus to institute the suit c herein. The ground upon which the preliminary objection is based is set out in the notice as follows:– 1. By the provisions of the Deed of Fixed and Floating d Debenture dated 6 March, 1998 and registered on 27 March, 1998 at the Corporate Affairs Commission, Abuja which said Debenture was executed by the plaintiff in favour of the second defendant/applicant e and especially clauses 1(3), 2, 3, 4, 6, 7, 8, 10, 13 and 14 thereof, the plaintiff lacks locus standi to in- stitute the suit herein. 2. By the combined effects of sections 208, 209 and f 293 subsections (2), (3) and (4) and Schedules 11 to the Companies and Allied Matters Act, 1990, the plaintiff has divested itself of any control, power or proprietary rights over its assets covered by the Deed g of Fixed and Floating Debenture dated 6 March, 1998 and cannot ipso facto set aside, challenge or in- stitute any action to challenge the exercise of the power of sale or any power whatsoever exercised by the first and second defendants in favour of the third h defendant over the said assets. 3. Under and by virtue of the doctrine of pacta sunt servanda, the plaintiff cannot approbate or reprobate the provisions of the Deed of Fixed and Floating De- i benture dated 6 March, 1992 which she freely and voluntarily entered into with the second defendant. 4. The plaintiff did not comply with the mandatory provisions of sections 303 and 304 of the Companies j and Allied Matters Act, 1990 which are conditions

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precedent to be fulfilled prior to the institution of the a suit herein. The Notice of Preliminary Objection is supported by a 14 paragraph affidavit with four exhibits. Arguing the objection, b learned Counsel for the defendants relied on the affidavit and exhibits in support thereof and set out to argue Grounds 1 and 3 of the objection together. He observed that the nucleus of the plaintiff’s case is that the sale of its assets by the first de- c fendant to the third defendant at the instance of the second defendant is unlawful and void. He submitted that the plain- tiff and second defendant had a banker/customer relationship and that based on that relationship the plaintiff applied for and was granted a loan. The said loan was secured by a Deed d of Fixed and Floating Debenture dated 6 March, 1998 as evi- denced by exhibit AE2 annexed to the affidavit in support of the objection. He argued that under exhibit AE2 the plaintiff gave wide absolute powers to the second defendant to sell, e alienate or dispose in whatever manner all the assets itemised in the Schedule to exhibit AE2 and the power was to be exer- cised in the event of the plaintiff’s default in repaying the loan. Following the plaintiff’s default in repaying the loan the f second defendant exercised its statutory and contractual power of sale. The power was exercised through the appoint- ment of the first defendant as Receiver. Counsel referred to paragraphs 5–8 and 10 the affidavit in support. He contended that the notice of appointment of the first defendant was con- g veyed to the plaintiff before the assets were sold. The plaintiff did not raise any objection to the sale as averred in paragraph 11 of the affidavit until over 6 months after the sale before the plaintiff initiated the present proceedings. Learned Counsel h for defendants then submitted that the fundamental question for determination is whether the plaintiff, having mortgaged its erstwhile assets has locus to institute this action. He con- tended that in answering this question the Court must exam- i ine the terms of exhibit AE2 particularly Clauses 2, 3(1) and (8), 4, 6 and 12. On the definition of locus standi learned Counsel referred me to the case of Military Administrator of Akwa-Ibom State v Godfrey Obong (2001) 1 NWLR (Part 694) 214 ratio 3. j

[2002 – 2004] 11 N.B.L.R. (PART I) (FEDERAL HIGH COURT, ENUGU DIVISION) Senlong J Tempo Mills Ltd v. Victor Uko Abasi 29 a He then submitted that by reason of the terms of exhibit AE2 and the appointment of a Receiver in the first defendant the plaintiff has no locus to institute this action. He argued that under Clause 2 of exhibit AE2 the plaintiff assigned its b proprietary interest in the assets to the second defendant and that by the provisions of sections 208(1), 209(1), (6) and 209(3), (5) and (7) of the Companies and Allied Matters Act, 1990 the plaintiff had divested itself of its ownership c rights of the assets and conferred same on the second defen- dant. Furthermore, learned Counsel argued that under Clause 4 of exhibit AE2 the plaintiff empowered the second defen- dant to appoint a Receiver with consequential powers of sale d and that it is trite that the powers of a Company to deal with its properties cease upon the appointment of a Receiver over such properties. He relied on the case of NBCI v Alfijir Min- ing (Nigeria) Ltd (1993) 4 NWLR (Part 287) 346 ratio 3, and section 393(4) of the Companies and Allied Matters e Act, 1990. He submitted that it is only the Receiver who can sue and be sued in respect of the properties and that the plaintiff cannot itself maintain an action in respect of the properties. He then cited the case of Pharmatek Industries f Projects Ltd v Trade Bank (Nigeria) Plc (1997) 7 NWLR (Part 514) 639 ratio 1. Furthermore, learned Counsel for the defendants stated that under Clause 6 of exhibit AE2 the plaintiff gave the second g defendant an irrevocable power of attorney to sell the assets and submitted that an irrevocable power of attorney is given for valuable consideration and that the effect of the irrevoca- ble power of attorney is that it confers ownership of the assets h of plaintiff on the second defendant. He submitted that it is trite that a sale carried out by the donee of a power of attorney cannot be challenged by the donor, and referred to the case of Tingley v Mullar (1917) 2 Ch. 144 at page 165. i In an alternative argument learned Counsel for the defen- dants argued that in the unlikely event of the court holding that plaintiff has locus, the locus has been waived because the plaintiff did not challenge the appointment of the first defendant as Receiver and did not object to the sale of its j assets. On the principle of waiver learned Counsel cited the

[2002 – 2004] 11 N.B.L.R. (PART I) (FEDERAL HIGH COURT, ENUGU DIVISION) Senlong J 30 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) case of Ariori and others v Elemo (1983) All NLR 1. He a then urged me to hold that the plaintiff lacks the locus to in- stitute this proceeding and to strike out the action. Replying learned Counsel for the plaintiff submitted that b this objection is based on the wrong notion that once a Company creates a legal mortgage or charge over its assets as security for repayment of a loan and once that security has been realised through a Receiver the Company lacks standing in law to complain about any wrong which has c been perpetrated on the Company by the Receiver and/or others in collusion with the Receiver. He argued that a party to a contract has by virtue of being a party to the contract locus standi to challenge any wrong perpetrated by the other d party to the contract. He contended that the purport of the clauses in exhibit AE2 are misconstrued by the defendants as implying that there was absolute alienation of the encumbered assets of the e mortgagor in favour of the mortgagee. He submitted that the assets are under Clause 2 charged as security for repayment of the loan and that the charge is neither an assignment nor an alienation of the assets. He argued that all the clauses rec- f ognise the ownership of the assets charged as residing in the mortgagor, the plaintiff. He submitted that the Receiver is an agent of the plaintiff as shown in Clause 6 of exhibit AE2 and that therefore the charge is not an alienation or assign- g ment. He noted that the crux of the plaintiff’s case is that the defendants acted to defraud the plaintiff in the sale of its as- sets and that there is no clause in exhibit AE2 that takes away the plaintiff’s right of action. He also relied on the two cases of Pharmatek Industries Projects Ltd (supra) and h NBCI v Alfijir Mining Nigeria Ltd (supra). He urged me to hold that the plaintiff has locus to institute this action. After a careful consideration of the grounds of objection set out in the Notice of Preliminary Objection and the sub- i missions of Counsel I think the following issues fall for de- termination:– 1. Whether by virtue of Clauses 2, 3(l) and (8), 4, 6 and 12 of the Debenture, exhibit AE2, the plaintiff has j

[2002 – 2004] 11 N.B.L.R. (PART I) (FEDERAL HIGH COURT, ENUGU DIVISION) Senlong J Tempo Mills Ltd v. Victor Uko Abasi 31 a divested itself of its proprietary rights over its assets charged under the Deed and conferred same on the second defendant and therefore lacks the locus standi to institute this proceedings. b 2. Whether by the provisions of sections 208(1), 209(1), (6) and 209(3), (5) and (7) of the Companies and Allied Matters Act, 1990 the plaintiff has di- vested itself of its ownership rights over the assets c and conferred same on the second defendant. 3. Whether by the appointment of the first defendant as Receiver of the plaintiff, the plaintiff cannot main- d tain an action in respect of the assets charged. 4. Whether by sections 303 and 304 of the Companies and Allied Matters Act, 1990 conditions precedent to the institution of this proceeding have not been com- e plied with. With respect to the first issue raised above it is necessary to make reference to the clauses cited by learned Counsel for the defendants. The said clauses are not new but the usual f clauses found in debenture deeds. Clause 2 creates the charge over the fixed and floating as- sets of the plaintiff as borrower in favour of the second de- fendant as lender to secure the loan granted by the second g defendant to the plaintiff. Clause 3 provides for the immedi- ate payment and the enforcement of the security charged upon the happening of certain events such as default by the borrower to make a repayment of any outstanding amount or h interest due for a period of 30 days or upon written demand by the Bank for the repayment of the monies secured etc. Clause 4 empowers the Bank, i.e. the second defendant to appoint a Receiver or Receivers over the assets charged at any time after the loan becomes repayable and also provides i for the powers and duties of a Receiver so appointed. Clause 4(2) thereof however, provides as follows:– “A Receiver or Receivers appointed hereunder shall be the agent or agents of the Borrower and the Borrower shall be responsible j for his or their acts and defaults and for his or their remuneration,

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costs, charges and expenses, to the exclusion of liability on the a part of the Bank.” Clause 6 of exhibit AE2 provides for the appointment of the Bank or any person nominated by the Bank including any b Receiver appointed by it as Attorney to the Borrower, i.e. the plaintiff, by an irrevocable Power of Attorney. Clause l2 is a discharge provision to the effect that upon the payment of the loan and all interest due thereon by the Borrower, the assets charged under the deed shall become discharged. c As I said earlier in this ruling the clauses in exhibit AE2 are not new but the usual clauses found in debenture deeds. The issue for me to determine here is whether by the crea- d tion of the charge over its assets the plaintiff has divested itself of its ownership rights in the said assets and vested same in the second defendant and thereby lacks the locus standi to bring the present proceedings. What then is “locus standi?” In Guda v Kaita (1999) 12 NWLR (Part 629) 21 e “locus standi” or the standing to sue is defined as the legal right of a party to an action to be heard in a litigation before a Court of law or Tribunal. The term entails the legal capac- ity of instituting, initiating or commencing an action in a f competent Court of law or Tribunal without any inhibition, obstruction or hindrance from person or body whatsoever. Consequently, for a person to have locus standi in an action he must be able to show that his civil rights and obligations g have been or are in danger of being infringed. Thus, the fact that a person may not succeed in an action does not have anything to do with whether or not he has standing to sue. (Also see Ogbuehi v Governor of Imo State (1995) 9 NWLR (Part 417) 53 and Owodunni v Registered Trustees of Celes- h tial Church of Christ (2000) 10 NWLR (Part 675) 315.) In the Owodunni case it was held that the question whether or not a plaintiff has a locus standi in a suit is determinable i from a totality of all the averments in his statement of claim and that where the averments in a plaintiff’s statement of claim disclose the rights or interests of the plaintiff which have been or are in danger of being violated, invaded or ad- versely affected by the act of the defendant the complaint of j

[2002 – 2004] 11 N.B.L.R. (PART I) (FEDERAL HIGH COURT, ENUGU DIVISION) Senlong J Tempo Mills Ltd v. Victor Uko Abasi 33 a such a plaintiff would be deemed to have shown sufficient interest to give him the locus standi to litigate over the sub- ject-matter in issue. b After carefully perusing the plaintiff’s claim I find that the plaintiff is in this action challenging the appointment of the first defendant as Receiver over its assets charged under a debenture deed in favour of the second defendant. The ac- tion also challenges the sale of its assets charged under the c debenture deed on the grounds of fraud perpetrated by the first and second defendants. The averments in the plaintiff’s statement of claim in my view reveal a legal and justiciable right and sufficiently show the plaintiff’s interest which he d alleges is adversely affected. Having revealed a justiciable cause of action I am of the view that the plaintiff has estab- lished its standing or locus to sue in this action. I am in agreement with learned Counsel for the plaintiff that the e clauses in exhibit AE2 relied upon by Counsel for the de- fendants are misconstrued by the defendants as implying that there was absolute alienation of the charged assets. A charge created over the assets of a borrower as security for a f loan is not an outright alienation of the proprietary rights of the borrower to the lender. It is for this reason that the bor- rower or mortgagor has a reversionary right in the goods upon the loan being discharged as provided for in Clause 12 of exhibit AE2. Furthermore, Clause 4(2) clearly shows that g a Receiver appointed under the debenture deed is an agent of the mortgagor, i.e. the plaintiff, in dealing with the charged assets. Being an agent of the plaintiff, the first defendant herein stands in a fiduciary relationship with the plaintiff h and is expected to act with utmost good faith in respect of the plaintiff’s assets charged under the debenture deed and where he fails to so act as is alleged in this case, the plaintiff certainly can sue or maintain an action against him. In any i case it is not in dispute that the assets in question were charged under a deed of debenture in favour of the second defendant to secure a loan granted to the plaintiff. It has been held that where an individual shows that he has a vested interest in a property or he disputes the ownership of j same in another person, then he has the competence to

[2002 – 2004] 11 N.B.L.R. (PART I) (FEDERAL HIGH COURT, ENUGU DIVISION) Senlong J 34 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) institute an action to preserve the property until the question a of the ownership of the said property is resolved. (See United Nigeria Co Ltd v Nahman (2000) 9 NWLR (Part 671) 177 and Okoye v Lagos State Government (1990) 3 NWLR (Part 136) 115.) I am satisfied that the plaintiff’s b claim has sufficiently shown that it has a vested interest in its assets charged under a debenture deed in favour of the second defendant and has therefore established a standing or locus to maintain this action. I do not therefore agree with c learned Counsel for the defendants that Clauses 2, 3(1) and (8), 4, 6 and 12 or any clause in exhibit AE2 deprives the plaintiff the locus to institute this proceedings. In the cir- cumstance, I hold that Ground 1 of the defendant’s prelimi- d nary objection lacks merit and is hereby overruled. The second ground of objection is that by the combined ef- fect of sections 208, 209 and 293 and schedule 11 of the Companies and Allied Matters Act, 1990, the plaintiff has e divested itself of any control, power or proprietary rights over its assets and cannot ipso facto set aside, challenge or institute any action to challenge the exercise of the power of sale or any power whatever exercise by first and second de- f fendants in favour of the third defendant over the said assets. For the avoidance of doubt section 208 makes provision for the realisation of a debenture holder’s security, while section 209 provides remedies available to a debenture holder when he becomes entitled to realise the security charged which g includes the powers to appoint a Receiver of the assets charged. The eleventh schedule to the Companies and Allied Matters Act, 1990 sets out the powers of Receivers and Managers in addition to those specified in section 393 of the h said Act in respect of the assets charged as security. Having carefully perused the above provisions I am unable to agree with learned Counsel for the defendants that the provisions deprive the plaintiff of any locus to institute proceedings in i respect of the assets of the plaintiff charged as security for the loan granted to it by the second defendant. I have already stated that the plaintiff’s action is challenging the appoint- ment of the first defendant as Receiver of its assets and also the manner the assets have been sold. The fact that the law j

[2002 – 2004] 11 N.B.L.R. (PART I) (FEDERAL HIGH COURT, ENUGU DIVISION) Senlong J Tempo Mills Ltd v. Victor Uko Abasi 35 a vests powers in the Receiver to sell such assets does not mean that if the powers are abused the mortgagor cannot maintain an action thereon. In Nigerian Advertising Services Ltd v UBA Plc (1999) 8 NWLR (Part 616) 546 it was held b that a mortgagee in dealing with the mortgaged property is required to act honestly and in good faith and that a mortga- gor will be protected from unreasonable conduct on the part of the mortgagee, such as fraud or a sale at a price consid- c ered unconscionable. In FBN Plc v Fashar (2000) 6 NWLR (Part 662) 573 it was held that the remedy of the mortgagor arising out of improper or irregular exercise of the mort- gagee’s power of sale is in damages against the person exer- d cising it. From the above authorities it is clear to me that a mortgagor does not lose his right to initiate proceedings in respect of the mortgaged property merely because the mort- gagee is vested with the power of sale in the event of the mortgagor failing to repay the loan. On the basis of these au- e thorities and the clear provisions of sections 208 and 209 as well as the schedule to the Companies and Allied Matters Act, 1990, I make bold to hold that the plaintiff herein has locus standi to institute and maintain the present proceed- f ings. It was also contended on behalf of the defendants that by the appointment of the first defendant as Receiver over the assets of the plaintiff, the powers of the plaintiff to deal with such g properties ceased and that it is only the Receiver who can sue and be sued in respect of the properties. I think this submis- sion is predicated upon the provisions of section 393 of the Companies and Allied Matters Act, 1990 but the correct posi- h tion in law in my view is that upon the appointment of a Re- ceiver/Manager for a registered company, that Company and its Directors cease to have any right to deal with the assets in Receivership. The Company, however, does not lose its legal i entity nor its title to the goods and can indeed institute pro- ceedings in its name challenging the security under which the Receiver was appointed as well as his appointment and sub- sequent acts, as in this case. (See Hawkesbury Development Company Ltd v Lanmark Functions Property Co Ltd (1969) 2 j NWLR 782 and UBA Trustees Ltd v Nigergrob Ceramic Ltd

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(1987) 3 NWLR (Part 62) 600.) In Intercontractors Nigeria a Ltd v UAC of Nigeria Ltd (1988) 1 NSCC Vol. 19 739 it was held that the appointment of a Receiver/Manager does not vest in him any legal estate in the assets or goods in Receiver- ship, and thus since the Company retains its title and legal b personality but does not have powers to deal with the assets it can nonetheless maintain an action in respect of the property if there is fraud perpetrated against it or if the Receiver does not act in good faith since he is an agent of the Company. c Learned Counsel for the defendants cited the two cases of NBCI v Alfijir (Mining) Nigeria Ltd (supra) and Pharmatek Industries Ltd v Trade Bank (Nigeria) Plc (supra) to support his submission but I must hasten to say that the two authori- d ties do not favour the submission that a Company cannot maintain an action at all in its name merely because a Re- ceiver has been appointed over its assets. The two authorities confirm the legal principle that upon the appointment of a Receiver over the assets of a Company, the Company ceases e to have power to deal with the assets. Certainly the power to deal with assets is a different thing from the locus to institute and maintain an action in respect of the said assets. Indeed in the Alfijir case, the Supreme Court held that “where as in the f instant case, the Receiver or Receiver/Manager as the case may be, can apply any money received in the course of his duties as such towards the satisfaction of all or any part of the debt secured by the mortgage deed under which he is ap- g pointed then the validity of the appointment of that Re- ceiver/Manager will be crucial to any claim by the Company in receivership for damages against the Receiver/Manager for any alleged wrongful retention of the money so received”. h Similarly, in the Pharmatek case it was held as follows:– “It is not the law that a suit challenging the appointment of a Re- ceiver can only be brought by or with the consent of the Receiver whose appointment is being challenged.” i Having regard to the authorities I hold that although a Com- pany ceases to have powers to deal with its assets in receiv- ership, it nonetheless has locus standi to institute and main- tain an action in respect of the appointment of the Receiver, or the manner the assets in receivership has been dealt with j

[2002 – 2004] 11 N.B.L.R. (PART I) (FEDERAL HIGH COURT, ENUGU DIVISION) Senlong J Tempo Mills Ltd v. Victor Uko Abasi 37 a if there is any fraud or bad faith in the conduct of the Re- ceiver. The present action alleges fraud in the manner the plaintiff’s assets in receivership were dealt with and it also challenges the validity of the first defendant’s appointment b as Receiver. In the circumstance, I am of the view and so hold that the plaintiff herein has locus standi to institute this action. Finally, learned Counsel for the defendants argued that c conditions precedent to the institution of this action as laid down in sections 303 and 304 of the Companies and Allied Matters Act, 1990 were not complied with by the plaintiff. Section 303 provides for the commencement of derivative d action and section 304 provides for the powers of the Court in respect of such actions. I do not see the relevance of these provisions to the instant case. Suffice it to say that the pre- sent case is not a derivative action and cannot therefore fall e within the ambits of sections 303 and 304. I think the sub- mission in this regard is totally misconceived. On the whole I am satisfied that the plaintiff herein has requisite locus standi to institute this proceeding. Conse- f quently, all the grounds of objection raised by the defen- dants are without merit. They fail and are hereby dismissed.

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a Alex O. Onwuchekwa v Nigeria Deposit Insurance Corporation SUPREME COURT OF NIGERIA b OGUNDARE, ONU, KALGO, UWAIFO, AYOOLA JJSC Date of Judgment: 22 FEBRUARY, 2002 Suit No.: SC.98/2000

Banking – Banker and customer relationship – Failure of c bank to remit money deposited with it by customer to an- other bank abroad Banking – Contract – Breach of by banker – Failure to remit money deposited with it by customer to another bank abroad d – Award of damages Contract – Illegality – Defence of – Basis and rationale for – Duty on defendant to plead – Where not pleaded – Effect of – Lawful contract – Whether necessarily affected by an- e other separate illegal contract Contract – Privity of contract – Person not a party to a con- tract – Whether can raise the defence of illegality to defeat the contract f Facts The appellant claimed in the High Court against the respon- dent the sum of £32,500 (Thirty-two thousand, Five hundred Pounds sterling) being the indemnity or recompense for g bank value of the money which the bank negligently failed to remit to London on the appellant’s instruction and dam- ages for negligence and breach of contract on the part of the bank. The High Court entered judgment in favour of the ap- h pellant in the sum of £32,500.48p “to enable him repay rela- tions and friends overseas who alleged dipped their hands in their pockets and paid the debt” when the respondents did N not pay. The Court also awarded 100,000 damages. The i respondents herein appealed to the Court of Appeal and raised the defence of illegality claiming the provisions of Exchange Control (Anti-Sabotage) Act, 1984. The Court en- tered judgment in favour of the respondent. The appellant being dissatisfied appealed to the Supreme Court. j

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Alex O. Onwuchekwa v. Nigeria Deposit Insurance Corporation 39 a Held – Where the plaintiff’s claim is under a lawful contract such will not fail by reason of illegality of another contract if the b plaintiff can establish his case without reference to another illegal contract to which he is a party. The plaintiff is there- fore entitled to the total amount deposit to be remitted abroad which was not done and damages. c Appeal allowed. Cases referred to in the judgment

Foreign d Coburn v Collins (1887) 35 Ch.D. 373 Hadley v Baxendale (1854) 9 Exch. 314 Hayward v Lely (1887) 56 L.T. 418 e Koufos v C. Czarnikow Ltd (1969) 1 AC 350 St. John Shipping Corporation v J. Rank Ltd (1956) 3 All ER 683 Victoria Laundry (Windsor) Ltd v Newman Ltd (1949) 1 All f ER 997

Nigerian statutes referred to in the judgment Companies and Allied Matters Act Cap 59 Laws of the Fed- g eration of Nigeria, 1990, sections 417, 425(1)(a) Exchange Control (Anti-Sabotage) Act Cap 114 Laws of the Federation of Nigeria, 1990, section 1(1) Foreign Exchange (Monitoring and Miscellaneous Provi- h sions) Decree No. 17 of 1995, section 38(1)

Counsel For the appellant: P.I.N. Ikwueto, Esq. i For the respondent: C.C. Ngwubika, Esq.

Judgment AYOOLA JSC: (Delivering the lead judgment) The appel- j lant, Alex O. Onwuchekwa, has appealed to this Court from

[2002 – 2004] 11 N.B.L.R. (PART I) (SUPREME COURT OF NIGERIA) Ayoola JSC 40 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) the decision of the Court of Appeal (Tobi and Ubaezonu, a JJCA, Akpabio JCA, dissenting) whereby the appeal of the Nigeria Deposit Insurance Corporation (Liquidator of Co- operative and Commerce Bank (Nigeria) Ltd) (now the re- spondent) was allowed and judgment was entered dismissing b the appellant’s claim. In the High Court of the appellant claimed against the Co-operative and Commerce Bank (Nigeria) Ltd c (“the bank”) the “sum of £32,500” (Thirty-two Thousand, Five Hundred Pounds Sterling) being an indemnity or rec- ompense for the value of the money which the defendant negligently failed to remit to London on the plaintiff’s in- struction” and damages for negligence and/or breach of con- d tract on the part of the defendant. The appellant who was a businessman and the bank’s cus- tomer sometime in 1983 received a contract from the Fed- eral Electoral Commission to supply certain goods pursuant e to which the Commission requested the Central Bank and the respondent to make available foreign exchange to the appellant. The appellant duly requested the respondent to undertake the submission, processing and obtaining from the f Central Bank and to request the approval for the remittance to the appellant’s overseas suppliers (Tellscar Ltd of Lon- don) the sum of £32,500 being the FOB value of the goods to be imported into Nigeria. The appellant gave the respon- g dent necessary documents and paid the equivalent sum of money (including bank commission) demanded by the re- spondent for the processing and remittance of the price of the said goods through normal banking procedure. The ap- pellant duly took delivery of the goods which were air- h freighted to Nigeria by his suppliers. However, the respondent failed to remit the purchase price of the goods to the suppliers and neglected to complete fully i the form transmitted to the Central Bank. The respondent continued to default by non-remittance of the price of the said good until take over of government ushered in a new military administration which introduced a Trade Debit Re- financing Scheme affecting uncompleted transactions, such j

[2002 – 2004] 11 N.B.L.R. (PART I) (SUPREME COURT OF NIGERIA) Ayoola JSC Alex O. Onwuchekwa v. Nigeria Deposit Insurance Corporation 41 a as the appellant’s, and requiring defaulting bank’s, such as the respondent, to re-submit necessary applications for re- mittance. The appellant alleged that the respondent is re- sponding to the Central Bank’s circular for the Scheme “did b not exercise due care and diligence in filling the requisite forms”. The respondent’s “negligence, wrong figures, careless fill- ing of forms and utter disregard to the care required in proc- c essing the application caused the non-remittance of the sums involved in the suit”. In consequence of non-remittance of the sums the appellant’s suppliers refused to entertain fresh orders from the appellant. According to the appellant, in the d circumstances he had to secure from another source foreign exchange with which he had paid directly to Tellscar Ltd. He suffered loss and damage. Hence, his claim. The substance of the respondent’s defence was that it did e all that was necessary, and proper in banking practise and operations and relying at all times material on information supplied by the plaintiff. The rest of the defence was an ex- planation of this main defence. f The trial Judge after considering the evidence came to the conclusion that the respondent was negligent. Since nothing turns in this appeal on whether he was right or not in coming to that conclusion, his grounds for so concluding are imma- g terial. Suffice it to say that he entered judgment for the ap- pellant in the sum of £32,500.48p “to enable him repay rela- tives and friends overseas who dipped hand in their pockets and paid the debt which the defendant defaulted (sic) him from paying” and N100,000 damages. h On the respondent’s appeal to the Court of Appeal from that decision the issue considered to be dominant by Ubae- zonu, JCA, who delivered the leading judgment, was whether the act of the appellant in making arrangement for i the payment of his overseas customers and in paying them offended the Exchange Control (Anti Sabotage) Act (Cap 114 Laws of Nigeria, 1990). Holding that the issue of illegality was raised in the state- j ment of defence by the bare averment that the appellant

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“illegally paid his suppliers”, Ubaezonu, JCA, proceeded to a consider “whether what the respondent did as disclosed by the evidence amounted to an illegality”. The evidence in question had consisted of the evidence of the appellant who in examination in chief had said:– b “I made an arrangement with my friends and relations in Europe to settle the bills in foreign currencies. I did settle them. The overseas suppliers wrote me that he was paid while the defendant (sic) still battling with remitting the money.” c And under cross-examination, he said:– “I discussed with my relations when they visited home so that when they went back to London they credited my account in Lon- don and I issued cheques to my foreign customers who acknowl- d edged receipt for payment.” From this evidence he held that the appellant in making payment to Tellscar Limited in London had made payment to or for the credit of any person resident outside Nigeria e and had placed a sum to the credit of a person resident out- side Nigeria in contravention, respectively, of section 1(1)(a)(i) and section 1(1)(a)(iv) of the Exchange Control (Anti Sabotage) Act. He also said that the appellant bor- rowed foreign currency outside Nigeria contrary to section f 1(1)(e) of the Act. The relevant subsections of section 1 of the Act are in the following terms:– g “1(1) Any person who, whether or not before the commence- ment of this Act but not earlier than October, 1979 does any of the following things, that is to say:– (a) without the permission of the appropriate authority h (i) makes any payment to or for the credit of a per- son resident outside Nigeria; or . . . (iv) places any sum to the credit of any resident out- side Nigeria . . . (e) without the permission of the appropriate authority and i not being an authorised dealer, while resident in Nigeria buys or borrows any foreign currency outside Nigeria from or sells or lends any person other than an author- ised dealer, shall not withstanding anything to the con- trary in any law, be guilty of an offence under this Act.” j

[2002 – 2004] 11 N.B.L.R. (PART I) (SUPREME COURT OF NIGERIA) Ayoola JSC Alex O. Onwuchekwa v. Nigeria Deposit Insurance Corporation 43 a Relating these provisions to the evidence earlier quoted Ubae- zonu, JCA, came to the crucial conclusion which in his opinion was conclusive of the appeal in the court below thus:– b “Now, the important issue in this case is that the respondent seeks to recover from the appellant the money he paid in contravention of the Exchange Control (Anti Sabotage) Act of 1984. Can he do this? The answer is clearly and regrettably in the negative. No court should aid or assist illegality no matter the circumstance. I c say ‘regrettably’ because it seems to me that the failure to get the approval of the appropriate authority to remit the money paid to it (the appellant) was due to the negligence or incompetence of the appellant. The respondent in his effort to save his reputation and perhaps the reputation of this country from his overseas customers d ran foul of the law. Be that as it may the hands of the court are tied by the law (sic; viz) Exchange Control (Anti Sabotage) Act of 1984 Cap 114.” With that opinion Tobi, JCA, agreed but not so Akpabio, e JCA, who in a powerful and well considered dissenting judgment held the view that the question of illegality under the Exchange Control (Anti Sabotage) Act was never can- vassed in the pleadings at the trial and that even if the ques- tion had been raised, such contention would have been unten- f able as the contract between the parties was a simple and le- gitimate one. In his view the whole transaction in London be- tween the respondent (i.e. the present appellant) and his rela- tions was a “res inter alios”. Even if any one was to complain g it should have been the Central Bank and not the appellant. Their lordships of the Court of Appeal were unanimous in the view that the respondent has committed a breach of con- tract. They also agree on the nature of the loss for which the h appellant could recover damages consequent on the breach. Ubaezonu, JCA, after considering the principles relating to award of general damages in contract said:– “With the above principles in mind the damages recoverable in i this case would be in the first place the Naira equivalent of the money to be remitted to the overseas suppliers to cover the cost of the commodity as well as the incidental expenses, if the respon- dent’s claim were in order. This amounted to £32,500 plus £50.48. In addition, the respondent suffered some other damage which j flows directly from the breach.” (Italics mine.)

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The only reason the majority in the court below withheld a judgment for the appellant was because it had mentioned in his pleadings and evidence that he paid his suppliers. It was suggested that he “could have left off every thing about pay- ing money to any person overseas as that did not concern b the appellant”. (Italics mine.) I am in agreement with Akpabio, JCA, who in his dissent- ing judgment held the view that on the pleadings, illegality c had not been raised as a defence. The respondent who averred that “plaintiff negligently caused the delay in proc- essing his documents” but added a separate sentence thereto. “And illegally paid his suppliers” cannot be rightly said to have pleaded the illegality of any transaction or that he was d relying on any statute. A cardinal rule of pleading is that whenever a statute is relied on as a bar to action, it should be specially pleaded. (See Coburn v Collins (1887) 35 Ch. D 373, Hayward v Lely (1887) 56 L.T. 418.) Also, a defendant e who relies upon the defence of illegality should state facts on which he relies in his pleadings. The law is well put in Bullen and Laek and Jacob’s Precedents of Pleadings, page 1199 that:– f “Where the defendant relies upon the defence of illegality, he should state facts or refer to facts already stated in the statement of claim, so as to show clearly what the illegality is: if a man in- tended to charge illegality, he must state facts for the purpose of showing what the illegality is Bullivant v Attorney-General for g Victoria (1901) A.C. 196, per Lord Davey at 204.” A defendant who alleges that the plaintiff has acted illegally in the sense that he had acted in contravention of a statute must plead what statute had been contravened and in what h regard. In this case the prohibition in section 1 of the Act was not absolute. The acts prohibited must have been done without i the permission of the appropriate authority is a fact which must be alleged even though the onus of proving due per- mission would be on the person making the payment or do- ing any thing for which the permission is prescribed by sec- tion 1 of the Act. j

[2002 – 2004] 11 N.B.L.R. (PART I) (SUPREME COURT OF NIGERIA) Ayoola JSC Alex O. Onwuchekwa v. Nigeria Deposit Insurance Corporation 45 a Quite apart from the pleading question, was this a case in which the defence of illegality availed the respondent? The answer involves a consideration of a number of established principles of law against the undisputed background of the b fact that the contract which formed the pillar of the appel- lants claim was a lawful contract, it being simple, a contract between the customer and bank for the remittance of money overseas. c The law is clear that where the plaintiff’s claim is under a lawful contract if the plaintiff can establish his case without the reference to another illegal contract to which he is a party. However confusion crept into the consideration of the d appellant’s case in the court below because the trial Judge after rightly appreciating the cause of action had described inaccurately the purport of the appellant’s claim in the relief he granted, and also, because in one breath the majority of e the Court of Appeal regarded the case as one in which the present appellant sought to recover from the appellant the money he paid in contravention of the Exchange Control (Anti Sabotage) Act, 1984 and in another, one in which “the f damages recoverable in this case would be in the first place the naira equivalent of the money to be remitted to overseas suppliers . . .” Ubaezonu, JCA, state that:– “As a result of the breach, the respondent’s business name has g been blacklisted in England and there is no likelihood of his being able to do business with his suppliers or any other British firm. This is a serious damage which arises directly from the breach. It is my considered view that the respondent shall be entitled to sub- stantial damages for the damage he has sustained whether the h damages he has sustained are called general damages or by any other name. The trial court awarded N100,000. I see no reason to disturb the award.” Yet at the end of the day, the majority of the court below i dismissed the appellant’s case in its entirety by reason of il- legality, even in regard to the claim for general damages, without adverting (to the fact that the damages of N100,000 awarded was for breach of a contract which was not, and could not by any stretch of imagination be, at all tainted by j any illegality.

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Akpabio, JCA, was clear in his conclusion that the main a compliant of the respondent (the appellant here) against the appellant (the respondent here) is not filling the appropriate form accurately thus making it impossible for the Central Bank to grant their approval within the stipulated time pre- b scribed between the respondent and his overseas suppliers. That view is consistent with the cause of action disclosed in the appellant’s statement of claim. It is clear from the relief sought by the appellant in the action that what he sought was c “recompense for the value of the money which the defendant negligently failed to remit to London on plaintiff’s instruc- tion and general damages for negligence and/or breach of contract on the part of the defendant”. In these circum- d stances the majority of their Lordships of the Court of Ap- peal were wrong when they approached the matter on the basis that the appellant “seeks to recover from the (respon- dent) the money he paid in contravention of the Exchange Control (Anti sabotage) Act of 1984”. Whether the appellant e did or did not pay his suppliers was not a material averment to his cause of action as long as he was able to show, in re- gard to the breach of contract that there was a breach and in regard to negligence that he suffered damages. The trial f court and the court below found both established not at all on the basis that he had paid his overseas suppliers. It is evident that the conclusion arrived at by the majority of the court below is flawed by a misconception of the appellant’s g claim which led to a failure to apply the appropriate principles of law. Where an Appellate Court misconceives a plaintiff’s case, its decision can hardly be right. Whether the appellant’s claim is regarded as a claim in contract or one in negligence, it h is clear that the basis of his claim was the contract he had with the bank for the remittance of funds to his supplier overseas. To establish a breach of that contract or negligence in its per- formance he did not need to allege and prove that he entered i into a contract with a third party. I quickly refer to two relevant principles in this regard. The first that:– “It is not in every case that a plaintiff’s claim under one contract will fail because of illegality in another contract to which he is a j

[2002 – 2004] 11 N.B.L.R. (PART I) (SUPREME COURT OF NIGERIA) Ayoola JSC Alex O. Onwuchekwa v. Nigeria Deposit Insurance Corporation 47 a party. A claim under a law of contract will not fail by reason of il- legality in another contract if the plaintiff can make out his claim without reference to the illegal agreement.” The second is that:– b “If a person asserts a right in the law of tort and the tort claim is one in respect of which the plaintiff must show a contract as a nec- essary element, then it would seem that for the tort claim to be good the plaintiff must show a lawful, not illegal, contract.” c These two principles are usually set out in Enonchong: Ille- gal Transaction (pub. 1989) at pages 54–55. I gratefully adopt them. d I am of the view that the learned Counsel for the appellant was right when he submitted that “the consequences of the breach of this apparently legal contract are not to be affected by extraneous factors such as the appellant’s efforts to pri- e vately pay his overseas suppliers”. The majority of the court below took a wrong turning when they misconceived the ap- pellant’s claim and proceeded to use a transaction which they described as illegal, to which the respondent was not a f party and which had no direct relevance to the contract in respect of which the action was brought or to the liability of the respondent under the contract, to deprive the appellant of his right under a perfectly legal transaction. Besides, neces- g sary consequence should have been given to the fact that a stranger to an alleged illegal transaction will not normally be allowed to raise a defence of the illegality founded on a transaction to which he is not a party. h It is right to observe, that Ubaezonu, JCA, and Tobi, JCA, felt constrained to dismiss the appellant’s claim only be- cause they felt that their hands were tied and that all forms of illegality have the same consequence of defeating all i claims against which a defence of illegality is raised. It is observed that public policy is at the root of the defence of illegality. A decision to allow the defence or permit recovery sometimes cannot be divorced from public policy considera- tions. Sometimes it is expedient to consider whether to allow j the plaintiff’s claim will be contrary to public policy or

[2002 – 2004] 11 N.B.L.R. (PART I) (SUPREME COURT OF NIGERIA) Ayoola JSC 48 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) whether to deny the claim on the ground of the defence of a illegality will occasion him such an injustice as to be con- trary to another aspect of public policy which is that a citi- zen should not without just cause be deprived of his entitle- ments. The court is not precluded from weighing competing b aspects of public policy and, after so doing, from deciding which one should be the overriding public policy in each particular case. It was in this vein, I believe, that Devlin, J said in St. John Shipping Corporation v J. Rank Ltd (1956) 3 c All ER 683, 691:– “It may be questionable also whether public policy is well served by driving from the seat of judgment everyone who has been guilty of a minor transgression. Commercial men have unwittingly d offended against one of a multiplicity of regulations may neverthe- less feel that they have not thereby forfeited all right to justice, and may go elsewhere for it if courts of law will not give it to them . . . I have said enough and perhaps more than enough, to show how important it is that the court should be slow to imply statutory pro- e hibition of contracts and should do so only when the implication is quite clear.” I have digressed slightly to show that the majority of the court below may not have been as helpless in the particular f circumstances of this case as they thought they were. When the court feels uneasy about the justice of its conclusions it should pause to examine the relevant law and facts more deeply before it accords finality to such conclusions. g Such deeper reflections in this case would no doubt have necessitated such construction of the Act that would reflect the mischief at which the Act aimed, which in this case, as the preamble showed, “was to make special penal provisions h with respect to acts subversive of the exchange control legis- lation in force in the country”. It is to be doubted if the Act was designed to prohibit such casual family transaction as the appellant’s relation in Lon- i don helping him to pay his indebtedness overseas when there was nothing to show that the transaction was a contriv- ance to circumvent our exchange control laws. The ambit of section 1 of the Act is so wide as to be absurd were it to be construed literarily without qualifications. For instance a j

[2002 – 2004] 11 N.B.L.R. (PART I) (SUPREME COURT OF NIGERIA) Ayoola JSC Alex O. Onwuchekwa v. Nigeria Deposit Insurance Corporation 49 a resident of Nigeria who on a visit to London borrowed £10 to pay his taxi fare to the airport would have committed an offence, and one who borrowed or even got a gift of £50 b which he paid into his London account from which he issued a cheque to settle his hotel bills would similarly have com- mitted a contravention of one paragraph or the other of sec- tion 1(1) of the Act. Examples can be multiplied all going to c show that the courts were bound to imply qualifications in the provisions of section 1 of the Act since, however, the Act itself has been repealed in 1995 by section 38(1) of the Foreign Exchange (Monitoring and Miscellaneous Provi- d sions) Decree No. 17 of 1995, any comment on the Act be- yond what may be necessary for the case in hand is of purely historical and academic interests. Suffice it to say that for the purpose of this case enough attention had not been paid, first to the mischief at which the Act aimed and, secondly, to e the absence of any evidence to show that the offer of the ap- pellant’s relations to make funds available to him in England to pay his debts, without more, came without mischief. f In my judgment the majority of the Court of Appeal should not have held that a defence of illegality had been properly raised and, if it had been, that it was established so as to de- feat the appellant’s claim. g Before I part with this appeal, I add that I do not think there is substance in the argument raise by Counsel for the appellant that the proceedings in the court below were a nul- lity. On 14 November, 1996 the bank filed its notice of ap- h peal from the decision of the High Court in the court below. On 12 March, 1998, a winding up order was made against the bank. On 15 June, 1998, the court below gave judgment in the appeal. On these facts Counsel for the appellant ar- gued that by virtue of section 417 of the Companies and Al- i lied Matters Act the proceedings were a nullity. That section provides that:– “If a winding up order is made or a provisional liquidator is ap- pointed, no action or proceedings shall be proceeded with against j the company except by leave of the court.”

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The provisions of an enactment should not be read so as to a deny access to the court. There is nothing in section 417 which prohibits such company as is described in the section from proceeding with action or proceedings against another person. What that section prohibited subject to leave of the b court is proceeding with an action or proceedings against the company. By virtue of section 425(1)(a) of the Companies and Allied Matters Act the liquidator in a winding up by the court shall have power, with the sanction either of the court c or other legal proceeding in the name and on behalf of the company. I do not read section 417 as introducing a further restriction of what is permitted by section 425(1)(a). Be that as it may, the appellant having succeeded on what I d consider to be the main issue in the appeal, I allow the appeal. I set aside the decision of the Court of Appeal allowing the respondent’s appeal in that court. I restore the judgment of the High Court whereby, judgment was entered for the appellant e in the sum of £32,500.48p and N100,000 being general dam- ages. For avoidance of doubt I state that the first sum awarded is as claimed by the appellant’s “recompense for the value of the money which the defendant negligently failed to remit to f London on the plaintiff’s instructions”, and that the second sum is general damages for breach of contract. I award to the appellant N5,000 being costs of the appeal in the court below and N10,000 being costs of this appeal. g OGUNDARE JSC: I agree entirely with the judgment of my learned brother, Ayoola, JSC just delivered. I have nothing more to add. I abide by his order for costs. h ONU JSC: Having read in advance the leading judgment of my learned brother, Ayoola, JSC, I entirely agree with his reasoning and conclusion that the appeal succeeds. I have nothing further to add thereto. i KALGO JSC: I have had the advantage of reading in draft, the judgment just delivered by my learned brother, Ayoola, JSC, and I entirely agree with him that there is merit in the appeal. j

[2002 – 2004] 11 N.B.L.R. (PART I) (SUPREME COURT OF NIGERIA) Kalgo JSC Alex O. Onwuchekwa v. Nigeria Deposit Insurance Corporation 51 a Illegality, which the Court of Appeal (majority decision) used to set aside the decision of the trial court, has not been specifically pleaded by the respondent at the trial, and even b the relevant applicable law, Exchange Control (Anti Sabo- tage) Act has not been pleaded in any particular way. The claim of the appellant before the trial court was completely misunderstood by the Court of Appeal. It was not for money c in foreign exchange which the appellant paid his suppliers in London for goods supplied from the funds borrowed from his relative but for recompense for the value of money the respondent negligently failed to remit on his instructions and d for the damages for breach of contract/negligence for failure to do so. It is clear that both the trial court, Court of Appeal found evidence of negligence/breach of contract against the respondent notwithstanding evidence of payment of the money by the appellant. It was therefore wrong for the Court e of Appeal (majority decision) to defeat the appellant’s action by bringing in the issue of illegality not specifically pleaded and irrelevant to the claim of the appellant. f In the circumstances, I also allow the appeal, set aside the decision of the Court of Appeal (majority decision) and re- store the decision of the trial court. I award N10,000 costs to the respondent. g UWAIFO JSC: I read in advance the judgment of my learned brother, Ayoola, JSC, I am in full agreement with him that the appeal has merit for the reasons he has given. A careful understanding of the claim shows that it is not to h recover money paid or borrowed from a person outside Ni- geria by the appellant while resident in Nigeria. The fact that the appellant was able to meet his indebtedness through pri- vate arrangement after the respondent let him down is not an i issue upon which his claim was founded. It is clearly irrele- vant to his claim which is for “an indemnity or recompense for the value of the money which the defendant negligently failed to remit to London on the plaintiff’s instruction” as well as for damages for negligence and/breach of contract on j the part of the defendant.

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It was on that basis the appellant claimed in essence for the a value of the money he deposited with the respondent bank for the remittance to his overseas creditors which, had it been so remitted, would have been worth £32,500.00. In ad- dition, he claimed general damages of N100,000 for negli- b gence and/or breach of contract on the part of the respon- dent. It is plain to me that the Exchange Control (Anti Sabo- tage) Act upon which the court below gratuitously relied on was inapplicable. The claim stood on its own and could be c prosecuted without reference to how the appellant privately settled his indebtedness overseas. The trial court awarded the appellant the naira equivalent of a total amount of £32,500.48 and also N100,000 general d damages for breach of contract. Nothing was said by the court below about the propriety of awarding the general damages and what they actually represent in the principles of award of damages in contract enunciated in: Hadeley v e Baxendale (1854) 9 Exch. 314 and as interpreted and restated in Victoria Laundry (Windsor) v Newman Industries (1949) 1 All ER 997 and Koufos v C. Garnikow Ltd (The Heron II) (1969) 1 A.C. 350. There is no complaint in re- gard to that other than to remark, albeit as an aside, that I f should not be taken to have accepted the basis for that award made inconsistently with those established principles. I am satisfied that the majority decision of the court below which reversed the judgment of the trial court upon a misap- g plication of the Exchange Control (Anti Sabotage) Act was wrong. I too allow this appeal, set aside the decision of the court below and restore the judgment of the trial court. I abide by the costs awarded by my learned brother Ayoola, h JSC. Appeal allowed.

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Bernard Obioma Oti v. Monday Oti 53 a Bernard Obioma Oti and others v Monday Oti and others b COURT OF APPEAL, PORT-HARCOURT DIVISION OGEBE, AKPIROROH, IKONGBEH JJCA

Date of Judgment: 27 FEBRUARY, 2002 Suit No.: CA/PH/21/97 c Mortgage – Mortgagee without notice of fraud – Entitled to realise its money Facts d The appellants who were plaintiffs in the court below brought an action for themselves and as representatives of the members of the family of Isaac Oti, deceased against the first respondent and other respondents seeking the following e reliefs as per paragraph 16 of their statement of claim:– “1. A Declaration that the plaintiffs and the first defendant who are the children of the late Isaac Oti are entitled to obtain Letters of Administration for the joint administration of Plot 4 in Block 103 otherwise called No. 88 Pound Road, Aba. f 2. An Order of Court that the purported sale of No. 88 Pound Road, Aba by the first defendant to the second defendant in fraud of the plaintiffs is null and void and of no effect what- soever and the delivery up and cancellation of the relevant g Deed of Assignment dated 30 July, 1974 and registered as 11/11/751 and Power of Attorney dated 21 October, 1976 and registered as 61/61/16 of the Lands Registry in the Of- fice at Owerri. 3. An Order of Court that the Legal Mortgage of No. 88 h Pound Road, Aba dated 1 July, 1977 and registered as 80/80/150 of the Lands Registry in the Office at Owerri made between the second defendant and the third defendant in fraud of the plaintiffs is null and void and of no effect whatsoever and the delivery up and cancellation of the said i Legal Mortgage. 4. N1,000 damages for trespass. 5. An injunction restraining the defendants their servants, agents and/or workers from further dealing with the said j property without the knowledge and consent of the

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plaintiffs and also restraining the third defendant from sell- a ing No. 88 Pound Road, Aba aforesaid by public auction which it has proposed to do on the 6th day of March, 1983 (sic). 6. An account by the first defendant to the plaintiffs of all the b income and profits he derived from the said property from the death of the late Isaac Oti until the purported sale of the same to the second defendant and the payment to the plain- tiffs of any sum or sums found due to them on the taking of such account.” c The first respondent was the eldest son of the deceased, Isaac Oti. The deceased died leaving plot no. 88 Pound Road, Aba otherwise called plot 4 in block 103, Aba. The d first respondent was in possession of the title deeds and took charge of the property as the son of the family. He used pro- ceeds from the rents to educate the appellants who were still in school when their father died. He later got the property e assigned to himself and later gave a Power of Attorney to the second respondent to manage the property. The second respondent entered into a mortgage deed, exhibit F with the three respondent/cross-appellant for a loan of N25,000. f When the second respondent was unable to pay the loan the property was advertised for sale. That led the appellants to bring this action. The parties exchanged pleadings and the matter went for g trial before Johnson, J, of the Aba High Court. The parties presented their cases and in the judgment the trial Judge granted all the reliefs sought by the appellants except for the relief seeking to void the mortgage. He held that the third h respondent/cross-appellant was a mortgagee without any no- tice of fraud and is entitled to realise its money. The court however cancelled the notice of sale and ordered that the appellants and the third respondent should negotiate the set- tlement of the mortgage debt within 6 months and if after 6 i months no solution was found the third respondent should take steps to realise its money. The appellants were dissatisfied with the judgment and ap- pealed to this Court. j

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Bernard Obioma Oti v. Monday Oti 55 a Held – Per curiam “have examined the various documents, exhibits C, D and b F. Exhibit C is the assignment of the disputed property to the first respondent by one Robert Iwuagu and Leslie Asi- pakamatogha Green on the 30 July, 1974. There is nothing on its face to show any fraud to put the third respondent on the alert for further investigation. Exhibit D was the Power c of Attorney made in favour of the second respondent by the first respondent. On its face it is also regular. It was on the basis of exhibit D that the mortgage deed was made. I there- fore agree with the learned Counsel for the third respondent, based on the case of Davies v Davies (supra) that the third d respondent was a mortgagee without notice of fraud and was therefore entitled to claim its benefits under the mort- gage deed, exhibit F.” Appeal dismissed; cross appeal allowed. e Cases referred to in the judgment

Nigerian f N.A.A. v Orjiakor (1998) 6 NWLR (Part 553) 265 Ohanaka v Achugwo (1998) 9 NWLR (Part 564) 37

Counsel g For the appellants/cross-respondents: Chief C.O. Ezekwesiri For the respondent/cross-appellant: Mr O.A. Obianwu

Judgment h OGEBE JCA: (Delivering the lead judgment) The appellants who were plaintiffs in the court below brought an action for themselves and as representatives of the members of the family of Isaac Oti, deceased against the first respondent and i other respondents seeking the following reliefs as per para- graph 16 of their statement of claim:– “1. A Declaration that the plaintiffs and the first defendant who are the children of the late Isaac Oti are entitled to obtain Letters of Administration for the joint administration of Plot j 4 in block 103 otherwise called no. 88 Pound Road, Aba.

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2. An Order of Court that the purported sale of no. 88 Pound a Road, Aba by the first defendant to the second defendant in fraud of the plaintiffs is null and void and of no effect what- soever and the delivery up and cancellation of the relevant Deed of Assignment dated 30 July, 1974 and registered as b 11/11/751 and Power of Attorney dated 21 October, 1976 and registered as 61/61/16 of the Lands Registry in the Of- fice at Owerri. 3. An Order of Court that the Legal Mortgage of No. 88 Pound Road, Aba dated 1 July, 1977 and registered as c 80/80/150 of the Lands Registry in the Office at Owerri made between the second defendant and the third defendant in fraud of the plaintiffs is null and void and of no effect whatsoever and the delivery up and cancellation of the said Legal Mortgage. d 4. N1,000 damages for trespass. 5. An injunction restraining the defendants their servants, agents and/or workers from further dealing with the said property without the knowledge and consent of the plain- e tiffs and also restraining the third defendant from selling No. 88 Pound Road, Aba aforesaid by public auction which it has proposed to do on the 6th day of March, 1983 (sic). 6. An account by the first defendant to the plaintiffs of all the f income and profits he derived from the said property from the death of the late Isaac Oti until the purported sale of the same to the second defendant and the payment to the plain- tiffs of any sum or sums found due to them on the taking of such account.” g The first respondent was the eldest son of the deceased, Isaac Oti. The deceased died leaving plot no. 88 Pound Road, Aba otherwise called plot 4 in block 103, Aba. The first respondent was in possession of the title deeds and took h charge of the property as the son of the family. He used pro- ceeds from the rents to educate the appellants who were still in school when their father died. He later got the property assigned to himself and later gave a Power of Attorney to i the second respondent to manage the property. The second respondent entered into a mortgage deed, exhibit F with the third respondent/cross-appellant for a loan of N25,000. When the second respondent was unable to pay the loan the j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, PORT-HARCOURT DIVISION) Ogebe JCA Bernard Obioma Oti v. Monday Oti 57 a property was advertised for sale. That led the appellants to bring this action. The parties exchanged pleadings and the matter went for b trial before Johnson, J, of the Aba High Court. The parties presented their cases and in the judgment the trial Judge granted all the reliefs sought by the appellants except for the relief seeking to void the mortgage. He held that the third respondent/cross-appellant was a mortgagee without any no- c tice of fraud and is entitled to realise its money. The court however cancelled the notice of sale and ordered that the appellants and the third respondent should negotiate the set- tlement of the mortgage debt within 6 months and if after 6 d months no solution was found the third respondent should take steps to realise its money. It should be noted that the first and second defen- dants/respondents did not appeal against this judgment and e did not file any brief in response to this appeal. The appellants were dissatisfied with the judgment and ap- pealed to this Court. The learned Counsel for them in accor- dance with the rules of court filed a brief of argument and f identified two issues for determination as follows:– “1. Both on the facts and law could it be said rightly that the first defendant was the agent of the plaintiffs? 2. Was the learned trial Judge right when he held that the legal g mortgage between the second defendant and the third de- fendant bank was properly made and should be allowed to stand and was the lower court right in making an award to the bank?” h The third respondent/cross-appellant was also dissatisfied with the judgment and cross appealed. The learned Counsel for it filed a brief of argument and identified the following issues for determination:– i “(a) Was the court below correct in the conclusion it reached that the third respondent/cross-appellant was a mortgagee without notice of any fraud? (b) Was the suit instituted by the plaintiffs competent? (c) Was the lower court correct in law to have cancelled exhib- j its C, D and E.

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(d) Having found that the third respondent/cross-appellant was a a mortgagee without notice of any fraud, was the lower court correct to have suspended the third respondent/cross- appellant’s right of sale?” The appellants filed cross-respondent’s brief in reply to the b cross appeal. On the first issue the learned Counsel for the appellant submitted that the first respondent could not be an agent of the appellants in a matter in which he was said to have c committed fraud. He argued that the trial court found as a fact that the first respondent was in fraud of the appellants in dealing with the family property as if it was his own and in evidence he admitted that he conducted all the transactions d without notice or knowledge or consent of the appellants. The first defendant could not have been acting as agent of the appellants in any way. The learned Counsel further sub- mitted that there was no issue of agency in the case raised in e the pleadings of the parties or in evidence. He concluded that the trial court was wrong in holding that the first re- spondent was acting as their agent. The third respondent/cross-appellant did not reply to this f issue. At page 144 of the record of appeal a part of the judgment complained against is contained and it is quoted hereunder:– “From the facts of this case, it is quite clear that the first defendant g mismanaged the property; nevertheless he was doing so ostensibly as the agent of the plaintiffs. I agree that the change of the Title Document to his own name in exhibit C is a fraud on the plaintiffs. As I said earlier that the first defendant mismanaged the property, it is my view that as their ‘agent’ the plaintiffs are bound by the h poor management. It was in the course of the management that the first defendant was raising bank loans?” I agree with the learned Counsel for the appellants that the issue of agency did not arise from the pleadings at all. How- i ever it is clear from the remarks of the Judge that he did not hold the first respondent as the agent of the appellants. He said clearly that he was ostensibly acting as their agent in the management of the property before he fraudulently got the property assigned to himself in his personal capacity. This j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, PORT-HARCOURT DIVISION) Ogebe JCA Bernard Obioma Oti v. Monday Oti 59 a dictum of the trial Judge has not in any way affected the in- terest of the appellants adversely. The trial court still held that they were defrauded in respect of their family property and granted most of the reliefs sought by them. b I do not consider this issue of any serious relevance to the appeal. On the second issue the learned Counsel for the appellant c submitted that once the trial court declared the assignment of the property from the first respondent to the second respon- dent void as he did by declaring exhibits C and D void, then it followed that the mortgage deed exhibit F which flowed from exhibit D could not stand. The learned Counsel submit- d ted that the third respondent/cross-appellant was negligent in tracing the root of title to the disputed property and therefore it could not be properly held that it was a mortgagee without notice of the fraud perpetuated on the appellants. e On this issue the learned Counsel for the three respondents submitted that the lower court was right in holding that the third respondent was a mortgagee without notice and was therefore entitled to realise its money. He relied on the case f of Davies v Davies and G.B. Ollivant (1936) 13 NLR 39. In that case a brother used his brother’s property to enter mort- gage deed with the second defendant which was not aware of the fraud. When the plaintiff sued to set aside the mort- g gage, the court refused on the ground that the mortgagee had no notice of the fraud but it held that the plaintiff was the sole owner of the property but subject to the encumbrance. I have examined the various documents, exhibits C, D and h F. Exhibit C is the assignment of the disputed property to the first respondent by one Robert Iwuagu and Leslie Asipaka- matogha Green on the 30 July, 1974. There is nothing on its face to show any fraud to put the third respondent on the i alert for further investigation. Exhibit D was the Power of Attorney made in favour of the second respondent by the first respondent. On its face it is also regular. It was on the basis of exhibit D that the mortgage deed was made. I there- fore agree with the learned Counsel for the third respondent, j based on the case of Davies v Davies (supra) that the third

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, PORT-HARCOURT DIVISION) Ogebe JCA 60 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) respondent was a mortgagee without notice of fraud and was a therefore entitled to claim its benefits under the mortgage deed, exhibit F. On the cross appeal, the learned Counsel for the cross- b appellant argued under Issue (b) that it was not properly constituted. He said that the suit was brought by the appel- lants for themselves and as representatives of the members of the family of Isaac Oti which included the first respon- c dent who admittedly was the son of the said Isaac Oti. The practical effect therefore was that the action was brought on behalf of the first respondent as an unnamed plaintiff while the same person was also a defendant. d This argument to my mind is totally misconceived. The appellants sued the respondent, their elder brother, for deal- ing fraudulently with their family property without their knowledge and consent. His interest was definitely adverse to the interest of the appellants and there was no way that e one can assume that he was both plaintiff and defendant. He was only a defendant in the action and not a plaintiff. It is also not correct as submitted by the third respondent’s Counsel that the court made no pronouncement on the issue f of locus standi raised before it. At page 143 of the record, the trial Judge held as follows:– “There has been the argument as to whether the plaintiffs have the legal right to bring this action. I hold that the plaintiffs were le- g gally entitled to bring this action.” The trial court ruled that the appellants had a right to bring the action. On the evidence before the trial court it was clear that the disputed property was family property left behind by h the father of the appellants and the first defendant/first re- spondent and he was running the property for the benefit of the family before the fraud occurred. There can be no doubt whatsoever that the appellants were entitled to sue in order i to redress their grievances. On Issue (c) the learned Counsel for the third respon- dent/cross-appellant argued that it was wrong for the lower court to cancel exhibits C, D and E. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, PORT-HARCOURT DIVISION) Ogebe JCA Bernard Obioma Oti v. Monday Oti 61 a These exhibits do not directly affect the right of the third respondent/cross-appellant and the parties affected by them namely, the first and second respondents have not appealed. Exhibit E is the mortgage in favour of the African Continen- b tal Bank Ltd. From the evidence before the trial court the debt under exhibit E had been liquidated and the mortgage is no longer of any relevance. In my view it would be a waste- ful exercise to go into this issue. c On Issue (d) the learned Counsel for the cross-appellant submitted that the trial court having held that the cross- appellant was a mortgagee without notice of any fraud, it was wrong to have suspended its right of sale of the disputed d property. The portion of the judgment complained against is at page 147. It reads thus:– “Like I said before, the third defendant being a mortgagee without any notice of any fraud, is entitled to realise its money. The pro- e posed sale by the third defendant of the property is hereby can- celled according to the Notice in exhibit G. Instead, the plaintiffs from the date hereby of this judgment within six months will enter into an agreement with the third defendant on how to liquidate the balance of the mortgage debt. f If after six months, no agreeable solution has been reached by the plaintiffs and the third respondent, then the third defendant can take steps to realise its money.” I agree entirely with the submission of the learned Counsel g for the cross-appellant that there was no basis for the order of the trial court cancelling the notice of sale and giving the parties six months within which to negotiate the liquidation of the balance of the mortgage debt. Such a relief was not h claimed by the appellants as plaintiffs and there was no counter-claim seeking such a relief. It is a well known prin- ciple of law that the court cannot grant what is not claimed. (See N.A.A. v Orjiakor (1998) 6 NWLR (Part 553) and Ohanaka v Achugwo (1998) 9 NWLR (Part 564) 37.) i From all I have said in this judgment, I dismiss the main appeal. I allow the cross appeal only to the extent that the trial court was wrong in suspending the sale of the disputed property and cancelling exhibit G. That part of the judgment j is hereby set aside. All that is left of that part is that the third

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, PORT-HARCOURT DIVISION) Ogebe JCA 62 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) defendant/respondent/cross-appellant being a mortgagee a without any notice of any fraud is entitled to realise its money. The appellants shall pay costs of N5,000 to the re- spondent/cross-appellant. b IKONGBEH JCA: I have read in advance the lead judgment of my brother, Ogebe, JCA just delivered and I agree with his reasoning and the conclusion. I abide by the orders made therein including orders as to costs. c AKPIROROH JCA: I agree. Appeal dismissed; cross appeal allowed.

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C.O. Obijiaku v. Nigeria Deposit Insurance Corporation 63 a C.O. Obijiaku and another v Nigeria Deposit Insurance Corporation b COURT OF APPEAL, ENUGU DIVISION UBAEZONU, OLAGUNJU, MUHAMMAD JJCA

Date of Judgment: 21 MARCH, 2002 Suit No.: CA/E/91/2000 c Banking – Banker and customer relationship – Unauthor- ised transfer of funds from one account to another – Both under control of same person – Effect d Banking – Indebtedness of a customer – How proven Banking – Merger – Demerger – Definition of Words and Phrases – Merger – De-merger e Facts The appellants were found liable to the respondent severally in the sums of N362,613.40 and N1,268,293.47 respectively, f being their indebtedness to the respondent/Receiver. Their defence at the Tribunal was that since the respondents merged their accounts without their consent, they were relieved of their obligation to repay the debt in that since the merger, their accounts, to use their own words, were “Scattered”. g The respondents on their part averred that only a sum of N37,000 was wrongly transferred from one account to an- other, and which had been rectified by transferring that sum h back to the first account. This process was what in banking parlance was called “Merger” and “De-Merger” of accounts. Since this process, the appellants had continued to operate both accounts. i The Failed Banks Tribunal ruled against them, hence, the appeal to the Court of Appeal putting forward the same ar- gument advanced at the Tribunal. They also contended that since the appellants did not produce some dishonoured j cheques at the trial, they had failed to prove their case.

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Held – a 1. Proof of entry in a banker’s book is the method appro- priate for establishing by the bank of the indebtedness of a customer and is regulated by subsections 97(1)(h) and b (2)(e) of the Evidence Act. 2. Bankers are not expected by law to carry about dud cheques, the particulars of the contents of which are ex- tracted and preserved in bankers’ books defined in sec- c tion 2 of the Evidence Act. When occasion arises for a bank to prove the antecedents of a given transaction the law stipulates in the provisions of the Evidence Act, noted above, how that can be done with the least incon- d venience to the banks which are spared the burden of carrying about heavy bankers’ books each time there is a court case. 3. The technical use of the word merger by the bankers is a e simple operation defined by the PW1 as the process of transfer of money from one account to another without fusing the two accounts together and de-merger as the antonym of that expression is a reversal of that process. f 4. Per curiam “Next is the question of merger of the accounts of the two applicants which learned Counsel for the appellants de- scribed as generating greater confusion than any other point g raised in this appeal. The learned Counsel painted a dismal picture laden with foreboding of the concept ‘merge’ a view which learned Counsel for the respondent did not share. To the latter the technical use of the word merger by the bank- ers is a simple operation defined by PW1 as the process of h transfer of money from any account to another without fus- ing the two accounts together and de-merger as the antonym of that expression is a reversal of that process. I will defer to the version of that concept coming from a witness with banking background rather than the broad description of the i concept front tic quarters with no defined affinity with the users of the jargon.” 5. Unauthorised transfer of funds from one to the other of the two accounts under his control does not relieve the j

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C.O. Obijiaku v. Nigeria Deposit Insurance Corporation 65 a holders of the accounts of their obligations under their contracts with the bank. The remedy for the unauthor- ised transfer where a legal injury can be established lay elsewhere to which the decision of the court in Adeju- b won another v Cooperative Bank Ltd (supra) is a pointer. Appeal dismissed. c Cases referred to in the judgment

Nigerian Adejuwon v Cooperative Bank Ltd (1992) 3 NWLR (Part d 228) 251 Allied Bank (Nigeria) Ltd v Akubueze (1997) 6 NWLR (Part 509) 375 Ariori v Elemo (1983) 1 F.N.R. 20 e Atoyebi v Governor of Oyo State (1994) 5 SCNJ 62 Attorney-General of Oyo State v Fairlakes Hotel Ltd (1988) 5 NWLR (Part 92) 1 at 23 f Honika Sawmill (Nigeria) v Hoff (1994) 2 SCNJ 86 Koya v United Bank for Africa (Nigeria) Ltd (1997) 1 SCNJ 1 Nwobodo v Onoh (1984) 2 SCNLR 1 g Okenwa v Military Governor of Imo State (1996) 6 SCNJ 221 Woluchem v Gudi (1981) 5 SC 291 h Yassin v Barclays Bank D.C.O. (1968) NMLR 380

Nigerian statute referred to in the judgment Evidence Act Cap 112 Laws of the Federation of Nigeria, i 1990, section 97(1)(h), 97(2)(e)

Counsel For the appellants: K.C. Ezeanyika, Esq. j For the respondent: Chief (Hon.) Ifeoma Chinwuba

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Judgment a OLAGUNJU JCA: (Delivering the lead judgment) The ap- peal is from the decision of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Tribunal, Zone b 2, Enugu, hereinafter called “Failed Banks Tribunal” or “The Tribunal” as the context may allow, which found the two appellants liable to the respondent, severally, in the sums of N362,613.40 and N1,268,293,47, respectively, be- c ing their indebtedness to the respondent, the Receiver and Liquidator of “ACB Plc”, from the overdraft facilities granted to the appellants through their accounts nos. 679 and 203170, respectively, with the ACB Plc. d The first appellant is the Managing Director and the sole proprietor of the second appellant, a limited liability com- pany with an undisclosed number of members and officer apart from DW2, the first appellant’s son, who was the Manager of the company. The first appellant as the alter ego e of the company was the sole signatory for the withdrawal of money from both accounts which he operated single-handed.

At the trial of the action instituted by the respondent the f bone of contention was not so much about whether the ap- pellants were indebted to the respondent. Rather, the dispute is centred on the “merger” of the accounts of the two appel- lants by the Onitcha branch of the bank where the accounts were being operated and the “de-merger” of the two ac- g counts after a protracted protest to the Head Office of the Bank by the first appellant who, according to his testimony, wrote several letters to the bank complaining that his ac- count had “been scattered”. This appraisal of the crux of the h dispute before the tribunal follows from the testimony of the first appellant who deposed under cross-examination, at page 22 of the record that “About 1980 I was indebted to the Bank but since they started merging my company account i with my personal account I am no longer indebted to them”. In any case, after all the issues raised with the merger and de-merger of the two accounts as the pivot were considered the Tribunal found for the respondent for whom judgment was entered as herein before stated. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ENUGU DIVISION) Olagunju JCA C.O. Obijiaku v. Nigeria Deposit Insurance Corporation 67 a Dissatisfied with the judgment the appellants filed separate Notices of Appeal each with two identical grounds of ap- peal. Later, with leave of this Court three additional grounds of appeal were filed for both appellants and from a total of 7 b grounds of appeal filed for both appellants, three issues for determination were formulated in the joint brief of argument for the appellants which the respondent adopted in her brief of argument. The three issues read:– c “(a) Whether the applicant/respondent has the right or standing to institute this action in its name. (b) Whether the respondents/appellants are distinct personali- ties with separate accounts with the ACB, if yes, was the d applicant right in suing both persons jointly. (c) Whether the applicant proved the indebtedness of the re- spondents/appellants to the ACB by virtue of exhibit A and B.” e Consistent with the nomenclature adopted by the Tribunal to designate the parties before it the expression “respon- dents/appellants” in the above passage refers to the defen- dant before that court while the words “appli- f cant/respondent” denote the plaintiff at the trial. In this ap- peal, to simplify the nomenclature the parties will be desig- nated simply as “the appellants” and “the respondent” to correspond with the complainants against the judgment and g the beneficiary of the judgment who is called upon to defend the judgment given in her favour. As a preliminary matter, two of the three additional grounds of appeal filed by the appellants call for scrutiny. h These are the first additional ground challenging the respon- dent’s locus standi to institute the action and the second ad- ditional ground alleging a misjoinder of parties and separate causes of action. The two grounds and the issues formulated i from them are open to objection on three grounds. Firstly, none of the complaints formulated as grounds of appeal was raised in the parties’ pleadings nor were any of them can- vassed at the trial. The two grounds of appeal are thus extra- neous matters which do not arise from the decision appealed j against and, therefore, run counter to the principle that

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ENUGU DIVISION) Olagunju JCA 68 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) grounds of appeal from which issues for determination are a formulated must relate to matters decided in the judgment from which the appeal springs (see Odubeko v Fowler (1993) 9 SCNJ 185, 193). Therefore, given the meaning of b ground of appeal as any decision, resolution, inference or steps taken by the court which decision is being challenged that in the contention of the appellant is wrong, additional Grounds 1 and 2 which are not an attack of the deliberation c of the court below or any of the matters canvassed before that court are incompetent. Secondly, the corollary of the incompetence of the two grounds of appeal is that any issue for determination dis- d tilled from any of the two grounds is incompetent (see Fasoro v Beyioku (1988) 4 SCNJ 23, 28; and Agbaka v Amadi (1998) 7 SCNJ 367, 374). Issues 1 and 2 in the appel- lants’ brief of argument which are distilled from additional e grounds of appeal 1 and 2 are, eo ipso, incompetent as issues formulated from incompetent grounds of appeal. Thirdly, exceptionally the law allows fresh issues to be raised on appeal on a point of law which were not raised at f the trial court in circumstances that were painstakingly ana- lysed by the Supreme Court in its decision in Attorney- General of Oyo State v Fairlakes Hotel Ltd (1988) 5 NWLR (Part 92) 1, 48–49. It is possible that additional grounds 1 g and 2 by the appellants are intended to canvass the fresh is- sues as exceptions to the general rule in which case the ap- pellants required leave of this Court. From the exposition in Fairlakes Hotel’s case (supra) such leave is not granted for h the asking as factors touching on the justice of the case re- quiring balancing the interest of the parties must be closely examined by the court in considering whether to grant the leave. i That is just by the way as the appellants did not ask for leave of this Court to raise the complaints in Grounds 1 and 2 as fresh points of law that were not raised or canvassed at the trial. True enough, in their application of 17 October, 2000 the appellants asked for leave of this Court to file j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ENUGU DIVISION) Olagunju JCA C.O. Obijiaku v. Nigeria Deposit Insurance Corporation 69 a additional grounds of appeal which was granted on 28 No- vember, 2000. But that is not the same as seeking leave to raise fresh issues of law that were not canvassed at the trial, a point that was put clearly beyond any argument by para- b graph 9 of the affidavit supporting the motion (of 7 October, 2000) to file additional grounds of appeal in which the first appellant deposed that the appellants’ Counsel informed them that leave of this Court was necessary before they (the c appellants) could file additional grounds of appeal. That set- tles any doubt on the point. From the above review of the legal position taking the point that is most advantageous to the appellants the ques- d tions of the respondent’s capacity to sue and the misjoinder of parties and causes of action were not part of the parties’ case in their pleadings nor were they canvassed at the trial. They were fresh issues that can be raised on appeal only e with leave of this Court and failure of the appellants to seek the prior sanction renders the additional grounds of appeal one and two to be incompetent. (See Attorney-General of Oyo State v Fairlakes Hotel Ltd (supra) at page 23; Honika Sawmill (Nigeria) Ltd v Hoff (1994) 2 SCNJ 86, 93; Atoyebi f v Governor of Oyo State (1994) 5 SCNJ 62, 78; Okenwa v Military Governor of Imo State (1996) 6 SCNJ 221, 232– 233, etc and Koya v United Bank for Africa (Nigeria) Ltd (1997) 1 SCNJ 1, 22.) g Thus in sum either viewed from the standpoint that the two additional grounds of appeal do not arise from the matters raised in the parties’ pleadings or from the mattes canvassed at the trial or considered from the angle of raising fresh is- h sues on appeal without leave of the Appellate Court the two grounds are incompetent and I strike them out. Also incom- petent are the first and second issues formulated from the incompetent grounds of appeal and they are also struck out. That leaves only the third issue to be canvassed. i In the lone surviving issue three is canvassed the question of whether the respondent proved the indebtedness of the two account-holders, the appellants. It is the argument of learned Counsel for the appellants that the respondent who j claimed that the second appellant was owing her the sum of

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N1,268,293.40 failed to produce any evidence that the ap- a pellant was granted any loan or overdraft facilities. The bank also failed to produce the uncleared cheques by which the account of the company was first credited before it was later debited when the cheques were returned unpaid. He con- b tended that it is the duty of the respondent who asserts to prove that the second appellant is owing the respondent and to produce the dishonoured cheques in her possession as evidence of the indebtedness. c On the main plank of the dispute, the learned Counsel ar- gued that greater confusion was caused by the merger of the two accounts, nos. 679 and 203170, that are distinct and in- dependent. That the merger was done without the permis- d sion, knowledge or authority of the appellants. He submitted that merging the accounts of two customers is wrongful in law, especially where the two accounts are not in the same name or character or capacity. The accounts of the two ap- e pellants are different from each other, he argued, and that creates an implied agreement that the accounts are to be kept distinct and separate. He submitted that the respondent had no right to combine the accounts of two customers or trans- f fer assets or liabilities from one account to another. He re- lied on the decision of this Court in Adejuwon v Cooperative Bank Ltd (1992) 3 NWLR (Part 228) 251 and the Supreme Court’s decision in Allied Bank (Nigeria) Ltd v Akubueze g (1997) 6 NWLR (Part 509) 374, in support of his proposi- tions of the law. To underscore the appellants’ allegation that the merger of the appellants’ accounts created confusion the learned Coun- h sel referred to the testimony of the DW3, an accountant, who under cross-examination deposed that “if money is withdrawn from B to A, it will bring accounting confusion which will take some time to reconcile. It will not be possi- i ble to get the correct account plus interests”. He contended that the transfer of the sum of N37,000 from Account No. 679 to Account No. 203170 means that the indebtedness of the second appellant has been wiped out and that the j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ENUGU DIVISION) Olagunju JCA C.O. Obijiaku v. Nigeria Deposit Insurance Corporation 71 a implication is that the first appellant is no longer indebted to the respondent as also the second appellant which after the repayment of her debt by the transfer of N37,000 from the first appellant’s account is not shown to have overdrawn her b account or to have issued any further uncleared cheques. The learned Counsel concluded that the fact that the transfer of the sum of N37,000 from Account No. 679 to Account No. 203170 was not reflected in either of the statements of c account in respect of the two accounts, exhibits A and B, cast serious doubts on “time authencity or veracit (sic) or reliability” of those two documents and, indeed, on the claim that the appellants are indebted to the respondent. On that d note, he urged this Court to allow the appeal and dismiss the respondent’s claims against both appellants. The argument on behalf of the appellants is debunked by learned Counsel for the respondent who dismissed as clap- e trap the complaint about the respondent’s failure to produce at the trial the dishonoured cheques paid to the appellants’ accounts that added up to the total indebtedness of the appel- lants on both Accounts. To the learned Counsel proof of the appellants’ indebtedness on each Account is by the state- f ments of account sent periodically to the appellants in re- spect of each account the cumulative version of which is rendered in respect of each Account as exhibits A and B, re- spectively. He contended that for an appreciation of the ac- g counting details chronicled by the two documents it is nec- essary first, to have a grasp of the terms “merger” and “de- merger” as they are “used in banking circles”. This, he ar- gued, was explained by the Credit Officer of the ACB Plc, h the PW1, that “merger” means a transfer of an amount of money from one account to another but does not mean that the two accounts become fused such that each account loses its separate identity. “De-merger”, on the other hand, means reversing the entry use by merger by crediting back the i amount that had earlier been transferred from the other ac- count. On the strength of the evidence of the PW1, (see pages 18 and 19 of the record), the learned Counsel conceded that the j amount of N37,000 as involved in the transfer from Account

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No. 679 to Account No. 203170 in 1983 and that the transfer a was reversed in 1986 on the order of the Bank’s head Office. He observed that after the de-merger the two accounts were being operated regularly by the first appellant to whom the periodical statements of account in respect of both accounts b were sent. He argued that the fact that the first appellant did not complain implies that he accepted the correctness of those statements of account for himself as the owner of Account No. 679 and as the Managing Director of the company, the c second appellant, and the sole operator of Account No. 203170. He submitted that it is a barren afterthought for the appellants to raise later that they had earlier accepted as a ground for impeaching the transactions with the respondent. d On the alleged confusion said to be engendered by the merger of the accounts, the learned Counsel submitted that “the appellants did not lead any evidence to show the nature, type or details of the confusion which they claim arose”. As e regards the allegation that the statements of accounts, exhib- its A and B, do not show the transfer and re-transfer of the sum of N37,000 involved in the merger, the learned Counsel submitted that as the transaction was obliterated from the Bank’s Ledger Books in banking practice such a transaction f is treated as if it never occurred. Therefore, the non- appearance of that amount from the statements of account is not an error, he submitted, dismissing the submission that the omission rendered the statements of account inauthentic g or unreliable. The learned Counsel referred to the findings of the learned trial Judge on three material points. Firstly, on the inconse- quential effect of the merger and de-merger which does not h show that the appellants sustained any material loss by trans- ferring money from one account to the other both of which are operated by one person to whom practically both ac- counts belong. Secondly, on exhibits A and B with which i the court was satisfied that the statements of account in re- spect of both accounts were prepared in accordance with the law on the matter. Thirdly, on the condonation of any de- fault on the part of the bank by the appellants who continued to operate both accounts after the merger had been rectified. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ENUGU DIVISION) Olagunju JCA C.O. Obijiaku v. Nigeria Deposit Insurance Corporation 73 a Those findings are the bedrock of the decision of the trial court, the learned Counsel argued. He submitted that since they are not shown to be perverse, manifestly unsupportable b by the evidence or occasioned it miscarriage of justice they should not be disturbed calling in aid Woluchem v Gudi (1981) 5 SC 291 and Nwobodo v Onoh (1984) 2 SCNLR 1. He urged this Court to affirm the decision of the Failed Banks Tribunal and to dismiss the appeals of both appel- c lants. I must examine the pros and cons of the arguments ad- vanced on behalf of the parties to resolve the issue of whether the respondent proved the indebtedness of the two d appellants. First is the primary question agitated by learned Counsel for the appellants that the respondent did not estab- lish that the appellants were granted loan or overdraft facili- ties. That question is uncalled for if the learned Counsel had e read the record with some degree of care. At the introduc- tory part of the testimony of the first appellant on page 21 of the record he told the court “I was given credit facilities by the Bank”. Similarly, in his letter of protest to the head Of- f fice of the Bank in Lagos, exhibit D, reproduced at page 46 of the record as part of the judgment of the court below, the first appellant wrote at the opening of paragraph 4, “As you are aware, account 679 is enjoying an overdraft facility of g N50,000 . . .” Those are straight from the horse’s mouth and give the lie to the learned Counsel’s submission. The second point. That the respondent failed to prove that the appellants were owing her any money because she failed h to produce before the court the second appellant’s uncleared cheques returned unpaid which are in her possession. With respect to the learned Counsel, this is a misconception about the method of proof as submitted by learned Counsel for the i respondent. Proof of entry in a banker’s book is the method appropriate for establishing by the bank of the indebtedness of a customer and is regulated by subsections 97(1)(h) and (2)(e) of the Evidence Act as interpreted in Yassin v Bar- clays Bank DCO (1968) NNLR 380 and Yesufu v ACB Ltd j (1976) 4 SC 1. Bankers are not expected by law to carry

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ENUGU DIVISION) Olagunju JCA 74 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) about dead cheques the particulars of the contents of which a are extracted and preserved in bankers’ books defined in section 2 of the Evidence Act. When occasion arises for a bank to prove the antecedents of a given transaction the law b stipulates in the provisions of the Evidence Act, noted above, how that can be done with the least inconvenience to the banks which are spared the burden of carrying about heavy bankers’ books each time there is a court case. With reference to the trial at the court below the review by the c learned Chairman of the Tribunal of exhibits A and B in her judgment, on page 47 of the record, shows the signs of one who addressed her mind to the legal provisions on the matter and, ipso facto, of one who knows her onions. The conten- d tion of learned Counsel for the appellants on this point is, to say the least, misplaced. Next is the question of merger of the accounts of the two applicants which learned Counsel for the appellants de- e scribed as generating greater confusion than any other point raised in this appeal. The learned Counsel painted a dismal picture laden with foreboding of the concept “merge” a view which learned Counsel for the respondent did not share. To f the latter the technical use of the word merger by the bank- ers is a simple operation defined by PW1 as the process of transfer of money from one account to another without fus- ing the two accounts together and de-merger as the antonym g of that expression is a reversal of that process. I will defer to the version of that concept coming from a witness with banking background rather than the broad description of the concept from the quarters with no defined affinity with the users of the jargon. h Against this background, there is undeniably the fact that from two separate accounts maintained with the respon- dent’s bank by the appellants in their respective names and i quite distinct and separate but to both of which the first ap- pellant was the sole signatory money was transferred from one account to the other by the bank without the permission of the first appellant as the sole operator of both accounts. But from the argument of the appellants I cannot find any j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ENUGU DIVISION) Olagunju JCA C.O. Obijiaku v. Nigeria Deposit Insurance Corporation 75 a coherent statement of the loss suffered by the appellants and the legal consequences of such a transfer beyond the general chorus by the witnesses echoed by the appellants’ Counsel that the transfer created accounting confusion such that the b accounts cannot be reconciled. The details of what is the ac- counting confusion that follows in the wake of cross-transfer of funds between two accounts under the control of the same customer are not addressed by learned Counsel for the ap- c pellants who stood in awe to marvel at the advent of “ac- counting confusion” on the legal lexicon. Taking as gospel the first appellant’s allegation that the merger led to the two accounts “being scattered” and the d opinion of the DW3, “a practising accountant”, that merging two accounts “would bring accounting, confusion” the ap- pellants did not lead evidence to explain how the accounts of the appellants were scattered or to demonstrate empirically e the typical confusion created in the accounts beyond picking upon the wrong transfer of the sum of N37,000 which the first appellant detected from her examination of the state- ments of account represented in exhibit D, reproduced on page 6 of the record, as “N36,776.12 (that) was illegally f transferred from account 203170 to account 679”. In a desperate bid to rake up a negative legal implication of the transfer of money from one account to the other learned Counsel for the appellants craved in aid the decision of this g Court in Adejuwon and another v Cooperative Bank Ltd (su- pra). That case is of no avail to the appellants for unlike the case in hand the appellants were sure of their loss of interest payable by the bank when the deposit in the first appellant’s h savings account was transferred unilaterally by the bank into the second respondent’s current account where no interest was payable on the money. That is a far cry from the present appeal where the loss suffered by the appellants is the ab- i stract “accounting confusion”. Similarly, the Supreme Court’s decision in Allied Bank of Nigeria Ltd v Akabueze (supra) also cited by the learned Counsel, is, on principle, poles apart from the case in hand. That was a case in which the plaintiff/customer’s cheque drawn on one of his two ac- j counts with the bank in which he had enough funds was

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ENUGU DIVISION) Olagunju JCA 76 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) dishonoured by the bank on the pretext that his other ac- a count had been overdrawn by the amount of overdraft granted to the customer by the self same bank. The erring bank had to pay damages to the customer who was a trader for breach of contract. The loss of the trader/customer was b quantified and established. Unlike the present appeal it was not based on unverified “scattered accounts”. The appellants made heavy weather of the sum of N37,000 c that was transferred from one account to the other, stated by PW1 to be from Account No. 679 to Account No. 203170, a figure which the first appellant put in exhibit D at N36,776.12 and as a transfer from Account No. 203170 to Account No. 679. Whichever is the correct amount and the d correct sequence of the two accounts from and into which the money was transferred failure of the appellants to quan- tify the loss they suffered by the transfer is fatal to the grant of any relief for the unauthorised transfer. Besides, as the e two accounts are current and at the control of the first appel- lant as the sole operator access to the amount is not put be- yond the control of the first appellant as signatory to both accounts provided that the account into which the money was transferred is in fund. There being no suggestion that, as f in Allied Bank v Akabueze (supra) the respondent dishon- oured any cheque issued by the first appellant on the Ac- count into which the money was transferred there is, in my view, very negligible cause for complaint. That, probably, g explains the quandary of the learned Chairman of the Failed Banks Tribunal who in a witty simile, at page 17 of her judgment, likened the episode to “taking money from pocket of the same shirt into another pocket and concluded, logi- h cally, that ‘the money is still within the shirt”. It will be enough for me to say on this point that, on the facts of this case, the first appellant was hoisted by his own petard as the incorporated capacity of a limited liability company such as the second appellant is not conceived for use by its alter ego i to enact a hide and seek drama. One important corollary of the debate about the effect of merger of the appellants’ accounts is the stand of the first appellant who in his evidence before the trial court, at page j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ENUGU DIVISION) Olagunju JCA C.O. Obijiaku v. Nigeria Deposit Insurance Corporation 77 a 22 of the record, told the court under cross-examination that “About 1980, I was indebted to the Bank but since they started merging my company account with my personal ac- count I am no longer indebted to them”. That stand is star- b tling because it is hardly rational that the unauthorised trans- fer by a banker of fund from one account to another can be treated by holders of the accounts between which the trans- fer operated as a ground for repudiating unilaterally their ob- c ligations under their contracts with the bank. With the bogey about the sinister effect of merger on the appellants’ ac- counts laid to rest the first appellant would have to recast his thinking to come to terms with the legal reality that unau- d thorised transfer of funds from one to the other of the two accounts under his control does not relieve the holders of the accounts of their obligations under their contracts with the bank. The remedy for the unauthorised transfer where a le- e gal injury can be established lay elsewhere to which the de- cision of this Court in Adejuwon another v Cooperative Bank Ltd (supra) is a pointer. The last point on the effect of merger of accounts is the f question of waiver by the appellants of the irregularities oc- casioned by the merger. The argument of the respondent in support of waiver is based on the conclusion by the learned Chairman of the Failed Banks Tribunal on page 45 of the g record that the first appellant had condoned the irregularity of merging the two accounts from the express statement in his letter to the bank, exhibit, that he would not like the good relationship which had existed for many years between him and the bank to tarnish, a gesture that is manifested by the h fact that the appellants continued to operate the two accounts during the merger and after demerger until the bank stopped honouring their cheques when the first appellant picked up again the familiar refrain of illegal transfer. i True enough, on the facts of this case the learned Chair- man of the Failed Banks Tribunal is justified that the state- ment of the first appellant coupled with the continued opera- tion by both appellants of the accounts after the unauthorised j transfer of funds between the two accounts gave rise to

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ENUGU DIVISION) Olagunju JCA 78 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) inference of waiver by the appellants of the irregularity a within the meaning of the word “waiver” in Ariori v Elemo (1983) 1 F.N.R. 20, 31–32. But the legal implications that flow from the wider matters, canvassed in elaboration of the issue to be resolved in this appeal is indicative of the fact b that the decision in this appeal does not rest on such a nar- row consideration. Therefore, the decisive factor on which this appeal turns is the miserable failure of the appellants to show that they suffered any loss as a result of the cross- c transfer of money between the two accounts that in law ex- cuses them from paying their debt. But more fundamental is the appellants’ failure to meet the claims of their creditor when they were confronted by the respondent with the tell- d tale evidence of their indebtedness that are catalogued by the statements of their accounts, exhibits A and B. Finally, the grave affliction of the appellants’ defence at the court below was the strategy of a wholesale denial that e they owe the bank any money. That makes the evidence to be one way because when the respondent as the plaintiff led evidence showing the indebtedness by the appellants there was practically no evidence by the appellants to set against the respondent’s case to which quibbles about “accounting f confusion” and “scattered accounts”, a vacuous pair of con- trivance dressed up as a defence, are no answer. In the light of the various matters raised by the surviving g one issue which were examined at length that issue must be resolved against the appellants. With that, I affirm the deci- sion of the Failed Banks Tribunal delivered on 26 February, 1999. The appeal fails and it is dismissed. I award N5,000 costs against the appellants, jointly and severally. h MUHAMMAD JCA: I have read in advance the lead judg- ment of my learned brother, Olagunju JCA, and I entirely agree with his reasoning and conclusions therein reflected. i Appeals are complaints against the lower court’s position in respect of controversies it entertained pursuant to presen- tation of same by parties. Where appeals are articulated not on the basis of the controversy considered and resolved by the lower court and leave of the Appellate Court had not j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ENUGU DIVISION) Muhammad JCA C.O. Obijiaku v. Nigeria Deposit Insurance Corporation 79 a been obtained for the “new” controversy to form the basis of the appeal in part or entirely, the appeal cannot proceed for it is incompetent. It is to be added that since issues for the determination of an appeal have of necessity always been b drawn from the grounds of appeal, an issue drawn from in- competent ground of appeal would invariably be adjudged incompetent as well. Two of the issues in this appeal having been anchored on incompetent grounds of appeal cannot be c considered in determining the fate of this appeal. (See Araka v Ejeagwu (2000) 12 SC (Part 1) 99 and Omo v JSC (2000) 7 SC (Part II) 1.) The only issue for the resolution of the instant appeal, d therefore, is the one on the evaluation of evidence by the trial court. It goes without saying that courts of trial have always occupied the pre-eminent position of conducting the exercise and their decisions would only be interfered with an e appeal when that duty had remained unfulfilled. In the in- stant case this Court will not be justified to interfere since not only had evidence of the indebtedness of the appellant been advanced at trial, the lower court had considered the respondent’s complaint in relation to the evidence for and f against same as led by the two sides. The lower court’s deci- sion cannot in the light of such an exercise be said to be per- verse. (See Akpan v Itong (1996) 10 NWLR (Part 476) 108.) For these and the fuller reasons articulated in the lead judg- g ment, I also dismiss the appeal and award the same cost against the appellants. Appeal dismissed.

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80 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I)

a Haruna Bako Kolo v First Bank of Nigeria Plc COURT OF APPEAL, JOS DIVISION MUKHTAR, MANGAJI, NZEAKO JJCA b Date of Judgment: 11 APRIL, 2002 Suit No.: CA/J/24/2000

Banking – Loan – Recovery of – Limitation of action – When does time begin to run – How discernible by the court c Evidence – Letter marked without prejudice – Admissibility of Limitation of Action – Recovery of loan – When does time start to run d Practice and Procedure – Limitation of action – Cause of action – When does it arise – How discernible by the court Facts e On the 25th day of March, 1998, the High Court of Justice presided over by Dakyen, J, sitting in Jos de- livered a ruling in Suit No. PLD/J7/1997 filed on 9 January, 1997 on the undefended list. In the suit, the plaintiff claimed f from the defendant the sum of N85,637.63 arising from credit facility granted the defendant by the plaintiff, a bank carrying on banking business in Nigeria. The plaintiff also claimed interest on the sum at the rate of 21% per annum from 1 June, 1996 till the date of judgment, and at 10% from g the date of judgment till payment. The defendant filed a notice of intention to defend the ac- tion. The court then transferred the matter to the general cause list, after fully considering same. h Parties filed and exchanged pleadings. The defendant also filed a notice of preliminary objection to the suit with an af- fidavit in support. The objection was to the effect that the action was statute barred. The court below heard argument i from Counsel from both sides. The learned trial Judge, in the said ruling of 25 March, 1998, overruled the objection. It is against this, the defendant who was dissatisfied, now appealed to the Court of Appeal. j

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Haruna Bako Kolo v. First Bank of Nigeria Plc 81 a The facts of this matter can be summarised as follows:– The appellant, a customer of the respondent, a bank carry- ing on banking business under the Laws of Nigeria was b granted overdraft facilities between 1976–1979 by the bank. The facilities totalled N16,000. It is not in dispute that sometime in 1979, the appellant permitted the respondent bank, to appropriate the funds c which he had in his savings account and which he had used as collateral for the facilities. This was to reduce his indebt- edness to the bank. This left the sum of N6,898.12 of the principal loan un- paid. It was not till 16 February, 1988, that the appellant d made another payment of N6,898.12 being the amount due as at the time in 1979 when the withdrawal from appellant’s savings was made. It is clear from the point of view of both parties, that accruing interest on the facilities remained un- e paid over these 9 years, 1979–1988. It was common grounds that the appellant in the same 1988, applied to the respon- dent for interest waiver. In the pleadings, parties differ in the following:– f According to the appellant, he heard nothing from the re- spondent about the request for waiver of interest till January, 1995, when a demand letter was sent to him by the bank. This was later followed with demand notice in 1996 and the g writ commencing this suit on the undefended list. On the other hand, according to the respondent, it had con- sidered the application for waiver and refused it and over time, had kept pressing the appellant for payment, which h never came. The appellant denied receiving any such com- munications from the respondent. Held – 1. The law is clear that where the issue whether an action is i statute barred has been raised, the starting point is to de- termine when the cause of action accrued. 2. Accrual of a cause of action is the event whereby a cause of action becomes complete so that the aggrieved party j can commence and maintain his action.

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82 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I)

3. The phrase a cause of action, is said to mean the factual a situation stated by the plaintiff if substantiated, entitles him to a remedy against the defendant. 4. It is trite law that in an action for the recovery of debt, b the cause of action accrues upon demand for the pay- ment of the debt. If no demand is made, a cause of action does not arise and no action can be commenced. 5. Generally, a debt is repayable either on demand or on c notice given or upon other condition agreed upon by the parties. 6. It is an implied term of the relationship between a banker and his customer that there should be no right of action d until there has been a demand or notice given. 7. The statement of claim is recognised as a matter of law, as the first place to look to determine if there be a cause of action and when it accrued. e 8. The answer is simple by looking at the writ of summons and statement of claim alleging when the wrong was committed which gave the plaintiff a cause of action and by comparing that date with the date on which the writ f of summons was filed. This can be done without taking oral evidence from witnesses. 9. It is correct that available legal authorities show that a letter marked a “without prejudiced”, may not be admit- g ted in evidence, so also evidence of facts emanating from offers of compromise or attempt at or negotiation for, out of court settlement of disputes. Appeal dismissed. h Cases referred to in the judgment

Nigerian i Adimora v Ajufo (1988) 3 NWLR (Part 80) 1 Ajomale v Yaduat (No. 2) (1991) 5 NWLR (Part 191) 266 Akanbi v Alatede (2000) 1 NWLR (Part 639) 125 Angyu v Malami (1992) 9 NWLR (Part 264) 242 j

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Haruna Bako Kolo v. First Bank of Nigeria Plc 83 a Ashibuogwu v Attorney-General of Bendel State (1988) 1 NWLR (Part 69) 138 Ayoola v Adebayo (1969) 1 All NLR 159 b Bello v Fayose (1999) 11 NWLR (Part 627) 510 Egbe v Adefarasin (No. 2) (1987) 1 NWLR (Part 47) 1 Emiator v Nigerian Army (1999) 12 NWLR (Part 631) 362 c Fadare v Attorney-General of Oyo State (1982) 4 SC 1 Fawehinmi v NBA (No. 2) (1989) 2 NWLR (Part 105) 558 G.O.C. v Adio (1995) 2 NWLR (Part 379) 570 Ibrahim v Osim (1987) 4 NWLR (Part 67) 965 d Ishola v S.G.B.N. Ltd (1997) 2 NWLR (Part 488) 405 Lijadu v Lijadu (1991) 1 NWLR (Part 169) 627 Mora v Nwalusi (1962) 1 All NLR 681 e Obada v Military Governor, Kwara State (1990) 6 NWLR (Part 157) 482 Saude v Abdullahi (1989) 4 NWLR (Part 116) 387 f Sentinel Assurance v Sociète General Bank (1992) 2 NWLR (Part 224) 495 Udeze v Chidebe (1990) 1 NWLR (Part 125) 141 g Foreign Letang v Cooper (1994) 2 All ER 929

Book referred to in the judgment h Halsbury’s Laws of England Volume 24, Article 196

Counsel For the appellant: T.N. Ogboru (Mrs) i For the respondent: M.U. Okereafor, Esq.

Judgment NZEAKO JCA: (Delivering the lead judgment) On 25 March, j 1998, the High Court of Justice Plateau State presided over

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Nzeako JCA 84 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) by Dakyen, J, sitting in Jos delivered a ruling in Suit No. a PLD/J7/1997 filed on 9 January, 1997 on the undefended list. In the suit, the plaintiff claimed from the defendant the sum of N85,637.63 arising from credit facility granted the defendant by the plaintiff, a bank carrying on banking busi- b ness in Nigeria. The plaintiff also claimed interest on the sum at the rate of 21% per annum from 1 June, 1996 till the date of judgment, and at 10% from the date of judgment till payment. c The defendant filed a notice of intention to defend the ac- tion. The court then transferred the matter to the general cause list, after fully considering same. Parties filed and exchanged pleadings. The defendant also d filed a notice of preliminary objection to the suit with an af- fidavit in support. The objection was to the effect that the action was statute barred. The court below heard argument from Counsel from both sides. The learned trial Judge, in the e said ruling of 25 March, 1998, overruled the objection. It is against this, the defendant who was dissatisfied, now appealed to this Court on three grounds. Counsel for the parties filed and exchanged briefs of ar- f gument in accordance with Order 6 Rules 2 and 4 of the Court of Appeal Rules. The appellant also filed a reply brief. From the three grounds of appeal, learned Counsel for the appellant, Mrs Ogboru distilled three issues for determina- g tion in the appeal, as follows:– (a) Whether the respondent was entitled to refer to facts when it did not file a counter affidavit in support of his preliminary objection (sic). h Or in the alternative: (b) Whether the trial Judge ought to have called oral evidence to reconcile certain conflicting facts in the affidavits. (c) Whether the trial Judge was right in admitting in evidence, a letter marked “without prejudice”. i The respondent had identified only one issue for determina- tion in the appeal. According to him the sole issue is whether the decision of the court is sustainable despite reli- ance on inadmissible evidence. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Nzeako JCA Haruna Bako Kolo v. First Bank of Nigeria Plc 85 a At the hearing of the appeal, the appellant and his Counsel were not in court. As appellant’s brief of argument had been duly filed and served, his appeal was deemed by us to have been duly argued pursuant to Order 6 Rule 9 of the Rules of b this Court. On the part of the respondent, his Counsel, Mr Ameh, was in court. He had also filed his brief of argument. He applied to amend the word “admissible” in paragraph 4.01 line 2 of c the brief to read, “inadmissible”. The application was granted. The word “admissible” was replaced with the word, “inadmissible”. d Thereafter, Mr Ameh adopted the respondent’s brief of ar- gument as amended and urged the court to dismiss the ap- peal. The facts of this matter can be summarised as follows:– e The appellant, a customer of the respondent, a bank carry- ing on banking business under the Laws of Nigeria was granted overdraft facilities between 1976–1979 by the bank. The facilities totalled N16,000. f It is not in dispute that sometime in 1979, the appellant permitted the respondent bank, to appropriate the funds which he had in his savings account and which he had used as collateral for the facilities. This was to reduce his indebt- g edness to the bank. This left the sum of N6,898.12 of the principal loan un- paid. It was not till 16 February, 1988, that the appellant made another payment of N6,898.12 being the amount due h as at the time in 1979 when the withdrawal from appellant’s savings was made. It is clear from the point of view of both parties, that accruing interest on the facilities remained un- paid over these 9 years, 1979–1988. It was common grounds i that the appellant in the same 1988, applied to the respon- dent for interest waiver. In the pleadings, parties differ in the following:– According to the appellant, he heard nothing from the re- j spondent about the request for waiver of interest till January,

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1995, when a demand letter was sent to him by the bank. a This was later followed with demand notice in 1996 and the writ commencing this suit on the undefended list. On the other hand, according to the respondent, it had con- b sidered the application for waiver and refused it and over time, had kept pressing the appellant for payment, which never came. The appellant denied receiving any such com- munications from the respondent. c When the appellant filed in the court below his notice of preliminary objection, supported by an affidavit, the respon- dent did not file a counter-affidavit. Learned Counsel for the respondent said he was opposing it on points of law. d I have examined the record of appeal, including the ruling of the court below complained of, the grounds of appeal and the brief of argument of the parties. I intend to use the sole issue raised by the respondent’s Counsel. It encompasses the e three issues of the appellant which will be addressed within the sole issue. The way it is, the complaints which the appellant presents are geared to show that the decision of the court below, f could not stand but for the facts wrongly considered relied upon and applied by the court. The contention of the respondent, on the other hand, amounts to this, that the learned trial Judge had also based g his decision on reasons other than the wrongly applied facts from which he had come to the same decision. The issue involved was an issue of law, the question being, when did the cause of action in the suit arise? h The court below, in its ruling after reviewing the submis- sion of Counsel for both parties, determined the issues thus:– “The law is that in considering whether an action is statute barred, i time begins to run when the cause of action arises. See the case of Nwadiaro v The Petroleum Development Company (supra).” It is the contention of the appellant’s Counsel that the cause of action accrued in 1988, after the applicant made payment j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Nzeako JCA Haruna Bako Kolo v. First Bank of Nigeria Plc 87 a and acknowledged by respondent per exhibit H. She said the applicant considered himself discharged from his obligation after the payment in February, 1988. b She however conceded that, the appellant made a request for interest waiver and submitted that the approval or disap- proval was supposed to have been communicated to the ap- pellant within a period of 5 years to keep the matter alive. c But Mr Okoroafor, learned Counsel for the respondent has a contrary view, the action did not accrue in 1988, because by the payment in 1988, the appellant admitted and acknowl- edged his indebtedness to the respondent, that the debt did d not accrue until there was a demand and that the demand was made in January, 1995. That a debt is only payable on demand and he relied on the case of Bank of the North v Akorede (supra). e The bank (sic) is entirely in agreement with this position of the law and is fortified by the exposition of the law in Hals- bury’s Laws of England, Volume 24 Article 196 where it is stated:– f “In the case of money on current account the statute does not run, in the absence of special contract or waiver until after demand ei- ther by issue of a writ or otherwise, is an essential ingredient in the cause of action for money lent.” g In the present case, exhibits F, G, H and I are letters dated 26 March, 1990, 20 May, 1991, 23 September, 1994 and 15 April, 1996 respectively, and request for interest waiver. “Furthermore in exhibit J, the appellant is shown to have made h payment of N138.30 on the 28 August, 1990, which is an acknowl- edgment of his indebtedness to the respondent. It is to be pointed out here that though the applicant denied all the above facts, the courts is not in the least impressed or moved by the said denial, because I cannot see a situation where the respondent will go out i of its way to gratuitously credit an amount to a customer’s account for the purpose of keeping the customer’s account alive for an an- ticipated suit.” Noteworthy of mention is exhibit L, which is the latest j communication between the applicant and the respondent

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Nzeako JCA 88 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) dated 22 May, 1996, though marked “without prejudice”, the a said letter is a clear acknowledgment that the applicant is indebted to the respondent. From the facts before the court, I am satisfied that the b payment made in 1988 after which a request was made for waiver of interest was made to the respondent, the applicant made a payment of N138.31 on the 28 August, 1990 toward the liquidation of the overdraft facilities. See exhibit J. The respondent made series of demands in 1990, 1991, 1994 and c 1996 as per exhibits F, G, H and I and the applicant re- sponded by exhibit L. It is my firm view that the cause of action never arose until after the demand and even the acknowledgment of the re- d spondent in 1995. This action based on the above findings and principles of the law in support of same I hold that this action is not statute barred. The preliminary objection of the applicant is hereby dismissed. e I have underlined in the ruling reproduced above parts of the ruling which form the basis of the appellant’s complaints in this appeal as distilled in his three issues for determina- tion (supra). f Learned Counsel for the appellant had contended as fol- lows:– Under his Issue 1, it is that the respondent who did not file a counter affidavit is deemed to admit the facts in the affidavit of the appellant. (See Sentinel Assurance v Sociète g General Bank (1992) 2 NWLR (Part 224) 495 at 503.) Held a fact not denied is deemed admitted, and the court will ad- mit same without much ado. Also Ajomale v Yaduat (No. 2) (1991) 5 NWLR (Part 191) 266. h Thus the averment that the appellant operated his account last in February, 1988 and that he did not receive any de- mand letter till 1995 is deemed admitted. The court ought to have discountenanced any fact put for- i ward by the respondent, but it did not in this case. In his Issue No. 2 the contention is that the learned trial Judge ought not to have accepted the entry in the statement of account of the appellant for 28 August, 1990 which was j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Nzeako JCA Haruna Bako Kolo v. First Bank of Nigeria Plc 89 a annexed to the writ of summons of the respondent, and that respondent wrote demand letters without calling oral evi- dence when the appellant had denied making such a deposits or receiving any such letters. In support of the legal princi- b ples Counsel cited the case of Lijadu v Lijadu (1991) 1 NWLR (Part 169) 627 and other authorities to show that the court had no competence to reconcile conflicting affidavit evidence without calling oral evidence. c Under his Issue No. 3, the contention is that the trial Judge ought not to have admitted in evidence, the letter marked “without prejudice” written by the appellant’s solicitors with a view to settling the matter amicably and it did not consti- d tute an admission. She relied on the case of Fawehinmi v NBA (No. 2) (1989) 2 NWLR (Part 105) 558 at 622–623 paras. H A; George Ashibuogwu v Attorney-General of Bendel State (1988) 1 NWLR (Part 69) 138 at 169 and e Akanbi v Alatede (Nigeria) Ltd (2000) 1 NWLR (Part 639) 125 at 146. Learned Counsel for the respondent on the other hand countered that the respondent opposed the preliminary ob- f jection on point of law and by this, adopted the facts, in the affidavit of the appellant in support of his preliminary objec- tion such as paragraph 13 where he deposed “That thereafter on 12 February the applicant paid the balance on his account as at 1979 which was N6,898.12 and then went further to g request for an interest waiver”. He submitted that in a case of this nature, it is paramount to establish at what point the cause of action accrued. He cited Emiator v Nigerian Army (1999) 12 NWLR (Part h 63 1) 362, (1999) 9 SCNJ 52 at 58 where “cause of action” is defined and other authorities. He submitted that every debt becomes due upon demand in the absence of an agreement as to time of payment. Citing i Ishola v S.G. Bank (1997) 2 NWLR (Part 488) 405, (1997) 2 SCNJ 19. He concluded that after the payment in 1988, there was no time limited for payment of the outstanding and accrual of j cause of action would depend on when demand was made.

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It was pointed out that in paragraph 17 of the appellant’s a affidavit, the appellant deposed that he got the first demand letter on 6 January, 1995 and then submitted that the cause of action accrued on that date. b Counsel for the respondent pointed out also that the learned trial Judge upheld this contention on page 74 of the records. He contended that what that court did in the later part of the ruling was to draw support for his position of the law by making references to other facts. In Counsel’s view, c reference to such facts were comments which cannot be re- garded as an order and in this case does not form the ful- crum of the judgment. (See Bello v Fayose (1999) 11 NWLR (Part 627) 510, (1999) 7 SCNJ 286 at 291 cited.) d Counsel gave reasons why the court’s reference to facts not contained in the respondent’s affidavit in support of the pre- liminary objection does not vitiate the decision. (a) A party raising a preliminary objection is deemed to e have admitted the averments in the statement of claim, but demures that he cannot be called to an- swer them in law or that the court lacks jurisdiction. (See Obada v Military Governor, Kwara State f (1990) 6 NWLR (Part 157) 482 at 493–494, para- graphs G–A.) If the applicant has admitted the aver- ments in the statement of claim there is nothing pre- cluding the court or any party from making unre- strained reference to them. g (b) The facts referred to are already before the court. By section 74 of the Evidence Act the court can take ju- dicial notice of facts before it. h (c) The whole idea of demurrer took root from the need to x-ray the entire facts of a case in the pleadings. (See Order 24 Rules 1 and 2 of the High Court (Civil Procedure) Rules, 1988.) i Further, the so called reference to extraneous facts, the fail- ure to resolve conflict in affidavits and the use of a letter marked “without prejudice” did not occasion a miscarriage of justice. The Supreme Court held in the case of Udeze v Chidebe (1990) 1 NWLR (Part 125) 141 at 162, paragraphs j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Nzeako JCA Haruna Bako Kolo v. First Bank of Nigeria Plc 91 a C–D, that for misdirection to be fatal, it must have occa- sioned a substantial miscarriage of justice. Where a court suo motu raises and considers new issues without calling upon the parties to address it thereon, it is a misdirection. b However, unless the misdirection is so grave as to have oc- casioned substantial miscarriage of justice, an Appeal Court will not ordinarily interfere with the decision of the lower court. This is the decision of Supreme Court in the case of c Saude v Abdullahi (1989) 4 NWLR (Part 116) 387 at 408 paragraph D. In the appellant’s reply brief, his learned Counsel repeated some of her submissions in appellant’s brief but made the d following new points in response to the respondent’s reasons why the court’s reference to facts not contained in the affi- davit of appellant in support of his notice of preliminary ob- jection does not vitiate the decision. e She submitted that the law of demurrer has been abolished by vir- tue of Order 24 Rule 1 of the High Court (Civil Procedure) Rules hence the filing of a statement of defence by the appellant. In the statement of defence the appellant made certain denials of facts contained in the respondent’s statement of claim. The appellant f therefore could not have been said to have admitted the averments in the respondent’s statement of claim. Thus the appellant submits that the case of Obada v Military Governor Kwara State (1990) 6 NWLR (Part 157) 482 is irrelevant and further urges the court to g discountenance same. (ii) Failure of the trial Judge to call oral evidence to ascertain the source of the deposit reflected in the statement of ac- count for 28 August, 1990 after the appellant denied knowl- edge of same occasioned a miscarriage of justice. This is so h because, this was one of the premises upon which the Judge based his decision that the action is not statute barred. (See page 74 lines 23–31.) She contended that the appellant ought to have been given i fair hearing on the issue whether the respondent wrote de- mand letters in 1990, 1991 and 1994. Thus led to miscar- riage of justice. She concluded that the consideration of the facts which j appellant complains of including the letter marked “without

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Nzeako JCA 92 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) prejudice” formed the basis of the trial court’s decision. It a led to miscarriage of justice. I see that by the line of argument adopted in his submis- sion, the respondent’s Counsel seems to have taken the wind b out of the contention in the brief of the appellant. This is so when he narrowed down the issue now before us. The ques- tion now is whether the court below could have arrived at the same decision that the action was not statute barred, notwithstanding the wrong admission of the facts com- c plained of by the appellant. For the respondent, it was submitted that he would. For the appellant, the matter was not confronted head on. Rather the final paragraph of the reply brief insists that there was mis- d carriage of justice. Before looking into that issue, I must spell out as follows:– The ruling of the court below above reproduced, clearly demonstrates what trial Judge based his decision upon. e He based it, principally on some facts which were in the affidavit of the appellant and on the law. He only supported it with some facts which are not in the said affidavit but were in the pleadings and other processes before the court. f Of the latter set of facts, the appellant now complains that the court below ought not to have admitted in evidence, and others ought not to have been relied on without oral evi- dence. g The respondent on his part, contends that those facts from the affidavit of the appellant and the law which the court re- lied on sufficiently sustain the decision of the court. In the action the appellant had in the court below raised h preliminary objection to the effect that the action is statute barred by virtue of the limitation laws of Plateau State. The respondent opposed this on points of law and relying on some facts deposed to in the affidavit of the appellant in i support of his notice of preliminary objection. In my respectful view, the learned trial Judge proceeded correctly and effectively in the first instance, when he set out the law applicable in determining whether an action is j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Nzeako JCA Haruna Bako Kolo v. First Bank of Nigeria Plc 93 a statute barred, and thus when the cause of action accrues in an action for debt and then applied the law to the undisputed dates of 1988, 1995 and 1996 from the appellant’s affidavit. b The law is clear that where the issue whether an action is statute barred has been raised, the starting point is to deter- mine when the cause of action accrued. (See Adimora v Ajufo (1988) 3 NWLR (Part 80) 1.) In that case, Oputa, JSC, stated the principles. He said, “In dealing with limitation of c actions, one of the most fundamental questions to answer is when did the cause of action accrue”. (See also Egbe v Ade- farasin (No. 2) (1987) 1 NWLR (Part 47) 1 at 20 SC) d This is because time begins to run when the cause of action accrues. (See Fadare v Attorney-General of Oyo State (1982) 4 SC 1.) It is not easy in some cases to identify this time for the reason that its determination depends on the sur- rounding, and at times peculiar circumstances of the case. e This difficulty becomes understandable when it is realised that a cause of action is said to consist of every fact which the plaintiff ought to prove when set out in his pleading to support his entitlement to judgment. f In the case of Adimora v Ajufo (supra) Oputa, JSC, states that accrual of a cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can commence and maintain his action. g In Fred Egbe v Justice Adefarasin (No. 2) (1987) 1 NWLR (Part 47) 1 at page 20 the phrase “cause of action”, is said to mean the factual situation stated by the plaintiff if substanti- ated, entitles him to a remedy against the defendant. (See h Letang v Cooper (1964) 2 All ER 929; Ibrahim v Osim (1987) 4 NWLR (Part 67) 965; Emiator v Nigerian Army (1999) 12 NWLR (Part 631) 362 at 369–370 per Kalgo, JSC.) i What all this points to is that various events may have oc- curred or circumstances and facts arise overtime, which would when complete constitute the cause of action. If not complete, no cause of action would accrue. j When a cause of action accrues, differs from action to action.

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It is trite law that in an action for the recovery of debt, the a cause of action accrues upon demand for the payment of the debt. If no demand is made, a cause of action does not arise and no action can be commenced. See Ishola v S.G. Bank (1997) 2 SCNJ 1 at 19, also reported in (1997) 2 NWLR (Part b 488) 405 at 422. Said Iguh, JSC in that case:– “Generally, a debt is repayable either on demand or on notice given or upon other condition agreed upon by the parties. (See Lloyds Bank Ltd v MargioLis and others (1954) 1 All ER 734 at c 748; Joachimson v Swiss Bank Corporation (1921) All ER 92 at 99).” These principles relating to recovery of debt apply also to debts arising from overdrafts, facilities or loans granted by d banks to their customers. In the case of Ishola (supra) the Supreme Court held that it is an implied term of the relation- ship between a banker and his customer that there should be no right of action until there has been a demand or notice e given. (See also Angyu v Malami (1992) 9 NWLR (Part 264) 242 at 252.) When therefore, as in this case the issue is whether the claim of the bank for a debt owed it arising from overdraft f facilities granted its customer, who is the appellant herein, the court ought to and did in fact identify what facts and cir- cumstances required to be complete, and have indeed be- come complete in order to determine whether a cause of ac- tion had accrued. Here, it is whether the respondent bank has g given notice or made demand. There is no doubt that no spe- cific date was agreed for the sum left unpaid after the pay- ment in 1988 by the appellant. h When the appellant asked for interest waiver, the matter lay open again for the appellant and for payment thereof to become due on demand by the respondent. Therefore, I should think that if it is, as the appellant now i contends, that he did not receive any of the notices or de- mands which the respondent averred in its statement of claim were made in 1990, 1991, 1992 and 1994, the notices admitted received by the appellant in January, 1995 and 1996 constitute the first notice since 1988. In that case, the j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Nzeako JCA Haruna Bako Kolo v. First Bank of Nigeria Plc 95 a cause of action will then be said to accrue from then. Right of action in this case thus accrued, and the respondent’s suit filed in 1996 is not statute barred. The limitation law re- quires a five year period to extinguish that right. b The foregoing would tally with the conclusion reached by the court below. It is sound. It is therefore not surprising in the light of the above, c that the respondent, appreciating the position, was prepared to rely on the appellant’s affidavit evidence to defeat the appellant’s argument. He was entitled to do so. The law recognises the right of a party to a suit to adduce his own d evidence or to rely on the evidence of the opposite party or to admit it. The relevant facts for the determination of the issues which arose, were available before the court in the affidavit of the appellant. The respondent did not need to depose to any other fact. His Counsel relied on these and e points of law, and said so, and rightly too. The learned trial Judge, as the excerpts from his ruling, set out above show, determined the matter based on the correct f legal principles and authorities applicable to the recovery of debt which he quite correctly cited. I am of the view that that sufficiently determined the mat- ter before him. He seemed to have realised this. g For, when in the latter part of the ruling, he began to go into the other facts, now complained of, about the payment of N130.61 on 28 August, 1990 into the bank account of the appellant and later the letter marked “without prejudice”, he h preceded it with the words, “Furthermore . . .” see page 74 line 24 of the records (in the ruling set out above). In my view, the court below did not principally rely on those facts. They did no substantial injustice. I am to add i that it is not only to an affidavit evidence a court must al- ways look to determine if an action is statute barred. The statement of claim is recognised as a matter of law, as the first place to look to determine if there be a cause of ac- j tion and when it accrued. (See G.O.C. v Adio (1995) 2

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NWLR (Part 379) 570 at 587 and also Egbe v Adefarasin a (supra), also reported in (1987) 1 SC 1.) To the question, how does one determine the period of limitation, Oputa, JCA in that case answered thus:– b “The answer is simple by looking at the writ of summons and statement of claim alleging when the wrong was committed which gave the plaintiff a cause of action and by comparing that date with the date on which the writ of summons was filed. This can be done without taking oral evidence from witnesses . . .” c The definition of the phrase “cause of action” in Adimora v Ajufo (supra) at page 17 as:– “every fact which it would be necessary for the plaintiff to prove, if traversed in order to support his right to judgment.” d further supports the view that facts traversed in the statement of claim are relevant to determining when the cause of ac- tion accrued and the limitation period began to run. e I dare say that the appellant ought to have considered the writ and its supporting affidavit and the averments in the statement of claim before raising the issue as a preliminary point. Had he done so, it would have been found more pru- dent to let the issue go to trial along with the substantive f matter. Having created controversies by the defences which he raised in his statement of defence, he should have let trial viva voce evidence to proceed. Having raised the dust, how can he now complain that the court ought to have called oral g evidence to resolve what his Counsel now calls, conflicts in the facts before the court. I will go no further than this. h It is my view however that the court did not require to call any oral evidence. The decision which it came to is sup- ported by the admissible facts before him to which he rightly applied the law. He came to the right decision, even without those facts which the appellant complained of under the ap- i pellant’s Issues 1 and 3. Learned Counsel for the appellant has, in her reply brief of argument proffered a response to the respondent’s submis- sion that the preliminary objection raised by the appellant j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Nzeako JCA Haruna Bako Kolo v. First Bank of Nigeria Plc 97 a amounts to a demurrer, by which he has admitted the aver- ments in the respondent’s pleadings. She contended that is not the position of the law, for it, has been abolished by Or- der 24 Rule 1 of the High Court of Plateau State Civil Pro- b cedure Rules. Therefore, the defendant could not be said to have admitted the said averment in the plaintiff/respondent’s statement of claim, and so the case of Obada v Military Governor, Kwara State (supra) does not apply. c This submission in my view is sound. The matter is outside the issue of demurrer. Both parties have filed their plead- ings. d In spite of what had been stated about the status of the writ of summons and statement of claim in determining when the cause of action arose, I hasten to affirm that that was mentioned to show that the respondent ought to and in a proper case, the court would look, at the processes. In this e case, however, I resolve the issues by holding that the learned trial Judge did not rely entirely on the facts in the pleadings, needed not and could have come to the same de- cision without them. f No miscarriage of justice can be said to have occurred as appellant seeks to urge on this Court. I agree with learned Counsel for the respondent that the court’s use of these facts was only to buttress his earlier decision based on points of g law and other facts in the affidavit. Since the decision based on the admissible facts and the law is sustained without the inadmissible evidence, no mis- carriage of justice has occurred. h If the learned trial Judge had misdirected himself in apply- ing those facts, the question then is whether the misdirection is fatal that is to say, whether it led to substantial miscar- riage of justice. (See Nwaba Mora and others v Nwalusi and i others (1962) 2 SCNLR 73, (1962) 1 All NLR 681 at 689 (Privy Council) and Udeze v Chidebe (1990) 1 NWLR (Part 125) 141 at 162 SC) For where the decision of a trial Judge is not based solely j or substantially on the evidence complained of, the judgment

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Nzeako JCA 98 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) is not disabled. It will be the other way if the evidence a formed the basis for his decision. In Saude v Abdullahi, Uwais, JSC (as he then was) said:– “There is no doubt that the Court of Appeal committed a serious b misdirection in its lead judgment when it inappropriately raised and considered new issues in the appeal before it. The question is: What is the effect of the misdirection? Unless the misdirection is so grave as to occasion substantial mis- c carriage of justice, an Appeal Court will not ordinarily interfere with the decision of the lower court. In Isaac Ayoola v Adebayo and others (1969) 1 All NLR 159 at 164. See Omouka v Omogui (1993) 3 SCNJ 198; Obodo v Ogba (1987) 2 NWLR (Part 54) ‘not every slip can cause an appeal to be d allowed’.” It is correct that available legal authorities show that a letter marked “without prejudice”, may not be admitted in evi- dence, so also evidence of facts emanating from offers of e compromise or attempt at or negotiation for, out of court set- tlement of disputes. (See Fawehinmi v N.B.A. (No. 2) (1989) 2 NWLR (Part 105) 558 at 622–623; Ashibuogwu v Attorney- General of Bendel (supra); and Akanbi v Alatede (2000) 1 f NWLR (Part 639) 125.) I agree with the submission of the appellant learned Counsel on this state of the law. I have however come to the decision, after due consideration of the applicable law and all the circumstances of this matter g and the decision of the court below, that the action is not stat- ute barred. The decision is not disabled and remains valid. The use of the letter and the other evidence complained of, does not amount to such grave misdirection as is fatal to the h decision or occasion such substantial miscarriage of justice as would compel this Court to set aside the ruling and allow this appeal. The respondent’s issue is determined in the af- firmative against the appellant. The appellant’s issues with i their grounds of appeal therefore fail. The appeal itself in the premises, fails and is dismissed. The decision of the learned trial Judge, Dakyen, J in his ruling delivered on 2 March, 1998 is affirmed. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Nzeako JCA Haruna Bako Kolo v. First Bank of Nigeria Plc 99 a There will be N5,000 costs against the appellant in favour of the respondents. MUKHTAR JCA: I have read in advance the lead judgment b just delivered by my learned brother, Nzeako, JCA. I have considered the argument and reasoning, and I am satisfied that the appeal has no merit, and should therefore be dis- missed. I abide by the consequential orders made in the lead judgment. c MANGAJI JCA: I have read the leading judgment just deliv- ered by my learned brother, Nzeako, JCA and I agree abso- lutely that the appeal is without substance and should in the circumstance be dismissed. There appears to be nothing for d me to add. Accordingly I, too, dismiss the appeal and abide by the consequential orders made in the leading judgment including the order regarding costs. Appeal dismissed.

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a Adalfa Agric Industries (Nigeria) Limited and another v Afribank Nigeria Plc b COURT OF APPEAL, PORT-HARCOURT DIVISION OGEBE, NSOFOR, AKPIROROH JJCA Date of Judgment: 15 APRIL, 2002 Suit No.: CA/PH/257/99

Agricultural Guarantee Scheme Fund – Beneficiary default- c ing – Board the proper party to be sued Facts The respondent granted a loan of N60,000 to the first appel- lant under the Agricultural Credit Guarantee Scheme Fund d Act Cap 13 of the Laws of the Federation of Nigeria, 1990 as far back as 1980. The appellants failed to refund the money and the respondents sued them in the lower court, namely, the High Court of Imo State holding at Mgbidi e claiming N144,087.43 plus interest. The lower court gave judgment in favour of the respondent. Dissatisfied with that judgment the appellants have ap- pealed to the Court of Appeal. f The main argument of the learned Counsel for the appel- lants is that by virtue of section 15 of the Agricultural Credit Guarantee Fund Act as passed by Decree No. 20 of 1977 section 15 thereof, all proceedings of civil nature arising g from the failure of any borrower to pay a loan granted by a bank and guaranteed under this Decree or arising from any matter patterning to any guarantee given pursuant to this Decree established, instituted and conducted by or against h the Board. Since the respondent did not sue the Board but the appel- lants, learned Counsel submitted that the action was incom- petent and should have been struck out. i Held – The proper party to be sued is the Board as provided for in the Decree before it was amended. Appeal allowed. j

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Adalfa Agric Industries (Nigeria) Ltd v. Afribank Nigeria Plc 101 a Case referred to in the judgment

Nigerian Tasha v UBN Plc (2002) 3 NWLR (Part 753) 99 b Counsel For the appellants: Chief O.E. Aladun c For the respondent: R.E. Odidika Judgment OGEBE JCA: (Delivering the lead judgment) The respondent granted a loan of N60,000 to the first appellant under the Agri- d cultural Credit Guarantee Scheme Fund Act Cap 13 of the Laws of the Federation of Nigeria, 1990 as far back as 1980. The appellants failed to refund the money and the respondents sued them in the lower court, namely, the High Court of Imo e State holding at Mgbidi claiming N144,087.43 plus interest. The lower court gave judgment in favour of the respondent. Dissatisfied with that judgment the appellants have ap- pealed to the Court of Appeal and the only issue canvassed f by the learned Counsel for the appellants in their brief of ar- gument reads thus:– “(a) Is the respondent’s Suit No. HOU/45/95 incompetent and an abuse of court’s process or has the lower court the juris- g diction to entertain it?” The learned Counsel for the appellants abandoned the re- maining issues and the arguments thereon and they were struck out in court. The main argument of the learned Coun- h sel for the appellants is that by virtue of section 15 of the Agricultural Credit Guarantee Fund Act as passed by Decree No. 20 of 1977 section 15 thereof, all proceedings of civil nature arising from the failure of any borrower to pay a loan granted by a bank and guaranteed under this Decree or aris- i ing from any matter patterning to any guarantee given pur- suant to this Decree established, instituted arid conducted by or against the Board. Since the respondent did not sue the Board but the appel- j lants, learned Counsel submitted that the action was

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, PORT-HARCOURT DIVISION) Ogebe JCA 102 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) incompetent and should have been struck out. The learned a Counsel relied very heavily on the case of Tasha v UBN Plc (2002) 3 NWLR (Part 753) 99 at pages 105–108. That case appears to be at all fours with the present case. b The learned Counsel for the respondent adopted his brief of argument and his attention was drawn to this case of the Su- preme Court. We expected him to concede to the appeal but he was adamant. c In the case of Tasha v UBN Plc in which the respondent granted the appellant a loan under the Agricultural Credit Guarantee Scheme Fund Decree and the appellant defaulted in paying the loan and the respondent sued him and got d judgment in the lower court and also in the Court of Appeal, the Supreme Court was unanimous in holding that the proper party to he sued was the Board as provided for in the Decree before it was amended. I therefore follow this decision of the e Supreme Court to hold that the action of the respondent be- fore the lower court was incompetent. Consequently, I allow this appeal, set aside the decision of the trial court and strike out the respondent’s claim before the lower court with costs of N5,000 in favour of the appellants. f NSOFOR JCA: I have read in draft the judgment of my Lord, Ogebe, JCA just delivered. There is merit in the appeal. By section 15 of the Agricul- g tural Credit Scheme Fund Act Cap 13 Laws of the Federa- tion of Nigeria, 1990 all legal proceedings arising front the failure of any borrower to repay a loan granted by the bank or guaranteed under the Act shall be instituted against the h “Board”. The cause of action giving rise to the proceedings from which the appeal arose, fell under the Act. The respondent having instituted the legal action against the appellants did so against the wrong “defendant”. The i proper parties were not, therefore, before the court below. The respondent’s action was accordingly incompetent. I therefore allow the appeal, set aside the judgment of the court below on the 18 December, 1996, and do hereby strike out the suit. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, PORT-HARCOURT DIVISION) Nsofor JCA Adalfa Agric Industries (Nigeria) Ltd v. Afribank Nigeria Plc 103 a I abide by the consequential order for costs. AKPIROROH JCA: I agree. Appeal allowed.

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a Jonpal Limited v Afribank Nigeria Limited

COURT OF APPEAL, ENUGU DIVISION AKPABIO, MUHAMMAD, FABIYI JJCA b Date of Judgment: 6 MAY, 2002 Suit No.: CA/E/83/2001

Garnishee – Decree Nisi or absolute – When it can subsist – Section 109 Sheriffs and Civil Process Act Cap 407 Laws of c the Federation of Nigeria, 1990 Facts This was an appeal against the decision of Justice K.N. d Udeh of the Enugu State High Court sitting at Enugu deliv- ered on 7 May, 2001. By the decision, the lower court dis- missed the plaintiff/appellant’s preliminary objection chal- lenging the jurisdiction of the lower court entertaining the defendants/respondents application to set aside its judgment e given in favour of the appellant as plaintiff against the re- spondent then being the defendant. The appellant initiated a writ and claim in Suit No. E/74/2000 at the lower court seeking, inter alia, certain de- f claratory reliefs, special and general damages against the re- spondent. By a motion on notice dated 23 March, 2000 the appellant prayed the court for an order entering judgment in his favour against the respondent who was said to have de- g faulted in filing its pleadings. The prayer was obliged by the court. On 11 May, 2000, the respondent filed its motion seeking from the lower court the undermentioned orders:– h 1. An order to set aside the default judgment dated 14 April, 2000 obtained by the plaintiff/judgment credi- tor/respondent (hereinafter called “the respondent”) against the appellant, in the absence of the applicant, i the court processes not having (sic) served on the applicant. 2. An order of extension of time within which the ap- plicant may file its statement of defence in this suit. j

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Jonpal Ltd v. Afribank Nigeria Ltd 105 a 3. An order deeming the statement of defence annexed herewith as exhibit A as having been properly filed and served, the necessary filing fees having been duly paid. b 4. Any further order or orders as the court may deem fit to make. A twenty-nine paragraph affidavit and series of annexures c supported the respondent’s motion. The most important of these paragraphs for the purpose of the instant appeal are paragraphs 5, 6, 7, 23 and 28 are hereunder reproduced:– 5. That to the best of my knowledge, information and belief, the writ of summons, statement of claim and d other court processes in this suit were not served on the said Branch Manager aforenamed, or on any other responsible officer of the applicant. 6. That Counsel to the applicant, Pat Ofili (Mrs), has e informed me and I verily believed her that her in- quiries at High Court Registry, Enugu, revealed that the aforementioned court processes meant for service on the applicant were delivered to AA Secretary at- f tached to Afribank Nigeria Plc at No. 36 Okpara Avenue, Enugu. 23. That the applicant never knew of the pendency of the substantive suit at the High Court Enugu as the said g suit was never brought to its notice. 28. That the applicant is able and willing; to defend the said suit. The respondent also filed a further affidavit as reflected at h pages 42 to 44 of the print record. On 14 July, 2000, the appellant filed a preliminary objec- tion challenging the jurisdiction of the trial court to entertain the respondent’s application and grant the orders sought i therein. The motions were consolidated and taken together at the end of which exercise appellants preliminary objection was overruled. The appellant was dissatisfied with the lower courts deci- j sion as to his objection and has therefore filed this appeal.

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Held – a 1. Section 109 of the Sheriffs and Civil Process Act and the rules thereto allowed the courts to issue a Decree Nisi or absolute in any garnishee proceedings only where a valid b judgment had been obtained and same subsists. Where no judgment validly subsists no lawful order can there- fore be made. 2. The appellant’s suggestion that by the respondents resort c to the lower court to have a nullity set aside, the court had reversed the decision of a court of co ordinate juris- diction is an unimpressive ingenuity. The respondent had to have the order nisi at the Federal High Court set aside, the nullity that the order was, inspite of the fact that the d decision being enforced by the order nisi had been re- versed by the lower court. Nullities subsist until set aside by a competent tribunal. Appeal dismissed. e

Cases referred to in the judgment

Nigerian f ACB Ltd v Henshaw (1990) 1 NWLR (Part 129) 646 Attahiru v Bagudu (1998) 3 NWLR (Part 543) 656 Balewa v Muazu (1999) 7 NWLR (Part 609) 124 Eke v Eluwa (2000) 14 NWLR (Part 688) 560 g Gambari v Gambari (1990) 5 NWLR (Part 152) 572 Igwe v Kalu (1993) 4 NWLR (Part 285) 1 Nigeria General Ins. v Bello (1994) 1 NWLR (Part 319) 207 h Noibi v Fikolati (1987) 1 NWLR (Part 52) 619 Nwakanma v Iko Local Government of Cross River State (1996) 3 NWLR (Part 439) 732 Nwosu v Udeaja (1990) 1 NWLR (Part 125) 185 i Okafor v Attorney-General of Anambra State (1991) 6 NWLR (Part 200) 659 Okorodudu v Okoromadu (1977) 3 SC 21 Okoye v NCFC Ltd (1991) 2 NWLR (Part 433) 656 j

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Jonpal Ltd v. Afribank Nigeria Ltd 107 a Onwugbufor v Okoye (1996) 1 NWLR (Part 424) 254 Oyegbola v Esso West Africa Inc. (1966) 1 All NLR 170 Provisional Council Ogun State University v Makinde b (1991) 2 NWLR (Part 175) 613 Saude v Abdullahi (1989) 4 NWLR (Part 116) 387 Skenconsult v Ukey (1981) 1 SC 26 Uku v Okumagba (1974) 4 SC 35; (1974) 9 NSCR 118 c Vincent Standard Trading Co Ltd v Xtodeus Trading Co Ni- geria Ltd (1992) 5 NWLR (Part 296) 675 Nigerian statute referred to in the judgment d Sheriffs and Civil Process Act Cap 407 Laws of the Federa- tion of Nigeria, 1990, section 109 Counsel e For the appellant: Obi Okwusogu, Esq. For the respondent: Chiobi Ekepchi, Esq. (with him Mrs Pat Ofili) f Judgment MUHAMMAD JCA: (Delivering the lead judgment) This is an appeal against the decision of Justice K.N. Udeh of the Enugu State High Court sitting at Enugu delivered on 7 g May, 2001. By the decision, the lower court dismissed the plaintiff/appellant’s preliminary objection challenging the jurisdiction of the lower court entertaining the defen- dant’s/respondent’s application to set aside its judgment given in favour of the appellant as plaintiff against the re- h spondent then being the defendant. Henceforth the parties will be referred to simply as appellant and respondent re- spectively. The brief facts of the case which brought about the appeal i are hereunder supplied. The appellant initiated a writ and claim in Suit No. E/74/2000 at the lower court seeking, inter alia, certain de- claratory reliefs, special and general damages against the re- j spondent. By a motion on notice dated 23 March, 2000 the

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ENUGU DIVISION) Muhammad JCA 108 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) appellant prayed the court for an order entering judgment in a his favour against the respondent who was said to have de- faulted in filing its pleadings. The prayer was obliged by the court. b On 11 May, 2000, the respondent filed its motion seeking from the lower court the undermentioned orders:– “1. An order to set aside the default judgment dated 14 April, 2000 obtained by the plaintiff/judgment creditor/respondent (hereinafter called ‘the respondent’) against the appellant, in c the absence of the applicant, the court processes not having (sic) served on the applicant. 2. An order of extension of time within which the applicant may file its statement of defence in this suit. d 3. An order deeming the statement of defence annexed here- with as exhibit A as having been properly filed and served, the necessary filing fees having been duly paid. 4. Any further order or orders as the court may deem fit to make.” e A twenty-nine paragraph affidavit and series of annexures supported the respondent’s motion. The most important of these paragraphs for the purpose of the instant appeal are paragraphs 5, 6, 7, 23 and 28 are hereunder reproduced:– f “5. That to the best of my knowledge, information and belief, the writ of summons, statement of claim and other court processes in this suit were not served on the said Branch Manager aforenamed, or on any other responsible officer of g the applicant.” “6. That Counsel to the applicant, Pat Ofili (Mrs), has informed me and I verily believed her that her inquiries at High Court Registry, Enugu, revealed that the aforementioned court processes meant for service on the applicant were delivered h to A Secretary attached to Afribank Nigeria Plc at No. 36 Okpara Avenue, Enugu.” “23. That the applicant never knew of the pendency of the sub- stantive suit at the High Court Enugu as the said suit was never brought to its notice.” i “28. That the applicant is able and willing; to defend the said suit.” The respondent also filed a further affidavit as reflected at pages 42 to 44 of the print record. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ENUGU DIVISION) Muhammad JCA Jonpal Ltd v. Afribank Nigeria Ltd 109 a On 14 July, 2000, the appellant filed a preliminary objec- tion challenging the jurisdiction of the trial court to entertain the respondent’s application and grant the orders sought therein. The motions were consolidated and taken together at b the end of which exercise appellant’s preliminary objection was overruled. With the dismissal of the objection, the lower court proceeded to make the following orders:– “(i) The judgment of this Court dated 14 April, 2000 obtained c by the plaintiff judgment creditor/respondent against the applicant, being a default judgment is hereby set aside. (ii) That time is extended for the applicant within which it may file its statement of defence in this suit. d (iii) That the statement of defence annexed as exhibit A shall be reproduced and properly filed and served on the plain- tiff/respondent within 7 days from the date of this ruling. (iv) Costs assessed and fixed at N2,000 is awarded against the applicant in favour of the plaintiff/ respondent.” e It is instructive to mention as well that the appellant had reg- istered the lower court’s judgment at the Federal High Court, Enugu after the judgment order had been drawn up and before arguments into the consolidated motions of the f two were taken and determined. The appellant is dissatisfied with the lower court’s decision as to his objection and has therefore filed this appeal. g Parties have filed and exchanged briefs which on their adoption stand as arguments for or against the appeal. In the appellant’s brief the following three issues have been formulated for the determination of the appeal. h “A. Whether the trial Judge discharged the duty cast on him of resolving the issue of the non-payment by the respondent of the mandatory, statutory fees of N1,500 the sum payable as three fifths charged under Second Schedule, Order 6 Rule 1, Item 1–5, Second schedule, Order 6 Rule 1, Item 24(iii) and i (iv), Rules 5, 7 and 8 of the High Court Rules, 1988, as against the N99 only paid, a condition precedent before he can reopen the default judgment? B. Whether the trial court (as the home court) had the jurisdic- tion setting aside default judgment, which had been regis- j tered as the judgment of the Federal High Court of Nigeria,

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and a process issued by the Court of registration, an order a nisi already executed, by attaching in the mean time the funds of the respondent in the hands of Central Bank of Ni- geria as garnishee? C. Whether the trial court discharged the duty cast on it when b it failed to dismiss the application before it which consti- tuted an abuse of process, after becoming aware of the pendency of another application on the same subject matter, the judgment award of N8,500,000 instituted latter by the respondent at the Federal High Court without any order c staying proceeding in the co-existing matter by the Federal High Court?” The respondent has formulated three issues as well. These are:– d (i) “Whether the assessment of fees payable in court for the filing of actions, interlocutory applications or other court processes, is the responsibility of the litigant or the officers of court. e (ii) Whether a default judgment obtained against a party with- out the fulfilment of one of the fundamental conditions precedent for the institution of an action service of proc- esses is a valid judgment registrable in some other court (The Federal High Court) or at all and whether such a de- f fault judgment can be executed. (iii) Whether the subject matter of respondent’s application at the High Court, Enugu, is the same as its application before the Federal High Court, Enugu so as to constitute an abuse of process of court thereby necessitating an order of stay of g execution by the Federal High Court, Enugu, pending the determination of the application before the High Court, Enugu.” In arguing its first issue, the appellant contended in the brief h that the trial Judge had failed to make judicious finding on the issue of the respondent’s failure to pay the statutory fees in filing his motion praying the lower court to set aside its judgment, cardinal as the issue was. The brief referred to i page 102 of the print record and submitted that the conclu- sion reached by the court was wrong since the Judge was in no position to waive the issue of fees. By Order 6, Rules 5, 7 and 8 of the trial court’s rules of procedure, non-payment of the statutory fees had robbed the court of its competence to j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ENUGU DIVISION) Muhammad JCA Jonpal Ltd v. Afribank Nigeria Ltd 111 a consider the prayers before it let alone grant the reliefs sought. Reliance was put on Nwakanma v Iko Local Gov- ernment of Cross River State (1996) 3 NWLR (Part 439) b 732; Saude v Abdullahi (1989) 4 NWLR (Part 116) 387; Gambari v Gambari (1990) 5 NWLR (Part 152) 572 and Provisional Council Ogun State University and others v Mrs Makinde (1991) 2 NWLR (Part 175) 613. c In essence, appellant argued, the lower court had exercised its discretion wrongly, when it granted the reliefs asked of it by the respondent. Where a court’s discretion is exercised in a non judicial and non-judicious manner, on the authority of d Igwe v Kalu (1993) 4 NWLR (Part 285) 1 and Vincent Stan- dard Trading Co Ltd v Xtodeus Trading Co Nigeria Ltd (1993) 5 NWLR (Part 296) 675, appellant submitted, the court’s decision would on appeal be set aside. e On its second issue, it has been argued for the appellant that since the Federal High Court, Enugu had issued a De- cree Nisi, which order had been drawn up, the lower court being one of co-ordinate jurisdiction with the former court, f was in no position to set aside the order made by the Federal High Court. It was contended that by the order which re- versed its judgment, the lower court had in effect set aside the order of the Federal High Court which it could not. The g decisions in Uku v Okumagba (1974) 3 SC 35, (1974) 9 NSCR 118; Okoye v NCFC Ltd (1991) 6 NWLR (Part 199) 501 and Emordi v Kwentoh (1996) 2 NWLR (Part 433) 656 SC have been cited to support the appellant’s arguments in this regard. h The appellant also contended that by virtue of sections 2, 4, 8 and 109 of the Sheriff’s and Civil Process Act Cap 407 Laws of the Federation of Nigeria, 1990 as well, the lower i court’s decision cannot hold. The appellant argued that once a Decree Nisi had been issued, unlike other modes of execu- tion of judgment, the process cannot be halted even by the pendency of appeal let alone the process of the lower court adopted. appellant cited as authority the case of Nigeria j General Ins. v Bello (1994) 1 NWLR (Part 319) 207.

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As to its third and last issue, the appellant contended that a the respondent’s application to set aside the lower court’s decision in Suit No. E/74/2000 had existed concurrently with the respondent’s bid to set aside the Decree Nisi ob- b tained by the appellant in Suit No. FHC/EN/CS/41/2000. This fact made the respondent’s various resorts to obtain a single remedy an abuse of the court’s process. By the deci- sions in Attahiru v Bagudu (1998) 3 NWLR (Part 543) 656 c and Balewa v Muazu and others (1999) 7 NWLR (Part 609) 124, once there was an abuse of the process of the court, the lower court and indeed this Court should dismiss the re- spondent’s prayers. d On the whole, appellant has urged that the appeal be al- lowed because of the foregoing reasons. The respondent in arguing the first issue it formulated re- ferred to the record of appeal, the judgment of the lower e court at page 96 lines 21–29 and page 102 lines 8–25 and submitted that the trial court had demonstrated a clear grasp of Order 6 Rules 5, 7 and 8 of its rules of practice. It is ar- gued that with the payment of a fee of N99 by the respon- f dent, pursuant to the assessment given by the Court’s Regis- trar who not only initialled the fact of the payment of the fees but also issued receipt no. CR 000773698 of 11 May, 2000, the court’s decision that there had been compliance g was proper and so was the court’s refusal to strike out re- spondent’s application. The respondent relied on Onwugbu- for v Okoye (1996) 1 NWLR (Part 424) 252. It is further argued that appellant’s reference to items h 24(iii) and (iv) to second schedule was misconceived be- cause the items have nothing to do with the assessment of fees. Under the second issue, it is contended that failure to effect service of necessary processes on a defendant by a i plaintiff to enable the former attend court to answer the claim takes away the court’s jurisdiction. This failure ren- ders proceedings a nullity no matter how well conducted and as held in Skenconsult and another v Ukey (1981) 1 SC 6 at 26 submitted the respondent, a person affected by such a j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ENUGU DIVISION) Muhammad JCA Jonpal Ltd v. Afribank Nigeria Ltd 113 a nullity is entitled to have it set aside as did the respondent in the instant case. For the third issue, it is submitted that since the judgment b obtained by the appellant was from the very beginning a nul- lity same was incapable of being registered at the Federal High Court. The order nisi issued by the Federal High Court pursuant to the garnishee proceedings commenced in execu- tion of a void judgment is equally null and void. c It was further argued, the respondent’s application to have the lower court’s judgment set aside did not co-exist with its application to the Federal High Court to have the order nisi set aside. In any event neither the parties nor the reliefs in d the two applications were the same. The facts of the present case respondent argued, cannot, as rightly held by the lower court, constitute an abuse of the process of the court. The respondent has prayed that the appeal be dismissed. e Going through the seemingly identical issues formulated by both parties to this appeal, it appears that it is no longer in dispute that respondent had not infact been served the court f processes in consequence of which the lower court’s judg- ment in favour of the appellant was granted, which null and void decision had been set aside. What the appellant is saying is that notwithstanding the fact that the judgment was void for non service of the writ and the claim, the lower court lacked g the necessary jurisdiction to set the illegal judgment aside for three reasons. Firstly, respondent did not pay the appropriate fees for the filing of the very application which prayed the court to set aside its own judgment. Secondly, that in view of h the fact that the lower court’s judgment had been registered in another court of co-ordinate jurisdiction, void as the judgment was, the respondent’s right to have the judgment set aside had become ineffective. Lastly, the application was in itself an i abuse of the process of the court since respondent had equally applied to the Federal High Court to have the Nisi Order granted to the appellant pursuant to the registration of the lat- ter’s void judgment set aside. I am afraid appellant is wrong in all the three situations. It must be remarked out rightly that j respondent’s application praying the lower court to set aside

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ENUGU DIVISION) Muhammad JCA 114 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) its null and void judgment cannot in the circumstances of the a instant case be said to constitute an abuse of the process of the court. The analysis of the lower court and the conclusion it reached as a result of the painstaking exercise is unassail- able. Quite correctly, an abuse of the process of court occurs b when a party improperly uses the judicial process to the irrita- tion and annoyance of his opponent or in order to overreach such an opponent. Although it is true that abuse of the process of the court often manifests in the institution of multiplicity of c actions, the fact that multiple actions had been commenced by a party against another without more may not necessarily amount to an abuse of the process of the court. There is an abuse only where the multiple actions were between the same d parties and in respect of the same subject matter. (See Okoro- dudu v Okoromadu (1977) 3 SC 21 and Okafor v Attorney- General of Anambra State (1991) 6 NWLR (Part 200) 659 at 681.) Such was not the position in the instant case. The sub- ject matter in the application at the lower court to have the e void judgment set aside was not the same as in the application at the Federal High Court. Nor were the parties in the two causes the same. Given this circumstance, the lower court had rightly found that respondent’s application could not be ad- f judged an abuse of its process to make same impossible of being entertained. (See also Oyegbola v Esso West Africa Inc (1966) 1 All NLR 170.) The respondent had taken the right steps in the two courts. It g is by now a settled principle of law that any breach of the fundamental right provisions renders any act subsequent to such a breach a nullity. Obtaining a judgment without service of the processes by which the action in which the judgment h was acquired rendered not only the judgment so gotten, but the purported execution of same a nullity. A party like the re- spondent affected by a null decision or order of a law court is entitled ex debito justitiae to have same set aside. He does so i in the manner resorted to by the respondent who applied to the very court that gave the null decision or issued the void order for it was that very court that had the inherent jurisdic- tion to revisit such a decision in the first place (see Nwosu v Udeaja (1990) 1 NWLR (Part 125) 188). j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ENUGU DIVISION) Muhammad JCA Jonpal Ltd v. Afribank Nigeria Ltd 115 a The appellant cannot also succeed on the basis of the quar- rel that lower court had wrongly assumed jurisdiction in hearing the respondent’s application since appropriate fees had not been paid by the applicant. b By a long chain of authorities we have held that the ques- tion of payment of adequate or inadequate filing fees in re- spect of documents for use in court does not raise an issue of c jurisdiction and failure to fulfil the provisions of the rules of court thereto is merely an irregularity which in the context of the instant case is incapable of affecting the lower court’s proceedings in any way. (See Noibi v Fikolati (1987) 1 NWLR (Part 52) 619 at 632 and Saude v Abdullahi (1989) 4 d NWLR (Part 116) 387 at 405.) It is the appellant who asserted that respondent did not pay the appropriate fees. It has remained his burden to prove e what the appropriate fees are and to what extent the payment of N99 by the respondent had fallen short of the appropriate mark. The appellant having failed to prove the extent to which respondent had fallen short of what the rules of court f required, will not be obliged the indulgence of overturning a decision so commendably reached. Besides, by the combined effect of Order 6 and regulations 27(a) and (b) and 28 of the second schedule to the Anambra g State High Court Rules applicable to Enugu State, one is un- able to read inadequacy into the amount of fees paid by the respondent. Even if such inadequacy had been shown to ex- ist, the usual remedy has always been for the lower court, and here we would have invoked section 16 of the Act, to h ask the respondent to pay the appropriate fees or the short fall. (See ACB Ltd v Henshaw (1990) 1 NWLR (Part 129) 646 at 650 and Eke v Eluwa (2000) 14 NWLR (Part 688) 560 at 568.) i In the instant case even though the appellant had taken up the issue of non-payment of the appropriate fees timeously we are satisfied that in the light of the facts supplied by the respon- dent, the appropriate fees had been paid and the lower court j was right in its treatment of the respondent’s application.

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The point has been made in the respondent’s brief that ap- a pellant is raising a fresh issue in its second issue for deter- mination having drawn same from the second ground of ap- peal that had been filed with out the leave of this Court. Or- dinarily we would have upheld this submission. However, b since the issue seems to have brought the jurisdiction of the lower court into focus, and the issue of jurisdiction being crucial and cardinal, appellant’s bid as contained in the sec- ond issue will be considered as well. c We note in this regard that no prayer was made to the lower court for the order of the Federal High Court Nisi to be set aside. The court did not make such an order any way. Section 109 of the Sheriffs and Civil Process Act and the rules thereto d allowed the courts to issue a Decree Nisi or absolute in any garnishee proceedings only where a valid judgment had been obtained and same subsists. Where no judgment validly sub- sists no lawful order can therefore be made. The appellant’s e suggestion that by the respondent’s resort to the lower court to have a nullity set aside, the court had reversed the decision of a court of co ordinate jurisdiction is an unimpressive ingenuity. The respondent had to have the order nisi at the Federal High Court set aside, the nullity that the order was, inspite of the fact f that the decision being enforced by the order nisi had been re- versed by the lower court, nullities subsist until set aside by a competent tribunal. Resultantly, the three issues for the determination of this g appeal are hereby resolved in favour of the respondent. The appeal is without merit and same is hereby dismissed with N4,000 cost to the respondent. h FABIYI JCA: I had a preview of the lead judgment of my learned brother M.D. Muhammad, JCA. I agree with the lu- cid reasons advanced to dismiss the appeal. The complaints garnered by the appellant may be equated to i raising of skirmishes all over the place. The appellant had an axe to grind in that it maintained that the lower court wrongly assumed jurisdiction in hearing the respondent’s application as appropriate fees had not been paid by the respondent. Interest- ingly, the Registrar of the trial court has not complained in this j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ENUGU DIVISION) Fabiyi JCA Jonpal Ltd v. Afribank Nigeria Ltd 117 a respect. This Court will not embark upon conjecture. Inade- quate fees charged by a court Registrar and paid by a litigant is not synonymous with no fees paid at all. Any default in the Registry of the lower courts even if properly pin pointed, b should not operate adversely against the respondent. I am at one with my learned brother that the appeal is de- void of merit and should be dismissed. I order accordingly and endorse all consequential orders including that relating c to costs in the lead judgment. AKPABIO JCA: I agree. Appeal dismissed.

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a United Bank for Africa v Mr S.O. Folarin and another b COURT OF APPEAL, LAGOS DIVISION OGUNTADE, ADEREMI, CHUKWUMA-ENEH JJCA Date of Judgment: 8 MAY, 2002 Suit No.: CA/L/395/97

Banking – Bank draft – Meaning of c Banking – Banker and customer relationship – Dishonour of customer’s cheque – Measure of damages Banking – Banker and customer relationship – Nature of – d Duties owed customer by bank – Right of a third party to sue bank Damages – Measure of damages in contract and tort – Dis- tinction between – Applicable principles e Facts The first respondent requested the appellant, the bankers for the respondents to a cheque for the sum of Ten Thousand f pounds sterling payable in London on 21 September, 1992. The appellant did as instructed and debited the first respon- dent’s domiciliary account with the appellant. In the United Kingdom (UK) the first respondent paid the draft into his g account and issued cheques for the businesses he conducted on behalf of the second respondent and paid for them based on the appellant’s said cheque he lodged in the account with his London bankers. Because the appellant’s said cheque h lodged into the first respondent’s London account bounced the cheque issued by the first respondent for various busi- ness transactions conducted in Europe fell through. And the respondents claimed they had suffered substantial losses. The appellant laid the fault on the break down of its telex i machine. The appellants also contended that it had no contract with the second respondent as the letter requesting for the draft was from the first respondent. j

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United Bank for Africa v. S.O. Folarin 119 a The respondent’s claim was for the sum of N10 million be- ing special and general damages suffered by reason of the breach of contract by the appellant. The trial Judge awarded the sum of N8 million. The appellant appealed to the Court b of Appeal. Held – 1. A bank draft is a draft drawn by bank upon itself with an c undertaking to pay the amount of the draft. It can also be drawn on another bank where the drawer bank has funds. 2. In banking business, the relationship between a bank and its customers is contractual, and by the law of privity of d contract strangers to a contract are precluded from suing on it even if the contract was made for their benefit. 3. The damages awardable for a breach of a simple e banker/customer contract as in the instant case have to be such as naturally flow directly from the breach. 4. A bank has a duty under its contract with its customer to exercise reasonable care and skill in carrying out its part f with regard to operations within its contract with its cus- tomers. The duty to exercise reasonable care and skill extends over the whole range of banking business within the contract with the customer. Thus the duty applies to g interpreting, ascertaining and acting in accordance with the instructions of the customer. 5. The banker’s primary function and duty is to honour his customer’s cheque. Apart from this contractual obliga- h tion or as a consequence thereof, the paying banker must remember that his customer’s credit is or may be seri- ously injured by the return of one of his cheques dishon- oured and the smaller the cheque the greater the possible i damage to credit. Therefore where there is a breach of contract occasioned by negligence as in wrongful dishonour of cheques as in this matter, the banker would further be liable for the j economic loss occasioned by the tortuous act.

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6. Only a person engaged “in trade” or “in business” may a recover sustainable damages for damage to business reputation. In other cases of dishonoured cheques the plain- b tiff/customer has to plead and prove any damage suf- fered or is entitled to nominal damages. Appeal succeeds in part. c Cases referred to in the judgment

Nigerian ACB v Haston (1997) 8 NWLR (Part 515) 110 d Abacha v Fawehinmi (2000) 6 NWLR (Part 660) 228 Adejumo v Ayantegbe (1989) 3 NWLR (Part 110) 417 Aganran v Olushi (1907) 1 NLR 66 Agbaje v National Motors Ltd (1971) 1 UILR 119 e Agbanelo v UBN Ltd (2000) 7 NWLR (Part 666) 534 Agunwa v Onukwue (1962) 2 SCNLR 275 Ajuwon v Akanni (1993) 1 NWLR (Part 316) 182 f American Cyanamid Co Ltd v Vitality Pharm. Ltd (1991) 2 NWLR (Part 171) 15 Artra Industries (Nigeria) Ltd v NBCI (1998) 4 NWLR (Part 546) 357 g Attorney-General of Oyo State v Fairlakes Hotel Ltd (No. 2) (1989) 5 NWLR (Part 121) 255 Balogun v National Bank (Nigeria) Ltd (1978) 3 SC 155 h Ikpeazu v ACB Ltd (1965) NMLR 374 Ilesa Local Planning Authority v Olayide (1994) 5 NWLR (Part 342) 91 Iriri v Erhurhobara (1991) 2 NWLR (Part 173) 252 i Jammal Engineering (Nigeria) Ltd v Wrought Iron (1970) NCLR 295 Koya v UBA (1997) 1 NWLR (Part 481) 251 LSDPC v N.L. and S.F Ltd (1992) 5 NWLR (Part 244) 653 j

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United Bank for Africa v. S.O. Folarin 121 a Lagricom Co Ltd v UBN Ltd (1996) 4 NWLR (Part 441) 185 Lewis v Bankole (1908) 1 NLR 81 NEPA v Akpata (1991) 2 NWLR (Part 175) 536 b Odumosu v ACB Ltd (1976) 11 SC 55 Okoroji v Ezumah (1961) SCNLR 187 Omonuwa v Wahabi (1976) 4 SC 37 c Osagie v Adonri (1994) 6 NWLR (Part 349) 131 Oshinjinrin v Elias (1970) 1 ANLR 153 Progress Bank (Nigeria) Ltd v Ugonna (Nigeria) Ltd (1996) 3 NWLR (Part 435) 202 d Salzgitter Stahi GMBH v Tunji Dosunmu Industries Ltd (Un- reported) Appeal No. CA/L/169/90 delivered on 8/9/96 Seaview Investments Ltd v Munis (1991) 6 NWLR (Part 195) e 67 Seismograph Services (Nigeria) Ltd v Mark (1993) 7 NWLR (Part 304) 203 Taiwo v Princewill (1961) ANLR 240 f UBA Ltd v Ibhafidon (1994) 1 NWLR (Part 318) 90 UBN Plc v Scpok (Nigeria) Ltd (1998) 12 NWLR (578) 439 UBN Plc v Sparkling Breweries Ltd (1997) 3 NWLR (Part g 491) 29 Uwa Printers Ltd v Investment Trust Ltd (1988) 5 NWLR (Part 92) 110 West African Shipping Agency v Kalla (1978) 11 NSCC 114 h Foreign Dredger Liesbosch v S.S. Edison (1933) AC 449 Dunlop Pneumatic Tyre Co Ltd v Selfridge (1915) AC 847 i Gibbons v Westminster Bank Ltd (1939) 3 All ER 577 Hadley v Baxendale (1854) Exch. 341 Kpoharor v National Building Society (1996) 4 All ER 119 j Salomon v Salomon (1897) AC 22

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Nigerian statutes referred to in the judgment a Bills of Exchange Act Cap 35 Laws of the Federation of Ni- geria, 1990, sections 2(1)(c), 5(2), 51(2), 57, 72(c) Evidence Act Cap 112 Laws of the Federation of Nigeria, b 1990, section 132

Book referred to in the judgment Paget’s Law of Banking, page 312 c

Counsel For the appellant: M.B. Ganiyu, Esq. d For the respondent: J.O.K. Oyewole, Esq.

Judgment CHUKWUMA-ENEH JCA: (Delivering the lead judgment) e The plaintiffs’ claim against the defendant in the court be- low i.e. High Court of Lagos (Coram Shitta-Bey, J) is for the sum of N10 million being special and general damages suf- fered by the plaintiffs (respondents) particularised as fol- lows:– f Special Damages:– (1) Transportation to and from U.K. 33,000.00 (2) Expected profit from cancelled auction g purchases and lost deposit thereon 2,000,000.00 (3) Hotel accommodation and feeding for 7 days at N12,600.00 per day 88,200.00 2,121,200.00 h General damage 7,878,800.00 Total N10,000,000.00 The court below found for the plaintiffs and awarded the sum of N8,000,000 made up of as follows:– i Special Damages:– (1) Transportation to and from U.K. 33,000.00 (2) Expected profit from cancelled auction purchases and lost deposit thereon 2,000,000.00 j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Chukwuma-Eneh JCA United Bank for Africa v. S.O. Folarin 123 a (3) Hotel accommodation and feeding for 7 days at N12,600.00 per day 88,200.00 2,121,200.00 b General damages 5,878,800.00 Total N 8,000,000.00 The court below then added this:– “In arriving at the above award, I have taken into consideration the c fact that the plaintiff’s losses were incurred in Pounds Sterling and were converted into Naira equivalent, and also the fact of the con- siderable devaluation of the Naira.” Dissatisfied with the decision, the defendant/appellant ap- d pealed to this Court upon an amended notice of appeal con- taining twelve grounds of appeal from which the appellant had distilled twelve issues for determination. And the twelve issues raised for determination are as follows:– e “From Ground One of the grounds of appeal, the issue that arises is: whether there is a contractual relationship between the appel- lant and the second respondent in the course of the transaction that led to this suit as to enable the lower court enter judgment in fa- vour of the second respondent herein against the appellant. f From Ground Two of the grounds of appeal, the issue that arises is whether there is any justiciable action in court upon a foreign bill (which the bill in question is agreed by all to be) until such foreign bill is duly protested. From Ground Three of the grounds of appeal, the issue that arises g is whether upon the wrongful dishonour of a cheque the only per- son entitled to have damages awarded in its favour is the ‘drawer’ of the cheque who is the person upon which the law confers a standing to sue. h Arising from Ground Four of the grounds of appeal is whether the lower court was right to have considered the liability of the appel- lant to the respondent in tort when the said tortuous liability was not raised by any of the parties in their pleadings and when the court did not even call on the Counsel for the parties to address her i on the same. Arising from Ground Five of the grounds of appeal is whether the learned trial Judge was right in not making specific findings on the issue of who as between the appellant and Banque Nationale De Paris Plc ought to be held in default for causing the alleged late j payment to the first respondent of the proceeds of the foreign bill

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for £10,000 and by failing to make specific findings as to the date a on which this alleged late payment was made. Arising from Ground Six of the grounds of appeal is the issue whether the damages payable to a holder of a foreign bill of ex- change upon its dishonour is liquidated to be the amount of the re b exchange with interest thereon until the time of payment. The issue that arises from Ground Seven of the grounds of appeal is whether the learned trial Judge was right in awarding the sum of N 2,121,200 as special damages to the respondents in this case. c Arising from Ground Eight of the grounds of appeal is whether the learned trial Judge was right in awarding to the respondents the sum of N8,000,000 as damages in this matter. From Ground Nine of the grounds of appeal, the issue that arises is whether the learned trial Judge was right in failing, while awarding d the damages, to clearly specify the sum awarded as damages in tort and the sum awarded as damages in contract. The issue arising for determination from Ground Ten of the grounds of appeal is whether the learned trial Judge was right in e awarding the sum of N8,000,000 damages against the appellant to the respondent for loss of reputation which they alleged they have suffered. From Ground Eleven of the grounds of appeal, the issue is whether the learned trial Judge was right when she held that in awarding f the sum of N8,000,000 damages against the appellant, she had taken into consideration the fact that the plaintiffs’ losses were in- curred in Pounds Sterling and were converted into Naira when the said trial Judge did not state the conversion parameters. And finally, from Ground Twelve of the grounds of appeal, the is- g sue is whether the judgment is against the weight of evidence.” The plaintiffs/respondents also filed their respondents’ brief of argument and therein identified six issues for determina- tion and they are reproduced here as follows:– h “1. Whether there is a contractual relationship between the ap- pellant and the second respondent in the transaction that led to this suit as to make the appellant liable to it in damages? 2. Whether the transaction that gave rise to this suit is strictly i an issue confined to the provisions of the Bills of Exchange Act Cap 35 Laws of the Federation of Nigeria, 1990 3. Whether the passing comment of the learned trial Judge constitutes an essential part of the judgment and is appeal- able? j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Chukwuma-Eneh JCA United Bank for Africa v. S.O. Folarin 125 a 4. Whether the learned trial Judge was right in not making specific findings on the issue of who as between the appel- lant and Banque Nationale De Paris Plc ought to be held li- able for the alleged breach of contract? b 5. Whether the learned trial Judge was right in making the award of special and general damages? 6. Whether the judgment was against the weight of evidence?” Briefly, the facts are not seriously in controversy. The first c respondent requested the appellant, the bankers for the re- spondents for a cheque for the sum of Ten Thousand pounds sterling payable in London on 21 September, 1992. The ap- pellant did as instructed and debited the first respondent’s d domiciliary account with the appellant. In the United King- dom (U.K.) the first respondent paid the draft into his ac- count and issued cheques for the businesses he conducted on behalf of the second respondent and paid for them based on the appellant’s said cheque he lodged in the account with his e London bankers. Because the appellant’s said cheque lodged into the first respondent’s London account bounced the cheque issued by the first respondent for various business transactions conducted in Europe fell through. And the re- f spondents claimed they had suffered substantial losses. The appellant laid the fault on the break down of its telex ma- chine. I think in order to give a complete picture of the facts I have decided to reproduce the said letter exhibit SOF1 as g follows:– “S.O. Folarin, Esq., 32 Abiodun Street, P. O. Box 2232, h Shomolu, Lagos, Nigeria. 16 September, 1992 The Principal Manager, i United Bank for Africa Plc, Falomo Branch, Ikoyi, Lagos. j Dear Sir,

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DFC/SAV/STG/021 a Please urgently issue a bank cheque for the sum of Ten Thousand Pounds only (£10,000 in favour of Mr S.O. Folarin. Account No. 60375292. Barclays Bank Plc, London. b Payable immediately on presentation in London on or about 21 September, 1992 and debit my account accordingly. The cheque should be ready for collection latest 18 September, 1992. c Yours faithfully, (Sgd) S.O. Folarin.” d In respect of the issues identified for determination in the matter, the appellant had on issue one repudiated any con- tractual relationship with the second respondent and relied on the letter of application exhibit SOF1 from the first re- spondent a Director in the second respondent’s company to e debunk any contract with the second respondent for a bank draft that is exhibit SOF2 raised by the first respondent. The appellant referred to the import of section 132 of the Evi- dence Act, 1999. (See Salomon v Salomon (1897) A.C. 22 at f 31 per Lord Macnaughten.) On the issue that the second re- spondent was not also a privy to the contract it relied on Dunlop v Selfridge (1915) A.C. 847 at 835 and Ikpeazu v ACB Ltd (1965) NMLR 374. g On Issue 2 the appellant relied on section 51(2) of the Bill of Exchange Act Cap 35 Law of the Federation of Nigeria to urge that until the bill was protested there was no justiciable action. (See Seaview Investments Ltd v Munis (1991) 6 h NWLR (Part 195) 67.) On Issue 3 dealing on the person who has locus to sue in damages the appellant argued that it was only the drawer of the cheque. In Gibbons v Westminister Bank Ltd (1939) 3 i AER 577 damages were awarded to the drawer who had the right to sue and not the payee as hers. The appellant submit- ted that it was its place to sue as it was its cheque that was dishonoured and that any reputation that was lost was the appellant’s. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Chukwuma-Eneh JCA United Bank for Africa v. S.O. Folarin 127 a On Issue 4 the appellant contested whether the court below could raise suo motu the issue of negligence not pleaded and on no evidence and without the parties addressing on it – the point having been taken at the judgment stage suo motu. b Reference was made to Ojo Osagie v Adonri (1994) 6 NWLR (Part 349) 131 at 154–155 and Ajuwon v Akanni (1993) 1 NWLR (Part 316) 182 at 199 on raising a point suo motu (see Seismograph Services v Mark (1992) 7 NWLR c (Part 304) 203 at 212 per Uwaifo, JCA (as he then was), Koya v UBA (1997) 1 NWLR (Part 481) 251). The respon- dents further submitted that the appellant did not particular- ise the act of negligence. d On Issue 5 the appellant imputed all the delay in dealing with the matter of payment of the £10,000 on the Banque Nationale De Paris Plc. e On Issue 6, the appellant referred to section 57 of the Bills of Exchange Act Cap 35 Laws of the Federation, 1990 to contend the award of damages should be set aside as the re- spondents were only entitled to £10,000 as damages. (See UBN Plc v Scpok Nigeria Ltd (1998) 12 NWLR (Part 578) f 439 at 472–474.) On Issue 7 and 8 on the damages awarded under the three heads, the appellant referred to the principle in Hadley v Baxendale (1854) Exch. 341 applied in Progress Bank of g Nigeria Ltd v Ugonna (Nigeria) Ltd (1996) 3 NWLR (Part 435) 202 at 217 A–B to submit that the respondent did not prove the special damages strictly as no receipts for the dis- bursements were tendered. On the second head that the h award (for projected profits) of N2,000,000 could not have been contemplated by the parties and besides as the second respondent was not a party to the contract for the bank draft and the respondents did not communicate to the appellant i the purposes for the draft and so the projected profits were not within contemplation. The cases of Uwa Printers Ltd v Investment Trust Ltd (1988) 5 NWLR (Part 92) 110; Attor- ney-General of Oyo State v Fairlakes Hotel Ltd (No. 2) (1989) 5 NWLR (Part 121) 255 and Artra Industries (Nige- j ria) Ltd v NBCI (1998) 4 NWLR (Part 546) 357 at 386 E–F,

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Chukwuma-Eneh JCA 128 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) were cases referred to as cases where there was not credible a evidence of anticipated profits. On the award of general damages of N5 million it was con- tended to be double compensation as special damages for b loss of profits had been awarded under a separate head. The case of West African Shipping Agency v Kalla (1978) 11 NSCC 114 at 120 on general damages was relied upon. See unreported Suit No. CA/L/340/90 BASF (Nigeria) Ltd v Odutola Industries Ltd delivered on 10 January, 1994. c On Issues 9 and 10 the appellant relied on ACB v Haston (1997) 8 NWLR (Part 515) 110 at 136E and 137 to chal- lenge the single sum i.e. N8m damages in tort and contract. It submitted that the appellant could not be entitled to more d than the value i.e. £10,000 of the bill re exchanged, which they already had received. (See sections 5 and 6 of the Bills of Exchange Act Cap 35.) On Issue 11 the appellant doubted the exchange rate used e in the conversion from pounds Sterling to Naira as it was not made known by the court and for this point he referred to the unreported Suit No. CA/L/169/90 Salzgitter Stahi GMBH v Tunji Dosumnu Industries Ltd delivered on 8 September, f 1996. As regard Issue Twelve the appellant raised the issue of weight of evidence and submitted on the whole that the weight of evidence preponderated in its favour. The court was then urged to allow the appeal. g The respondents as stated above raised six issues. Issue one, under this head the respondents argued that the second respon- dent was his alter ego (i.e. of the first respondent) and that he made the trip to Europe on behalf of the second respondent. h On Issue 2, they dealt with the positions under the Bill of Exchange Act and Contract. Under the Bill of Exchange Act Cap 35 Laws of the Federation of Nigeria, 1990 they re- ferred to section 2(1)(c) to show that the bankers draft came i under the general term of “prescribed instrument” and that section 57(2) of the said Act dealt on the damages payable to the drawer. Section 51(2) of the said Act was referred to show the bank draft as not being a foreign bill. They pro- jected the argument that the bank draft being a foreign j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Chukwuma-Eneh JCA United Bank for Africa v. S.O. Folarin 129 a bankers’ draft was to be treated as a foreign promissory note requiring no protest notice. The respondents were not there- fore to protest the dishonour. See sections 51(2) and 72(c) of the said Act. And for damages recoverable under the said b Act they referred to section 57(b) of the said Act. On Issue 3 the respondents contended that the statement by the trial court that the action was in contract and tort was a passing comment, an obiter dictum and not appellable. (See c Abacha v Fawehinmi (2000) 6 NWLR (Part 660) 228 at 297 per Ogundare, JSC.) On Issue 4 the respondents stated the issue was as between the appellant and Banque Nationale De Paris Plc who was in d default. On Issue 5, on damages, referring to Odumosu v ACB (1976) 11 SC 55 and Attorney-General of Oyo State v Fair- lakes Hotels Ltd (No. 2) (1985) 5 NWLR (Part 121) 255 the e respondents submitted that the special damages, that is, loss of profits, travel, accommodation and feeding expenses were established by credible evidence by the first respondent un- rebutted. (See ACB v Haston (1997) 8 NWLR (Part 515) 110 f at 136 and Agbaje v National Motors (1971) 1 UILR 119.) On general damages it was submitted that the court exer- cised its discretionary powers in making the award and that the damages should not be disturbed. g On Issue 6 on weight of evidence the respondents argued that the evidence on the two sides when weighed in the imaginary scales tilted towards the respondents’ and that the respondent’s case was not rebutted. (See NEPA v Dr. H.O. Akpata (1991) 2 NWLR (Part 175) 536. Iriri v Erhurhobara h (1991) 2 NWLR (Part 173) 252, American Cyanamid v Vi- tality Pharm. Ltd (1991) 2 NWLR (Part 171) 15.) They urged the court to dismiss the appeal. i The proliferation of issues in this matter should raise some concern in view of the nature of the dispute and the pertinent issues to be resolved in it. Surely, in this regard, twelve is- sues for determination are a crowd. Practically every slip in the judgment gave rise to a ground of appeal and an issue for j determination. Hence too many issues were raised albeit

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Chukwuma-Eneh JCA 130 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) lacking in punch and repetitive. Learned Counsel is advised a to guard against the trend. The six issues by the respondents are subsumed in the appellant’s eight issues. The first question to be consider and a crucial one is the b second respondent’s standing to sue on the specific contract created by exhibit SOF1 (that is the letter requesting for a bank cheque drawn by the first respondent), resulting in the absence of banker/customer relationship between it and ap- pellant. Clearly it raised the issue fundamental to the second c respondent’s joint cause of action against the appellant. Importantly, in banking business the relationship between a bank and its customers is contractual, and by the law of priv- ity of contract strangers to a contract are precluded from su- d ing on it even if the contract was made for their benefit. In Dunlop v Selfridge (1915) A.C. 847 Lord Holme put the principle thus:– “My Lords, in the law of England, certain principles are funda- e mental. One is that only a person who is a party to a contract can sue on it. Our law knows nothing of jus quaesitum tertio arising by way of contract. Such a right may be conferred by way of prop- erty, as for example. under trust, but it cannot be conferred on a stranger to contract as a right to enforce the contract in personam.” f The principle has been adopted and applied in this country in LSDPC v N.L. and S.F. Ltd (1992) 5 NWLR (Part 244) 653 at 658 per Olatawura, JSC thus:– “Generally, only parties to a contract can enforce the contract. A g person who is not a party to it cannot do so even if the contract is made for his benefit and purports to give the right to sue upon it. See Ikpeazu v ACB (1965) NMLR. 374, Lagos State Development and Property Corporation and others v Nigerian Land and Sea Food Ltd (1992) 5 NWLR (Part 244) 653 and Union Beverages h Ltd v Pepsi Cola International Ltd (1994) 3 NWLR (Part 330) 1.” From the above cited principles the question to be resolved could be further reduced to one of privity of contract be- tween the respondents and the appellant. To address it I go i back to the facts of this matter and they are not in dispute. On 16 September, 1992, the first respondent using his per- sonal letterhead requested the appellant to raise for collec- tion on 18 September, 1992 a bank cheque in the sum of £10,000 for him payable in London on presentment on or j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Chukwuma-Eneh JCA United Bank for Africa v. S.O. Folarin 131 a about 21 September, 1992 and debit his account. The appel- lant prepared its cheque exhibit SOF2 in the first respon- dent’s name for £10,000 drawn on Banque Nationale De Paris Plc, London. There is on record evidence that the first b respondent’s properties were lodged with the appellant as collateral for the loan granted to the second respondent (but not with respect to the £10,000) and that the said business trip to Europe was undertaken on behalf of the second re- c spondent but not disclosed to the appellant. The second re- spondent was also a customer of the appellant. Relying on the foregoing the respondents contended they had the stand- ing to sue the appellant. d Quite clearly, even on the respondents’ own showing as recounted above, the second respondent remained a total stranger in every sense of the term to the instant contract. Both parties rightly agreed the contract was founded on ex- e hibit SOF1. On a close scrutiny of it I agree the second respondent cannot maintain a joint action with the first respondent on it against the appellant for want of the standing to sue. f Besides, the contract cannot be altered or modified by oral evidence as that offends section 132 of the Evidence Act, 1990 and such line of action as attempted by the respondents showed a misunderstanding of the unambiguous and plain g import of exhibit SOF1. The court below rightly rejected the move. It needs no construction. Even moreso exhibit SOF1 – the letter to the appellant was typed on the first respondent’s letter head as against the company’s letter head. The cheque h exhibit SOF2 was drawn in his name. Nowhere in exhibit SOF1 was it stated he was acting for the second respondent and its involvement in the matter was not spelt out. And I must however add for completeness that the second respon- i dent is a separate and distinct legal entity from the first re- spondent even though the first respondent is the Managing Director and literally the owner of the second respondent’s company and indeed the alter ego of the second respondent. That all facts both oral and documentary here point to a con- j tract between the appellant and the first respondent is

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Chukwuma-Eneh JCA 132 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) irrefutable. There is no ground to sustain a joint cause of ac- a tion on the contract against the appellant. The tenor of ex- hibit SOF1 left no doubt as to who was really contracting with the appellant. The oral evidence of the first respondent portrayed him as one actively acting for himself as he even b confessed that he never informed the bank (i.e. the appel- lant) the purpose of any of his transactions. The allegation that this manner of business had been the modus on previous occasions and therefore always acquiesced in by the appel- c lant is not borne out by credible evidence. Finally, exhibit SOF1 was not signed for and on behalf of the second re- spondent nor as the Managing Director of the second re- spondent. I am satisfied that the second respondent was not a d party to the said contract. This crucial issue is definitely resolved in the appellant’s favour and I shall return to it anon in the concluding seg- ment of this judgment. e Issues 2, 3, 5 and 6 can be handled together being of the same pedigree. The appellant had suggested that the said bank draft being a foreign bill of exchange was required to meet the conditions precedent as provided in section 51(2) f of the Bills of Exchange Act Cap 35 Laws of the Federation of Nigeria, 1990 so as to sustain the instant suit. That is to say, that the draft must firstly be protested for non-payment having been dishonoured. For if not protested the drawer or endorser remained discharged. And therefore the appellant g couldn’t be sued without first protesting the dishonour. I think the appellant must be mistaken in considering the in- stant draft drawn in the circumstances as here as a bill of ex- change as defined by section 3 of the Bills of Exchange Act. h (See Capital and Counties Bank v Gordon (1903) A.C. 240 at 250.) I have no doubt that the instrument is equivalent to a Promissory Note. (See Commercial Banking of Sydney Ltd v Mann (1961) A.C. 1 at 7.) In which case the question of pro- i testing the bill does not arise. As the respondents founded their action in contract and not under the Bill of Exchange it is not necessary to go into the implication of sections 5(2) and 72(c) of the said Act on the draft. It is common ground that the draft bounced. Exhibits SOF4, SOF5 and SOF6 j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Chukwuma-Eneh JCA United Bank for Africa v. S.O. Folarin 133 a were letters to the respondents to that effect and were re- ceived in evidence without objection and given legal effect. All the factors to found a sustainable action in the instant banker/customer on exhibit SOF1 contract were in place and b sufficed without assorting to their rights under the Bill of Exchange. I think this is a convenient stage to examine what is a draft. c A bank draft is a draft drawn by a bank upon itself with an undertaking to pay the amount of the draft. (See Agbanelo v Union Bank of Nigeria Ltd (2000) 7 NWLR (Part 666) 534 at 555 H–A per Ayoola, JSC; UBA Ltd v Ibhafidon (1994) 1 NWLR (Part 318) 90 and Lagricom Callo v UBN (1996) 4 d NWLR (Part 441) 185.) And I may add that a draft can be drawn on another bank where as here the drawer bank has funds (i.e. as in Banque Nationale De Paris Plc). e However, I must emphasis that whether the instant action in contract is properly constituted does not stand on whether the said draft is a foreign bill of exchange as contended by the appellant or promissory note as found herein. Besides, f suing in contract founded on exhibit SOF1 has made it un- necessary to consider as a matter of urgency in the event of the dishonour whether it was the drawer or the payee who had to sue for damages. All the same in contracts as here g only parties to it have rights and liabilities under it and can sue upon it. Further to the foregoing, the instant action was in contract and the Banque Nationale De Paris Plc was not sued in the h action. The court below could not therefore pronounce on who as between the appellant and the Banque Nationale De Paris Plc was in default as it was not an issue properly on the said contract before the court below. As regards section i 57(1) of the said Act which dealt with the remedies available to a holder of a dishonoured foreign bill of exchange again, this question cannot arise as the respondents did not sue the Banque Nationale De Paris Plc on the foreign bill of ex- change. The damages awardable for a breach of a simple j banker/customer contract as the instant one on exhibit SOF1

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Chukwuma-Eneh JCA 134 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) have to be such as naturally flowed directly from the breach. a In the circumstance, the appellant having failed to sustain the points taken above, the issues have to be resolved against it. b Under Issues 4, 7, 8, 9, 10 and 11 the court below consid- ered the liability of the appellant to the respondents who were awarded N2,121,200 for special damages and N5,878,800 for general damages. The appellant had objected c to the basis for the said awards on firstly as the criteria used were premised upon wrong principles which imbued the pronouncement by the court below that the instant action was founded in both contract and tort (to wit negligence) d when negligence was neither pleaded nor particularised. And secondly, that the special damages were not strictly proved while the general damages awarded amounted to double compensation. Without venturing into the definition of damages in the abstract, it is settled that the measure of e damages in contract is determined on the principles enunci- ated in Hadley v Baxendale (1854) 9 Exch. 341 at 354 which contemplated loss naturally flowing from the breach, that is to say, is incurred as a direct consequence of the breach. f (See Jammal Engineering v Wrought Iron (1970) NCLR 295; Taiwo v Princewill (1961) ANLR 240 and Omonuwa v Wahabi (1976) 4 SC 37.) In tort of negligence the measure of damages is founded on the principle of restitution in inte- g grum. That is to say, entitlement to such as will put the plaintiff in the position he would otherwise have been but for the happening of the act of negligence. (See Liesbosch Dredger v S.S. Edison (1933) A.C. 449 at 459.) Clearly the bases for measure of damages in contract or in tort stand on h distinct pedestals. It is now settled that in cases as the instant one for wrongful dishonour of cheques it becomes necessary to inquire further whether the conduct complained of and as found by the court also caused economic loss. And if so i such economic loss falls within the category of tortuous conduct for which the court will award compensation. I have to pause here to set out in amplification of my view above the two limbs of the principle governing the award of j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Chukwuma-Eneh JCA United Bank for Africa v. S.O. Folarin 135 a damages in contract as laid down in Hadley v Baxendale (supra) per Baron Anderson; the first limb runs thus:– “Where two parties have made a contract which one of them has broken, the damage which the other party ought to receive should b be such as may fairly and reasonably be considered either as aris- ing naturally i.e. according to the usual course of things from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they c made the contract as the probable result of it.” The other limb of the principle per Baron Anderson not of- ten emphasised runs thus:– “Now if the special circumstances under which the contract was actually made were communicated and thus made known to both d parties, the damages resulting from the breach of such a contract which they should reasonably contemplate would be the amount of injury which would ordinarily flow from a breach of contract un- der these special circumstances so known and communicated . . . if e these special circumstances were wholly unknown to the party breaking the contract, he, at the most, could only be supposed to have had in contemplation, the amount of injury which would arise generally and in the great multitude of cases not affected by spe- cial circumstances, from such a breach of contract.” f The two limbs of the principle in Hadley v Baxendale (su- pra) are applicable to the facts of this matter. And they would be brought to bear on this matter. It is against the foregoing background that one has to exam- g ine the statement that the respondents’ action was founded in contract and tort. The respondents averred in their statement of claim that – “The plaintiffs also suffered loss of reputation with the Barclays Bank Plc” and went on to support it by evi- h dence. Obvious from the evidence as found by the court is that the first respondent suffered economic loss. The details of which were not set out in the claim. I think that the appel- lant over sighted the fact that it owed the first respondent on the contract a duty of care and skill in handling the issue of i the draft quite apart from their banker/customer relationship. Hence it misconceived the trial court’s said pronouncement. I find nothing arise in the statement. The standard of duty of care and skill owed by the banker j has been set out in Agbanelo v Union Bank of Nigeria Ltd

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(2000) 7 NWLR (Part 666) 534 SC 127 at 243 per Ayoola, a JSC thus:– “A bank has a duty under its contract with its customer to exercise reasonable care and skill in carrying out its part with regard to op- erations within its contract with its customers. The duty to exercise b reasonable care and skill extends over the whole range of banking business within the contract with the customer. Thus the duty ap- plies to interpreting, ascertaining and acting in accordance with the instructions of the customer.” c (See Cresswell et al, Encyclopaedia of Banking Law C. 21), Salanger United Rubber Estates Ltd v Cradock (No. 3) (1963) 2 AER 1073. In this . . . the first respondent’s specific instructions are clear. It is this breach of duty owed the first respondent that is at the heart of this claim. d The banker’s duty in this regard has also been highlighted in Paget’s Law of Banking at page 312 where the learned au- thor stated thus:– e “Every authority from Polar v Hill to Joachinson v Swiss Bank Corporation and the Bills of Exchange Act alike recognise that the banker’s primary function and duty is to honour his customer’s cheques . . . Apart from this contractual obligation or as a consequence thereof, f the paying banker must remember that his customer’s credit is or may be seriously informed by the return of one of his cheques dis- honoured and the smaller the cheque the greater the possible dam- age to credit.” g The foregoing abstracts have put the standard of duty of care and skill of a banker on a high note and just as such. Mean- ing that in breach of contract occasioned by negligence as in wrongful dishonour of cheques as in this matter the banker h would further be liable for the economic loss occasioned by his tortuous act. Having set out the principles to govern the appellant’s li- ability, if any, I now go on to examine the issue of the dam- i ages awarded to the respondents vis-à-vis the facts as found in this matter. The respondents claimed under both special and general damages and I needn’t repeat that the appellant has contended the awards. The power of this Court to review and reassess damages where the trial court’s assessments are j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Chukwuma-Eneh JCA United Bank for Africa v. S.O. Folarin 137 a based upon wrong premises is well settled. (See Okoroji v Ezumah (1961) All NLR 183.) The special damages claimed included namely transport b expenses to and from the UK by first class; and hotel ac- commodation and feeding for 7 days, expected profits from cancelled purchases and lost deposits thereon. It is now set- tled that special damages have to be particularised and c strictly proved by credible evidence of such a character as would suggest that the plaintiff indeed is entitled to an award under that head. (See Agunwa v Onukwe (1962) 1 ANLR 537, (1962) 2 SCNLR 275; Oshinjinrin and others v d Elias (1970) 1 ANLR 153 and Attorney-General of Oyo State v Fairlakes Hotel Ltd (No. 2) (1989) 5 NWLR (Part 121) 255. There can be no doubt that the above-mentioned expenses e would flow naturally from the breach of such contract. Al- though, it should be mentioned that the claim for transport, accommodation and feeding expenses clearly come within the expenses that naturally flowed from the said breach and f also within the contemplation of the parties, they have to be proved strictly. The court below found for the respondents for these expenses incurred by the first respondent person- ally and not from the £10,000. On the facts of the matter there were evidence in support of the finding. This Court g will not interfere. The first respondent is entitled to be re- funded, I uphold them. As for the expected profits from can- celled purchases and lost deposits thereon, these in my view fall within the second limb of damages as enunciated in h Hadley v Baxendale and are recoverable provided they were shown to be within the contemplation of the parties at the time of entering into the contract. No where on the records is how the £10,000 was to be used mentioned. Indeed, it was i the evidence of the first respondent that he didn’t. I have pe- rused through the cases of Uwa Printers Ltd v Investment Trust Ltd (supra); Attorney-General of Oyo State v Fair- lakes Hotel Ltd (No. 2) and Artra Industries Nigeria Ltd v NBCI (supra) cited by the appellant and they seem to settle j that a plaintiff claiming expected or anticipated profits has to

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Chukwuma-Eneh JCA 138 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) give credible evidence as to the projected profits. The claim a for N2,000,000 is to say the least not supported by any credible evidence. They were purchases made on behalf of the second respondent who as found above was not a party b to the aforesaid contract and not a proper party on the said contract in this suit. The award was therefore given on erro- neous principle. It is equally too remote. The court below awarded N5,878,800 as general damages. c The measurement for such damages are based on the opinion of a reasonable man. The appellant has contested the basis and quantum of the award. One thing though the appellant’s basis for alleging double compensation cannot hold as the d award for N2,000,000 for the projected profits has now been found unsustainable. The said complaint was directed against that award; having been sustained it is no longer an issue in this matter. It is settled that only a person engaged “in trade” or “in business” may recover sustainable damages e for damage to business reputation. (See Kpoharor v National Building Society (1996) 4 AER 119; Gibbons v Westminster Bank Ltd (1939) 3 AER 572 and Hariat Balogun v National Bank Ltd (1978) 3 SC 155.) In other cases of dishonoured f cheques the plaintiff has to plead and prove any damage suf- fered or is entitled to nominal damages. In the instant matter, the sum of N5,848,800 was awarded to the respondents based on damage to their business reputa- g tion. But I have above already reached the conclusion that the second respondent had no standing to sue in this matter and so in this matter this item of the award cannot stand. The joinder of the respondents in the action presupposes a join- h der of causes of action and this position is not supported by my conclusion on issue one. Although, it must be conceded that a misjoinder need not defeat the Suit. More importantly, all the materials to reach a fair and reasonable award for the i first respondent in this matter are before this Court and in my view as it serves no purpose remitting this aspect of the claim to the lower court to determine nor order separate tri- als de novo I have decided to go ahead to assess the dam- ages due to the first respondent under this head of the claim. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Chukwuma-Eneh JCA United Bank for Africa v. S.O. Folarin 139 a The first respondent gave unrebutted evidence of the dam- age done to his personal and business reputation as irrepara- ble. The loss of integrity with his London banker – the Bar- clays Bank London where he no longer was allowed to draw b from uncleared effects nor granted credit facilities as previ- ously was the case. And that he had lost reputation and in- tegrity in his business – not made any easier by the fact that similar incident had happened in 1991 when the appellant c caused the dishonour of his cheque. The trial court believed him and I see no reasons to disagree or interfere. Taking all the unrebutted and credible evidence as well as the sur- rounding circumstances arising from the breach of the said d contract I assess the first respondent’s entitlement to general damages under this head as N878,800. All told I find the first respondent’s entitlement to a total sum of N1,000,000 made up as follows:– e (1) Transportation to and from U.K. 33,000.00 (2) Hotel accommodation and feeding for 7 days at N12,600.00 per day 88,200.00 121,200.00 f General damages 878,800.00 Total N1,000,000.00 I have to adjourn here that in dealing with the other issues g raised in this matter I have adequately covered Issue 12. Also I find the issues of the conversion from pounds sterling and the devaluation of the Naira as circumstantial matters and of no moment not affecting the assessment of damages in this matter. h In conclusion, this appeal partly succeeds. The second re- spondent for the avoidance of doubt has no standing to sue in this matter not being a party to the aforesaid contract. The i award of damages in favour of the respondents by the court below namely in the sum of N2,000,000 as expected thereon profits and N5,878,800 as general damages not having arisen from the breach of the said contract are hereby set aside. Otherwise, the judgment of the court below is hereby, j affirmed subject to the orders as to special and general

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Chukwuma-Eneh JCA 140 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) damages made in favour of the first respondent as set out a above. I make no order as to costs. OGUNTADE JCA: I agree. ADEREMI JCA: I agree with my learned brother, Chukwma- b Eneh, JCA whose reasons for judgment I had the privilege of a preview that the appeal succeeds in part.

I wish to add a few words of my own. From the facts of c the case as set out, in full in the body of the judgment, it admits of no argument that the relationship between the ap- pellant and the first respondent is that of banker/customer – a contractual relationship. The basis for the action is non- availability of the funds which the appellant as the banker d of the respondent was under a contractual obligation to make available in a London Bank Account of the first respondent for his (first respondent) use; he (first respondent) having performed his own side of the obligation. As a result of e the non-availability of the funds the second respondent a beneficiary of the cheque which the first respondent issued in its favour on the assumption (rightly of course) that the money had been credited into his account in London, suf- f fered some financial loss. There has never been any contrac- tual relationship of any kind between the appellant and the second respondent. It has now become firmly established from the time the decision of the Privy Council in Dunlop Pneumatic Tyre Co Ltd v Selfridge Ltd (1915) A.C. 847 was g handed down by Lord Haldane, that a contract cannot confer enforceable rights or impose obligations arising under it on any person, except parties to it. It therefore follows that only a party to a contract can sue or be sued on it. In the case of h UBN Plc v Sparkling Breweries Ltd and others (1997) 3 NWLR (Part 491) 291, the facts of which are substantially on all fours with the facts of the instant case, the respondent agreed to loan money to four other companies for the open- i ing of letters of credit, on the understanding that some of the raw materials that would be imported through that process would be used by the respondent in its beer business. Those other companies applied for letters of credit to the appellant bank but the application was refused. The respondent there j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Aderemi JCA United Bank for Africa v. S.O. Folarin 141 a after joined the four other companies in seeking a redress against the appellant bank for damages for breach of con- tract. Suffice it to say that the appellant was not informed about the agreement between the respondent and the four b other companies and neither was the respondent a party to the application made by the four other companies to the ap- pellant for letters of credit. In reversing the decision of the trial Judge, the Court of Appeal held that the respondent had c no locus standi to sue because there was no privity of con- tract between the respondent and the appellant. I must not fail to re-emphasise that since a person who is not a party to an agreement cannot bring an action to enforce it, so too can d he not be made liable under that contract (see Ilesa Local Planning Authority (LPA) v Olayide (1994) 5 NWLR (Part 342) 91). However, a well-known exception to the doctrine of priv- e ity of contract and with which we are too familiar with in this country, is in respect of a contract relating to sale of family land under customary law. It has become a well- established principle in our jurisprudence that members of f the family are entitled to bring an action to set aside a deed of conveyance (to which they were no parties) which had been executed without earlier consent (see (1) Aganran v Olushi (1907) 1 NLR 66 and (2) Lewis v Bankole (1908) 1 NLR 81.) In Adejumo v Ayantegbe (1989) 3 NWLR (Part g 110) 417, the Supreme Court predicated the reason for the exception on the concept of ownership of communal land at customary law; at page 444 Karibi-Whyte, JSC said and I quote:– h “Thus communal or family land belongs to all members of the so- ciety, or family. Hence, a member of the family who is a co-owner is therefore not a stranger to any transaction purported to have been made in relation thereto.” i It must always be remembered that under our customary law, ownership of family land is vested in the past, existing and future members of the family. For the above little contribution, but most especially for j the detailed reasoning in the lead judgment, I also hold that

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Aderemi JCA 142 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) the appeal succeeds in part. All the monetary awards made a in favour of the second respondent are hereby set aside. I abide by the award in favour of the first respondent. I make no order as to cost. b Appeal allowed in part.

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Alhaji Sikiru Afolabi Suberu v. Co-operative Bank Ltd 143 a Alhaji Sikiru Afolabi Suberu v Co-operative Bank Limited and another b COURT OF APPEAL, IBADAN DIVISION IBIYEYE, OMAGE, ADEKEYE, JJCA Date of Judgment: 12 MAY, 2002 Suit No.: CA/I/149/2002 c Banking – Interest – Absence of rate of interest in mortgage deed – Whether precludes bank from charging interest – Bank not permitted to grant loans without interest – How rate determined d Banking – Interest – Compound and simple interest on loans and overdrafts – Right of bank to charge – Failure of cus- tomer to complain on various rates of interest – Effect Banking – Interest rate – Mortgage deed not specifying any e interest rate – Whether oral or extrinsic evidence admissible to prove – Section 132(1)(d) Evidence Act Cap 112 Laws of the Federation of Nigeria, 1990 Facts f The appellant’s claims were for a declaration that the first respondent was not entitled to charge interest of more than 9% per annum on his account, an order of court directing the first respondent to rework and reverse all excess interest g charges on the account and a perpetual injunction restraining the sale of the mortgage property. The respondents counter- claimed. h At the trial, the appellant stated that he obtained a loan of N40,000 from the first respondent in 1978. Subsequently, a mortgage agreement was entered into to secure the loan fa- cility. The appellant claimed that he reached an agreement with the respondent that only the interest of 9% would be i charged on the mortgage. The respondents on the other hand, stated that there was no such agreement and that the statements of accounts showed varying interest rates to which there was no protest by the j appellant.

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The learned trial Judge dismissed the appellant’s claims a and entered judgment on the counter-claim in favour of the respondents. The appellant appealed to the Court of Appeal. Held – b 1. Where a mortgage deed does not specify any interest rate, no oral or extrinsic evidence will be admissible to prove the agreed rate of interest except there is proof of their existence as contemplated by section 132(1)(b) of c the Evidence Act. 2. A bank is empowered to charge compound interest on loans or overdraft on the basis that there is a custom to that effect or that the customer has impliedly consented where without protest he allows his account to be deb- d ited. 3. Compound interest on a loan or overdraft is chargeable only where the customer has agreed to it or where he is shown or must be taken to have acquiesced to the ac- e count kept on that basis. 4. By the universal custom of bankers, a banker has the right to charge simple interest at a reasonable rate on overdraft or loan. An unusual rate of interest, interest f with periodical rates or compound interest can only be charged by express agreement. If the relationship of banker and customer is altered into mortgagee and mort- gagor by the taking of a mortgage, interest must be cal- g culated according to the terms of the mortgage. 5. Where a customer fails to complain about the varying rates of interest on a loan facility granted to him by the bank, he is deemed to have impliedly consented or ac- quiesced to the mode of interest charged by the bank. h 6. All licensed banks are not permitted to contract out of charging interest whenever they advance money to cus- tomers whether on loan or credit facilities. Therefore, the absence of an interest charging clause in a i mortgage deed will not prevent the bank from charging interest. The rate of interest will be determined by the Central Bank guidelines or regulations. Appeal dismissed. j

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Alhaji Sikiru Afolabi Suberu v. Co-operative Bank Ltd 145 a Cases referred to in the judgment

Nigerian b Abdullahi v Waye Community Bank (2000) 7 NWLR (Part 663) 9 Adehi v Atega (1995) 5 NWLR (Part 398) 656 Adenibi v Laojo (1998) 4 NWLR (Part 544) 168 c Aforka v ACB (Nigeria) Ltd (1994) 3 NWLR (Part 331) 217 Anadi v Okoli (1977) 7 SC 57 Bank of the North v Ichrisu (2000) 3 NWLR (Part 649) 373 d Barclays Bank v Abubakar (1977) 10 SC 13 First Bank of Nigeria Ltd v Njoku (1995) 3 NWLR (Part 384) 472 e Geosource Nigeria Ltd v Birdgbora (1997) 5 NWLR (Part 506) 607 Giwa-Amu v Guardian Newspapers Ltd (1999) 8 NWLR (Part 616) 568 f Hausa v EBN (2000) 9 NWLR (Part 671) 64 Nsirim v Nsirim (1990) 3 NWLR (Part 138) 285 Nwadike v Ibekwe (1987) 4 NWLR (Part 67) 718 g Nwoye v U.B.N Plc (1993) 8 NWLR (Part 310) 210 Olaloye v Balogun (1990) 5 NWLR (Part 148) 24 Onuoha v National Bank of Nigeria Ltd (1999) 13 NWLR h (Part 636) 621 Onyekwuluje v Animashaun (1996) 3 NWLR (Part 439) 637 Onyemeh v Egbuchulam (1996) 5 NWLR (Part 448) NWLR (Part 636) 621 i Petrojessica Enterprises Ltd v Leventis Technical Co Ltd (1992) 5 NWLR (Part 244) 675 Rickett v Bank of West Africa Ltd (1960) 5 FSC 113 j Union Bank of Nigeria Ltd v Ozigi (1994) 3 SCNJ 42

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Union Bank of Nigeria Ltd v Sax (Nigeria) Ltd (1994) 6 a SCNJ 1; (1994) 8 NWLR (Part 361) 150

Foreign b Ferguson v Fyfte (1841) 8C. 8F. 121

Nigerian statutes referred to in the judgment Banking Act Cap 28 Laws of the Federation of Nigeria c 1990, section 15 Constitution of the Federal Republic of Nigeria, 1999, sec- tion 241 Evidence Act Cap 112 Laws of the Federation of Nigeria, d 1990, sections 132(1)(b) and 135

Nigerian rules of court referred to in the judgment Court of Appeal Rules 1981, Order 3 Rule 2(2), Order 3 e Rule 15

Book referred to in the judgment Paget’s Law of Banking (8ed) page 134 f

Counsel For the appellant: Prince Bioye Oloyede g For the respondents: Mrs W. Ogunkeye

Judgment IBIYEYE JCA: (Delivering the lead judgment) This appeal is h against the decision of Sanda, J of the Oyo State High Court of Justice, sitting in Ibadan, in Suit No. I/14/94 delivered on the 30 June, 1998. The plaintiff, now the appellant, filed a writ of summons i on which he sought against the defendants, now the respon- dents, the following reliefs:– “(1) A declaration that the first defendant is not entitled to charge more than 9% per annum as interest on the plain- tiff’s Account No. 9534 at its Ibadan Main Office, Ibadan. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, IBADAN DIVISION) Ibiyeye JCA Alhaji Sikiru Afolabi Suberu v. Co-operative Bank Ltd 147 a (2) An order of the court directing the first defendant to rework and reverse all excess interest charges on the Account. (3) Perpetual injunction restraining the first and second defen- dants from selling or tampering with the property of the b plaintiff, situate, lying and being at E9 492b, Shodipo Street, Olorunsogo Area, Molete, Ibadan, registered as No. 7/7/2705 at Ibadan Lands Registry Office.” The plaintiff and the defendants, in strict compliance with c the Oyo State High Court (Civil Procedure) Rules, 1988, at the instance of the trial court filed and exchanged their re- spective pleadings which they subsequently amended, It should be particularly noted that the defendants alongside d their joint statement of defence filed a counter-claim. The counter-claim which appears to be the bone of contention in this appeal is at paragraph 11 of the amended statement of defence and counter-claim. The said paragraph reads:– “11. Whereof the first defendant counter-claims against the e plaintiff as follows:– (1) The sum of N511,548.02k being the principal, interest and other Bank charges outstanding on the plaintiff’s Account as at 31 August, 1994. f (2) Continuing interest on the said amount at the rate of 21% interest until judgment and 21st interest (sic) from the date of judgment debt and costs (sic).” At the trial, the plaintiff testified and called one witness g while the testimony on behalf of the defendants was adduced by their representative. The case for the plaintiff as per the plaintiff himself was that he, as a customer of the defendant running an Account No. h 9534 in the bank of the first defendant borrowed the sum of N40,000 in 1978. He identified exhibit A which is a copy of the legal mortgage registered as No. 7 at page 7 in Volume 2705 of the Register of Deeds, Ibadan of 15 September, 1994. i It was eight years after that loan was approved that he signed an agreement (exhibit B) with the defendant and he was in- formed that the rate of interest would be 9% per annum. He asserted that after signing exhibit B no statement of account was sent to him until he visited the first defendant in respect of j his loan account that he noticed that the sum had increased. He

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, IBADAN DIVISION) Ibiyeye JCA 148 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) denied that his indebtedness was up to what was in the state- a ment of account (exhibit D). A copy of the accountant’s report dated 19 May, 1995 is in evidence as exhibit E. On being cross-examined by the learned Counsel for the de- b fendants (Mrs W. Ogunkeye), the plaintiff said that the letter of approval of the loan did not state the rate of interest on the loan approved for him by the first defendant. He was, how- ever, verbally informed what the rate was without specifying c it. He went on to identify exhibits F, G, H, J and K which were the various letters between him and the defendant. He said that he did not complain in writing about the rate of in- terest charged by the first defendant. He confessed not know- ing that the rate of interest was not fixed. He admitted receiv- d ing some statements of account made up in his favour. The PW2, Mr Aliyu Ayodele Lasisi, a chartered account- ant testified essentially that at the request of the plaintiff (the e PW1), he audited his (the plaintiff’s) statement of account which had an outstanding balance of N112,884.82 and re- ported on it using 9% interest rate as the basis of his calcula- tion. f The defendants’ case as presented by their only witness. Mr Clement Omoniyi (the defendant’s accountant) is to the effect that the plaintiff was granted an overdraft facility of N40,000 for which he deposited exhibit A (the legal mort- gage deed in respect of his property situate at Olorunsogo, g Molete, Ibadan), with the first defendant. The loan facility was granted to the plaintiff in 1978 on the understanding that rates of interests will be charged from time to time on the basis of the guidelines of Central Bank of Nigeria. The h plaintiff serviced the loan account until 1980 when he aban- doned operating the said account. The first defendant reacted to the inactivity of the plaintiff by writing him several letters (exhibits H, M and N), while the occasional responses of the i plaintiff to those letters were exhibits F, G and J. He identi- fied exhibit N as a letter of demand and a formal notice of the first defendant’s intention to sell the plaintiff’s mort- gaged property. He identified the several statements of the plaintiff’s Account No. C/A 9534 as exhibits 0 to 07 and j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, IBADAN DIVISION) Ibiyeye JCA Alhaji Sikiru Afolabi Suberu v. Co-operative Bank Ltd 149 a those exhibits were regularly sent to the address the plaintiff gave to the first defendant. He also identified exhibit K as the plaintiff’s letter demanding that the first defendant should stop charging interest on the understanding that he b would pay up the outstanding debt in twelve months. Exhibit B is the first defendant’s reaction to exhibit K. The plaintiff was as at 31 December, 1997 owing the first defendant the sum of N1,004,420.18k. The first defendant did not agree c with the plaintiff that the interest rate on the loan facility in point would be 9%. Further more, the plaintiff throughout his communications with the first defendant did not com- plain about the rate of interest charged on the loan facility d granted by the first defendant. In all loan facility transac- tions, letters of approval are always given to the customers. A letter of approval was given to the plaintiff but he failed to exhibit it. The first defendant did not have a copy of that let- e ter of approval. At the close of trial, the learned Counsel for both the plain- tiff and the defendants addressed the court. The trial court in a well considered judgment dismissed the plaintiff’s claim f and allowed the counter-claim of the first defendant. The plaintiff was dissatisfied with the judgment of the court and appealed to this Court on nine grounds. g The plaintiff/appellant identified the following issues from the nine grounds of appeal for the determination of the ap- peal:– “(i) Whether the amendment of the statement of defence and counter-claim granted by the lower court in this case after h conclusion of the case on issues not joined by the parties during trial without an opportunity for the appellant to react to such amendment was proper. (ii) Whether this case is not distinguishable from such cases as i Union Bank v Ozigi (1994) 3 SCNJ 42 and Union Bank v Sax (Nigeria) Ltd (1994) 6 SCNJ 1 and cases like that on the authority of the bank to vary rate of interest on their cus- tomers’ account from time to time. (iii) Whether from the totality of the evidence adduced in this j case the respondent has proved its entitlement to judgment.”

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The respondents on their part, distilled the following issues a for the determination of the appeal:– “1. Whether the first respondent had the right to vary the inter- est on the loan obtained by the appellant. b 2. Whether the learned trial Judge rightly dismissed leg 14(2) of the amended statement of claim having regard to the to- tality of the evidence before the court. 3. Whether the court below was right in allowing the respon- dents to allow their statement of defence and counter-claim c after address of Counsel (sic).” Before delving into the merits or demerits of the submis- sions of the learned Counsel for the parties in their briefs of argument in this appeal. I will like to observe that the re- d spondents filed a notice of preliminary objection. It is not in doubt that the respondents properly raised their preliminary objection in this appeal. The preliminary objection having been properly raised by the respondents at page 2 of their e joint brief of argument, it is the bounden duty of an Appel- late Court to first consider the said objection to know whether or not to sustain it. It is the cardinal principle of the administration of justice to let a party know the fate of his application whether it has been properly brought before the f court. It will amount to unfair hearing to ignore a prelimi- nary objection raised by a party or his Counsel against any step in the proceedings. In essence, a preliminary objection must first of all be considered and ruled upon by particularly g the Court of Appeal before it can go into the substance of the appeal. (See G.E.N. Onyekwuluje v G.B. Animashaun and others (1996) 3 NWLR (Part 439) 637 at 644; Chief Bright Onyemeh and others v Lambert Egbuchulam and h others (1996) 5 NWLR (Part 448) 255 at 265; Petrojessica Enterprises Ltd v Leventis Technical Co Ltd (1992) 5 NWLR (Part 244) 675 at 693 and Onuoha v National Bank of Nigeria Ltd and another (1999) 13 NWLR (Part 636) 621 at 624.) i I am guided by the foregoing principle and I shall at this initial stage consider the preliminary objection raised by the respondents. Thus, Mrs W Ogunkeye, the learned Counsel for the respondents, submitted first, that grounds (i) and (ii) j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, IBADAN DIVISION) Ibiyeye JCA Alhaji Sikiru Afolabi Suberu v. Co-operative Bank Ltd 151 a of the grounds of appeal are grounds of mixed 1aw and fact for which the appellant sought no prior leave of this Court before filing them and that they should be struck out. She further submitted that the arguments proffered on them b should be discountenanced. Secondly, the learned Counsel urged the court to equally strike out ground (iv) of the grounds of appeal as incompetent because the said ground alleged “an error in law and on facts” at the same time con- c trary to Order 3 Rule (2) of the Court of Appeal Rules, 1981 (as amended.) The learned Counsel for the appellant, Prince Bioye Oloyede, argued that both Grounds (i) and (ii) of the grounds d of appeal are purely grounds of law and the appeal, being against the final decision of Oyo State High Court is pro- tected by section 241 of the Constitution of the Federal Republic of Nigeria, 1999 (hereinafter referred to as 1999 e Constitution), and as such required no leave of this Court. The appeal is as of right even if it is on grounds of facts alone. As regards grounds (vii) of the grounds of appeal which is f conjunctively couched, the learned Counsel for the appellant contended that the objection is misconceived as it has not breached any aspect of Order 3 Rule 2(2) of the Court of Appeal Rules, 1981 (hereinafter referred to as “the Rules g 1981”), as amended. He supported his contention by saying that the particulars of the vexed ground are stated as re- quired by the rule alleged to have been breached. As regards the first leg of the preliminary objection which h is on the competence of Grounds (i) and (ii) of the grounds of appeal, it is my considered view that there is substance in the contention of the learned Counsel for the appellant, that their couching has not breached any law which requires that i leave must be sought before appealing against grounds of mixed law and fact. First, the basis of the error referred to in grounds (i) and (ii) of the grounds of appeal are issues of want of jurisdiction and amendment of the defendants’ pleading which relate to pure law. They do not admit of j mixed law and facts. Secondly, the two grounds of appeal

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, IBADAN DIVISION) Ibiyeye JCA 152 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) are constitutionality covered by section 241 of the 1999 a Constitution which reads inter alia:– “241(i) An appeal shall lie from decision of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:– b (a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sit- ting at first instance; (b) where the ground of appeal involves question of c law alone, decisions in any civil or criminal pro- ceedings.” (Italics mine for emphasis.) In the instant case, the said grounds of appeal are not only against a final decision, but also on question of pure law. d They are therefore valid grounds of appeal. They shall be accordingly, considered for the purpose of this appeal. That leg of objection is accordingly not sustained. The second leg of the Preliminary Objection relates to e Ground 3(vii) of the grounds of appeal. The said ground without the particulars reads:– 3(vii) The learned trial Judge erred in law and in fact when he granted the defendants’ counter-claim when there is no f evidence from the defendants sole witness or the plaintiff in respect of the balance of N511,548.02k before the Honourable Court.” (Italics mine for emphasis.) All that the learned Counsel for the appellant contended on g this issue is that the preliminary objection thereto is miscon- ceived because the supporting particulars were regularly set out. I am afraid this contention is feeble in view of the attack on how ground (vii) of the grounds of appeal was couched. h The common ground of argument by both parties is based on the operation of Order 3 Rule 2(2) of the Rules, 1981. The rule reads:– “2(2) If the grounds of appeal allege misdirection or error in law; the particulars and the nature of the misdirection or i error shall be clearly stated.” (Italics mine for emphasis.) The purport of this rule is that the allegation in the ground of appeal shall be disjunctively and not conjunctively stated before recourse is made to setting out the particulars of such j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, IBADAN DIVISION) Ibiyeye JCA Alhaji Sikiru Afolabi Suberu v. Co-operative Bank Ltd 153 a error or misdirection from the decision of the court below. Where, however, the allegation is not couched within the spirit and contemplation of the rule set out above, such a ground is vitiated and it stands struck out. (See Nwadike v b Ibekwe (1987) 4 NWLR (Part 67) 718 at 744; First Bank of Nigeria Ltd v Njoku (1995) 3 NWLR (Part 384) at 472 and 473 and Adenibi and another v Laojo and others (1998) 4 NWLR (Part 544) 168 at 173 and 174.) It is equally trite that c the court shall have power to strike out a notice of appeal when all the grounds of appeal are incompetent or to strike out the particular incompetent ground of appeal and all the issues formulated from the incompetent ground or grounds d of appeal shall be discountenanced. (See Nsirim v Nsirim (1990) 3 NWLR (Part 138) 285 at 297; Amadi v Okoli (1977) 7 SC 57 and First Bank of Nigeria Ltd (supra) pages 472 and 473.) e In the instant case, the appellant in his Ground (vii) of the grounds of appeal alleged “. . . error in law and in fact . . .” This ground which is conjunctive in its concept as opposed to the disjunctive allegation within the contemplation of Or- der 3 Rule 2(2) of the Rules, 1981, is incompetent and by f way of emphasis it is incurably bad. It is accordingly struck out. A close study of the record of appeal and in particular the appellant’s brief of argument showed that the defective g Ground 3(vii) of the grounds of appeal alongside valid Ground 3(i) and 3(ii) of the grounds of appeal from which Issue 1 was raised were argued together by the learned Counsel for the appellant. This approach is quite irregular. h Thus, it is now a firmly established principle of law that where a ground of appeal is incompetent and it is being ar- gued with any or all other grounds and issues, it has the ef- fect of rendering the entire brief of argument or the particu- i lar issue raised from the competent and incompetent grounds of appeal argued together, incompetent, with the attendant effect of rendering the entire brief of argument or the par- ticular issue therefrom contaminated by the defective ground of appeal. The entire appeal or the issue identified from the j defective ground shall be struck out. (See Adehi v Atega

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(1995) 5 NWLR (Part 398) 656; Geosource Nigeria Ltd v a Biragboara (1997) 5 NWLR (Part 506) 607 at 616 and Giwa Amu v Guardian Newspapers Ltd (1999) 8 NWLR (Part 616) 568 at 578 and 579.) b In the instant case, since Ground 3(vii) of the grounds of appeal is incompetent and Issue 1 in the appellant’s brief of argument was argued together in the same issue raised from grounds 3(i) and 3(ii), albeit valid grounds of appeal, the c said issue is liable to being discountenanced. It is accord- ingly, discountenanced and struck out. In sum, the preliminary objection partially succeeds, Issue 1 is struck out while Issues 2 and 3 survive the said objection. d On Issue 2, the learned Counsel for the appellant recalled that it (Issue 2) was raised from Ground 3(iii), 3(v) and 3(vi) of the grounds of appeal and they relate to exhibit A which is the agreement (legal mortgage) between the appellant and the e first respondent. He argued that exhibit A did not permit the first respondent to vary the rate of interest charged on the ap- pellant’s account without his consent. He further argued that since the respondents admitted in paragraph 3 of the amended statement of defence and counter-claim, the onus of proof on f the variation of rate of interest was on the first respondent. Learned Counsel argued albeit erroneously, that clauses 1 and 9 of exhibit A which provided for rate of interest did not al- low the first respondent to vary it unilaterally. She referred to g the evidence of the respondents only witness who testified to the effect that the rate of interest ranged from “. . . 27.5% to 21% and we used several rates as determined by the Central Bank” to buttress her argument on the variant rates of interest h at the instance of the first respondent. Learned Counsel went on to distinguish this appeal from the cases of Union Bank of Nigeria Ltd v Sax (Nigeria) Ltd (1994) 6 SCNJ 1; (1994) 8 NWLR (Part 361) 150 in that in i the two cases, there was a similar clause in the mortgage deeds that empowered the appellants to stipulate the rate of interest subsequently payable from time to time. She con- tended that in the instant case, the rate of interest on the con- trary was not indicated in the mortgage deed (Exhibit A) nor j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, IBADAN DIVISION) Ibiyeye JCA Alhaji Sikiru Afolabi Suberu v. Co-operative Bank Ltd 155 a did any clause in the said exhibit stipulate any rate of inter- est chargeable from time to time. She referred to section l of the Banking Act Cap 28 Laws of the Federation of Nigeria, 1990, (hereinafter referred to as the Banking Act), and sub- b mitted that the respondents lacked the power to vary, to con- tradict, to add to by extrinsic evidence the rate of interest chargeable on the appellant’s loan as no such power was stipulated in exhibit A and relied on section 132 of the Evi- c dence Act, 1990, and Union Bank Nigeria Ltd v Sax (Nige- ria) Ltd (supra) at page 12. Learned Counsel referred to page 92 of the record where the trial court, while referring to paragraph 3 of the statement of d defence and counter-claim, sets out the rebuttal of the first respondent that it did not enter into an agreement with the ap- pellant to keep the interest rate fixed at 9% which was the rul- ing rate at the time of the grant. The learned Counsel amaz- e ingly construed the foregoing as an admission by the first re- spondent that the rate of interest at the time of the grant of the loan to the appellant was 9% and that in the circumstance, the first respondent has the burden duty to adduce solid evidence f of changes. She attacked the view of the trial court which is to the effect that neither the appellant nor the respondents pro- duced the Central Bank Guidelines to establish the rate of in- terest at the time of the grant of the loan. She argued that the learned trial Judge had no duty to consider the Central Bank g Guidelines. She finally contended that the respondents having admitted the rate of interest agreed upon by the parties, the onus of proof of subsequent change is on them. In reply to the appellants’ submissions on issue 2 which is h that of the respondents’ Issue 1, the learned Counsel for the respondents said the main contention between the parties was the interest applicable to the loan granted to the appel- lant by the first respondent. It is the contention of the appel- i lant that the rate of interest was 9% while the first respon- dent contended that it did not agree to keep the rate of inter- est fixed at 9%. Learned Counsel referred to the appellant’s evidence-in- j chief where he testified, inter alia, that before he signed

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, IBADAN DIVISION) Ibiyeye JCA 156 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) exhibit A (the mortgage deed) he was informed that rate of a interest on the loan would be 9% per annum and further- more, that the rate of interest at 9% would remain at 9% permanently. He argued that the appellant did not mention the name of the person who told him that the interest rate b would be 9%. He however, admitted that he was given a let- ter of approval without saying if it (the letter) contained any rate of interest. The appellant who had the original of the let- ter of approval in his possession failed to tender it. c The learned Counsel observed that exhibit A (mortgage deed) was silent on the issue of rate of interest to apply to the loan, but that the only witness for the respondent said “it was not a free loan, it was granted on the understanding that d the plaintiff will be paying interest on the facility as stipu- lated from time to time by the Central Bank Guidelines”. He specifically referred to page 49 line 23 of the record of ap- peal where the respondents’ witness denied that the first re- e spondent agreed that the rate of interest was 9% and that by virtue of section 135 of the Evidence Act, that since the ap- pellant asserted the 9% rate of interest chargeable on the loan, the onus of proof was on him and would not shift until f it has been discharged. Failing to discharge that onus of proof would result in the dismissal of the appellant’s claim and he cited in support, the case of Union Bank (Nigeria) Ltd v Ozigi (supra) at page 407. g Learned Counsel referred to exhibits F, G, J and K which were let into evidence during cross-examination of the ap- pellant who in none of these exhibits (letters) did he com- plain about the interest rate. He specifically referred to ex- hibit K where the appellant made a proposal to settle his in- h debtedness but failed to complain about any arbitrary inter- est because he knew that there was no agreement to keep the interest rate at 9%. i In view of the foregoing critique, I am of the opinion that it is of pertinence to revisit Issue 2 identified by the appellant. Thus Issue 2 reads:– “(2) Whether this case is not distinguishable from such cases as Union Bank v Ozigi (1994) 3 SCNJ 42 and Union Bank v j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, IBADAN DIVISION) Ibiyeye JCA Alhaji Sikiru Afolabi Suberu v. Co-operative Bank Ltd 157 a Sax (Nigeria) Ltd (1994) 6 SCNJ page 1 and cases like that on the authority of the bank to vary rate of interest on their customers’ account from time to time.” The cases referred to in Issue 2 (above) are undoubtedly dis- b tinguishable from the instant case. Thus, in those two cases, there are common issues in controversy. They are cases which went up to the Supreme Court in the same year but at different times. In each of the two eases, there was a com- c mon mortgagee which lent money to its customers on differ- ent agreements (one in the Ozigi case and two in the Sax (Nigeria) Ltd case) that the rate of interest thereon shall ac- crue at the rate from time to time stipulated by the bank in d response to the Central Bank guidelines. It is apparent from that clause in those agreements that the lending bank is at liberty to fix its rate of interest as it would deem fit in accor- dance with the varying prevailing rate fixed from time to time by the Central Bank of Nigeria. Consequent upon the e guidelines, where the bank in accordance with the guidelines of the Central Bank of Nigeria changes its interest rate in respect of a loan, a customer cannot lawfully complain that the bank has arbitrarily or unilaterally varied that original f interest rate at will without his prior consent or knowledge, as the variation is well within the express terms of the loan. (See Union Bank of Nigeria v Sax (Nigeria) Ltd (supra) at page 172.) In view of the foregoing principles, the appellant g in those two cases had its appeal allowed on the basis, inter alia, that the lending bank needs not secure the consent of the respondents (customers) before increasing the original interest rate of 11% indicated in the mortgage deed. h The situation is quite different in the instant case where the mortgage deed (exhibit A) does not specify any interest rate. The appellant who asserted that interest rate of 9% be read into exhibit A despite the express denial of the first respon- i dent that no such rate of interest formed part of exhibit A failed to satisfy the burden of proof thrust on him by section 135 of the Evidence Act. The appellant in the instant case attempted to urge the j court to make use of his oral evidence that 9% interest rate

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, IBADAN DIVISION) Ibiyeye JCA 158 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) was permanently agreed upon between him and the first re- a spondent. The said oral evidence is no doubt akin to extrin- sic evidence as far as exhibit A is concerned. It is, however, trite that where parties to an agreement have set out the terms thereof in a written document, extrinsic evidence is b not admissible to add to, vary, subtract from or contradict the terms of the written agreement or instrument. (See Olaloye v Balogun (1990) 5 NWLR (Part 148) 24 and Union Bank of Nigeria Ltd v Ozigi (supra) at page 164 and section c 132(1) of the Evidence Act Laws of the Federation of Nige- ria, 1990.) Furthermore, a hard look at exhibit A showed that the wording is clear and the operative words in it should be given their simple and ordinary grammatical meaning. It is d one of the general principles of interpretation of documents that the words therein should first be given their simple meaning and under no circumstances may new or additional words be imported into the text unless the documents would be, by the absence of that which is imported, impossible to e understand. In the instant case, the wording of exhibit A is free from ambiguity, thereby excluding the need to import the oral evidence that 9% permanent rate of interest was agreed upon f by the parties when in particular, the appellant who had ad- mitted having in his possession letter of approval of the loan failed to put it in evidence. The contents of that letter of ap- proval or oral information on the issue of 9% permanent in- g terest rate before he signed exhibit A might have been read into exhibit A provided there is proof of their existence as contemplated by section 132(1)(b) of the Evidence Act, 1990. Paragraph (b) of subsection (1) of section 132 reads:– h “132(1) When any judgment of any court or any other judicial or official proceedings, or any contract or any grant or other disposition of property has been reduced to the form of a document, no evidence may be given of such judgment or proceedings or of the terms of such contract, grant of dis- i position of property except the document itself or secon- dary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained; nor may the contents of any such contents be contradicted altered, added to or varied by oral evidence. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, IBADAN DIVISION) Ibiyeye JCA Alhaji Sikiru Afolabi Suberu v. Co-operative Bank Ltd 159 a Provided that any of the following matters may be proved. (b) the existence of any separate oral agreement as to any matter on which a document is silent, and b which is not inconsistent with its terms. If from the circumstances of the case the court infers that the parties did not intend the document to be a com- plete and final statement of the whole of the trans- action between them.” c Since the appellant failed to prove what he was informed or what was read out to him about the 9% rate of interest per- manently fixed on the loan before he signed exhibit A, it d will be an affront on the intendment of section 132 of the Evidence Act, 1990, if such extraneous or extrinsic evidence is incorporated into it (exhibit A). It appears from the foregoing that since exhibit A is silent e on the chargeable rate of interest, no rate of interest was available for the calculation of interest on the sum of N40,000 loan the first respondent lent to the appellant. This could hardly be the case because the law hardly creates a f vacuum as far as banking rate of interest is concerned. It is settled that a bank is empowered to charge compound inter- est on loans or overdraft on the basis that there is a custom to that effect or that the customer has impliedly consented where without protest he allows his account to be debited. g (See Paget’s Law of Banking (8ed) page 134; Barclays Bank of Nigeria Ltd v Abubakar (1977) 10 SC 13 at 23 to 25 and I.O.M. Nwoye and Sons Ltd v Co-operative and Commerce Bank (Nigeria) Plc (1993) 8 NWLR (Part 310) 210 at 221.) h It should, however, be noted that compound interest on a loan or overdraft is chargeable only where the customer has agreed to it or where he is shown or must be taken to have acquiesced to the account kept on that basis. (See Rickett v i Bank of West Africa Ltd (1960) 5 FSC 113 at 118.) It is also settled that by the universal custom of bankers, a banker has the right to charge simple interest at a reasonable rate on overdraft or loan. An unusual rate of interest, interest with periodical rates or compound interest can only be charged by j express agreement. If the relationship of banker and

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, IBADAN DIVISION) Ibiyeye JCA 160 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) customer is altered into mortgagee and mortgagor by the a taking of a mortgage, interest must be calculated according to the terms of the mortgage. (See Ferguson v Fyfte (1841) 8C. 8F 121 and I.O.M. Nwonye and Sons Ltd v CCB Plc (supra) at page 221.) b In view of the foregoing principles, it is apparent on the re- cord of proceedings that neither compound interest nor un- usual rate of interest is incorporated into exhibit A. Indeed, no rate of interest is stated in it (exhibit A). It was therefore, c regular for the lower court to recourse to the custom of im- plicit consent as regards the rates of interest used by the first appellant. It is not in doubt from exhibits D, E and O that statement of account no. C/A 9534 were periodically sent to d the appellant by the first respondent from 31 August, 1980 to 31 December, 1997. Exhibits F, G, H, J, K and L are the several letters written by the appellant to the first respondent in respect of the operation of the former’s account no. 9534 e in the latter’s bank. The appellant did not in any of these ex- hibits complain at all about the rates of interest on the loan of N40,000 made to him by the first respondent. These ex- hibits (letters) are instead replete with pleas for time to liq- uidate his debt. The appellant was, in my view, by this con- f certed silence in respect of the varying rates of interest on the loan facility made available to him by the first respon- dent deemed to have impliedly consented or acquiesced to the mode of interest charged by the first respondent. (See g Barclays Bank Ltd v Abubakar (supra), Rickett v Bank of West Africa (supra) and Aforka v African Continental Bank (Nigeria) Ltd (1994) 3 NWLR (Part 331) 217 at 225.) The learned Counsel for the appellant took up the issue h that the first respondent relied on the doctrine of acquies- cence where he (the first respondent) neither pleaded acqui- escence nor led evidence on it to show that the appellant has done anything to show that he acquiesced to the exorbitant i rates of interest charged by the first respondent. It is my considered view that the use of the word “acquiescence” in the court below is purely semantic as it has little to do with the doctrine of laches and acquiescence. The word “acquies- cence” in this case was used as a synonym to “consent”. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, IBADAN DIVISION) Ibiyeye JCA Alhaji Sikiru Afolabi Suberu v. Co-operative Bank Ltd 161 a Acquiescence within the context of the argument of the learned Counsel for the appellant relates to the doctrine thereon, albeit a specie of estoppel, and it occurs where the plaintiff, mistaken as to his legal rights, expends money or b does an act on the faith of it, and the defendant knowing of the plaintiff’s mistaken claim and its inconsistency with the defendant’s right, encourages the plaintiff in his expenditure either directly or by abstaining from asserting his legal c rights. It is pertinent also to note that the terms acquiescence and laches are cognate but not equivalent. The former is a submission to, or resting satisfied, with an existing state of things while the latter implies a neglect to do that which the d party ought to do for his own benefit or protection. “Acqui- escence” relates to inaction during performance of an act while “laches”, to delay after the act is done. The two terms when conjunctively used in an action, form an equitable de- fence and they must be specially pleaded in order to adduce e evidence on them. I agree that the respondents did not plead these terms as required by law. I am of the view that the use of the words “acquiescence” or “consent” in the context of the instant case was borne out from its prevailing circum- f stances where, inter alia, the appellant failed to protest against the disturbing rates of interest on the loan of N40,000 he got from the first defendant. The foregoing apart from dealing with Issue 2 extensively, g it has also dealt with Issue 3 which relates to the propriety of the decision of the trial. I accordingly, resolve the two issues against the appellant In sum, I find no merit in the appeal and it is dismissed. h The decision of the trial court is sustained. Costs are awarded against the appellant in the sum of N5,000 in fa- vour of the respondents. OMAGE JCA: In this appeal, the appellant was the plaintiff i in the court below, and the respondent was the defendant counter-claimant. In the suit before the court below by the plaintiff, he claims as follows:– (i) “A declaration that the first defendant is not entitled to charge more than 9% per annum as interest on the plain- j tiff’s account No. 9534 at its Ibadan main office.

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(ii) An order of the Honourable court directing the first defen- a dant to rework and reverse all excess interest charges on the account. (iii) Perpetual injunction restraining the first and second defendants from selling in anyway, tampering with the property of the b plaintiff situate, lying and being at No. 46 in Volume 793 at Ibadan Lands Registry office and covered by deed of mort- gage dated 22 September, 1986 and registered as No. 7. at page 7 in Volume 2705 at the Ibadan Lands Registry Office.” c The respondents as defendants filed their defence and the first defendant counter-claimed from the plaintiff the sum of:– (a) N511,548,02 being the principal interest and other bank charges outstanding on the plaintiff’s account as at 31 d August, 1994. (b) Continuing interest on the said amount at the rate 21% interest until judgment and 21% interest from the date of judgment debt and costs. The subsequent claim of the e defendant in the counter-claim was made upon an order for amendment made by the court on 30 June, 1998. The learned trial Judge dismissed all the plaintiff’s claim with costs and entered judgment on the counter-claim in fa- f vour of the defendants. On Claim (6) of the counter-claim, the court allowed interest at the rate of 10% from 31 August, 1994, until the judgment debt is liquidated. The facts which gave rise to the transaction which ended in g the court below before the judgment of the court, commenced with the loan taken by the appellant as the plaintiff from the defendant in 1978. The loan was for the sum of N40,000. There was subsequently in 1985, a mortgage agreement in a deed under which the appellant submitted the title deeds as se- h curity for the loan. The appellant claimed that he reached an agreement with the respondent that only the interest of 9% would be charged on the mortgage. The respondent averred that there was no such agreement and complained that the ap- i pellant abandoned the account for many years. That when the respondent had made several demands to the appellant to make the repayment of the loan and he refused, the first defendant instructed the second defendant to sell the plaintiff’s house be- fore the counter-claim was filed. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, IBADAN DIVISION) Omage JCA Alhaji Sikiru Afolabi Suberu v. Co-operative Bank Ltd 163 a The plaintiff was dissatisfied with the judgment of the court below, he filed this appeal on 9 grounds and formu- lated the following three issues:– b (I) Whether the amendment of the statement of defence and counter-claim granted by the lower court in this case after conclusion of the case on issues not joined by the parties during trial without an opportunity for the appellant to react to such amendment was proper. c (II) Whether this case is not distinguishable from such cases as Union Bank v Ozigi (1994) 3 SCNJ 42, and Union Bank v Sax Nigeria Ltd (1994) 6 SCNJ page 1 and cases like that on the authority of the bank to d vary interest on their customers account from time to time. (III) Whether from the totality of the evidence adduced in this case the respondents proved its entitlement to e judgment. In its brief, the first respondent recorded on page 2, a notice of preliminary objection to the effect that Ground 3(i) and (ii) of the grounds of appeal are incompetent by reason that f the said grounds are of mixed law and fact; and no leave of court has been sought or obtained before the grounds are filed. The respondent urged the court to strike out same. The appellant filed a reply brief in which he urged the court g to discountenance the preliminary objection of the respondent. I have considered the said objection. Ground 3(i) and (ii) can indeed be adjudged one of mixed law and facts. The sub- provisions of section 241 of the Constitution of Nigeria, h 1999, requires that the leave of court be obtained before an appellant can file a ground of mixed facts and law on appeal. Such grounds without the leave of the court are indeed in- competent. So also is the notice of preliminary objection con- i tained in the respondents’ brief because it failed to observe the rule to issue the requisite notice of preliminary objection at least, three clear days before the hearing of the appeal as required under Order 3 Rule 15 of the Court of Appeal Rules. The notice of preliminary objection is incompetent and it is j struck out. The issue of the leave of court before filing 9

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, IBADAN DIVISION) Omage JCA 164 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) grounds of appeal of mixed facts and law is an issue of law, a which this Court can take up suo motu. I do so now. The ground in the appellant’s brief numbered 3(i) and 3(ii) be- cause they were not filed pursuant to the requisite leave of the court, they are incompetent and the two grounds on which the b appellant’s Issue 1 is founded are hereby struck out. The respondent formulated three issues:– (i) Whether the first respondent had the right to vary c the interest on the loan obtained by the appellant. (ii) Whether the learned trial Judge rightly dismissed leg 14(2) of the amended statement of claim having re- gard to the totality of evidence of the court. d (iii) Whether the court below was right in allowing the respondent to amend the statement of defence and counter-claim. The respondents’ Issue 3, is the same as the appellant’s Issue e 1 which is no longer before the court. Since the respondent did not file a cross appeal Ground 3(i) and (ii) on which the issues are based by the appellant has been struck out, the is- sue on it formed by the respondent cannot stand, it is also f struck out. There are therefore, two grounds in the appel- lant’s brief and two on the respondents’ brief on which is- sues are formulated, both of which I will now consider ac- cording to the theme in the issue formulated. For instance, the theme of appellant’s issue two is on the alleged arbitrary g variation of interest rate by the respondent. It is issue one in the respondents’ brief which deals with the alleged variation of interest rate. Issue 2 in the appellant’s brief and Issue 2 in the respondents’ brief will in this judgment, be considered h together. On the issue of interest rate on the loan, the appel- lant quoted portions of the mortgage deed agreement he had with the first respondent, exhibit A and submitted that the agreement does not permit the respondent to charge interest i on the loan advances more than 9% per annum. The appel- lant referred in the brief to the decision in Union Bank v Ozigi (1994) 3 SCNJ 42 and Union Bank v Sax Nigeria Ltd (1994) 6 SCNJ 1 and submitted that the facts in his own case is different from the facts in the cited authorities because in j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, IBADAN DIVISION) Omage JCA Alhaji Sikiru Afolabi Suberu v. Co-operative Bank Ltd 165 a those two legal authorities above, the agreements were made by the banks with the parties to change a rate of interest as it arose, whereas in the instant appeal, the facts show that the legal mortgage made no provision for chargeable interest b whatsoever. To impose interest chargeable, therein he sub- mitted, is to introduce extrinsic evidence into the agreement. The appellant referred to the testimony that the bank, the re- spondent charged interest of 21% to 27.5% on the transac- c tion. The appellant submits that as interest payable was not part of the agreement in exhibit A, the introduction thereto of interest rate to be paid on the loan balance is extrinsic to exhibit A, and should not be allowed. Alternatively, the ap- d pellant said he was informed that he would pay at a perma- nent interest of 9%. The respondent in his brief submitted that there is an im- plied condition when the bank offers a loan that interest will e be charged on the loan. The interest chargeable is not static, it is based on the rates prescribed by the Central Bank of Ni- geria in the exercise of its power to control the liquidity of cash flow in the private banks in the country. The respon- dents will therefore, need not inform the appellant that he f would have to pay permanently 9% on the loan. The power is exercised by the Central Bank of Nigeria under section 15 of the Banking Act Cap 28 Laws of the Federation of Nige- ria, 1990. The respondent submits that the appellant ob- g tained loan of N40,000 from it under a mortgage deed; ex- hibit A and was bound to pay interest on the loan, whether or not exhibit A stipulates interest payable and the interest payable is as directed by the Central Bank of Nigeria, not h with any bank in mind. It is generally applicable. In considering the need to pay interest on a loan advanced by a bank, and to pay the interest on a rate prescribed from time to time by the Central Bank of Nigeria, nothing typifies i and supplies an answer to appellant’s question than the posi- tion at law as shown in the observation made by Adio, JSC. As he then was, in Union Bank v Sax Nigeria Ltd (1994) 6 SCNJ 1, when he said:– “The power given by the relevant clause of each agreement, could j not be properly used to stipulate arbitrary rate of interest or rate of

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interest contrary to the guideline given by the Central Bank of Ni- a geria. This is because (Order) section 15 of the Banking Act Cap 28 Laws of the Federation of Nigeria, 1990 the rates of interest charged on advances, loan or credit facilities or paid on deposits by any licensed bank is to be linked to the minimum and maxi- b mum rate of interest when so approved, (and they) are to be the same for all licensed banks. The interest structure of each licensed bank is subject to the approval of the Central Bank.” I respectfully adopt as mine the observation and the state- c ment of the law as quoted above. It remains for me to state that all licensed banks are not permitted to contract out of charging interest whenever they advanced money to custom- ers, whether as a loan, or credit facilities. The submission of d the appellant that no clause is contained in the mortgage transaction for repayment of interest on the loan he received does not represent the correct situation at law, even when exhibit A does not provide for payment of or rate of interest, e or provides for interest of 9%, the minimum rate of interest prescribed by Central Bank will apply. Therefore, whether or not he so contracted, interests are chargeable on the loan received by the appellant and they f are chargeable according to the stipulation of the Central Bank regulations. (See Nwoye and Sons v C.B. Plc (1993) 8 NWLR (Part 310) at 210.) I therefore resolve Issue 1 of the appellant and Issue 2 of the respondent against the appellant. g The appellant’s Issue 3, asked “whether from the totality of the evidence adduced, in this case the respondents has proved his case”. And the respondent asked in his issue whether the learned trial Judge rightly dismissed leg. 14(2) h of the amended statement of claim having regard to the to- tality of evidence before the court. The respondent’s Issue 2 in his brief as phrased requires some explanation for it to be comprehensible, the respondent refers to clause 14(2) of the i amended statement of claim as contained in page 14 of the printed record. Under the items of the plaintiff’s claim is 14(2) which seeks relief from the court for an order of the court “directing the first defendant to rework and reverse all excess interest charged on the account”. It is apparent from j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, IBADAN DIVISION) Omage JCA Alhaji Sikiru Afolabi Suberu v. Co-operative Bank Ltd 167 a the records that the court below refused to grant the relief sought therein. The above issue puts into consideration the entire judgment of the court below, and it is of the same theme as the Issue 3 in the appellant’s brief, which asked b whether the respondent was entitled to the judgment, and the respondent asked whether the court was not right to dismiss the appellant’s claim in the court below. I write now first on the appellant’s brief. It can be seen from the testimony be- c fore the court that the defendant had in his favour, because the plaintiff did not deny it, evidence that the appellant ob- tained a loan of N40,000 from the respondent in 1976. That interest is payable on the said sum loaned or made available d to the appellant. It has been proved in the court below that the interest payable, whether of 9% or of 21% were on inter- est prescribed by the Central Bank. That such term of chargeable interest are not usually contained in the mortgage e deed between the parties, but that is not to say that interest is not payable or that it can be permanently fixed for 9%. It is in evidence also that several letters of demand were sent to the appellant by the respondent and the appellant as the f respondent in the counter-claim refused or neglected to pay the debt. The proof of the above clearly entitled the counter- claimant to judgment in the court below. On the other hand, the appellant failed to establish in the court below, his aver- g ment that he entered into an agreement with the first respon- dent to pay interest permanently at the fixed rate of 9% or not to pay interest at all. The appellant as the plaintiff in the court below, did not deny that he owed to the respondent, the balance due unpaid to the respondent on the loan. That h admission is tagged to the accrued interest due and payable on the balance of debt outstanding. This explains why the court below having placed the evidence of both parties on an imaginary scale considered it good judgment to refuse the i plaintiff’s claim for an order “to rework, and reverse all ex- cess interest charged on the account”. And the court dis- missed the plaintiff’s claim. I too having considered the submissions of the appellant and the respondent am of the j view that the appeal must fail and I so hold.

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The Issue 3 of the appellant and Issue 2 of the respondent a are resolved against the appellant in favour of the respon- dent. In sum, the entire issues considered in this judgment are resolved against the appellant and the appeal is dis- b missed. There will be order for costs against the appellant assessed at N5,000. ADEKEYE JCA: I had the opportunity to read before now, the judgment just delivered by my learned brother S.A. Ibiyeye, c JCA. I agree with his reasoning and conclusion that this ap- peal shall be considered on Issues 2 and 3 distilled for deter- mination by the appellant. My learned brother had exten- sively considered the two issues whereupon he distinguished d the appeal in hand from the case of Union Bank of Nigeria Ltd v Ozigi (1994) 3 SCNJ 42 and Union Bank of Nigeria Ltd v Sax (Nigeria) Ltd (1994) 6 SCNJ page 1. It is hereby appar- ent that the attitude of the bank in charging interest rates on loan facilities granted to customers is not based on any static e principle or guideline. This is dictated by the terms as stipu- lated in the clauses of an individual mortgage deed.

In the two cases mentioned (supra) the common mortgagee f lent money to its customers on different agreements – which charged an interest rate of 11% per annum, but then the rate of interest was made subject to the rate from time to time stipulated by the bank in accordance with the Central Bank of Nigeria guidelines. The position is now clear that a cus- g tomer cannot lawfully complain that the bank has arbitrarily or unilaterally varied that original interest rate without his prior consent or knowledge, as the variation is well within the express terms of the loan. Consequently, the lending h banks need not secure the consent of the customer before increasing the original interest rate of interest indicated in the Mortgage Deed. The situation is quite different where, like in the instant appeal, the mortgage deed does not specify i any interest. In that prevailing circumstance, the mortgagor and mortgagee will have to rely heavily on the interpretation of the clauses in their Mortgage Deed in the calculation of interests. The bone of contention here was whether or not exhibit A, fixed the rate of interest at 9%. It is however j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, IBADAN DIVISION) Adekeye JCA Alhaji Sikiru Afolabi Suberu v. Co-operative Bank Ltd 169 a pertinent to note the custom, in banking practice, which is legally recognised that:– (1) A bank is empowered to charge compound interest on loans or overdraft on the basis that there is a cus- b tom to that effect or that the customer has impliedly consented where without protest, he allows his ac- count to be debited. (2) Whereas compound or unusual interest on a loan or c overdraft is chargeable only where the customer has agreed to it or where he is shown to have acquiesced in the account kept on that basis. (3) It is settled that by the universal custom of banking, d a banker has the right to charge simple interest at a reasonable rate on overdraft or loan. Nwoye and Sons v C.B. Pill (1993) 8 NWLR (Part 310) page 210; Hausa v F.B.N. (2000) 9 NWLR (Part 671) page 64; Abdullahi v Waje Community Bank (2000) 7 NWLR e (Part 663) page 9; Bank of the North v Ichrisu (2000) 3 NWLR (Part 649) page 373. The appellant has not timeously or adequately protested, but had tacitly consented to his loan account being bombarded f by varying rates of interests. The protest in this action was invariably belated. I agree with the fuller reasons given in the leading judg- ment that the appeal lacks merit, it is accordingly dismissed, g with N5,000 costs to the respondents. Appeal dismissed.

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a Nigeria Deposit Insurance Corporation v Ecobank Nigeria Plc b COURT OF APPEAL, LAGOS DIVISION OGUNTADE, GALADIMA, CHUKWUMA-ENEH JJCA

Date of Judgment: 20 MAY, 2002 Suit No.: CA/L/125/2000 c Banking – Interest – Meaning of – Right of banks and other financial institutions to claim in respect of loan or other fa- cilities Failed Banks Tribunal – Procedure therein – Jurisdiction of d – Condition precedent to exercise of – “Debt” – What Con- stitutes – Section 3(1) Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree No. 18 of 1994 (as amended) e Words and Phrases – “Interest”, “Debt” in section 3(1) sec- tion 3(1) Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree No. 18 of 1994 (as amended) – Meaning of f Facts On 18 October, 1991, Centre Point Merchant Bank (“CPMB”) gave instructions to the Central Bank of Nigeria g (“CBN”) to transfer a total of N5,000,000 (Five Million Naira) to the account of the respondent. This transfer was effected on the same date but was never actually credited to CPMB’s account with the respondent. The explanation of- fered by the respondent for this failure was that the CBN h failed to furnish it with sufficient details as to deposit such as to enable it to identify the beneficiary of this sum until 7 December, 1995. Consequently, the respondent was unable to apply these funds immediately to CPMB’s current ac- i count with it. However on 7 March, 1995, the said sum of N5,000,000, was eventually paid to CPMB. It is contended by the appellant that the respondent de- clined to pay the said sum and the appellant on behalf of j

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Nigeria Deposit Insurance Corporation v. Ecobank Nigeria Plc 171 a CPMB, brought proceedings in the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree for the purpose of debt owed by the respondent to CPMB. b The tribunal heard evidence from both parties and on 14 January, 1999 adjourned further proceedings to 17 February, 1999 “for address”. On 17 February, 1999 instead of hearing address of Counsel, the tribunal proceeded to deliver its judgment. It struck out the appellant’s claim on the ground c that the same was outside the jurisdiction of the tribunal. The ground for so holding was that the claims were for damages or anticipated profit. The appellant appealed to the Court of Appeal. d Held – 1. Although Schedule 1 to the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree No. e 18 of 1994 (as amended) does not make copious provi- sions relating to procedure for actual hearing of civil cases but it provides in paragraph 27 that recourse may be had to the Federal High Court (Civil Procedure) f Rules. The latter provides in Order XL Rules 4, 5 and 6 of the 1976 Rules that the Court shall entertain address from parties after the conclusion of evidence before de- livering judgment. g 2. Before the Failed Banks Tribunal can exercise its juris- diction under section 3(1) of the Failed Banks (Recovery of Debts) and Financial Malpractice in Banks Decree No. 18 of 1994 there must be evidence to indicate not only that the application is brought on behalf of a “failed h bank”, but also the bank has closed or has been “de- clared a failed bank” by the Central Bank of Nigeria. 3. A “debt” within the context of section 3(1) of the Failed Banks Decree (as amended) means the principal debt plus i accrued interest. In the instant case, the appellant was merely claiming interest charges which brings their claim perfectly within the jurisdiction of the lower Tribunal. 4. Interest means a sum payable in respect of the use of an- j other person’s money, such money called the principal.

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5. Courts will always recognise the rights of money lender a and banking institutions to recover their accumulated in- terest charges as part of the debt due to them by debtor customers. This type of claim has never been treated as a claim for damages or anticipated profit. Such interest or b claims are based on the guidelines of the Central Bank as well as the Banks and Other Financial Institutions De- cree No. 25 of 1991. Section 23 of the Decree makes it mandatory for banks to display publicly their interest c rates to their customers. Appeal allowed.

Cases referred to in the judgment d

Nigerian Liman v Mohammed (1999) 9 NWLR (Part 17) 116 Nigerian Merchant Bank Plc v Aiyedun Investment Ltd e (1998) 2 NWLR (Part 537) 221 Obodo v Olomu (1987) 3 NWLR (Part 59) 111 Okulate v Awosanya (2000) 2 NWLR (Part 646) 530 f Renolds Construction Co Ltd v Okpegboro (2000) 2 NWLR (Part 645) 367 Tecno Mechanical (Nigeria) Ltd v Ogunbayo (2000) 1 NWLR (Part 639) 150 g UBN Ltd v Ozigi (1991) 2 NWLR (Part 176) 677

Nigerian statutes referred to in the judgment Banks and Other Financial Institutions Decree No. 25 of h 1991, section 23 Failed Banks (Recovery of Debts) and Financial Malprac- tices in Banks Decree No. 18 of 1994 (as amended), sections 3(1) i

Nigerian rules of court referred to in the judgment Federal High Court (Civil Procedure) Rules, 1976, Order XL Rule 4, Order XL Rule 5, Order XL Rule 6 j

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Nigeria Deposit Insurance Corporation v. Ecobank Nigeria Plc 173 a Counsel For the appellant: S.E. Elema, Esq. For the respondent: B.O. Ogundipe, Esq. b Judgment GALADIMA JCA: (Delivering the lead judgment) This is an appeal by the appellant against the decision of Evuti, J, c Chairman of Failed Banks (Recovery of Debts) and Banks Financial Malpractices in Banks Tribunal, Zone VII, Lagos delivered on 17 February, 1999 in which the appellant’s claim was struck out for want of jurisdiction. d The appellant’s claim before the Tribunal which was for recovery of debt in respect of accumulated and unpaid inter- est was regarded by the Tribunal as a claim for damages or anticipated profit on the basis of which the lower Tribunal e declined jurisdiction. Dissatisfied, the appellant first appealed to the Special Ap- peal Tribunal but with the promulgation of the Tribunals (Certain Consequential Amendments) Decree of 29 May, f 1999, the appellant has now lodged its appeal before this Court in which it raised three grounds and formulated three issues therefrom thus:– “3.1. Whether the lower tribunal was right in striking out the g case for want of jurisdiction on the basis that the appel- lant’s claim for interest amounted to a claim for damages or anticipated profit in respect of which the lower Tribunal lacked jurisdiction. h 3.2. Whether the lower Tribunal was entitled to deliver judg- ment on the day fixed for address from Counsel who were present in court and who were willing to address the court.” i In the respondent’s brief of argument the following three is- sues were formulated for the consideration of this Court:– “3.1. Was the Tribunal entitled to proceed to deliver its judg- ment without hearing address from Counsel to the parties having expressly adjourned to a particular date for that j purpose?

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3.2. Was the Tribunal entitled suo motu, to raise an issue of a law and proceed to determine the same without granting parties an opportunity of being heard in respect thereof? 3.3. Was the appellant’s claim before the Tribunal within the Tribunal’s limited jurisdiction?” b I would rather be guided by the two issues identified by the appellant in the determination of this appeal. However, the summary of facts material for the consideration of this ap- peal shall be first exposed. On 18 October, 1991, Centre c Point Merchant Bank (“CPMB”) gave instruction to the Central Bank of Nigeria (“CBN”) to transfer a total of N5,000,000 (Five Million Naira) to the account of the re- spondent. This transfer was effected on the same date but d was never actually credited to CPMB’s account with the re- spondent. The explanation offered by the respondent for this failure was that the CBN failed to furnish it with sufficient details as to deposit such as to enable it to identify the bene- ficiary of this sum until 7 February, 1995. Consequently, the e respondent was unable to apply these funds immediately to CPMB’s current account with it. However on 7 March, 1995, the said sum of N5,000,000 was eventually paid to CPMB. f It is contended by the appellant that the respondent de- clined to pay the said sum and the appellant on behalf of CPMB, brought proceedings in the Failed Banks (Recovery of Debts) and Financial Malpractices in the Banks Tribunal g for the purpose of debt owed by the respondent to CPMB. The Tribunal heard evidence from both parties and on 14 January, 1999 adjourned further proceedings to 17 February, 1999 “for address”. On 17 February, 1999 instead of hearing h address of Counsel, the Tribunal proceeded to deliver its judgment. It struck out the appellant’s claim on the ground that the same was outside the jurisdiction of the Tribunal. Such are the simple straightforward facts. I shall however, i consider the second issue formulated by the appellant first. The basis upon which the appellant contends that the Tribu- nal erred in delivering its judgment without hearing address of Counsel is that in doing so it breached its right to a fair hearing as guaranteed by section 33 of the 1979 Constitution j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Galadima JCA Nigeria Deposit Insurance Corporation v. Ecobank Nigeria Plc 175 a of the Federal Republic of Nigeria, then applicable. It is con- tended by the respondent’s Counsel in their brief that within the context of the provisions of the Failed Banks, etc, De- cree, section 33(1) have been complied with. The basis for b this contention are, firstly that the Tribunal granted both par- ties a fair hearing within a reasonable time. Secondly, be- cause the Tribunal further treated both parties equally, in de- clining to hear addresses from both Counsel. It is my sincere c opinion that this flawed argument of the learned Counsel for the respondent is a negation of the whole essence of re- quirement of an address in a trial. Here the record at page 30 has shown that it was the d learned trial Judge who, after conclusion of the defence on 14 January, 1999, adjourned the case to 17 January, 1999 for address. On that date Counsel for the parties, were present in court for the purpose of addressing. It is not that both Coun- e sel declined to address the court; but the learned trial Judge suo motu on his own unilaterally dispensed with the address and proceeded to deliver judgment. The appellant has cor- rectly complained that it was prevented from presenting its f case fully before the lower court resulting in breaching of its right to a fair hearing. It has been said times without number that an essential attribute of fair hearing is that a Court or Tribunal must hear both sides to a case and consider all ma- terial issues before reaching a decision. (See Renolds Con- g struction Company Ltd v John Okpegboro (2000) 2 NWLR (Part 645) 367.) The requirement that equal treatment, equal opportunity or equal consideration be given to all concerned is not breached in a situation where a party was afforded the h opportunity to be present at the trial to present his case or to defend himself but he deliberately refused to avail himself of such an opportunity through his own neglect or tardiness be- cause the law will not in anyway aid the indolent. However, i the rule is applicable where a party is denied an opportunity of being heard. In the instant case the respondent does not appear aggrieved by the arbitrary decision of lower Tribunal to dispense with the addresses of Counsel which the appel- lant so much needed to put all material issues before the Tri- j bunal reached its decision. I must say that a party is not

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Galadima JCA 176 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) compellable to address the court where he has the right so to a do, but where the right exists a party must not be denied that right. Addresses of Counsel form part of the entire case. It has been held in Obodo v Olomu (1987) 3 NWLR (Part 59) 111 per Obaseki, JSC at pages 123–124 that:– b “The hearing of addresses by every court established by the Con- stitution of the Federal Republic of Nigeria is recognised by the Constitution. It is to be given before judgment is delivered. See section 258(1) of the Constitution of the Federal Republic of Nige- c ria, 1979. Its beneficial effect and impact on the mind of the Judge is enormous but unquantifiable. The value is immense and its as- sistance to the Judge in arriving at a just and proper decision, though dependent on the quality of address cannot be denied. The absence of an address can tilt the balance of the learned Judge’s d judgment just as much as the delivery of an address after conclu- sion of evidence can”. Stressing the importance of an address in this context Bel- gore, JSC has this to say at page 120:– e “The procedure whereby the parties to a case at the conclusion of evidence are to address the court on the evidence before the court, enumerating the issues canvassed and adverting to the law govern- ing the issues has taken such a root in our superior courts that de- nial of it cannot be regarded as mere procedural irregularity.” f No doubt from all that have been said above an address by Counsel is to assist the court to clearly identify the issues for consideration so that the court can reach an informed bal- anced and equitable judgment in any particular case. When a g judgment is reached without such an essential input by a Counsel it cannot qualify as a standard judgment, since the issues in controversy could not have been adequately articu- lated appreciated and dealt with. (See Okulate v Awosanya h (2000) 2 NWLR (Part 646) 530 at 536.) In the instant case the proceedings at the lower tribunal were in respect of civil cases governed by the procedure stipulated in Schedule 1 of the Failed Banks (Recovery of i Debts) and Financial Malpractices in Banks Decree No. 18 of 1994. Paragraph 20 of the schedule provides that at the conclusion of the hearing the tribunal shall deliver its judg- ment. The word “hearing” as used in paragraph 20 of the Schedule must necessarily include “address” by Counsel. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Galadima JCA Nigeria Deposit Insurance Corporation v. Ecobank Nigeria Plc 177 a Although the Schedule did not make copious provisions re- lating to the procedure for actual hearing of civil cases but it provides in paragraph 27 of the schedule that “where these rules contain no provision in respect of any matter relating b to or connected with the hearing of a case under this Decree the provisions of the Civil Procedure Rules of the Federal High Court shall apply with such modifications as may be necessary to render them conveniently applicable”. It is c noted that the 1976 Rules was the applicable Civil Proce- dures Rules of the Federal High Court at the time of the judgment of the lower Tribunal in February, 1999. It pro- vides in Order XL Rules 4, 5 and 6 that the court shall enter- d tain addresses from parties after the conclusion of evidence before delivering judgment. Obviously, the lower Tribunal acted in breach of its Mal- practices in Banks Decree No. 18 of 1994. It provides as fol- e lows:– “3(1) The Tribunal shall have power to:– (a) recover, in accordance with the provisions of this De- cree, the debts owed to a failed bank, arising in the f ordinary course of business and which remain out- standing as at the date the bank is closed or declared a failed bank by the Central Bank of Nigeria.” Therefore before the tribunal can exercise this power, there g must be evidence to indicate not only that the application is brought on behalf of a “failed bank”, but also the bank has closed or has been “declared a failed bank” by the Central Bank of Nigeria. h The respondent has contended that there was no evidence adduced by the appellant to establish that CPMB came within the definition of a “failed bank” in section 29 of the Decree. Reliance was placed on evidence of the appellant’s i first witness. If the evidence of Christian Omezirike Ajoku is to be carefully considered, then quite a different view would have been held. According to this witness, in his tes- timony, at page 27 of the record, the relationship between the CPMB and the respondent was that of a customer and a j banker as the said CPMB maintains a current account with

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Galadima JCA 178 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) the respondent. At page 28, the witness further stated that a “the bank/customer relationship is a creditor/debtor relation- ship”. That is, bank is the debtor and the customer is the creditor. The testimony of the respondent’s witness presents the position of the law. The appellant’s claim was for pay- b ment of interest which is quite distinct from a claim for damages. Osborne’s Concise Law Dictionary defines dam- ages as “compensation of indemnity for loss suffered owing to tort or breach of contract or breach of some statutory duty c committed by some other person”. The principle is that the injured party should be put as nearly as possible in the same position, so far as money can do it, as if he had not been in- jured. This very definition forms the basis of the award of d damages by Nigerian Courts in several decided authorities such as in the case of Tecno Mechanical (Nigeria) Ltd v Ogunbayo (2000) 1 NWLR (Part 639) 150 and Liman v Mo- hammed (1999) 9 NWLR (Part 617) 116. As for the word “interest” the same dictionary defines it as “a sum payable in e respect of the use of another person’s money, such money called the principal”. In the instant case the principal sum of money was the N5 Million paid by the CPMB into current account with the respondent but which respondent failed to f credit into the said current account of the CPMB. Here the principal amount having been paid by the respondent on 7 March, 1995 the interest remained outstanding and that was the subject matter of the suit before the lower Tribunal. I do g not think this fact was in dispute before the Tribunal. The bone of contention however, was the rate of interest payable. At no time before the Tribunal did the appellant make any claim for damages or for anticipated profit as erroneously held by the lower Tribunal. A claim for interest such as the h one before the lower Tribunal is not aim for anticipated profit. This is simply a claim for debt by a customer from a banker. In this case the debt consisted of a principal amount and the accrued interest. i A “debt” within the context of section 3(1) of the Decree means the principal debt plus accrued interest, the appellant was merely aiming interest charges which brings their claim perfectly within jurisdiction of the lower Tribunal. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Galadima JCA Nigeria Deposit Insurance Corporation v. Ecobank Nigeria Plc 179 a Besides the reports tendered by the appellant showing that CPMB was a Failed Bank within the meaning of section 3 of the Failed Bank Decree No. 18 of 1994 (as amended) which defines a failed bank as a bank “whose capital to risk b weighted assets ratio is below minimum percentage as may be prescribed from time to time by the Central Bank, the Ni- geria Deposit Insurance Corporation or such other appropri- ate authority”. c It must be noted that the case was instituted at the lower Tribunal by the appellant on behalf of Centre Point Merchant Bank (“CPMB”) which is a regulatory authority which can determine whether a bank is “failed” or not d within the meaning of the law as stipulated above. Our courts will always recognise the rights of money lend and banking institutions to recover their accumulated inter- est charges as part of the debt due to them by debtor cus- e tomers. This type of claim has never been treated as a claim for damages or anticipated profit. Such interest claims are based on the guidelines of the Central Bank as well as the Banks and Other Financial Institutions Decree No. 25 of f 1991. Section 23 of the Decree makes it mandatory for banks to display publicly their interest rates to their custom- ers. (See Nigerian Merchant Bank Plc v Aiyedun Investment Ltd (1998) 2 NWLR (Part 537) 221 and Union Bank v Ozigi (1991) 2 NWLR (Part 176) 677.) g In the result all the issues having been resolved against the respondents, this appeal succeeds. The judgment of the lower Tribunal is hereby set aside. The case is remitted to Chief Judge of the Federal High Court to be re-assigned to h another Judge for expeditious trial. There shall be costs in favour of the appellant against the respondent assessed at N3,000. OGUNTADE JCA: I agree. i CHUKWUMA-ENEH JCA: I agree. Appeal allowed.

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a United Bank for Africa Plc v Robertson Engineering Limited b COURT OF APPEAL, PORT-HARCOURT DIVISION OGEBE, NSOFOR, IKONGBEH JJCA

Date of Judgment: 23 MAY, 2002 Suit No.: CA/PH/77/95 c Banking – Opening of companies account – Who can authorise – Whether proper procedure is followed Negligence – Proof of d Facts The respondent Company, the plaintiff, at the lower court sued the appellant as defendant in the Port-Harcourt High Court, claiming the sum of N2.5 million as special and gen- e eral damages for negligence for allowing an account to be opened on behalf of the plaintiff/respondent without follow- ing the proper procedure, such as Board resolution and ref- erences and for which various sums of money were lost and f damages suffered. The case of the plaintiff at the lower court and through his representative, one Mr Robert Ekhator, was that he and his wife were the original subscribers of the respondent, and g that at the time of opening the account in 1983, he was the Chairman/Managing Director of the Company. That the ac- count No. 7292 was opened in the name of the Company in the appellant’s bank without the knowledge of the company h or its Board. The appellant bank who were defendants at the lower court in its defence gave evidence that one Chief Eneli who initi- i ated the opening of the account was a majority Shareholder with 51% holding in the plaintiff/respondent Company and that he opened the account with the full knowledge of plain- tiff’s witness one Mr Ekhator, and supplied all the docu- ments required for opening a bank account. j

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United Bank for Africa Plc v. Robertson Engineering Ltd 181 a The learned trial Judge at the Port-Harcourt High Court found for the plaintiff/respondent and awarded special dam- ages of N700,000. b The appellant being dissatisfied with the decision of the lower court brought this appeal and formulated six issues for determination. The appellant contended that the trial Judge gave judgment against the weight of evidence before the court, particularly the evidence which showed that the ac- c count was opened by the majority shareholder, with the au- thority and resolution of the Board and with the knowledge of the other shareholders, that the account was not opened by unknown persons. d Held – Per curiam “It was clear that DW1, Chief Eneli supplied all the infor- mation and documents required to open the account includ- e ing the Board resolution, exhibit K. The fact that the trial court found that exhibit K was not a proper Board resolu- tion was not the doing of the appellant. DW1 asserted that he opened the account with the full knowledge of PW1 and f that statements of account were being sent to a Post Office Box No. under the control of’ PW1. PW1 himself also ad- mitted that he got to know of this account through a state- ment of account sent to the Box No. of the company in La- gos. This showed clearly that PW1 was not ignorant of the g account and if the trial court had adverted its mind to this fact it would not have found in favour of the respondent as it did. The DW1 was a reliable customer and the appellant had no cause to doubt him after he had supplied all neces- sary documents in a company in which he was the majority h shareholder.” Appeal allowed; cross appeal dismissed.

Cases referred to in the judgment i Nigerian ACB Plc v Emostrade Ltd (1998) 2 NWLR (Part 536) 19 Egonu v Egonu (1978) 11–12 SC 111 j UBA Ltd v Achoru (1990) 6 NWLR (Part 16) 254

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Counsel a For the appellant: J.C. Nwobike For the respondent: Eberechi Ndele b Judgment OGBEBE JCA: (Delivering the lead judgment) The respon- dent company sued the appellant claiming the sum of N2.5 million being special and general damages for negligence in c that sometime in 1983 the appellant opened a bank account in the name of the respondent without the knowledge of and consent of the respondent as a result of which the respondent lost various sums of money and thereby suffered immense d loss and damages. Pleadings ended with an amended statement of claim and an amended statement of defence. The respondent in proof of his claim testified through his e representative, Mr Robert Ekhator, who stated that he and his wife alone were the original subscribers of the respon- dent company and he was at the time of his testimony the Chairman/Managing Director of the company and that the f account No. 7292 opened in the name of the company in the appellant’s bank was not authorised and was without the knowledge of the company. He testified that he knew Chief G.I.C. Eneli and one Mr P.S. Fernando but they were not g subscribers or directors of the respondent company and had no authority to open their account. He however, admitted that he appointed Chief Eneli as a Director of the company of the respondent company in 1976. h PW2, Pastor Akins Aghe, testified that he was an experi- enced banker with 17 years’ experience. He said that before a bank would open an account for a company, the bank would ask for a letter of request or intent and also for a Board’s resolution addressed to the bank. i The appellant called three witnesses to counter the case of the respondent. DW1 was Chief Eneli who gave evidence that he was a majority holder of the shares in the respondent company and opened the disputed account with the j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, PORT-HARCOURT DIVISION) Ogbebe JCA United Bank for Africa Plc v. Robertson Engineering Ltd 183 a knowledge of PW1 Mr Ekhator. He supplied to the appellant all the documents required for the opening of the account and did not hide the opening of this account from PW1. The b other witnesses for the appellant were bank officials who confirmed the opening of the account after satisfying them- selves that Chief Eneli had the necessary authority to open the account by submitting the Certificate of Incorporation, c the Resolution of the Board, Signatories to the account and passport photographs of the signatories. The trial Judge, Denton-West, J of the Port-Harcourt High Court gave judgment in favour of the respondent and d awarded special damages of N700,000 but declined to award general damages and costs. The appellant was dissatisfied with this decision and ap- pealed against it. The learned Counsel for the appellant filed e a brief of argument and formulated six issues for determina- tion as follows:– “(1) Whether the learned trial Judge was right in upholding the respondent’s claim after she found as a fact that Account f No. 7292 was opened by persons known to the respondent to wit, the respondent’s de facto Director/Majority share- holder, which finding was contrary to the respondent’s case that the said Account was opened by unknown persons. g (2) Whether the respondent pleaded and proved strictly its claim of special damages of N700,000 as required by law. (3) Whether on the totality of evidence, the respondent estab- lished a claim of negligence against the appellant. h (4) Whether the defence of Estoppel was inapplicable in this case. (5) Whether the learned trial Judge was right in finding the ap- pellant liable for an act carried out intra vires by the re- i spondent’s officers. (6) Whether on the totality of evidence the respondent was enti- tled to Judgment.” The respondent also was dissatisfied with part of the judg- j ment and filed a cross appeal. The learned Counsel for it

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, PORT-HARCOURT DIVISION) Ogbebe JCA 184 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) filed the respondent’s brief which incorporated arguments a on the cross appeal. The brief identified the following issues for determination in respect of the main appeal:– “(1) Whether the mere fact that the one-time Chairman or Direc- b tor of the plaintiff/respondent Company opened the dis- puted account absolved the appellant Bank from responsi- bility for negligence, if they did not follow the procedure laid down by law for opening bank accounts for Limited Li- ability Companies. c (2) Whether the plaintiff/respondent proved the award of N700,000 as special damages. (3) Whether the appellant was negligent in opening Account No. 7292 in the name of the plaintiff/respondent Company. d (4) Whether the defense of estoppel was available to the appel- lant. (5) Did the trial court find the appellant liable by reason of the appellant’s negligence in opening the account or because of e an act carried out intra vires by the respondent’s Officers. (6) Whether the respondent proved its case on the balance of probabilities.” f The issues for determination in the cross appeal can be found at page 11 of the respondent’s brief and they read as follows:– “(1) Whether from the pleadings and evidence the respondent was entitled to general damages; and g (2) Whether the trial Judge exercised her discretion judiciously and judicially in refusing to award the respondent costs of the action.” The appellant/cross-respondent filed a reply and cross- h respondent’s brief and formulated two issues in the cross appeal as follows:– “(1) Whether in the circumstances of this case the respon- dent/cross-appellant is entitled to general damages. i (2) Whether the trial court is bound in law to award the respon- dent/cross-appellant cost of the action, a prayer not specifi- cally asked for.” The court has always frowned at the proliferation of issues. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, PORT-HARCOURT DIVISION) Ogbebe JCA United Bank for Africa Plc v. Robertson Engineering Ltd 185 a (See the case ACB Plc v Emostrade Ltd (1998) 2 NWLR (Part 536) 19.) It is my view that Issue 3 in the appellant’s brief which is the same as Issue 3 also in the respondent’s brief, if resolved, disposes of this appeal. I shall therefore b consider that issue only. Under Issue 3, the learned Counsel submitted that the re- spondent in his action for negligence must prove that the ap- pellant owed it a duty of care and that the appellant was in c breach of that duty resulting in damages. He referred to the case of UBA Ltd v Achoru NWLR (Part 16) 254. The learned Counsel submitted that the appellant was not negli- gent in opening the disputed account because all the docu- d ments they needed to open the account were supplied includ- ing exhibit H which contains the share holding structure of the respondent company. The appellant therefore did show average amount of competence with the proper discharge of e the duties of a banker. The learned Counsel referred to the judgment of the trial court at page 138 of the record, lines 11–19 which will be copied later in this judgment and sub- mitted that with that holding, the learned trial court was f stretching the duty of care on the appellant too far and should have dismissed the respondent’s case. In reply to this the learned Counsel for the respondent sub- mitted that the question of whether or not the appellant was g negligent is the crux of the respondent’s case at the trial court and the appellant was clearly negligent from the evidence be- fore the trial court. The learned Counsel said that DW1 who actually opened the account in collusion with his friends who were officials of the appellant bank thought that the case was h about his contrived disagreements with PW1 about the own- ership of the respondent. He said that DW2 and DW3 did not take necessary references before opening the account because of their relationship with DW1. He said that the trial Judge i made necessary findings of fact of negligence which should not be disturbed by an Appellate Court. He referred to the case of Egonu v Egonu (1978) 11–12 SC 111. The crux of this case is the question of whether or not the j appellant bank was negligent in opening the disputed

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, PORT-HARCOURT DIVISION) Ogbebe JCA 186 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) account. At page 138 of the record of appeal the trial Judge a held as follows:– “The defendant in this case before me should have been entitled to a dismissal of this action but for the fact that DW1 in his evidence indicated that he as the majority shareholder was acting without b reference to his Board of Directors comprising as at that time, of himself and PW1 as per the particulars of Directors before the Court and that he informed the plaintiff’s representative about it, instead of them as a Board of Directors of the plaintiff company c taking out the resolution.” The implication of this holding is that the respondent from its evidence did not establish its claim of negligence but for the evidence of DW1 who claimed to be the majority share- d holder of the respondent company. The only reason why the trial court held the appellant to be negligent can be found at page 129 of the record where it held as follows:– e “But this unfortunately from the evidence before the Court was not the position. From the evidence before the Court, there is no doubt that Chief Eneli is indeed a very successful businessman and is thus also regarded in the banking industry. There is also no doubt that he is an accomplished businessman and a close trusted Friend f of DW3. Hence even though as DW2 and DW3 testified, even though they were put on enquiry as a result of the Memorandum and Articles of Association bearing the name of Mr and Mrs Robert Ekharto, reference was only taken of Chief Eneli and from Chief Eneli in opening the account in the name of the plaintiff g company. The DW3 said he was put on enquiry, but he failed to exhaust this enquiry he was put on by checking out fully on the company, and rested content on reference about Chief Eneli who he claimed to be one of their first class and undoubted customers, h whom he has known since 1971, ever before the account 7292 was opened in 1983.” The question is can it truly be said that the appellant was negligent in opening the account when the DW1 was inves- i tigated and found to be a very credible customer and reliable businessman? The answer lies in what the trial court itself found at page 132 of the record which reads:– “There is no doubt that Chief Eneli is indeed the majority share- holder of the plaintiff company. This is quite obvious from exhibit j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, PORT-HARCOURT DIVISION) Ogbebe JCA United Bank for Africa Plc v. Robertson Engineering Ltd 187 a G, Rejects 1, 2 and 3 could have buttressed same but since they were tendered and rejected, this Court would not take cognisance of them. But suffice it to state that the DW1 testified that he owned 51% of the plaintiff company and this was not controverted b by the plaintiff’s witnesses.” It was clear that DW1, Chief Eneli supplied all the informa- tion and documents required to open the account including the Board resolution, exhibit K. The fact that the trial court c found that exhibit K was not a proper Board resolution was not the doing of the appellant. DW1 asserted that he opened the account with the full knowledge of PW1 and that state- ments of account were being sent to a Post Office Box No. d under the control of PW1. PW1 himself also admitted that he got to know of this account through a statement of ac- count sent to the Box No. of the company in Lagos. This showed clearly that PW1 was not ignorant of the account e and if the trial court had adverted its mind to this fact it would not have found in favour of the respondent as it did. The DW1 was a reliable customer and the appellant had no cause to doubt him after he had supplied all necessary documents in a company in which he was the majority f shareholder. One very strange thing in this case is the failure of the re- spondent to sue DW1 along with the appellant if indeed g DW1 fraudulently opened the account. Why did the respon- dent choose to leave him out? Only PW1 has the answer to that question. The summary of all I am trying to say in this judgment is h that DW1 who was shown to be the majority shareholder of the respondent supplied all the documents that the appellant required before opening the disputed account. The trial court was therefore wrong in holding that the appellant was negli- gent. From the evidence before the trial court and the analy- i sis thereof I am satisfied the respondent did not prove negli- gence and therefore its case against the appellant should have been dismissed. My conclusion disposes of the cross appeal which com- j plained about the non-award of general damages and costs.

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Since my conclusion is that the respondent’s case should a have been dismissed it follows naturally that the respondent would not have been entitled to special damages, general damages or costs before the lower court at all. In the result, I allow the main appeal and set aside the decision of the trial b court in its entirety. In its place I dismiss the respondent’s claim before the lower court. The respondents/cross- appellant’s appeal is dismissed by me as lacking in merit. The respondent shall pay costs of N2,000 to the appellant in c the court below and N5,000 to the appellant in this Court. NSOFOR JCA: I have had the privilege of reading before now in draft the judgment of my Lord, Ogbebe, JCA just de- livered. I agree with his reasoning and conclusion. I too do d allow the main appeal and do hereby dismiss the cross ap- peal. I abide by the consequential order as to costs. IKONGBEH JCA: I agree. Appeal allowed; cross appeal dismissed. e

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Mat Holdings Ltd v. United Bank for Africa Plc 189 a Mat Holdings Limited and another v United Bank for Africa Plc b COURT OF APPEAL, KADUNA DIVISION SALAMI, MOHAMMED, OMAGE, JJCA Date of Judgment: 3 JUNE, 2002 Suit No.: CA/K/288/2000 c Banking – Bank draft – Undated bank draft – Effect of Facts The plaintiff/respondent claimed against the defen- dants/appellants the sum of N511,401.68 as balance due of d money advanced to the appellants by the respondent in a bridging loan transaction; 21% interest on outstanding loan and 10% interest from the date of judgment till liquidation. The action was brought under the undefended list upon re- e ceipt of the claim, the appellants filed a notice of intention to defend. In the affidavit in support of the notice, the appel- lants averred that they presented several cheques in payment of the bridging loan of N250,000 secured from the respon- f dent; that the interest charged by the respondent was high and the appellants sought a reduction of the loan. They also alleged that a payment by cheque of N150,000 was made by them on 22 January, 1991, and a further payment of g N200,000 was made in 1992 to the respondent which in the appellants’ view should leave in credit to them the sum of N7,000. The appellants exhibited a letter dated 6 March, 1992 said h to be addressed to the respondent. In the letter, the appel- lants urged the respondent’s Manager to grant to the appel- lant 50% waiver of the indebtedness to the respondent, after which if the condition is fulfilled, the appellants would pay N i the sum of 200,000. No evidence was however produced of the acceptance of the appellants’ proposition by the re- spondent and no evidence was supplied by the appellants of the payment into the debt account which the appellants maintained with the respondent of the said sum of j N200,000.

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In its affidavit in support of its claim, the respondent a averred that all the cheques issued by the appellants in al- leged payment of the debt were dishonoured and none was credited. b On the day fixed for hearing of the action, neither the ap- pellants nor their Counsel was in court and as no explanation was proffered for their absence the action was entertained. The trial court, in its judgment found that the affidavit in c support of the notice of intention to defend contained virtu- ally no defence. Judgment was therefore entered in favour of the respondent in the sum of N511,401.68 plus 21% interest per annum from 20 May, 1996 to date of judgment and thereafter at the rate of 10% until the whole judgment debt d was fully satisfied. The appellants were dissatisfied with the judgment and they appealed to the Court of Appeal. e Held – An undated draft is inchoate or invalid and could not form basis for giving any credit or consideration to the party issu- ing same. f Appeal dismissed

Cases referred to in the judgment g Nigerian Agbaje v Ibru Sea Food Ltd (1972) 2 SC 50 Agro Millers Ltd v CMB (1997) 10 NWLR (Part 525) 469 h BAC Enterprises Ltd v Car Ploetner (Nigeria) Ltd suit no. FCA/K140/83 of 15/3/84 (Unreported) FMG v Sani (1990) 4 NWLR (Part 147) 688 Franchal Nigeria Ltd v Nigeria Arab Bank Limited (1995) 8 i NWLR (Part 412) 176 Globe Fishing Industries Ltd v Coker (1990) 7 NWLR (Part 162) 265 Ikabala v Ojosipe (1988) 4 NWLR (Part 86) 119 j

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Mat Holdings Ltd v. United Bank for Africa Plc 191 a John Holt and Company (Liverpool) Ltd v Fajemirokun (1961) 1 All NLR 492 Muobike v Nwigwe (2000) 1 NWLR (Part 642) 620 b Odife v Aniemeka (1992) 7 NWLR (Part 251) 25 Sodipo v Lemminkainen OY (No. 2) (1986) 1 NWLR (Part 15) 220 UNN v Orazulike Trading Co Ltd (1989) 5 NWLR (Part c 119) 19 Foreign Jacob v Booth’s Distillery Co (1901) 85 L.T. 262; (1900 03) d All ER 1427 Nigerian statute referred to in the judgment Evidence Act Cap 112 Laws of the Federation of Nigeria, 1990, section 151 e Rules of court referred to in the judgment Nigerian f Court of Appeal Rules, 1981 (as amended) Cap 62 Laws of the Federation of Nigeria, 1990, Order 6 High Court of Kano State (Civil Procedure) Rules, 1988, Order 23 Rule 3(1) g Foreign Judicature Act, 1875, Order XIV Rule 1(a) Counsel h For the appellants: Abubakar Malami, Esq. For the respondent: U.A. Mohammed, Esq. Judgment i SALAMI JCA: (Delivering the lead judgment) In the trial court, the plaintiff took out a writ of summons, claiming against the defendant the sum of N511,401.68; 21% interest from 20 May, 1996 to the date of judgment and 10% interest j until liquidation of the judgment debt. The application for

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Salami JCA 192 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) the writ of summons, brought under the undefended list, was a supported by affidavit alleging that the defendant has no de- fence to the action. The defendants, on the service of the writ of summons on them, caused a notice of intention to de- b fend to be filed. But on the day fixed for hearing of the ac- tion, 30 September, 1996, neither the defendants nor their Counsel was in court and as no explanation was proffered for their absence whereupon the action was entertained and judgment entered in favour of the plaintiff. The defendants c on their part explained that they wrote to the court explain- ing their absence but the clerk of court failed or neglected to bring their letter to the attention of the learned trial Judge. I do not think that it is proper for Counsel to seek, from the d comfort of their chambers, to conduct court proceedings by writing letters asking for adjournments. In the good old days, if Counsel for whatever reason cannot go to court, the practice is to send another Counsel to hold his brief and ask e for adjournment. If the practice of correspondence, recently rearing its ugly head, is allowed to gain currency, in no dis- tant future our courts will become court by correspondence as Counsel would start conducting other proceedings such as f adoption of briefs by correspondence. The defendants should, therefore, count themselves lucky that the learned trial Judge entered judgment for the plaintiffs in respect of the reliefs claimed by it on account that the affidavit sup- porting the notice of intention to defend contains no defence. g Learned Counsel could have struck out the notice of inten- tion to defend in the absence of the givers of the notice or their Counsel to canvass same. The defendants were unhappy with the judgment, and be- h ing dissatisfied, appealed to this Court, on three grounds of appeal. Pursuance of the memorandum of appeal, briefs of argument were filed and exchanged in accordance with the provisions of Order 6 of the Court of Appeal Rules Cap 62 i Laws of the Federation of Nigeria, 1990. At the hearing of the appeal, learned Counsel representing the parties adopted and placed reliance on their respective briefs of argument. The appellants’ brief dated 16 November, 2000 was filed apparently within time on 17 November, 2000. The j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Salami JCA Mat Holdings Ltd v. United Bank for Africa Plc 193 a respondents’ brief, filed out of time on 30 July, 2001, was deemed to be properly filed and served on 12 November, 2001. b The appellants’ brief contained three issues for determina- tion. The three issues identified as calling for determination in their brief read as follows:– “1. Whether the appellants have disclosed a good and triable defence or issue to warrant being let to defend the suit. c 2. Whether by the conduct of the plaintiff in keeping mute for 3½ years and collecting money from the appellants as pro- posed and asserted in exhibit M.6 of the notice of intention to defend does not constitute estoppel and whether the ap- d pellants cannot plead estoppel by inaction and therefore amounting to a waiver. 3. Whether from the affidavit evidence which is accompanied by various documents as exhibits thereto the presiding trial Judge ought not to look at them and evaluate them before e reaching any conclusion.” At the hearing of the appeal, learned Counsel for appellants related the issues to the grounds of appeal by relating Issue 1 to Ground 2; Issue 2 to Ground 3 and Issue 3 to Ground 1 of f the grounds of appeal. The respondent’s brief identified only one issue encompassing the three grounds of appeal as call- ing for determination. The formulation read as follows:– “Whether the notice of intention to defend filed by the appellants g disclosed a defence on merit to the respondent’s claims.” The defendants (hereinafter referred to as “appellants”) frame three issues. Issue one is respectfully a variant of the appellant. Issue 3 which I think is not a valid or good issue. h Issue 3 is not well thought out because it appears to me aca- demic as there is nothing on the face of the record showing or portraying that the learned trial Judge did not look at and evaluate the affidavit in support of the notice of intention to i defend as well as documents exhibited thereto. Indeed, the learned trial Judge after stating the claim of plaintiff (herein- after referred to as the “respondent”) observed thus:– “The defendant filed a notice of intention to defend the suit. The affidavit supporting the intention to defend contains virtually no j defence.”

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This is clearly a proof that the learned trial Judge within the a limit of assistance offered him by Counsel considered the affidavit in support of the notice of intention to defend and found that it contains no defence on the merit as required by b Order 23 Rule 3(1) of the Kano State High Court (Civil Pro- cedure) Rules, 1988 and rejected the defence allegedly con- tained therein. It is not enough for Counsel to dump materi- als on the court and refuse to go to court to advocate their position. It is within the right of the learned trial Judge to c consider any defence accept or reject it. But the rejection of same does not imply refusal, failure or neglect to “look at and evaluate them”. d On the other hand, it is not clear why learned Counsel for the respondents relies on a single issue when his brief in the sole question canvassed issues ranging from appraisal and evaluation of evidence to estoppel by conduct. I do not know how the learned Counsel for respondent whose habit it has e become to muddle things expect the court to assist him in sifting argument in respect of one issue from those relevant to the other. He is lucky his client is not the appellant. I would have struck out its brief and dismiss the appeal. It f seems learned Counsel are not prepared to learn or comply with simple rules of procedure such as those contained in the Court of Appeal Rules Cap 62. Having concluded my discussion on the preliminaries, I g propose to commence the consideration of the appeal with the only issue calling for determination which is appellants’ Issue 1 which is co-terminus with the respondent’s only formulation. h In respect of the issue, appellants postulated that para- graphs 2(c), (d) and (j) of the affidavit in support of the ap- plication for issuing the writ of summons contain the proof of respondent’s claim. But contended that the assertions i were denied by paragraph 3 of the affidavit in support of the notice of intention to defend wherein it was alleged that N150,000 was paid on a cheque drawn on 22 November, 1991 which averment was not countered by the respondent. Learned Counsel further argued that it was also averred in j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Salami JCA Mat Holdings Ltd v. United Bank for Africa Plc 195 a paragraph 3(f) of their affidavit in support of the notice of intention to defend that a further repayment of N200,000 was made coupled with a request for a 50% waiver which averments were equally not denied by the respondent. b Learned Counsel in the appellants’ brief referred to para- graph 3(g) of their affidavit and argued that some officers of the respondent were informed of the appellants’ position and they verified and found the same to be true his client should c have been credited with the waiver. Learned Counsel then contended that if the various amounts stated above reflect the correct position of appellants’ account respondent’s ex- hibit 7, the statement of account, would have no probative d value. Learned Counsel then read in the appellants’ brief provisions of Order 23 Rule 3(1) of the Kano State High Court (Civil Procedure) Rules, 1988 and asked what then is “a defence on the merit” within the meaning of Order 23 Rule 3(1) (supra). Learned Counsel then read to the court e from the cases of Sodipo v Lemnikainen OY and another (1986) 1 NWLR (Part 15) 220, 231; FMG v Sani (1990) 4 NWLR (Part 147) 688, 699 and the unreported decision of this Court FCA/K/40/83 BAC Enterprises Ltd v Car Ploetner f (Nigeria) Ltd delivered on 15 March, 1984. Learned Coun- sel also referred to the case UNN v Orazulike Trading Co Ltd (1989) 5 NWLR (Part 119) 19, 30. Thereafter learned Counsel submitted that the appellants’ g affidavit discloses these triable issues:– “a. A dispute to the amount owed by the appellants in view of the averment that N150,000 and N200,000 were paid in re- spectively which ought to drastically reduce appellants’ in- debtedness. h b. That exhibit M6 has equally altered the position of the ap- pellants’ indebtedness to the bearest minimum and the con- tents of exhibit M6 was not controverted. c. That exhibit 7 of the supporting affidavit to the claim was i not a true reflection of the transaction and is entitled to a full statement of account which was not given to the appel- lants despite demand for it.” He urged upon the court that the above issues have passed the test and ought to have been heard on the general cause j list.

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The question is, has the appellants’ affidavit as well as the a documents attached thereto shown a triable issue or thrown some doubt on the case of the respondent? I do not think that the affidavit raised, notwithstanding the plethora of authori- b ties marshalled in appellants’ brief of argument, serious facts which call for the action being transferred from the unde- fended list to the general cause list as suggested by the ap- pellants. Let me quickly dispose of the averment contained c in paragraph 3(g) of the appellants’ affidavit. I am of the firm view, with respect, that discussion with unnamed offi- cials of the respondent has little or no evidential value. I agree with learned Counsel for respondent that it is com- d mon ground that the appellants are owing the respondent. It is, therefore, trite that a party who has admitted indebtedness to the other has duty to amply demonstrate to the trial court how the indebtedness admitted was liquidated. In this con- e nection, the appellants relied on paragraph 3(b), (e), (f ), (g) and (i) of the affidavit in support of the notice of intention to defend. On scanning the affidavit in support of the notice of intention to defend particularly paragraphs 3(b), (e), (f ), (g) f and (i) I find paragraphs 3(e) and (f) pertinent and propose to deal with them serially. In paragraph 3(c) appellants averred as follows:– g “(e) That on the 22 October, 1990 Ekenna, Ekenna and Co Bar- risters and Solicitors of 15A Beirut Road, Kano wrote a let- ter of demand of the outstanding balance to which a reply was written and a proposal for payment was made and con- h trary to the contents of paragraph 2(h) of the affidavit in support of the writ a cheque no. 573121 of Nigeria Interna- tional Bank Limited Kano Branch for N150,000 dated 22 November, 1991 was honoured and credited to his account. A copy of the said cheque is herewith annexed and marked i as exhibit M4 while the reply to Ekenna, Ekenna and Co, is herewith annexed and marked as exhibit M5.” Paragraph 2(h) of the affidavit in support of the application for writ of summons deposed to by respondent which j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Salami JCA Mat Holdings Ltd v. United Bank for Africa Plc 197 a averment in paragraph 3(e) above is intended to refute reads as follows:– “(h) That thereafter the second defendant, Muhammad Tudun Wada, made part payments to the plaintiff by cheques b drawn on Nigerian International Bank Limited dated 16 De- cember, 1991 in the sum of N120,000; 30 December, 1991 in the sum of N100,000 and 17 January, 1992 in the sum of N100,000 and all the three cheques bearing his usual sig- c natures bounced on (sic) Nigeria International Bank Ltd F1 Airport Road, Kano. Copies of the three bounced cheques have been shown to me and are herewith attached and marked as exhibit 5.” (Italics mine.) A comparison of the two averments does not disclose that d the respondent alleged that a cheque for N150,000 was dis- honoured nor any of the three cheques claimed to have been dishonoured dated 22 November, 1991. It seems to me that the appellants respectfully chose to pursue shadow rather e than the substance of this case. They impliedly, by their ominous silence, admitted that the three cheques totalling N320,000 averred to in paragraph 2(h) of the respondent’s affidavit were tendered for payment and were not honoured f by appellants’ bank. An uncontroverted affidavit evidence is deemed admitted. The court is to act on such unchallenged or uncontroverted averment. (See A.M.F Agbaje v Ibru Sea Food Ltd (1972) 5 SC 50 and Globe Fishing Industries Lim- g ited and others v Chief Folarin Coker (1990) 7 NWLR (Part 162) 265, (1990) 11 SCNJ 56, 78.) I now turn on appellants’ paragraph 3(f) which, in my re- h spectful view, is the linch-pin of their defence. It reads thus:– “(f) That on the 16 March, 1992, based on an earlier discussion the second defendant had with the Managing Director of the plaintiff at the Headquarters Lagos, the defendants wrote i the plaintiff a letter asking for 50% waiver and since then the plaintiff kept mute on the matter which made the defen- dants to think that the request made was granted and that the said account ought to have been credited in excess of N7,000. The said letter is annexed herewith and marked as j exhibit M.6 while the payment transfer form, for the sum of

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N200,000 additionally paid is herewith annexed and a marked exhibit M.7.” (Italics mine.) There is no document or documents marked respectively as exhibits M.6 and M.7. But if the appellants meant pages b 25–26 and 27–28 respectively to be M.6 and M.7, I will dis- cuss both of them presently. Exhibit 7 can conveniently be described as virtually blank and is of no evidential value. The two documents at pages 27 and 28 are undated and incom- c plete. For instance, the value of the draft in figure is not stated at page 28 and is marked advise copy and portion reserved for official use at page 27 is not treated. Before proceeding to ex- hibit 6 may I rhetorically ask whether the appellants’ account d would still be in credit in excess of N7,000 inspite of the dis- honouring of their cheques worth N320,000? Exhibit M6 is a letter dated 5 March, 1992. It seems to be the pivot of appellants’ defence. I propose to read para- e graphs 7, 8 and 9, and the footnote to which I have been re- ferred by the learned Counsel for respondent. They read as follows:– f “7. The Managing Director, during the interview he granted the undersigned as mentioned above, graciously offered 25% which according to our understanding, would reduce our indebtedness to N289,500.15 and which, after the payment of the N200,000 now available with us, would still leave an g outstanding debt balance of N89,500.15 which would cer- tainly take sometime before we could settle finally. 8. We, therefore, request you to kindly consider our original request for a 50% waiver as a means of settling this matter h once and for all because we have not been able to come up with any additional funds in the interim between the meet- ing with the Managing Director and today. 9. Alternatively, however, you wish to consider, if you are un- able to accommodate our request, the re-scheduling of any i outstanding amount (the 89,500.15 indicated above), to De- cember, 1992 in frozen state without interest. We believe that at that time we would have overcome most or even all our difficulties and would be in a position to settle any amounts outstanding. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Salami JCA Mat Holdings Ltd v. United Bank for Africa Plc 199 a We look forward to your usually kind considerations and attention. Yours faithfully, b pp: IMAR Nigeria Limited Mohammed A. Tudun Wada, (Chief Executive) NB: Photocopy of our draft for N200,000 is hereby at- c tached which we would pay to our account with you as soon as we are appraised of your position on our request.” What emerges from the nota bene or the note at the foot of the d letter is that appellants sent to the respondent a mere photo- graphic copy of the draft allegedly drawn for N200,000. The appellants merely sent a photographic copy of the draft. The release of the draft itself to respondent was subject to the ac- e ceptance of the proposal contained in their letter, exhibit M6, which, according to the appellants, the respondent failed to re- act to. Consequently, the said N200,000 draft (if any) was never released to nor credited to the appellants’ account with the respondent. The averment in paragraph 3(f ) of the affidavit f in support of the notice of intention to defend to the effect that additional N200,000 had been paid and has not been reflected in their account with the respondent is false. It is a blunt distor- tion of fact. Further, as observed earlier, an undated draft is in- g choate or invalid and could not form basis for giving any credit or consideration to the appellants. It is doubtful if the appellants could argue validly that the re- spondent stood them up for more than three years in respect of h their exhibit M.6. It is true that business correspondence should be attended to promptly and, if not, it may most probably make the other side to change its position. This is estoppel by con- duct. But estoppel by conduct is a shield and not a sword. It i can only be used as a defence to thwart a claim and not a foun- dation for commencing an action. (See Ikabala v Ojosipe (1988) 4 NWLR (Part 86) 119.) This equitable defence is only available to a defendant and not a foundation for a claim. In any case, the appellants were not kept in suspense or waiting as j being contended. They made forwarding of their draft to the

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Salami JCA 200 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) respondent conditional upon its acceptance of their proposal. a Since the bank did not call for the draft which the appellants by their letter, exhibit M.6, admitted retaining it was abundantly clear to them that the proposals were unacceptable to the re- spondent. In any case they gave no consideration for the b waiver or novation sought and it does not avail them. The respondent, contrary to the appellants’ wrong conten- tion, is not disputing payment of N150,000 to it. The appel- lants on their own showing, failed to send the draft for c N200,000 to the respondent. They also are not contesting that N320,000 paid to the respondent by three cheques was unpaid owing to dishonour of the relevant cheques in para- graph 2(h) of the affidavit as deposed to in affidavit in sup- d port of the application for the writ of summons. The respondent’s claim on the writ of summons it caused to be issued on 20 May, 1996 is for N511,401.68. The dis- honoured cheques between them amounted to N320,000 e when added to the withheld draft drawn in favour of the re- spondent for N200,000 puts appellants’ indebtedness to the respondent at N520,000. Clearly therefore, there is no triable issue to go to the jury. The test set up in the case of FMG v f Sani (supra) per Uwais, JSC (as he then was) that:– In that regard a complete defence need not be shown it will suffice if the defence set up shows that there is a triable issue or question or that for some other reason there ought to be a trial. g is not met in the circumstance of the instant appeal. The rules of court providing for cases to be placed on unde- fended list are deliberately designed to allow for quick dis- pensation of justice to avoid unnecessarily clogging our legal h system with proceedings which could otherwise have been easily and quickly disposed of. Although the need for fair hearing should not be sacrificed on the altar of expediency, the procedure should not be frustrated or thwarted by fanciful i or general defences directed at frustrating the plaintiff out of judgment he well deserves. A case should not be transferred from undefended to the general cause list merely on the whims and caprices of a defendant who merely finds the words “fair hearing” a convenient as well as handy slogan. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Salami JCA Mat Holdings Ltd v. United Bank for Africa Plc 201 a The position of the law relating to general denial is no longer in doubt as could be seen in the case of John Holt and Company (Liverpool) Ltd v Fajemirokun (1961) 1 All NLR b 492 where it was held that the requirement of Order III Rule 12 of the Supreme Court (Civil Procedure) Rules (which is similar to Order 23 Rule 3(1) of the Kano State High Court (Civil Procedure) Rules, 1988 is not satisfied by a general c statement in the affidavit that the defendant “has a good de- fence to the action”. And the court will refuse to allow a de- faulting defendant to defend an action brought on the unde- fended list if such general averment is unsupported by par- ticulars which if proved would constitute such a defence. d It is not every time the defendant denies that the matter will be transferred from undefended to the general cause list. To succeed the defence must raise a triable question or for e some other reason there ought to be a trial. (See FMG v Sani (supra); Sodipo v Lemminkainen OY and another (No. 2) (supra) and , Nsukka v Orazulike Trad- ing Co Ltd (1989) 5 NWLR (Part 119) 19, 30 cited in the f appellants brief.) In University of Nigeria case (supra), the case of Jacob v Booth’s Distillery Company (1901) 85 L.L. 262, (1900 03) All ER 1427–1428 was cited with approval. Lord James of Hereford said in that judgment that:– g “The view which I think ought to be taken of Order XIV is that the Tribunal to which the application is made should simply determine ‘Is there a triable issue to go before a jury or a court’. It is not for that Tribunal to enter into the merits of the case at all.” h Order XIV Rule 1(a) of the Judicature Act, 1875 which was considered in Jacob’s case is in pari materia with Order 23 Rule 3(1) of Kano State High Court (Civil Procedure) Rules, 1988. It also requires the defendant to show a “good defence to the action on the merits to entitle a defendant to defend”. i (See also the case Agro Millers Ltd v CMB (1997) 10 NWLR (Part 525) 469 and Franchal Nigeria Ltd v Nigeria Arab Bank Limited (1995) 8 NWLR (Part 412) 176.) A mere claim or assertion simpliciter may not qualify as “a good de- j fence to the action on the merit to entitle a defendant to

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Salami JCA 202 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) defend” or as a triable issue or question “to go before a jury a or a court”. The averments or material allegations contained in the affidavit in support of the notice of intention to defend should be substantial which if not challenged or contro- b verted would entitle the defendant to judgment otherwise the courts will be saddled by unnecessary flimsy issues. I find support in the dictum of my learned brother, Fabiyi, JCA in Muobike v Nwigive (2000) 1 NWLR (Part 642) 620, 636 c where he stated thus:– “A triable issue is an uncontroverted or uncontradicted material al- legation contained in the affidavit in support of the notice of inten- tion to defend an action brought under undefended list which averment requires further investigation by the trial court to unearth d its veracity or otherwise. Such material allegation must demon- strate a strong or at least a defence which cannot be dismissed with a wave of hand.” After my appraisal and evaluation of the material allegations e or averments contained in the affidavit in support of the no- tice of intention to defend together with the documents thereto placed before the trial court I find no justification whatsoever for transferring the suit from undefended to the f general cause list. The appellants’ affidavit does not disclose a defence on the merit to warrant their being entitled to de- fend. I therefore dismiss the appeal and affirm the decision of the learned trial Judge. I make order as to costs which is g assessed at N5,000 for the respondent. MOHAMMED JCA: The judgment of my learned brother Sa- lami, JCA in this appeal was read by me before its delivery today. I am in full agreement with him that there is no merit h at all in this appeal which deserves to be dismissed. The only issue arising for determination is whether or not the averments contained in the appellants’ affidavit in sup- port of their notice of intention to defend the suit really dis- i close a defence on the merit to the suit to justify granting the appellants leave to defend the suit by transferring the same to the general cause list of the lower court for hearing. The learned trial Judge Ubbaonu J (of the blessed memory) j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Mohammed JCA Mat Holdings Ltd v. United Bank for Africa Plc 203 a indeed examined the affidavit in support of the notice of in- tention to defend and said:– “The defendant filed a notice of intention to defend the suit. The affidavit supporting the intention to defend contains virtually no b defence.” This finding of the learned trial Judge is clearly supported by the relevant facts averred in the affidavit in support of the respondent’s claims and the appellants’ affidavit in support c of their notice of intention to defend the suit as carefully analysed in the leading judgment of my Lord Salami, JCA with which I entirely agree. Accordingly I also dismiss this appeal and affirm the d judgment of the lower court with N5,000 costs to the re- spondent. OMAGE JCA: The respondent was the plaintiff in the court below. In a writ of summons dated 13 June, 1996, the re- e spondent claimed against the defendants, now appellants, the following:– (i) “The sum of N511,401.68k, as balance due of money ad- vanced to the defendant by the plaintiff in a bridging loan f transaction. (ii) 21% interest on outstanding loan on the facility from 20 May, 1996 to date of judgment. (iii) 10% interest at court rate from the date of judgment until entire detail is liquidated. The claim was made by the plain- g tiff against the defendants jointly and severally. The claim was made under the undefended list procedure.” Upon receipt of the claim the defendants, now appellants, filed a notice of intention to defend. In the affidavit in support h of the notice, the defendants averred that they presented sev- eral cheques in payment of the bridging loan of N250,000 se- cured from the respondent, that the interest charged by the respondent was high and the defendants sought a reduction of N i the loan, that a payment by cheque of 150,000 was made by it on 22 January, 1991, and a further payment of N200,000 was made in 1992, to the respondent which in the appellants’ view should leave in credit to the appellant the sum of N7,000. The defendants exhibited M6, a letter dated 6 March, j 1992 said to be addressed by the appellants as defendants to

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Omage JCA 204 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) the respondent as the plaintiff in the court below. In the letter, a the appellant urged the respondent’s Manager to grant to the appellants 50% waiver of the indebtedness to the plaintiff, after which if the condition is fulfilled, the appellants will pay to the debt account with the respondent the sum of N200,000. b No evidence was produced of the acceptance of the appel- lants’ proposition to the respondent and no evidence was sup- plied by the appellants of the payment into the account of the said sum of N200,000. c In its affidavit in support of its claim under the undefended list, the plaintiff averred that all the cheques issued by the de- fendants in alleged payment of the debt were dishonoured: and none was credited. At the hearing of the plaintiff’s application d for judgment under the undefended list, the High Court Kano, Coram Ubbaonu, J held on 30 September, 1996, thus; “The defendants filed a notice of intention to defend the suit. The affidavit supporting the intention to defend contains virtually no e defence judgment is entered in favour of the plaintiff against the defendants in the sum of N516,401.068.19 plus 21% interest per annum at bank rate from 20 May, 1996 to date of judgment and thereafter 10% interest per annum at court rate until the whole judgment debt is fully satisfied. The defendants should pay N1,500 f cost to the plaintiff.” It is against the decision that the defendants filed three grounds of appeal and formulated three issues as follows:– (1) “Whether the appellants have disclosed a good and triable g defence or issue to warrant being let in to defend the suit. (2) Whether by the conduct of the respondent/plaintiff in keep- ing mute for 3½ years and collecting money from the appel- lants as proposed and assented in exhibit M6 of the notice h of intention to defend does not constitute estoppel. Whether the appellants cannot plead estoppel by inaction and there- fore amounting to a waiver. (3) Whether from the affidavit evidence which are accompa- nied by various documents as exhibits thereto, the presiding i trial Judge ought not to look at them and evaluate them be- fore reaching any conclusion.” Before I recite the issue formulated by the respondent, I wish first to comment on the issues formulated by the j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Omage JCA Mat Holdings Ltd v. United Bank for Africa Plc 205 a appellants. The appellants failed to state the relationship of the grounds of appeal to the issues numbered 1 to 3, Ground one of the appellants may with some exertion stretch to cover issue one when ground one is regarded as an omnibus b ground only because it is alleged that the judgment is against the weight of evidence. In the commencement page of the argument of the appellants on the issue, on page 5 of the brief, the appellants combined in issue one, the contents of c grounds one and two in the grounds of appeal. And he did not explain it. In Issue 2 of the appellants’ brief they raised the issue of estoppel by conduct. No ground of appeal relates to it. It is provided in section 151 of the Evidence Act Cap 112, that a person who by his conduct acts or omits or inten- d tionally caused or permitted another to believe to be true, a state of fact or event and that other acted on it, the first per- son who offered or his representative will not be allowed to deny the truth of his action or averment made by him. There e is nothing in the ground of appeal filed by the appellants on which the appellants based Issue 2. The appellants cannot and should not be allowed to argue an issue not formulated on the grounds of appeal, filed in their grounds of appeal. f Issue two is therefore struck out. (See Odife and another v Aniemeka and others (1992) 7 NWLR (Part 251) 25 at 42.) There are left on the appellants’ brief only Issues 1 and three to be considered in this appeal by the appellants. My learned brother, I.A. Salami, JCA has dealt fully with the issues in g the appeal I only wish to comment on issue one formulated by the appellant viz:– “Whether the notice of intention to defend filed by the appellants disclosed a defence on merit to the respondents claim.” h The respondent has recorded that the issue formulated by him is from Grounds 1, 2 and 3 of the grounds of appeal. I do not so subscribe. The issue of the appellants is founded only on Ground 2 and 3 of the appellants’ grounds of appeal i as Ground 2 on which Issue 2 is said to be founded does not contain any issue of estoppel alleged by the appellants in Is- sue 2. In consideration of this appeal I prefer the issue for- mulated by the respondent to the two valid issue composed j by the appellants. The respondent’s issue contains and

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Omage JCA 206 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) reflects in my view the essential issue to be determined in a this appeal. Which is:– “Whether the notice of intention to defend filed by the appellants disclosed a defence on merit to the respondent claims.” b I have stated above the claim of the respondents against the appellants. It is a claim by the respondent from the appel- lants in the court below for the sum of N511,401.00k, with interest of 2l% on the main sum. 10% at court rate, in both c cases from the date of filing to the date of judgment, which the court below awarded in favour of the plain- tiff/respondent. In the suit having been placed on the unde- fended list, the appellants/defendants in the court below, filed a notice of intention to defend it with an affidavit and d several annexures. In the affidavit of intention to defend, the defendants now appellants admitted as true the transaction which the respondent deposed took place between the par- ties to create the liability of the defendants to the plaintiff. In e the exhibit M6 dated 6 March, 1992 attached to the affidavit of intention to defend, the appellants admitted severally that it is owing the respondent a sum of money up to N 386,000.20k, but seeks from the plaintiff/respondent a f waiver of 50% of the debt upon which condition the appel- lants promised to pay to the respondent the sum of N200,000. The appellants failed to show any evidence of payment to the respondent of the said sum, and the photo- copies exhibited to the cheques do not show any acknowl- g edgment of the cheques by the respondent. One is left with a conclusion that no agreement to reduce the appellants’ li- ability by 50% was reached consequently no payment of N200,000 was made into the respondent to liquidate the ap- h pellants’ debt. The calculation of the appellants which alleg- edly put them in a credit of N7,000 with the respondent is moonshine. In a hearing under the undefended list procedure, the court i is concerned to see whether or not a triable defence has been manifested in the defendant’s affidavit of an intention to de- fend. Of course the first function of the court is to see whether the plaintiff’s claim discloses a cause of action, by which it is j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Omage JCA Mat Holdings Ltd v. United Bank for Africa Plc 207 a meant whether the plaintiff’s claim discloses any right of claim. In the instant appeal, the court below was justified to conclude on the liability of the defendants. When by the de- fendants’ affidavit, they admitted the claim of the plaintiff, b and the exhibits annexed to the affidavit of defence support the plaintiff’s claim who had averred in his affidavit that the cheques allegedly issued by the defendants were dishonoured. At no time did the defendants deny this in their affidavit, in- c stead the appellants attempted to place the fault on another. The cheques allegedly issued to the respondent by the appel- lants show no record of receipt of payment to any bank. At a glance there is nothing on the affidavit of intention to defend by the appellants which contradicts the averments contained d in the respondent/plaintiffs’ claim for the sum entered. The learned court was right when he ruled that the affidavit of intention to defend by the appellants raised virtually no defence. I agree therefore with my learned brother Salami, e JCA, that the appeal lacks substance and it should be dis- missed. I dismiss it. I abide by any order for cost made in the lead judgment. Appeal dismissed.

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a Akpan Sunday Akpan v Union Bank of Nigeria Plc and another b COURT OF APPEAL, CALABAR DIVISION EDOZIE, EKPE, OLAGUNJU JJCA Date of Judgment: 10 JUNE, 2002 Suit No.: CA/C/177m/98

Mortgage – Sale of mortgaged property – Lis pendens – c What mortgagor must prove to defeat a valid sale Practice and procedure – Lis pendens – Attitude of court

Words and phrases – Lis pendens d Facts Akpan Sunday Akpan, the appellant in this appeal was sued as second defendant with the Union Bank of Nigeria Plc as first defendant by Anthony Oscar Okon the plain- e tiff/respondent in Suit No. HU/186/94 filed in the High Court, Uyo Judicial Division on 14 June, 1994. Prior to the events culminating in the aforesaid suit, the sec- ond defendant/appellant was the owner of the property con- f sisting of a bungalow lying and situate at No. 4 Ewet Street, Uyo, which was covered by a Certificate of Occupancy No. UY/745/82 registered as 57/57/225 at the Lands Registry, Uyo, Akwa Ibom State (hereinafter referred to as “the prop- g erty in dispute or mortgaged property”). As a collateral for a loan facility granted to him by the first defendant/respondent bank, the second defendant/appellant mortgaged the property in dispute to the former, that is, the first defendant/respondent h bank under a deed of legal mortgage dated 30 August, 1984 registered as 5/5/240 at the Lands Registry, Uyo, made be- tween the second defendant/appellant as mortgagor and the first defendant/respondent as mortgagee. By virtue of Clause 6 of the Deed of Legal Mortgage, the mortgagee was entitled i to sell the mortgaged property in the event of default in the repayment of the mortgage debt. Apparently on being intimated by the bank of his indebt- edness under the loan, the second defendant/appellant j

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Akpan Sunday Akpan v. Union Bank of Nigeria Plc 209 a disputed the debt and in furtherance thereto, filed an action, to wit, Suit No. HU/52/93 on 6 April, 1993 against the first defendant/respondent bank to challenge his alleged indebt- edness. That suit was eventually struck out on 21 July, 1994 b for want of diligent prosecution. Meanwhile, in the exercise of its power of sale under the mortgage deed, the first defendant/respondent on 23 April, c 1993 advertised in the Punch Newspaper the property in dis- pute for sale through a public auction slated for 26 April, 1993 and in the public auction conducted on that day, the plaintiff/respondent purchased the property in dispute for a N d consideration of 220,000 (Two Hundred and Twenty Thousand Naira only). On receipt of the amount the first de- fendant/respondent used the sum of N14,889.12 to defray the outstanding mortgage debt and credited the account of e the second defendant/appellant with the balance. The plaintiff/respondent after being given the Certificate of Occupancy and deed of legal mortgage relative to the prop- erty in dispute and assured of the deed of assignment took f steps to recover possession of the property. To this end, through his solicitor, he served a notice of intention dated 9 May, 1993 to recover possession on second defen- dant/appellant who in reaction thereto through a letter by his solicitor challenged the plaintiff/respondent’s claim to title g of the disputed property contending that there was a pending motion to relist his Suit No. HU/52/93 which was struck out on 21 July, 1994. It is in the foregoing circumstances that the plain- h tiff/respondent, by an originating summon filed in court on 14 June, 1994 commenced the action predicating the instant appeal posing for determination in the said summons, sev- eral issues which as paraphrased were whether the first de- i fendant/respondent bank was the legal mortgagee of the property in dispute, if the power of sale had crystallised in its favour, whether the sale of the property by public auction had validly divested the second defendant/appellant of the title to the mortgaged property and vested same on the plain- j tiff/respondent.

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The court below took arguments from all the Counsel rep- a resenting the parties and on 16 July, 1996 adjourned to 15 October, 1996 for judgment. In a considered and well re- searched judgment delivered on that date, 15th October, the b learned trial Judge Udo, J, painstakingly reviewed the affi- davit evidence before him and submissions of Counsel and found in favour of the plaintiff/respondent. Aggrieved by the judgment, the second defen- c dant/appellant lodged the instant appeal with five grounds of appeal which dwelt in the main on issue of lis pendens. Held – d 1. The term “lis pendens” means a pending suit. Jurisdic- tion, power or control which courts acquire over prop- erty in litigation pending action and until final judgment. A suit in equity or common law does not become lis e pendens until service of process. 2. The doctrine of pendente lite nihil innovateur which lit- erally translates to nothing should change during the pendency of an action affects a person who purchases f property, the subject matter of a litigation not because he is caught by the equitable doctrine of notice but because the law does not allow to litigants and give to them pending the litigation rights in the property in dispute so g as to prejudice the opposing party. Thus where a defen- dant alienates the property during the pendency of an ac- tion and the plaintiff succeeds the result of the judgment will overreach such alienation. h 3. Where litigation is pending between a plaintiff and a de- fendant as to their rights over a particular estate, the de- cision of the court in the Suit is binding not only on the litigant parties but also on those who derive title under i them by alienation made pending the suits whether such purchasers had, or had no notice of the pending proceed- ings. However, it must be shown that before the alien- ation of the property, the suit is in full prosecution in the sense that the defendant must have actually been served j

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Akpan Sunday Akpan v. Union Bank of Nigeria Plc 211 a with or must be shown to be aware of the existence of the plaintiff’s summons. 4. For a mortgagor to defeat a valid sale by a mortgagee on b ground of lis pendens he must prove on balance of prob- abilities that at the time of the sale there was a pending suit against the mortgagee in respect of which he the mortgagee was served with the process of court. c In the case of real purchase pendente lite, the plaintiff is to be held to strict proof of the pending suit and such a plaintiff will not be allowed to amend any flaws at the hearing. d 5. Per curiam “In the case in hand, it is common ground by all parties that the property in dispute was sold to the plaintiff/respondent in a public auction conducted on 26 April, 1993 at the in- stance of the first defendant/respondent bank and the prop- e erty conveyed to the purchaser as per the deed of assign- ment dated 9 November, 1995. The second defen- dant/appellant mortgagor alleged that at the time of the sale, he had a pending suit against the first defendant/respondent mortgagee bank. The burden of proof in civil cases rests f upon the party whether plaintiff or defendant who substan- tially asserts the affirmative of the issue: Jack v Whyte (2000) 6 NWLR (Part 709) 266 at 277. The second defen- dant/appellant having alleged the pendency of a suit at the time of the sale of the property in dispute, the burden was g upon him to prove that there was such a pending suit and that the writ of summons in respect of the suit had been served on the defendant/respondent bank.” (See sections 135–137 and 139 Evidence Act.) h Appeal dismissed.

Cases referred to in the judgment i Nigerian Abisi v Ekwealor (1993) 6 NWLR (Part 302) 643 Abusomwan v Mercantile Bank (Nigeria) Ltd (1987) 3 NWLR (Part 60) 196 j Adejumo v Ayantegbe (1989) 3 NWLR (Part 110) 417

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212 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I)

Aderounmu v Olowu (2000) 4 NWLR (Part 652) 253 a Agba v Okogbue (1991) 3 NWLR (Part 204) 391 Agundo v Gberbo (1999) 9 NWLR (Part 617) 71 Ajuwon v Akanni (1993) 1 NWLR (Part 316) 182 b Alakija v Abdulai (1998) 6 NWLR (Part 552) 1 Alegbe v Abimbola (1978) 2 SC 93 Amadi v Okoli (1977) 7 SC 57 c Anyaoke v Adi (1986) 3 NWLR (Part 31) 731 Ayinde v Abiodun (1999) 8 NWLR (Part 616) 587 Bamgboye v Olusoga (1996) 4 NWLR (Part 444) 520 d Barclays Bank (Nigeria) Ltd v Ashiru (1978) 6–7 SC 99 Caribben Trading and Fidelity Corporation v NNPC (1991) 6 NWLR (Part 197) 352 Clay Industries (Nigeria) Ltd v Aina (1997) 8 NWLR (Part e 516) 208 Damina v State (1995) 8 NWLR (Part 204) 513 Ebba v Ogodo (1984) 1 SCNLR 372 f Egbuna v Egbuna (1989) 2 NWLR (Part 106) 773 Elias v Omo Bare (1982) 5 SC 25 Fashanu v Adekoya (1974) 1 All NLR (Part 1) 35 Gbegu v Gbegu (1996) 6 SCNJ 167 g Ikeanyi v ACB Ltd (1991) 7 NWLR (Part 205) 626 Imana v Robinson (1979) 3–4 SC 1 Ivienagbor v Bazuaye (1999) 9 NWLR (Part 620) 552 h Jack v Whyte (2001) 6 NWLR (Part 709) 266 Lekwot v Judicial Tribunal (1997) 8 NWLR (Part 515) 22 Lion Buildings Ltd v Shodipe (1976) Vol. 2 FNLR (Part i 282); (1976) 12 SC 15 Nta v Anigbo (1972) 1 All NLR (Part 2) 74 Nteogwuije v Ikuru (1998) 10 NWLR (Part 569) 267 Nwadike v Ibekwe (1987) 4 NWLR (Part 67) 718 j

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Akpan Sunday Akpan v. Union Bank of Nigeria Plc 213 a Obi v Owolabi (1990) 5 NWLR (Part 153) 702 Odiba v Azege (1998) 9 NWLR (Part 566) 370 Odukwe v Ogunbiyi (1998) 8 NWLR (Part 561) 339 b Ogundiani v Araba (1978) 1 LRN 280 Onibudo v Akibu (1982) 7 SC 60 Onwuka v Ediala (1989) 1 NWLR (Part 96) 182 c Osagie v Oyeyinka (1987) 3 NWLR (Part 59) 144 Oyovbiare v Omamurhomu (1999) 9 NWLR (Part 621) 23 Saidu v State (1982) 9 SC 41 Seismograph v Akporuvo (1974) 6 SC 119 d State v Commission for Boundaries Settlement, Oyo State (1996) 37 LRCN 603

Nigerian statute referred to in the judgment e Evidence Act Cap 112 Laws of the Federation of Nigeria, 1990, sections 135, 136, 137 and 139

Books referred to in the judgment f Black’s Law Dictionary (6ed) Words and Phrases Volume 25a, Paragraph 12, Paragraph 13 g Counsel For the first respondent: Amanim Akpabio, Esq. For the second respondent: Obong Mike Akpabio, Esq. h Judgment EDOZIE JCA: (Delivering the lead judgment) Akpan Sun- day Akpan, the appellant in this appeal was sued as second defendant with the Union Bank of Nigeria Plc as first defen- i dant by Anthony Oscar Okon the plaintiff/respondent in Suit No. HU/186/94 filed in the Akwa Ibom State High Court, Uyo Judicial Division on 14 June, 1994. Prior to the events culminating in the aforesaid suit, the sec- j ond defendant/appellant was the owner of the property

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Edozie JCA 214 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) consisting of a bungalow lying and situate at No. 4 Ewet a Street, Uyo, which is covered by a Certificate of Occupancy No. UY/745/82 registered as 57/57/225 at the Lands Registry, Uyo, Akwa Ibom State (hereinafter referred to as “the prop- erty in dispute or mortgaged property”). As a collateral for a b loan facility granted to him by the first defendant/respondent bank, the second defendant/appellant mortgaged the property in dispute to the former, that is, the first defendant/respondent bank under a deed of legal mortgage dated 30 August, 1984 c registered as 5/5/240 at the Lands Registry, Uyo, made be- tween the second defendant/appellant as mortgagor and the first defendant/respondent as mortgagee. By virtue of clause 6 of the Deed of Legal Mortgage, the mortgagee is entitled to d sell the mortgaged property in the event of default in the re- payment of the mortgage debt. Apparently on being intimated by the bank of his indebt- edness under the loan, the second defendant/appellant dis- e puted the debt and in furtherance thereto, filed an action, to wit, Suit No. HU/52/93 on 6 April, 1993 against the first de- fendant/respondent bank to challenge his alleged indebted- ness. That suit was eventually struck out on 21 July, 1994 f for want of diligent prosecution. Meanwhile, in the exercise of its power of sale under the mortgage deed, the first defendant/respondent on 23 April, 1993 advertised in the Punch Newspaper the property in dis- g pute for sale through a public auction slated for 26 April, 1993 and in the public auction conducted on that day, the plaintiff/respondent purchased the property in dispute for a N consideration of 220,000 (Two Hundred and Twenty h Thousand Naira only). On receipt of the amount, the first defendant/respondent used the sum of N14,889.12 to defray the outstanding mortgage debt and credited the account of the second defendant/appellant with the balance. i The plaintiff/respondent after being given the certificate of occupancy and deed of legal mortgage relative to the prop- erty in dispute and assured of the deed of assignment took steps to recover possession of the property. To this end, through his solicitor, he served a notice of intention dated 9 j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Edozie JCA Akpan Sunday Akpan v. Union Bank of Nigeria Plc 215 a May, 1993 to recover possession on second defen- dant/appellant who in reaction thereto through a letter by his solicitor challenged the plaintiff/respondent’s claim to title b of the disputed property contending that there was a pending motion to relist his Suit No. HU/52/93 which was struck out on 21 July, 1994. It is in the foregoing circumstances that the plain- c tiff/respondent, by an originating summon filed in court on 14 June, 1994 commenced the action predicating the instant appeal posing for determination in the said summons several issues which as paraphrased are whether the first defen- d dant/respondent bank was the legal mortgagee of the prop- erty in dispute; if the power of sale had crystallised in its fa- vour, whether the sale of the property by public auction had validly divested the second defendant/appellant of the title to e the mortgaged property and vested same on the plain- tiff/respondent. The summons then concluded with the fol- lowing prayers:– “1. A declaration that the exercise of the power of sale by the f first defendant as legal mortgagee of the property at No. 4 Ewet Street, Uyo, Akwa Ibom State of Nigeria is legal and valid. 2. A declaration that the plaintiff is the owner of property ly- g ing and situate at No. 4 Ewet Street, Uyo, Akwa Ibom State, No. 44/745/82 and registered as 57/57/225 at the lands reg- istry at Uyo, Akwa Ibom State of Nigeria, by virtue of pur- chase of the said property at a public auction carried out by the first defendant on the 26 April,1993. h 3. An order granting possession of the said property at No. 4 Ewet Street, the capital city of Uyo, Akwa Ibom State of the Nigeria to the plaintiff. 4. An order directing the first defendant to credit the plaintiff’s i accounts with the first defendant with the interests accru- able on the sum of N220,000 (Two hundred and twenty thousand Naira only) presently in the custody of the first de- fendant, calculated at the prevailing banking interest rate or such other rate as the court may deem fit until this action is j finally determined.”

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In support of the originating summons, the plain- a tiff/respondent filed:– (a) An affidavit dated 14 June, 1994 sworn to by him with exhibits A to F. b (b) A further affidavit of 4 March, 1996 with exhibit A. In its defence, the first defendant/respondent filed:– (a) A counter affidavit sworn to by its advances officer, Nkereuwem Dickson Akpabio. c (b) An additional counter affidavit sworn to by John Dickson Ekwere a legal practitioner for the defen- dant/ respondent with exhibits A–D. d On his part, the second defendant/appellant relied on:– (a) A counter affidavit sworn to by him on 30 June, 1996 with exhibit A. (b) Reply of the second defendant to the additional e counter-affidavit of the first respondent filed on 17 July, 1996 under questionable circumstances as will be shown later in this judgment. The court below took arguments from all the Counsel repre- f senting the parties and on 16 July, 1996 adjourned to 15 Oc- tober, 1996 for judgment. In a considered and well re- searched judgment delivered on that date 15 October, the learned trial Judge Udo, J, painstakingly reviewed the affi- g davit evidence before him and submissions of Counsel and found in favour of the plaintiff/respondent encapsulating his findings thus:– Consequently, I make the following declarations:– h “(1) The exercise of the power of sale by the first defendant as legal mortgagee of the property at No. 4 Ewet Street, Uyo, Akwa Ibom State of Nigeria is legal and valid. (2) The plaintiff is the owner of the property lying and situate at No. 4 Ewet Street, Uyo Akwa Ibom State covered by i Certificate of Occupancy No. UY/745/82 and registered as 57/57/205 at the lands registry at Uyo, Akwa Ibom State of Nigeria by virtue of purchase of the said property at a pub- lic auction carried out by the first defendant on the 26 of April, 1995. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Edozie JCA Akpan Sunday Akpan v. Union Bank of Nigeria Plc 217 a (3) I hereby grant possession of the building at No. 4 Ewet Street, Uyo, Akwa Ibom State to the plaintiff.” The fourth relief of the originating summons was not granted. Aggrieved by the judgment, the second defen- b dant/appellant lodged the instant appeal with five grounds of appeal which shorn of their particulars read as follows:– Ground 1 Weight of evidence The judgment of the court is against the weight of c affidavit evidence adduced at the trial. Ground 2 Misdirection The learned trial Judge misdirected himself and erred in law when he held that the second defen- d dant/appellant did not file a further affidavit to show that at the time of the sale of the property (sic) was aware of the pendency of Suit No. HU/52/93 and also that the indebtedness of the second defen- dant/appellant had not fallen into a state of lapse or e foreclosure thereby occasioning a miscarriage of jus- tice. Ground 3 Misdirection The learned trial Judge misdirected himself on the f evidence when he found that there was nothing to the knowledge of the first defendant/respondent inhibit- ing its exercise of the right of sale of second defen- dant appellant’s property at No. 4 Ewet Street, Uyo. Ground 4 Error in law g The learned trial Judge erred in law in not holding that exhibit A deed of assignment attached to the fur- ther affidavit of Anthony Oscar Okon that is, the plaintiff/respondent was not caught by the doctrine of h lis pendens. Ground 5 Misdirection The learned trial Judge misdirected himself when he held that the second defendant did not however ex- hibit for his perusal the motion to re-list Suit No. i HU/52/93 and that he did not depose to the fact that the motion had been served on the first defen- dant/respondent and therefore arrived at the conclu- sion that at the time of the assignment there was no pendente lite in respect of the property now in litiga- j tion thereby occasioning a miscarriage of justice.

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In accordance with the practice of this Court, parties by their a Counsel had exchanged briefs of argument. Arising from the five rounds of appeal, the second defendant/appellant identi- fied the following four issues for determination:– b (i) Whether the judgment of the lower court can stand in view of the affidavit evidence before the court – (Ground 1). (ii) Whether the defendant/respondent (i.e.) the bank c had knowledge of the pendency of the Suit No. HU/52/93 at the time of conveyance of the property No. 4 Ewet Street, Uyo, Akwa Ibom State – (Grounds 2 and 3). d (iii) Whether the deed of assignment conveying appel- lant’s property No. 4 Ewet Street, Uyo to the plain- tiff/respondent was not caught by the doctrine of lis pendens – (Ground 4). e (iv) Whether at the time of the conveyance of the prop- erty No. 4 Ewet Street, there was a motion on notice to relist the Suit No. HU/52/93 pending and duly served on all the parties particularly the bank – (Ground 5). f In its brief, the first defendant adopted all the four issues identified in the appellant’s brief while the plain- tiff/respondent formulated two issues in his brief. These are:– g “1. Whether the learned trial Judge in arriving at his judgment made a correct evaluation of the evidence brought before the court by all the parties to the case so as to sustain his findings of fact. h 2. Whether the appellant had discharged the burden of proving that there was a pending suit at the time that the legal mort- gagee exercised its power of sale.” The appeal was heard on 22 April, 2002 when the learned i Counsel for the respondents adopted their respective briefs and urged on the court to dismiss the appeal. Learned Coun- sel for the appellant was absent from the court and though duly served with a hearing notice there was no letter to ex- cuse his absence. Having filed the appellant’s brief, the j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Edozie JCA Akpan Sunday Akpan v. Union Bank of Nigeria Plc 219 a appeal was deemed argued on that brief pursuant to Order 6 Rule 9(e) of the Court of Appeal Rules, Cap 62 Volume 4 Laws of the Federation of Nigeria, 1990. b In regard to the appellant’s first issue for determination which deals with weight of evidence, it was submitted in the appellant’s brief of argument that in attacking the decision of a trial court on weight of evidence what an appellant has to do is to show that there was evidence which if the trial c Judge had adverted his mind to, he would have come to a proper conclusion. The case of Lion Buildings Ltd v Shodipe (1976) Vol. 2 FNLR (Part 282) at 289; (1976) 12 SC 15 was cited in support of the proposition. Reference was made to d the appellant’s reply to the additional counter affidavit of the first defendant/respondent bank in which appellant’s said reply it was averred, inter alia, that although the appellant’s Suit No. HU/52/93 was struck out on 21 July, 1994, a mo- e tion to re-list the suit was filed on 17 May, 1995 and duly served on all the parties. It was observed that despite the pendency of that motion, the first defendant/respondent bank proceeded to convey the property in dispute to the plain- tiff/respondent as per the deed of assignment dated 9 No- f vember, 1995. It was therefore submitted that the judgment of the court below was perverse when it held that the second defendant/appellant did not file a further affidavit to show that at the time the first defendant/respondent bank sold the g property in dispute to the first defendant/respondent it (Bank) was aware of the pendency of Suit No. HU/52/93. The case of Odiba v Azege (1998) 61 L.R.C.N. at 4607; (1998) 9 NWLR (Part 566) 370 was cited as authority for h the meaning of perverse decision as one which ignores the facts or evidence and when considered as a whole amounts to a miscarriage of justice. It was stressed that this Court has the power to intervene to make its own findings of fact where the lower court has failed to do so based upon the i preponderance of evidence adduced before the trial court. We were therefore urged to re-evaluate the affidavit evi- dence before the court. In its response to the appellant’s submissions, on the first j issue for determination, the first defendant/respondent bank

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Edozie JCA 220 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) in its brief of argument submitted that to succeed on that is- a sue distilled from an omnibus ground of appeal, appellant must show that there was no evidence before the lower court which if accepted would support learned trial Judge of the inference which he made. In support of the submission, the b following cases were cited Mba Nta v Edemwede Anigbo (1972) 1 All NLR 510, 516 and Onwuka v Ediala (1989) 1 NWLR (Part 96) 182. It was submitted that the appellant in his submission has not even remotely contended nor com- c plained that there was no evidence which if accepted would support the findings or inferences made by the learned trial Judge. It was contended that based on the first defen- dant/respondent’s counter-affidavit and the additional d counter affidavit, there was abundant evidence before the court to support its findings. It was canvassed at the pur- ported “reply of the second defendant to the additional counter-affidavit of the first respondent” upon which the ap- pellant is heavily relying is of no avail to him as the same e was filed on 17 July, 1996 after conclusion of addresses by Counsel on 16 July, 1996 and judgment adjourned to 15 Oc- tober, 1996 by the learned trial Judge. The purported “reply” it was submitted was not properly before the court below f and consequently was worthless, irrelevant and useless. The court cannot act on evidence not before it, vide the cases of Ivienagbor v Bazuaye (1999) 9 NWLR (Part 620) 552 and Lekwot v Judicial Tribunal on Civil and Communal Distur- g bances (1997) 51 L.R.C.N. 1840, (1997) 18 NWLR (Part 515) 22. It was contended that in so far as the facts deposed to in the further affidavit filed by the plaintiff/respondent were not challenged, controverted or denied, they would be deemed admitted in law and ought to be acted upon by the h court relying on the cases of Egbuna v Egbuna (1989) 2 NWLR (Part 106) at 773; Alegbe v Abimbola (1978) 2 SC 39 and The State v Commission for Boundaries Settlement, Oyo State (1996) 37 L.R.C.N. 603 at 613. Finally, it was i submitted that the allegation of perversity canvassed by the appellant in his brief is half heartedly made without any ba- sis. It was stressed that the court below was not in law enti- tled to manufacture evidence or speculate or rely on what j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Edozie JCA Akpan Sunday Akpan v. Union Bank of Nigeria Plc 221 a was not properly established in affidavit evidence before it to found a decision as was decided by the Supreme Court in the case of Ebba v Ogodo (1984) 1 SCNLR 372. b In the plaintiff/respondent’s brief it is submitted on the first issue therein which relates to the appellant’s first issue that in the claim before the court which was for a declaration of title to real property, the plaintiff/respondent was required c to produce evidence to show that the second defen- dant/appellant had been divested of the ownership of the property in dispute vide the case of Oyovbiare v Omamur- homu (1999) 10 NWLR (Part 621) 23. It was contended that the plaintiff/respondent had discharged that burden by show- d ing that he acquired the property in dispute in a duly adver- tised public auction pursuant to a legal mortgage between the first defendant/respondent and the appellant. It is the contention of the plaintiff/respondent that the second defen- e dant/appellant having alleged that he filed Suit No. HU/52/93 against the first defendant/respondent bank and the latter having shown that the said Suit No. HU/52/93 was served on it after the sale of the mortgaged property, the f onus was on the second defendant/respondent to prove the contrary, that is, that service of the writ of summons in Suit No. HU/52/93 was effected before the auction. Reference was made to the case of Gbegu v Gbegu (1996) 6 SCNJ 167. It was submitted that the second defendant/appellant failed g to discharge this burden. It was contended that the purported affidavit reply by the second defendant/appellant dated 17 June, 1996 is misleading as it was filed after arguments in the case were concluded and the case adjourned for judg- h ment on 16 June, 1996. It was submitted that the purported piece of affidavit in question was slipped into the record and it is not evidence which the court can act upon. The follow- ing cases were cited: Saidu v State (1982) 4 SC 41 at 69 and i Ivienagbor v Bazunye (1999) 9 NWLR (Part 620) 552. The appellant’s first issue for determination complains about weight of evidence which is based on the omnibus ground of appeal. In Anachuna Anyaoke and others v Felix j Adi and others (1986) 3 NWLR (Part 31) 731 at 742 the

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Edozie JCA 222 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) scope and nature of an omnibus ground of appeal were ex- a plained by the Supreme Court when it observed:– “It is true that an omnibus ground of appeal implies that the judg- ment of the trial court cannot be supported by the weight of evi- dence adduced by the successful party, which the trial court Judge b either wrongly accepted or that the inference drawn or conclusion reached by the trial Judge based on the accepted evidence cannot be justified. It also implies that there is no evidence which if ac- cepted would support the finding of the trial Judge. A further im- plication of the omnibus ground is that when the evidence adduced c by the appellant is weighed against that adduced by the respon- dent, the judgment given in favour of the respondent is against the totality of the evidence adduced before the trial court. (See Chief Abah Ogbodu v Daniel Adelughe (1971) 1 All NLR 68 d at 71; Mba Nta and others v Ede Nwede Anigbo (1972) 1 All NLR 510; and Mogaji and others v Odofin and others (1978) 4 SC 91 at 93 . . .” And in its later decision in Ezebilo Abisi and others v Vin- e cent Ekwealor and another (1993) 6 NWLR (Part 302) 643, the Supreme Court reiterated:– “When an appellant complains that a judgment is against the weight of evidence all he means is that when the evidence adduced by him is balanced against that adduced by the respondent, the f judgment given in favour of the respondent is against the weight which should have been given to the totality of the evidence before him. (See Mogaji v Odofin (1978) 3–4 SC 91 at 95–99).” In the instant appeal and as rightly pointed out in the first g defendant/respondent’s brief, the appellant’s arguments mis- conceived the issue under consideration as no attempt was made to show that there was no evidence which if accepted would support the finding of the learned Judge or that when h the evidence adduced by him is weighed against that ad- duced by the respondent, the judgment given in favour of the respondent is against the weight which should have been given to the totality of the evidence before the court below. The pith of the appellant’s complaint under consideration is i the non-appraisal by the court below of the appellant’s affi- davit titled “reply of the second defendant to the additional counter-affidavit of the first defendant”. An appeal against the decision of trial Judge would be allowed if such decision j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Edozie JCA Akpan Sunday Akpan v. Union Bank of Nigeria Plc 223 a was based on an improper evaluation of evidence (see Seis- mograph v Akporuovo (1974) 6 SC 119 at 140). Where the trial Judge had failed to properly consider and evaluate the evidence adduced by both sides to the dispute, the Court of b Appeal has a duty to consider and evaluate such evidence and make proper findings (See Fashanu v Adekoya (1974) 1 All NLR (Part 1) 35 and Abusomwan v Mercantile Bank (Ni- geria) Ltd (1987) 3 NWLR (Part 60) 196). In the present ap- c peal it is necessary to determine whether the affidavit evi- dence of the appellant in question was evidence properly be- fore the court below to warrant evaluation by that court or this Court. In this connection, I did observe in the introduc- d tory part of this judgment that the appellant’s affidavit evi- dence titled “reply of the second defendant to the additional counter affidavit of the first respondent” was filed on 17 July, 1996 under questionable circumstances and I indicated I would expatiate on this in this judgment. I now wish to do e so by tracing how and at what stage of the proceedings that affidavit evidence came about. The plaintiff/respondent had in the supporting affidavit to his originating summons as- serted, inter alia, that he acquired the property in dispute f through a duly advertised public auction, and in a further af- fidavit filed on 4 March, 1996 exhibited a deed of assign- ment dated 9 May, 1995 bearing the Governor’s consent and duly registered in the plaintiff’s/respondent’s name. To chal- g lenge the auction sale of his property, the second defen- dant/appellant in his counter affidavit dated 30 June, 1995 claimed that he had filed a writ of summons in Suit No. HU/52/93 against the first defendant/respondent. In reaction to the second defendant/appellant’s affidavit, the first defen- h dant/respondent filed an additional counter affidavit dated 16 July, 1996 showing that the auction sale was concluded on 26 April, 1993 while it was served with the writ of sum- mons in Suit No. HU/52/93 on 5 May, 1993 and that the suit i was struck out on 21 July, 1994 for want of diligent prosecu- tion. It was at that stage that the parties addressed the court on 16 July, 1996 and the matter adjourned for judgment. It was the next day 17 July, 1996 after Counsel had addressed j the court that it dawned on the appellant’s Counsel to

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Edozie JCA 224 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) smuggle or slip into the record of proceedings his reply to the a additional counter affidavit of the first defendant/respondent in which he deposed, inter alia, that a motion on notice dated 4 May, 1995 was filed in court on 17 May, 1995 seeking to re-list the suit which said:– b “Motion was duly served on the defendant/respondent in Suit No. HU/52/93, inspite of this, the first defendant/respondent still con- veyed the property to the plaintiff on 9 November, 1996. The said motion on notice to re-list is hereby attached and marked exh. c AB.” In paragraph 2 of the said affidavit of the second defen- dant/appellant, it was averred thus:– “2. That I was served with a copy of the additional counter af- d fidavit of the first defendant on record in court this morning being 16 July, 1996. The court by consent of all parties in this suit agreed that I should file this my reply after argu- ment.” e The alleged agreement by all the parties for the reply to be filed after argument is not borne out from the record. Un- doubtedly, it was in realisation of this fact, that the appel- lant’s Counsel filed before this Court a motion on notice f dated 24 November, 2000 praying, inter alia:– “1. For leave to incorporate in the record of proceeding the fol- lowing:– ‘That the learned trial Judge on the 16 July, 1996 upon g application by appellant’s Counsel directed the appellant to file on the following day being 17 July, 1996 a reply to additional counter-affidavit of the defen- dant/respondent i.e. Union Bank of Nigeria (Plc) exhibit- ing the motion to re-list the Suit No. HU/52/93 after ap- h pellant’s reply and this was consented to by all the par- ties.” In the supporting affidavit of that motion on notice filed in this Court, the appellant herein, swore to, inter alia, in para- i graph 12 thereof:– “12. That my solicitor informs me and I verily believe him that the record of proceedings in this appeal does not contain the fact that the learned trial Judge granted leave to the appel- lant to file a reply to the additional counter affidavit of the j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Edozie JCA Akpan Sunday Akpan v. Union Bank of Nigeria Plc 225 a bank after concluding his argument whereby he would ex- hibit the motion to re-list the suit which was struck out.” Upon the motion on notice filed in this Court coming before b us, we directed that it be served on the learned Judge of the court below who delivered judgment now the subject matter of this appeal. That order was carried out and the learned Judge Udoh, J in his affidavit filed on 13 July, 2001 denied granting appellant’s Counsel leave to file a reply to the addi- c tional counter affidavit of the bank upon the conclusion of address of Counsel. On 28 January, 2002 when the appel- lant’s motion filed on 16 January, 2001 and an earlier identi- cal one filed on 25 September, 2000, came up for hearing, d the appellant’s Counsel was not in court though he was in court on the last adjourned date, the motions in question were struck out at the instance of the respondent’s Counsel. The effect is that the affidavit evidence of the e appellant contained in the “reply of the second defendant to the additional counter affidavit of the first respondent” was not legal evidence before the court deserving to be evalu- ated. The facts sought to be controverted therein remain un- challenged that is to say that Suit No. HU/52/93 was struck f out on 21 July, 1994 and there was no application to re-list same. The learned trial Judge was therefore eminently justi- fied when at pages 54–55 of the record he held:– “I had earlier found in this judgment that the second defendant did g not file a further affidavit challenging the affidavit of John Dick- son Ekwere as to the following facts:– (4) That at the time of sale the first defendant had no notice of any pending suit between the first and second defendant re- h garding the property at No. 4 Ewet Street, Uyo. (5) . . . The position of the law is that the second defendant is deemed to admit all the averments contained in the affidavit of John Dickson Ekwere. The court is duty bound to give i positive expression to such admission unless it sees any le- gal reason to the contrary . . .” That finding cannot be faulted. The conclusion I have ar- rived at is that the complaint on weight of evidence is not j made out. This conclusion is indeed far reaching and is

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Edozie JCA 226 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) sufficient to resolve the appellant’s remaining issues for de- a termination in so far as those issues are substantially predi- cated on the reply to the additional counter-affidavit of John Dickson Ekwere which as elaborately discussed above is demonstrably not legal evidence upon which the court below b could have acted. I am however prepared to consider the re- maining issues for determination albeit briefly. In this re- gard, I consider it better and neater to deal with all of them together since the issues overlap or dovetail one into the c other. In the appellant’s second, third and fourth issues for deter- mination, it was submitted in the appellant’s brief that from the affidavit evidence adduced at the trial the defen- d dant/respondent bank had knowledge of the appellant’s pend- ing Suit No. HU/52/93 when it sold at a public auction appel- lant’s property on 26 April, 1993 and conveyed same by a deed of assignment dated 9 November, 1995, that at the time e of the conveyance of the property in dispute there was a mo- tion on notice to re-list the Suit No. HU/52/93 which was struck out and that the deed of assignment was caught by the doctrine of lis pendens thereby rendering it ineffective. In support the following cases were cited: Ajuwon v Akanni f (1994) L.R.C.N. 72 at 79; (1993) 1 NWLR (Part 316) 182; Bamgboye v Olusoga (1996) 4 NWLR (Part 444) 520, (1996) 38 L.R.C.N. 864 and Alakija v Abdulai (1998) 6 NWLR (Part 552) 1, (1998) 59 L.R.C.N. 3756 at 3759. g In the first defendant/respondent’s brief Counsel raised a preliminary objection contending that Ground 2 of the ground of appeal is incompetent in so far as it contains alle- gation of error in law and misdirection in the judgment of h the lower court and consequently the issue for determination distilled from it is equally incompetent and ought to be struck out on the authority of Agundo v Gberbo (1999) 9 NWLR (Part 617) 71 at 86. It was further contended that i Ground 3 is not covered by Issue 2 and as no issue is formu- lated on that ground it is deemed abandoned. In the alterna- tive, it was submitted that from the facts of the case the lower court rightly held that the appellant had not discharged the burden of proving that here was a pending suit at the j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Edozie JCA Akpan Sunday Akpan v. Union Bank of Nigeria Plc 227 a time the property was sold to the plaintiff/respondent. In re- gard to appellant’s Issue No. III, it was contended in the first defendant/respondent’s brief that the court below rightly found from the evidence before it that the deed of assign- b ment dated 9 November, 1995 was not caught by the doc- trine of lis pendens and finally adverting to the appellant’s Issue No. iv, the contention was that at the time of the con- veyance there was no motion on notice to re-list Suit No. c HU/52/93 and that the appellant failed to discharge the bur- den of proving that assertion relying on the cases of Carrib- bean Trading and Fidelity Corporation v NNPC (1991) 6 NWLR (Part 197) 352; Imana v Robinson (1979) 3–4 SC 1; d Ayinde v Abiodun (1999) 8 NWLR (Part 616) 587 and Elias v Omo Bare (1982) 5 SC 25. In respect of the plaintiff/respondent’s Issue No. 2 which embraces appellant’s Issues Nos. II–IV, the plain- e tiff/respondent was in agreement with the first defen- dant/respondent bank that the appellant had not discharged the burden of proving that there was a pending suit at the time the property was sold to the plaintiff/respondent and that the doctrine of lis pendens did not operate to affect the f sale and eventual assignment of the property in dispute to the plaintiff/respondent. The case of Osagie v Oyeyinka and another (1987) 3 NWLR (Part 59) 144 and Ikeanyi v African Continental Bank Ltd and another (1991) 7 NWLR (Part g 205) 626 were cited and relied on. I think that the crux of the controversy is whether there was a pending suit at the time of the sale and eventual as- signment of the property in dispute to the plain- h tiff/respondent to lead to the invocation of the doctrine of lis pendens. Before wading into that discussion, it is appropri- ate to dispose of the preliminary objections raised in the first defendant/respondent’s brief. They are two firstly, that i Ground 2 of the grounds of appeal is bad for alleging error in law and misdirection. There is no doubt that our law re- ports are replete with a long line of cases in which it had been enunciated that a ground of appeal which alleges both error in law and a misdirection is incompetent. See the fol- j lowing cases to mention but a few (see Nwadike v Ibekwe

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(1987) 4 NWLR (Part 67) 718 at 744; Amadi v Okoli (1977) a 7 SC 57 at 58 and Sylvanus Obi v Chief Owolabi (1990) 5 NWLR (Part 153) 702). The present position is that such a ground is not necessarily incompetent if such a ground shows clearly what is complained of as error in law and b what is complained of as a misdirection. (See Aderounmu v Olowu (2000) 4 NWLR (Part 652) 253 and Nteogwuija v Shoru and others (1998) 10 NWLR (Part 569) 267, 310.) A careful scrutiny of the ground of appeal under consideration c which had earlier been reproduced in this judgment makes it abundantly clear what it is complaining about. It is my judgment that the ground of appeal is quite in order and competent. d The second arm of the preliminary objection is that the ar- guments on Issue 2 are confined to the complaint in Ground 2 and did not extend to the complaints in Ground 3. In brief writing, the practice has been evolved that when issues are e formulated from related grounds of appeal, those issues and not the grounds of appeal form the basis of argument in the brief (see Adejumo v Ayantegbe (1989) 3 NWLR (Part 110) 417 at 430 and Agba v Okogbue (1991) 7 NWLR (Part 204) 391). Adverting to Grounds 2 and 3 of the grounds of appeal f both of which talk about the mortgagee’s exercise of its power of sale and whether there were inhibiting factors such as knowledge of a pending suit to prevent the exercise of the power of sale, I think that both grounds are related and are g both related to the appellant’s Issue No. 2. This being so ar- guments advanced on the issue will invariably cover both grounds. I will overrule the preliminary objection. As noted above, the bone of contention is whether at the h time of the sale of the mortgaged property and the eventual assignment thereof to the plaintiff/respondent there was a pending suit in respect of the said property upon which the operation of the doctrine of lis pendens could be predicated. i Black’s Law Dictionary (6ed) defines the term lis pendens as:– “A pending suit. Jurisdiction, power or control which courts ac- quire over property in litigation pending action and until final judgment.” j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Edozie JCA Akpan Sunday Akpan v. Union Bank of Nigeria Plc 229 a In Words and Phrases, Volume 25A (1658) the term is de- fined in pages 12–13 thus:– “Lis pendens means pending suit and begins from service of sum- mons therein . . . b A suit in equity is not lis pendens until a bill had been filed and service . . . Thus the commencement of a suit by filing a bill does not consti- tute lis pendens until summons or subpoena has been served . . . c A suit in equity or common law does not become lis pendens until service of process . . .” The doctrine of pendente lite nihil innovateur which literally translates to – nothing should change during the pendency of d an action affects a person who purchases property, the sub- ject matter of a litigation not because he is caught by the eq- uitable doctrine of notice but because the law does not allow to litigants and give to them pending the litigation rights in e the property in dispute so as to prejudice the opposing party. Thus where a defendant alienates the property during the pendency of an action and the plaintiff succeeds the result of the judgment will overreach such alienation (see Barclays f Bank (Nigeria) Ltd v Ashiru (1978) 6–7 SC 99; Ogundiani v Araba (1978) 1 L.R.N. 280; Osagie v Oyeyinka (1987) 3 NWLR (Part 59) 144; Bamgboye v Olusoga (1996) 4 NWLR (Part 444) 520 at 532; Clay Industries (Nigeria) Ltd v Ama (1997) 8 NWLR (Part 516) 208 at 233 and Odukwe v Ogun- g biyi (1998) 8 NWLR (Part 561) 339 at 356). In the case of Ikeanyi v African Continental Bank Ltd and another (1991) 7 NWLR (Part 205) 626 the court held thus:– “Where litigation is pending between a plaintiff and a defendant as h to their rights over a particular estate, the decision of the court in the Suit is binding not only on the litigant parties but also on those who derive title under them by alienation made pending the suits whether such purchasers had, or had no notice of the pending pro- i ceedings. However, it must be shown that before the alienation of the property, the suit is in full prosecution in the sense that the de- fendant must have actually been served with or must be shown to be aware of the existence of the plaintiff’s summons.” For a mortgagor to defeat a valid sale by a mortgagee on j ground of lis pendens he must prove on a balance of prob

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Edozie JCA 230 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) abilities that at the time of the sale there was a pending suit a against the mortgagee in respect of which he the mortgagee was served with the process of court for as the Supreme Court has stated in the case of Osagie v Oyeyinka and an- other (1987) 3 NWLR (Part 59) 144:– b “. . . In the case of real purchase pendente lite, the plaintiff is to be held to strict proof of the pending suit and such a plaintiff will not be allowed to amend any flaws at the hearing.” c In the case at hand, it is common ground by all parties that the property in dispute was sold to the plaintiff/respondent in a public auction conducted on 26 April, 1993 at the instance of the first defendant/respondent bank and the property con- veyed to the purchaser as per the deed of assignment dated 9 d November, 1995. The second defendant/appellant mortgagor alleged that at the time of the sale, he had a pending suit against the first defendant/respondent mortgagee bank. The burden of proof in civil cases rests upon the party whether e plaintiff or defendant who substantially asserts the affirma- tive of the issue Jack v Whyte (2000) 6 NWLR (Part 709) 266 at 277. The second defendant/appellant having alleged the pendency of a suit at the time of the sale of the property in dispute, the burden was upon him to prove that there was f such a pending suit and that the writ of summons in respect of the suit had been served on the defendant/respondent bank. (See sections 135–137 and 139 Evidence Act.) To this end, the appellant in his counter affidavit sworn on 30 June, g 1996, alleged in paragraphs 5 and 6 thereof that on 26 April, 1993, the first defendant/respondent bank purportedly sold the property in dispute to the plaintiff/respondent during the pendency of Suit No. HU/52/93 he instituted on 6 April, h 1993 against the first defendant/respondent the writ of sum- mons of which was annexed to the motion as exhibit B. There was no indication of service of the writ of summons on the first defendant/respondent bank. i In response to that assertion, the first defendant/respondent in the additional counter affidavit of John Dickson Ekwere in paragraphs 4 and 7 thereof averred that the writ of sum- mons in Suit No. HU/52/93 was served on the first defen- dant/respondent on 5 May, 1993 long after the property in j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Edozie JCA Akpan Sunday Akpan v. Union Bank of Nigeria Plc 231 a question had been sold at the public auction on 16 April, 1993 and that the suit was eventually struck out on 21 July, 1994 for want of diligent prosecution. From the state of affi- davit evidence of the parties, the second defendant/appellant b had not established as he was expected that at the time the property in dispute was sold, the writ of summons in Suit No. HU/52/93 was served on the first defendant/respondent bank or that the bank was aware of the pendency of that c Suit. It was not controverted that the suit in question was struck out on 21 July, 1994. Learned Counsel to the appellant has in his brief of argu- ment referred to the appellant’s affidavit dated 17 July, 1996 d captioned “reply of the second defendant to the additional counter affidavit of the first defendant” in which he denied that the writ of summons in Suit No. HU/52/93 was served on the first defendant/respondent after the public auction and e also alleged that though the suit was struck out on 21 July, 1994, he had on 17 May, 1995 filed a motion to relist that suit which motion was duly served on the first defen- dant/respondent without exhibiting copy of the affidavit of service. In my consideration of the first issue for determina- f tion, I expressed the view that the appellant’s affidavit re- ferred to as the “Reply of the second defendant to the addi- tional counter affidavit of the first defendant having been filed on 17 July, 1996 after final address of Counsel and ad- g journment for judgment was not evidence upon which the court could act”. A Judge cannot by examining documents outside the court act on what he considers he has discovered on an issue when that was not supported by evidence or was h not brought to the notice of the parties to be agitated in the usual adversarial procedure (see Onibudo v Akibu (1982) 7 SC 60 at 62; Ivienagbor v Bazuaya (1999) 9 NWLR (Part 620) 552 at 561 and Rabbo Damina v The State (1995) 8 NWLR (Part 415) 513 at 532). i I am in complete agreement with learned respondent’s Counsel that the appellant had not discharged the burden cast upon him of proving that at the time of the sale of the mortgaged property there was a pending suit the processes j of which had been served on the defendant/respondent bank

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Edozie JCA 232 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) mortgagee. I am therefore unable to hold that the sale of the a property in dispute and the conveyance by deed of assign- ment dated 9 November, 1995 to the plaintiff/respondent was caught by the operation of the doctrine of lis pendens as vigorously canvassed on behalf of the appellant. b In the light of the foregoing, this appeal lacks merit. It is accordingly dismissed with costs to the plaintiff/respondent and first defendant/respondent assessed respectively at N3,000 and N2,000. c EKPE JCA: I have been privileged to read in advance the leading judgment just delivered by my learned brother, Edozie, JCA, and I completely agree with his reasoning and d conclusion. I also agree with him that the appeal is unmeritorious and should be dismissed. I accordingly dismiss the same and abide by the order as to costs. e OLAGUNJU JCA: I have had the opportunity of reading in draft the judgment just delivered by my learned brother, Edozie, JCA. I agree with his conclusion that the appeal lacks merit and I share his reasoning leading to that conclu- f sion which is self-evident from the material facts which the appellant and, regrettably, his Counsel had sought desper- ately to manipulate by outright but naive fabrication. The leading judgment with analytical deftness has exposed g the appellant’s subterfuge as regards the doctrine of lis pendens behind which the appellant took cover to defeat the right of an innocent purchaser of property in a desperate bid to evade his legal obligation with the bank with which he h contracted. With the exposure of the self-limiting scope of the omnibus ground of appeal which learned Counsel for the appellant attempted to use to raise issue designed to provide cover for the appellant the leading judgment has cut the ground from under the appellant’s feet. i One sorry aspect of this appeal, from the point of view of forthrightness as an attribute of justice, is the sly introduc- tion in an underhand way of the appellant’s affidavit of 17 July, 1996 on which the learned Counsel capitalised when j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Olagunju JCA Akpan Sunday Akpan v. Union Bank of Nigeria Plc 233 a there is no clear evidence that such an affidavit was filed as part of the proceedings. A resort to falsehood is a clear indi- cation that the perpetrator does not have a good case. But more alarming is the fact that a Counsel who is traditionally b regarded as an officer of the court can be a party to such an unholy stratagem. It is a sad chapter of the legal practice which calls for a calm introspection of the legacy of our le- gal education. c On the hard crust of the law, the leading judgment has demonstrated that this appeal is nothing but a desperate at- tempt by a renegade in flight from the norms of society that puts a premium on sanctity of contract to seek an asylum in d the most improbable place – under the legal sanctuary. I unite entirely with the leading judgment that this appeal has not a scintilla of merit. I too will dismiss it. I abide by the order for costs in the leading judgment. e Appeal dismissed.

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a Aiyetoro Community Trading Co Limited and another v Nigerian Agricultural and Co-operative Bank Limited b

COURT OF APPEAL, BENIN DIVISION ROWLAND, BA’ABA, IBIYEYE, JJCA Date of Judgment: 13 JUNE, 2002 Suit No.: CA/B/22/2000 c

Banking – Statement of account – Tendering in evidence – Procedure – Whether precise words in section 97(2)(e) of Evidence Act Cap 112 Laws of the Federation of Nigeria, d 1990 must be used by witness or Judge Evidence – Admissibility – Entry in a banker’s book – Sec- ondary evidence of – Procedures for tendering in evidence – Section 97(2)(e) of Evidence Act Cap 112 Laws of the Fed- e eration of Nigeria, 1990 Facts The first appellant, a limited liability company, carries on f business of fishing and inland waterways shipping at Aiye- toro, Ondo State. The respondent is a limited liability com- pany licensed to carry on the business of banking. Sometime in 1974 or thereabout, the first appellant approached the re- g spondent to finance the acquisition of five shrimp trawlers for the first appellant’s business operations. On the comple- tion of necessary negotiations, the respondent in October, 1975 granted the first appellant a loan of N901,623 (Nine Hundred and One Thousand, Six Hundred and Twenty-three h Naira) to enable the first appellant acquire the shrimp trawl- ers from overseas ship builders, Messrs Kantere Company of Italy. i Under the arrangement agreed upon by both parties to the loan agreement, the respondent was to disburse the funds to the overseas ship builders at periodic intervals through let- ters of credit. In the loan agreement dated 8 October, 1975, the first appellant created in favour of the respondent legal j

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Aiyetoro Comm Trading Co Ltd v. Nig Agric and Co-op Bank 235 a mortgages over the shrimp trawlers. The first appellant also created an equitable mortgage over three of its properties. The second appellant guaranteed the repayment of the b principal sum with the accrued interests by an annual in- stalmental payment of N50,000 (Fifty Thousand Naira) in the event of the first appellant’s default to honour its repay- ment obligations. c Following the failure of the appellants to repay the principal sum with accrued interest and the inability of the respondent to sell the mortgaged shrimp trawlers pursuant to the exercise of its power of sale as contained in the legal mortgage over d the trawlers, the respondent filed an action at the High Court of Ondo State, Okitipupa claiming payment of all such mon- ies due to the respondent and a foreclosure or sale in default of payment of the three mortgaged landed properties, namely: e a piece of land along Igbokoda/Okitipupa Road, in Igbokoda covered by a Deed of Conveyance dated 15 February, 1978 and registered as No. 49 at page 49 in Volume 62 at the Lands Registry at Akure: a piece of land also along Ig- f bokoda/Okitipupa Road in Igbokoda covered by a Deed of Conveyance dated 15 February, 1978 and registered as No. 50 at page 50 in Volume 62 at the Lands Registry and a piece of land as No. 39 Obiri Street, Okitipupa covered by a deed of g conveyance dated 29 January, 1969 registered at No. 11 at page 11 in Volume 1109 at the Lands Registry. The respon- dent also claimed delivery of the vacant possession of the mortgaged properties to the respondent. h The respondent averred that apart from the principal loan it granted to the first appellant, it subsequently granted a sup- plementary loan to the first appellant which loan was evi- denced by a supplementary loan agreement executed by the i parties. The respondent further averred that it in fact over disbursed to the appellants the loans approved. The respon- dent, in order to show the details of its disbursements ten- dered exhibit G which contained details of the disburse- ments, and repayments as at 31 January, 1978 and exhibits F j titled “Disbursement advice/debit notes”.

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The appellants, on their part, denied liability. They admit- a ted signing the loan agreement but vehemently denied the amount allegedly disbursed from the loan. They stated that in spite of their demand for details and the actual amount of money disbursed with documentary proof to the ship build- b ers, the respondent refused to disclose such information with supporting documents. The appellants raised an objection to the admissibility of exhibits F–F37 but the trial court over- ruled the objection. c The second appellant also stated that it was not aware of any supplementary loan and that it did not guarantee such a loan. d The appellants counter-claimed against the respondent. At the conclusion of trial, the trial court in its judgment held that there was no record tendered by the respondent to show exactly how much the ship builders received and that e the slipshod manner in which the respondent prepared and presented the appellants accounts had been most unhelpful in determining how much was actually disbursed on behalf of the appellants. The trial court however went ahead to base its judgment on exhibits F–F37 on the ground that there was f no other evidence of the actual sum disbursed outside the disbursement advice. The trial court then, suo motu com- puted the figures on exhibits F–F37 which it held to be the amount the respondent was entitled to be paid by the appel- g lants without inviting the parties’ Counsel to address it on the amount. The court dismissed the appellants’ counter- claim. Dissatisfied, the appellants appealed to the Court of Ap- h peal contending that the trial court was wrong to have admit- ted exhibits F–F37 contrary to section 97(2)(e) of the Evi- dence Act and that the computation of figures by the trial court without hearing the appellants in respect of the compu- i tation occasioned a miscarriage of justice. Held – It is not the length of evidence given in tendering a bank statement of account that matters but the substance of the j

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Aiyetoro Comm Trading Co Ltd v. Nig Agric and Co-op Bank 237 a evidence given, nor is it compulsory that the precise words set out in section 97(2)(e) should be used by the witness or the Judge taking down his evidence. b In the instant case, exhibits F–F37 titled “disbursement ad- vice/debit notes” are nothing but statements of account and their admission in evidence must be in compliance with sec- tion 97(2)(e) of the Evidence Act. c Appeal allowed. Cases referred to in the judgment

Nigerian d ACB Ltd v Oba (1993) 7 NWLR (Part 304) 173 ACB Ltd v Yesufu (1976) 1 All NLR 328 ACB Plc v Haston (Nigeria) Ltd (1997) 8 NWLR (Part 515) e 110 Adewuyi v Odukwe (2000) 4 NWLR (Part 654) 616 Adimora v Ajufo (1988) 3 NWLR (Part 80) 1 Anukanti v Ekwonyeaso (1978) 1 SC 37 f Anyaoke v Adi (1986) 3 NWLR (Part 31) 731 Atolagbe v Shorun (1985) 1 NWLR (Part 2) 360 Bamgboye v Olarewaju (1991) 4 NWLR (Part 184) 132 g Chinwendu v Mbamali (1980) 3–4 SC 31 Duriminiya v C.O.P. (1961) NNLR 70 Elias v Omo Bare (1982) 5 SC 25 h Enang v Adu (1981) 11–12 SC 25 Fashanu v Adekoya (1974) 1 All NLR (Part 1) 35 Finnih v Imade (1992) 1 NWLR (Part 219) 511 Imana v Robinson (1979) 3–4 SC 1 i Kuti v Jibowu (1972) 6 SC 147 Mogaji v Odofin (1978) 4 SC 91 Nzekwu v Nzekwu (1989) 2 NWLR (Part 104) 373 j Ochonma v Unosi (1965) NMLR 321

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Ogbaki v Arewa Textile Plc (2000) 11 NWLR (Part 678) a 322 Okafor v Okpala (1995) 1 NWLR (Part 374) 749 Okuwobi v Ishola (1973) 3 SC 43 b Omoboriola v Mil. Govt., Ondo State (1998) 14 NWLR (Part 584) 89 Omoregbee v Lawani (1980) 3–4 SC 108 c Oniah v Onyia (1989) 1 NWLR (Part 99) 514 Onyekwulunne v Ndulue (1997) 7 NWLR (Part 512) 250 Orie v UBA (1976) 9–10 SC 123 Otuo v Nteogwuile (1996) 4 NWLR (Part 440) 56 d Owoniyin v Omotosho (1961) 2 SCNLR 57 Seismograph Ltd v Ogbeni (1976) 4 SC 85 State v Aibangbee (1988) 3 NWLR (Part 84) 548 e Vulcan Gases Ltd v G.F. Ind. A.G. (2001) 9 NWLR (Part 719) 610 Weide and Co Nigeria Ltd v Weide and Co Harmburg f (1992) 6 NWLR (Part 249) 627 Woluchem v Gudi (1981) 5 SC 291 Yassin v Barclays Bank DCO (1968) 1 All NLR 171 g Foreign Fallon v Calvert (1960) 2 QB 201 Kuma v Kuma (1936) 5 WACA 4 h Nigerian statute referred to in the judgment Evidence Act Cap 112 Laws of the Federation of Nigeria, 1990, sections 97(2)(e), 135, 136 and 137 i Counsel For the appellants: Chief Wole Olanipekun, SAN (with him Ayodele Ogundele, Esq. and Adeola Omotunde, Esq.) For the respondent: Olalekan Ojo, Esq. j

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Aiyetoro Comm Trading Co Ltd v. Nig Agric and Co-op Bank 239 a Judgment BA’ABA JCA: (Delivering the lead judgment) This is an ap- peal against the judgment of the Ondo State High Court, b holden at Okitipupa, in the Okitipupa Judicial Division, de- livered on 4 May, 1989. The respondent was the plaintiff at the lower court where it instituted an action against the ap- pellants who were the defendants, claiming against the ap- pellants as per paragraph 13 of the amended statement of c claim as follows:– “Wherefore the plaintiff claims:– (i) Payments of all such monies due to the plaintiff and such d costs as would be payable if this claims were the only relief granted. (ii) Foreclosure or sale in default of payment of the said three landed properties namely:– e (a) A piece of land along Igbokoda/Okitipupa road in Ig- bokoda measuring 4283.408 square metres covered by a deed of conveyance dated 15 February, 1978, regis- tered as No. 49 at page 49 in Vol. 62 at the Lands Reg- istry at Akure. f (b) A piece of land along Igbokoda Okitipupa Road in Ig- bokoda Measuring 7053.382 square metres covered by a deed of conveyance dated 15 February, 1978 and registered as No. 50 in Vol. 62 at the Lands Registry at Akure. g (c) A piece of land at No. 39, Obiri Street, Okitipupa measuring 1150.46 square yards covered by a deed of conveyance dated 29 January, 1969 and registered as No. 11 at page 11 in Vol. 1109 at the Lands Registry at h Akure. (iii) Delivery by the first defendant to the plaintiff of vacant possession of the mortgaged properties that is:– (a) A piece of land along Igbokoda/Okitipupa Road in Ig- i bokoda measuring 4283.408 square metre covered by a deed of conveyance dated 15 February, 1978 and regis- tered as No. 49 at page 49 in Vol. 62 at the Lands Reg- istry at Akure. (b) A piece of land along Igbokoda/Okitipupa Road in Ig- j bokoda measuring 7053.383 square metres covered by

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a deed of conveyance dated 15 February, 1978 and a registered as No. 50 at page 50 in Vol. 62 at the Lands Registry at Akure. (c) A piece of land at No. 39, Obiri Street, Okitipupa measuring 1150.46 square yards covered by a deed of b conveyance dated 20 January, 1969 and registered as No. 11 at page 11 in Vol. 1109 at the Lands Registry at Akure. (iv) Costs. c (v) Interest on the said sum of N1,852,342.71 (One Million, Eight Hundred and Fifty-two Thousand, Three Hundred and Forty-two Naira, Seventy-one Kobo) from 1 January, 1986 until judgment at the rate of 9% per annum (as required by d the Central Bank of Nigeria’s recent guidelines) until the whole debt is fully paid.” The appellants denied liability and counter-claimed against the respondent as follows:– e (a) An Order setting aside the illegal and unconstitutional auc- tion sale of its properties on 28 May, 1985 and 29 May, 1985 by the plaintiff through auction service, 364, Herbert Macaulay Street, Yaba, Lagos. f (b) The defendants counter-claim for N350,000 being the real value of their landed property illegally sold by public auc- tion by the plaintiff in accordance with its “Auction Sale Notice” published in the Daily Times of 20 May, 1985 at page 6 thereof. g (c) N500,000 being the real and or market value of the five (5) trawlers seized and illegally sold by the plaintiff without due process of law. (d) N300,000 being special and general damages for the loss h which the first defendant – counter-claimant sustained and arising and or caused by the negligence of the plaintiff when it delivered five (5) trawlers between 1976 and 1977 respectively under the loan agreement of 8 October, 1975 and within a year the said trawlers developed serious engi- i neering problems which adversely affected the fishing op- erations and the income of the first defendant. Alternative claim “(A) N200,000 damages for unlawfully denying the j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, BENIN DIVISION) Ba’aba JCA Aiyetoro Comm Trading Co Ltd v. Nig Agric and Co-op Bank 241 a defendants/counter-claimants possession, occupation and use of their petrol station and the house thereon and other appurtenances and or facilities on the land at Broad Street, Igbokoda – since 28/29 May, 1985. b (B) N150,000 damages for unlawfully denying the counter- claimants (defendants) possession and commercial use of the property seized on or about the 28/29 of May, 1985 at No. 39 Obiri Street, Okitipupa. c (C) N3,000,000,00 damages for the unlawfully seizure of the first defendant/counter-claimant trawlers on or about the 28/29 of May, 1985 which said trawlers have deteriorated badly and are now a total wrecks.” d Pleadings were ordered, filed, exchanged and subsequently both the statement of claim and defence were amended by the parties. After the parties called witnesses in support of their respective cases and address by their Counsel, the e learned trial Judge in a reserved judgment, found in favour of the respondent and dismissed the counter-claim. At page 238 of the record the learned trial Judge, inter alia, held:– “It is therefore the order of this Court that judgment is entered for f the plaintiff against the defendants for the sum of N1,230,603.26 minus the N35,000 already repaid i.e. N1,195,603.26k at 9% in- terest calculated from the date this case was filed up to date i.e. be- tween 17 July, 1986–4 May, 1989 and the counter-claim is hereby g dismissed. The plaintiff bank is hereby granted the court’s order sought to sell the landed property, subject matter of the equitable mortgage to satisfy the first defendant’s debt in this case.” h Dissatisfied with the judgment, the appellants filed a notice of appeal containing 9 grounds of appeal, which is at pages 239–248 of the record. On 17 December, 2000, this honour- able court granted leave to the appellants to amend the i grounds of appeal by deleting the original grounds 2 and 3 and renumbering the remaining grounds as Grounds 1–7 and in addition the appellants filed two additional grounds of which have now been numbered 8 and 9, bringing the total j grounds of appeal in this appeal to 9 grounds of appeal.

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The facts of the case as gathered from the pleadings on the a part of the respondent which was the plaintiff is as follows:– The first appellant, a limited liability company having its registered office at Okitipupa, Ondo State, carries on b business of fishing and inland waterways shipping at Aiye- toro, Ondo State. The respondent is a limited liability com- pany licensed to carry on business of banking. Sometime in 1974 or thereabout, the first appellant approached the re- spondent to finance the acquisition of five shrimp trawlers c for the first appellant’s business operations. On the comple- tion of necessary negotiations, the respondent in October, 1975 or thereabout granted the first appellant a loan of Nine Hundred and One Thousand, Six Hundred and Twenty-three d Naira (N901,623) to enable the first appellant acquire the shrimp trawlers from overseas ship builders, Messrs Kantere Company of Italy. Under the arrangement agreed upon by both parties to the loan agreement, the respondent was to e disburse the funds to the overseas ship builders at periodic intervals through letters of credit. In the loan agreement dated 8 October, 1975 and executed by the parties, the first appellant created in favour of the respondent, legal mort- gages over the said shrimp trawlers. The first appellant also f created equitable mortgage over three of its landed proper- ties the title deeds of which the first appellant deposited with the respondent. g The second appellant guaranteed the repayments of the principal sum with accrued interests by an annual instalmen- tal payment of Fifty Thousand Naira in the event of the first appellant’s default to honour its repayment obligations. h Following the failure of the appellants to repay the princi- pal sum with accrued interest and the inability of the re- spondent to sell the mortgaged shrimps trawlers pursuant to the exercise of its power of sale as contained in the legal mortgage over the shrimps trawlers, the respondent took out i a writ of summons on 11 July, 1986 against the appellants for the relief earlier reproduced in this judgment. The appellants as defendants denied liability. According to the appellants, the repayment of the loan and interest was j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, BENIN DIVISION) Ba’aba JCA Aiyetoro Comm Trading Co Ltd v. Nig Agric and Co-op Bank 243 a conditional and subject to the terms of the loan agreement executed on 8 October, 1975. The appellants averred that their request for information about disbursements of the loan was brought to its knowledge by a document dated 21 Feb- b ruary, 1978. The appellants admitted signing the loan agreement, but vehemently denied the amount allegedly dis- bursed from the loan. They stated that in spite of their de- mands for details and the actual amount of money disbursed c with documentary proof to the ship builders namely letters of credits, documents showing receipt of the money alleg- edly transferred, the respondent refused and is still refusing to disclose such information with supporting documents. d It is the case of the second appellant that it was neither aware of nor guaranteed any supplementary loan or any other loan whatsoever. The second appellant averred that it guaranteed only the initial loan of N901,623 and was and/or e is neither aware of nor guaranteed any supplementary loan or any other loan whatsoever. The second appellant em- phatically avers that contrary to the loan guarantee agree- ment of 11 March, 1975 which the second appellant signed, f the second appellant was never informed of first appellant’s default in repaying any amount disbursed in accordance with Clauses 3 and 4 of the loan agreement of 8 October, 1975 and that the second appellant was never given the right to g exercise the option of paying N50,000 annually which was embodied in the guarantee agreement and its undertaking in writing made in March, 1975. Briefs of argument were filed and exchanged by Counsel h to the parties in accordance with the rules of practice and procedure of this Court. When the appeal came up for hear- ing on 12 March, 2002, both Counsel adopted and relied on their respective briefs. In addition, each Counsel made some i elaboration in respect of his brief. From their 9 grounds of appeal, the appellants distilled the following issues for the determination of this Court:– “(i) Having rightly held that the respondent did not establish the j specific or any specific amount disbursed on behalf of the

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first appellant to the manufacturers of the ships and having a rightly made several condemnable and negative findings against the plaintiff’s case, whether or not the lower court was not in grave error to have still gone ahead to give it judgment – Grounds l, 6 and 9. b (ii) Whether or not the lower court rightly embarked on compu- tation of figures to arrive at its judgment – Ground 8. (iii) Having rightly held that no notice was given to the second appellants by the respondent and that it was premature to sue it/them, whether or not the lower court did not fall into c fatal error in still going ahead to give judgment against them and ordering the immediate sale of their landed prop- erties – Grounds 2 and 3. Whether or not the lower court has jurisdiction to enter judgment against the second appel- d lant in the way and manner it did – Grounds 2 and 3. (iv) Whether or not the lower court rightly admitted and or made use of exhibits F–F37 titled ‘Disbursement advice’ – Ground 5. (v) Did the lower court rightly reject or dismiss the appellants e counter-claim – Ground 4. (vi) Considering the totality of the evidence adduced and the way and manner the plaintiff’s case was presented, whether or not the lower court ought not to have dismissed the entire f claims of the plaintiff/respondent – Ground 7.” The respondent on the other hand, formulated the following issues which according to it arise for the determination of this Court of appeal:– g 1. “Whether or not the learned trial Judge acted correctly in en- tering judgment in favour of the respondent for the lesser amount of N1,230,603.26 being the total amount that was found to have been disbursed by the respondent on behalf of the first appellant to the overseas ship builders as shown in h exhibits F–F37 inspite of the adverse comments of the trial Judge against the respondent’s case. – Grounds 1, 6 and 9. 2. Was the learned trial Judge wrong in entering judgment in favour of the respondent for the lesser sum of N1,230,603.26 being the total amount of the sums con- i tained in the disbursement Advice/Debit Notes exhibits F– F37 as calculated by the trial Judge when the said exhibits F–F37 were admitted in evidence and when the respondent addressed the court as to the sufficiency of the said exhibits F–F37 in establishing the amount disbursed by the j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, BENIN DIVISION) Ba’aba JCA Aiyetoro Comm Trading Co Ltd v. Nig Agric and Co-op Bank 245 a respondent to the overseas ship builders on the first appel- lant’s behalf. – Ground 8. 3. Whether or not the second appellant was competently sued as second defendant to the respondent’s action having re- b gard to the respondent’s failure to give notice of the first appellant’s default under the loan agreement to the second appellant as prescribed in clause 1 paragraph 2 of the guar- antee agreement. – Ground 2. c 4. Was the learned trial Judge right in ordering the sale of the landed properties forming part of the appellants’ security in satisfaction of the first appellant’s indebtedness to the re- spondent when the application for the sale of the landed properties was not opposed by the appellant. – Ground 3. d 5. Did the learned trial Judge properly admit exhibits F–F37 in evidence and properly act on them in the case. – Grounds 5. 6. Was the respondent entitled to the judgment entered in its favour having regard to the totality of the evidence before the trial court. – Ground 7. e 7. Was the learned trial Judge right in dismissing the counter- claim of the appellants. – Ground 4.” Arguing the appeal for the appellants, Chief Wole Olanipe- f kun, learned Senior Advocate of Nigeria, in the appellants’ brief dated 28 December, 2000 filed on 3 January, 2001, on the appellants’ Issues 1 and 11, argued together stated that the learned trial Judge in several portions of his judgment, rightly made many findings and came to the inescapable g conclusions condemning the case of the respondent. In that connection, he referred to pages 205, 221, 223, 224, 225, 226, 228 and 229 of the record, reproducing some of the portions in the appellants’ brief and submitted that there is h no gainsaying the fact that the portions referred are funda- mental and far reaching findings by the learned trial Judge against the respondent who was plaintiff at the trial court. learned S.A.N., further submitted that based on the findings, i the learned trial Judge ought to have dismissed the case. He said the respondent could not prove or establish the actual money disbursed to the manufacturers by producing letters of credit or the counterparts of them. It is contended that the respondent could not establish the local charges like the in- j surance claims and telex expenses. That further still the

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, BENIN DIVISION) Ba’aba JCA 246 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) interest due and payable on the amount disbursed, which can a be gathered from the letters of credit or the first appellant’s statement of account was not established. He added that no evidence was given as to how the amounts expressed in German Dutch Mark were arrived at having regard to the b fact that the learned trial Judge himself said that he was at sea and helpless. It is further submitted that the respondent failed to discharge the burden placed on it by law of suc- ceeding on the strength of the respondent’s case rather than c on the weakness of the case of the appellants, for that rea- son, the learned trial Judge ought to have dismissed the case of the respondent as plaintiff. Relying on the case of Omoborinola v Military Governor d of Ondo State (1998) 14 NWLR (Part 584) 89 at 98, 104– 105, learned S.A.N. for the appellants submitted that the plaintiff has the onerous duty of establishing his claim be- fore the court pursuant to sections 135, 136 and 137 of the e Evidence Act. He further stated that with respect, that the learned trial Judge descended into the arena when the learned trial Judge started speculating or raising presump- tions which would help the plaintiff’s case after he has f rightly found that the plaintiff did not establish its case by putting figures on his adding machine, converting the Ger- man Duetsch Mark to Naira thereby invariably overruling himself in the same judgment. Learned S.A.N. for the appel- lants further submitted that the computation of figures by the g learned trial Judge to arrive at a judgment for the respondent as plaintiff without hearing the appellants in respect of the said computation has occasioned a miscarriage of justice, citing Seismograph Ltd v Ogbeni (1976) 4 SC 85; State v h Aibangbee (1988) 3 NWLR (Part 84) 548 at 577 and Oniah v Onyia (1989) 1 NWLR (Part 99) 514 and many other cases in support of his submission. Reference was made to Ato- lagbe v Shorun (1985) 1 NWLR (Part 2) 360 at 373 and i Bamgboye v Olarewaju (1991) 4 NWLR (Part 184) 132 at 144 and 151–152 by the learned Senior Counsel for the ap- pellants who said that the learned trial Judge embarked on analysis of disbursement not canvassed, demonstrated, tested and argued in court and arrived at findings which are j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, BENIN DIVISION) Ba’aba JCA Aiyetoro Comm Trading Co Ltd v. Nig Agric and Co-op Bank 247 a very perverse, shutting his eye to the very obvious and mag- nifying what are obscure. He concluded his submission on these issues by urging the court to resolve issues i and ii in favour of the appellants. b Learned S.A.N. for the appellants commenced his submis- sion on Issue No. (iii) by reproducing part of the terms of the guarantee given by the second appellant in respect of the loan disbursed on behalf of the first appellant by the respon- c dent, contained in exhibit D dated 1 March, 1975 at page 14 of the appellants’ brief. He pointed out that there was a seri- ous complaint by the second appellant before the lower court that it was not notified of the default of the first appellant d and to that extent joining the second appellant as co- defendant was premature and in breach of the terms of the said guarantee. Learned S.A.N. also referred to page 236 of the record which he reproduced at page 14 of the appellants’ e brief and argued that the learned trial Judge, having held that it was premature to bring the action against that second ap- pellant, the learned trial Judge ought to have dismissed the case against the appellants. It is further submitted relying on Atolagbe v Awumi (supra) page 536, that parties are bound f by the terms of the guarantee agreement between them. He cited several cases in support of his submission and urged the court to also resolve Issue (iii) in favour of the appellant. On Issues (iv) and (v), argued together, learned S.A.N., g submitted that exhibits F–F37 titled “disbursement advice” were wrongly admitted by the learned trial Judge in contra- vention of section 97(2)(e) of the Evidence Act. He referred to the portion of the judgment of the trial court at page 227 h of the record which he reproduced at page 19 of the appel- lants’ brief and contended that even if the learned trial Judge was right in regarding exhibits F–F37 as letters issued from the bank, they can not be regarded as representing the actual i amount disbursed by the respondent having regard to his earlier findings. It is further submitted that there is no credi- ble evidence to support the judgment of the trial Judge for that reason the court is urged to allow the appeal on the two issues. Learned S.A.N., for the appellants on Issue (v), com- j plained that the lower court with a wave of hand dismissed

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, BENIN DIVISION) Ba’aba JCA 248 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) the appellants’ counter-claim on grounds discussed at page a 237 simply because the respondent gave evidence to the ef- fect that they were not in possession of the landed proper- ties. He contended that no consideration at all was given to the evidence of the appellants. It is argued that two sets of b facts adduced by the parties were wrongly weighed and evaluated and urged the court to interfere, citing several cases in support of his submission. Learned S.A.N. for the appellants finally urged the court to allow the appeal and set c aside the judgment of the trial court. Responding, Olalekan Ojo, Esq. learned Counsel for the respondent, in the respondent’s brief dated 6 September, 2001, filed on 10 September, 2001 on Issues 1 and 2 argued d together commenced by stating some principles of law. He said the first principle is that a party is entitled to judgment for any part of his claim which is established to the satisfac- tion of the court. A fortiori, a trial court is entitled to enter e judgment in favour of a party for any part of his claim which has been established on the evidence before the court. (See Orie v UBA (1976) 9–10 SC 123 at 130.) The second princi- ple is that an Appellate Court will not reverse the decision of a trial court once the decision is right notwithstanding the f fact that the trial Judge gave wrong reasons for the decision or committed some judicial slips in judgment which did not occasion miscarriage of justice, citing Adewuyi v Odukwe (2000) 4 NWLR (Part 654) Page 616 at 635 and Ogbaji v g Arewa Textile Plc (2000) 11 NWLR (Part 678) 322 at 338. It is the respondent’s contention that when the above princi- ples are applied to the facts of this case, the evidence on the record and the findings of the court, the decision of the h learned trial Judge should not be disturbed because the judg- ment accords with the evidence before the court. He stated that the appellants contended in their brief that having regard to the findings of the learned trial Judge in this case, the i learned trial Judge should have dismissed the respondent’s case in its entirety. In response to the contention of the appel- lants the learned Counsel for the respondent submitted that most of, if not all the statements made by the trial Judge which the appellants dubbed as findings are not findings of j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, BENIN DIVISION) Ba’aba JCA Aiyetoro Comm Trading Co Ltd v. Nig Agric and Co-op Bank 249 a facts properly so called but observations, citing Onyekwulume v Ndulue (1997) 7 NWLR (Part 512) page 250 at 273. Learned Counsel for the respondent further argued that all b the learned trial Judge said at page 221 of the record would in law not amount to a finding of fact because the learned trial Judge had not even started the evaluation of evidence at the time he made the negative remarks or comments about c the respondent’s case. He referred to the evidence of the witnesses at pages 10–11 of the respondent’s brief and urged the court to hold that the judgment of the learned trial Judge is amply supported by the pleadings and evidence as well as admissions of the appellants before the trial court. Learned d Counsel further argued that the judgment of the trial court was based on documents tendered in evidence and on which the court was addressed. It is the submission of the learned Counsel for the respondent that the learned trial Judge prop- e erly appraised and or evaluated all the evidence, documen- tary and otherwise before entering judgment in favour of the respondent. According to the learned Counsel for the respondent, the f learned trial Judge did not transgress any rule of adjectival law when he examined and added or computed various sums individually disbursed to the overseas ship builders as con- tained in exhibits F–F37 before arriving at the total amount g disbursed by the respondent. Citing Otuo v Nteogwuile (1996) 4 NWLR (Part 440) 56, learned Counsel submitted that once a document has been tendered and admitted as an exhibit, the court has the right and duty to refer to any por- h tion of it in order to arrive at a just decision of the case. It is further submitted by the learned Counsel for the re- spondent that the position of the court is that where the deci- sion of a trial court is right, the decision would not be set i aside on appeal even where the trial Judge can be shown to have committed judicial slip or error unless the appellant can establish that a miscarriage of justice has occurred by reason of mistake or error. According to the learned Counsel for the respondent, by adding the sums in exhibits F–F37, the j learned trial Judge cannot be said to have concocted

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, BENIN DIVISION) Ba’aba JCA 250 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) evidence or embarked upon private examination or rather a still descended into the arena of the conflict. He concluded his submission by urging the court to resolve Issues 1 and 2 in favour of the respondent. b It is the submission of the learned Counsel for the respon- dent on Issues 3 and 4 that the terms contained in exhibit D1 reproduced at page 14 of the appellants’ brief do not consti- tute conditions precedent to the bringing of any action against the second appellant in this case contrary to the c submission of the appellants. He contended that the appel- lants have failed to show that the giving of the notice of first appellant’s default to the second appellant is as a condition precedent to bringing the action against the second appel- d lant. Learned Counsel for the respondent further submitted that the stipulation in a contract of guarantee that notice of the principal debtor’s default be given to the guarantor does not make the giving of such notice of default a condition e precedent to instituting an action against the guarantor. Relying on his submission, learned Counsel urged the court to resolve Issues 3 and 4 in favour of the respondent. On Issue 5, learned Counsel said that it is necessary to de- f termine whether or not exhibits F–F37 titled “disbursements advice” are entries in a banker’s book. He pointed out that the learned trial Judge rejected the argument of the appellants that exhibits F–F37 are entries in banker’s book and held that the g said exhibits are not entries in a banker’s book to which the provisions of section 97(2)(e) of the Evidence Act apply. It is submitted that the learned trial Judge was right in rejecting the contention of the appellants that exhibits F–F37 are not h entries in banker’s book and the respondent respectfully urged the court to affirm the decision of the court. The learned Counsel for the respondent on Issue 6, urged the court to hold that the judgment of the trial court for the i lesser sum in this case is amply supported by the admitted evidence before the court. For that reason he urged the court to resolve the issue against the appellants. He added that the respondent is entitled to judgment for the lesser sum as found by the learned trial Judge. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, BENIN DIVISION) Ba’aba JCA Aiyetoro Comm Trading Co Ltd v. Nig Agric and Co-op Bank 251 a The learned Counsel said that the learned trial Judge con- sidered evidence of both parties in relation to the counter- claim and held the counter-claim was not proved and re- ferred to pages 235 and 237 of the record where the learned b trial Judge gave reasons for dismissing the counter-claim. He urged the court to affirm the decision of the learned trial Judge in respect of the counter-claim. In the reply brief, Chief Wole Olanipekun, SAN for the c appellants cited several cases in opposition to by the ones referred to the Counsel for the respondent. He referred to paragraphs 8.01–8.03 of the argument of the respondent that exhibits F–F37 which are disbursements advice/debt and not d bankers book which must conform with section 97(2) of the Evidence Act, to be admissible is misconceived. That the Counsel to the respondent has not shown how these exhibits emanating from the bank as evidence of the transaction on e the loan agreement are different from the statements ac- counts issued by the banks. He contended that statements of accounts to be admissible, however have been held in a line of cases to be banker’s book. He concluded that therefore f disbursements or debit advice can not be different. Learned S.A.N. further submitted that it was held that even statement of accounts are banker’s book and that same cannot be admitted without full compliance with the provi- g sions of section 97(2) of the Evidence Act, citing Yesufu v ACB Ltd (1976) 1 All NLR 328; Yassin v Barclays D.C.O. (1968) 1 All NLR 171 and ACB Ltd v Oba (1993) 7 NWLR (Part 304) 173. Further replying to the submission of the h learned Counsel for the respondent, learned S.A.N. argued that the mere fact that a document was not objected to at the tendering stage does not mean same cannot be expunged when the Judge is wrong, in his judgment, particularly if the Judge discovers that the document has been wrongly admit- i ted and referred to Okafor v Okpala (1995) 1 NWLR (Part 374) 749 at 759. Having examined the issues formulated by both Counsel, I prefer the ones formulated by the appellants which I adopt in j the determination of this appeal.

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It is a well settled principle of law that civil cases are de- a cided on the preponderance of evidence and balance of probability. (See ACB Plc v Haston (Nigeria) Ltd (1997) 8 NWLR (Part 515) 110; Imana v Robinson (1979) 3–4 SC 1 b and Elias v Omo Bare (1982) 5 SC 25.) He who asserts must prove with cogent and credible evidence, for if he does not so prove his claim is bound to fail. See section 135 of Evi- dence Act, 1990 Laws of the Federation, Cap 112. (See c Weide Co (Nigeria) Ltd v Weide and Harmburg (1992) 6 NWLR (Part 249) 627.) It is necessary to refer to the plead- ings of the parties, particularly the relevant averments relied upon by each party. I consider paragraphs 5, 6, 7, 8, 9 and d 10 of the amended statement of claim and paragraphs 5, 6, 7 and 9 of the amended statement of defence relevant which are reproduced below:– “Amended Statement of Claim e 5. The first defendant entered into a loan agreement dated 8 October, 1975 with plaintiff where the first defendant cove- nanted to create and infact created in favour of the plaintiff legal mortgages in respect of the five shrimp trawlers laifo- f tape No. 1–5 when they were subsequently acquired as se- curity for the repayment of the loan with interest, fee usual banking charge and other costs. 5(a) The plaintiff avers that apart from the principal loan it granted to the defendant it subsequently granted a supple- g mental loan to the defendant which loan was evidenced by a supplemental loan agreement executed by the parties. Fur- thermore the plaintiff over disbursed to the defendant the loans already approved. The plaintiff shall rely on the sup- plemental loan agreement at the trial of this action. h 5(b) The plaintiff avers that there was a tripartite ship building agreement between itself, the defendant and Messrs Cantere Navalmeccanic Di Sengalia which clearly stipulates the ob- ligation of each of the three (3) parties with respect to the i construction, payment and delivery of the five (5) shrimp trawlers. The plaintiff shall rely on the said agreement dated 25 March, 1975 at the trial of this action. 6. The first defendant as borrower further covenanted in the said loan agreement to provide certain properties as j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, BENIN DIVISION) Ba’aba JCA Aiyetoro Comm Trading Co Ltd v. Nig Agric and Co-op Bank 253 a securities for the said loan and infact deposited with the plaintiff their title deeds in respect of three of their landed properties namely:– (a) A piece of land along Igbokoda/Okitipupa Road in Ig- b bokoda measuring 4283/408 square metres covered by a deed of conveyance dated 15 February, 1978 and registered as No. 49 at page 49 in Vol. 62 at the Lands Registry at Akure. c (b) A piece of land along lgbokoda/Okitipupa Road in Ig- bokoda measuring 7053.382 square metres covered by a deed of conveyance dated 15 February, 1978 and registered as No. 50 at page 50 Vol. 62 at the Lands Registry at Akure. d (c) A piece of land at No. 39, Obiri Street, Okitipupa measuring 1150.46 square yards covered by a deed of conveyance dated 20 January, 1969 and registered at No. 11 at page 11 in Vol. 1109 at the Lands Registry at e Akure. 7. The second defendant guaranteed repayment of the principal sum and the interest by an annual instalmental payment of N50,000 (Fifty Thousand Naira) in the event of default by the borrower until the whole accrued debt would be finally f liquidated. The plaintiff will rely at the trial of this suit on a letter reference no. PS/LG/SOAA dated 11 March, 1975 written by the second defendant to the plaintiff. 8. That by virtue of the schedule of repayment to the said loan g agreement the first defendant was to complete repayments of the principal sum, interest and all such monies which had constituted the balance due to the plaintiff by December, 1981. h 9. That the plaintiff later gave the defendant three years of grace within which to complete repayments of the principal sum interest and such monies due to the plaintiff by asking it to complete repayment by the 28 December, 1984 be- cause of the delay in the actual take off of the project. But i this gesture was not appreciated by the defendant who has up till this moment refused to effect any repayment. 10. That the defendants have defaulted in the repayment of the said loan and interest. Demand notes were issued to the de- fendants who up till now persisted in their refusal to repay j the said loan, interest, other charges and costs.”

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The paragraphs of the amended statement of defence are:– a “5. The defendants deny paragraph 8 of the statement of claim and say that repayments of the sum borrowed and interest was conditional and subject to the terms of clause 1.1 of the Credit Offer of 28 February, 1975 incorporated into the loan b agreement executed on 8 October, 1975. 6. The first defendant says that at its request, information about disbursement of the loan was brought to its knowl- edge by a document dated 21 February, 1978; defendant c will found upon the said document by the Nigeria Agricul- tural and Co operative Bank Limited (‘NACB’) to the Aiye- toro Community Trading Company Limited (‘ACTC’) at the trial of this action. 7. The defendants denied refusing to effect repayments, and d will lead evidence to show that the trawlers acquired di- rectly by the plaintiff for the first defendant were delivered to it in July, 1976 and August, 1977 respectively, and it will be contended that the trawlers were made of inferior boat building material, and that the engine installed in them were e particularly of inferior quality, lacking spare parts hence its constant break down which characterised the life span of the five trawlers. 9A. The defendants aver that while admitting signing a loan agreement with the plaintiff on the 8 October, 1975, the f amount allegedly disbursed from the loan is vehemently de- nied, and the plaintiff is put to the strictest proof thereof. 9B. The defendants aver that in spite of demands for details and the actual amount of money disbursed to the ship builders g in Italy under the loan agreement, the plaintiff had refused and is still refusing to disclose with supporting documents, the actual amount disbursed with documentary proof of re- ceipt of such disbursement, viz: letters of credit and docu- ments showing receipt of money allegedly transferred to the h ship builders in Italy and Conrad Birkhoff of Hamburg.” After considering the evidence adduced before him by the parties, the learned trial Judge at pages 225–226 of the re- cord said:– i “In a suit in which so much is involved, I do not think it could have been too much to bring down a knowledgeable agent of the manufacturers to give evidence of the actual money received by the manufacturers on behalf of the first defendant. After all, if the loan had been paid directly to the defendant it would still have j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, BENIN DIVISION) Ba’aba JCA Aiyetoro Comm Trading Co Ltd v. Nig Agric and Co-op Bank 255 a been necessary to prove the actual amount received by the defen- dant, mortgage deeds and loan agreements notwithstanding. Apart from the pre-manufacture tripartite agreement, exhibit E in which it was provided that the manufacturers had agreed to build for the b purchasers and the purchasers have agreed, to buy the vessels de- scribed in the schedule hereto for the sum of DM2,900,000DM re- spectively 580,000DM which does not mean much to this Court in the absence of any evidence as to the equivalent of this queerly quoted price in Naira, there is no record tendered to show exactly c how much the builders received”. However, at pages 229–230, the learned trial Judge held:– “Since there is no other evidence of the actual money spent outside the disbursement advice issued. I hold that these are evidence of d all the money actually disbursed and spent on behalf of the defen- dants, and I find no basis in going outside it except of course, the question of interest on the money. So as I have said earlier, I shall base my judgment on the amounts in exhibits F–F37. e I must admit that the slipshod manner in which the plaintiffs pre- pared and presented the defendant’s accounts has been most un- helpful in determining how much was actually disbursed on behalf of the defendants. The amount owed was made up of:– (a) The actual money that went to the manufacturers; f (b) Local charges like insurance, telex expenses, etc; (c) Interests. These were not clearly shown in any document. I agree with Prince Mafo that by the way the account was presented one could g not say that the plaintiff actually proved the actual amount dis- bursed. I cannot imagine a more careless and perfunctionary sys- tem of accounting than the one exhibited by the plaintiffs in this case. Exhibit G contained what is called details of disbursements h and repayments as at 31 January, 1978, which I have mentioned earlier; whereas, when I, on my own, cast the various amounts on exhibits F–F37 on the adding machine, I obtained N1,230,603.26k. These two discrepant figures did not include in- terest which Chief Ogunleye submitted was capitalised i.e. was i added to the capital. As I have said earlier, each of exhibits F–F37 was accompanied by a commercial bank’s forwarding slip which means that the money actually passed from the plaintiff/bank through the commercial bank to the recipient in favour of the de- fendants. j I have answered the first three posers I listed above.”

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The Supreme Court has in a number of cases laid down the a principles governing a review of the facts by an Appellate Court. Broadly speaking, it is the primary function of a trial court, which saw and heard the witnesses to assess the b credibility of those witnesses and to believe or disbelieve any of them. (See Chinwendu v Mbamali (1980) 3–4 SC 31 at page 75 per Obaseki, JSC and Enang v Adu (1981) 11–12 SC 25 at 38 per Nnamani, JSC.) c In this respect, an Appellate Court is only left with a duty to see:– (a) Whether there was evidence to support the findings and/or the decision of the trial court. d (b) Whether the trial court made a correct assessment of the evidence before it. (c) Whether the trial court has wrongly accepted or re- jected any evidence tendered at the trial; or e (d) Whether there has been an erroneous appraisal of facts leading to erroneous conclusions in this case. (See A. Anyaoke v Dr. F. Adi (1986) 3 NWLR (Part 31) 731 at 742 and Mogaji and others v Odofin and f others (1978) 4 SC 91.) All that this means is that an Appellate Court will not inter- fere with the findings of a trial court unless it is obvious that, that court has not made good use of the unique advantage g which it has of seeing and hearing the witnesses before it. (See Fashanu v Adekoya (1974) 1 All NLR (Part 1) 35; Woluchem v S. Gudi (1981) 5 SC 291.) The main question in this appeal will be to ascertain h whether there has been a violation of the principles stated above. By several decided authorities, it has been held that a trial court has to make a finding on evidence before it. (See Okuwobi v Ishola (1973) 3 SC 43; Anukanti v Ikwonyeaso i (1978) 1 SC 37; Okonofua v The State (1981) 6–7 SC 1 and Mogaji v Odofin (1978) 4 SC 91.) As can easily be seen from the two portions of the judgment of the learned trial Judge, reproduced in this judgment, it does not appear that the learned trial Judge acted on the evidence adduced before j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, BENIN DIVISION) Ba’aba JCA Aiyetoro Comm Trading Co Ltd v. Nig Agric and Co-op Bank 257 a him. I understand the first portion of the judgment of the trial Judge at pages 225–226 to mean that there is no credi- ble evidence adduced by the respondent in respect of the disbursements and the actual amount in Naira as the b amounts given in Deutschmark. In fact the learned trial Judge said that a knowledgeable agent of the ship builders ought to have been summoned to give evidence. It does not appear that the finding of the learned trial Judge at pages c 229–230 is based on the evidence adduced before him. The learned trial Judge has clearly in effect stated in his judg- ment, that the amount he awarded to the respondent was ob- tained through his own effort in his chambers by using an d adding machine, apparently relying on the same documents which he had earlier said did not mean much to him. The action taken by the learned trial Judge in the instant case, had raised the question as to what the function of a Judge is in a civil case. e In the English case of Fallon v Calvert (1960) 2 Q.B. 201 at 204, cited by the learned S.A.N., for the appellant, the court said:– f “In a civil suit the function of a Court in this country, (unlike that of courts in some other countries) is to decide cases on the evi- dence that the parties think fit to call before it. It is not inquisito- rial. In re-Enoch and Zaretzkly, Bock and Co’s Arbitration decided that a Judge or Umpire had no right to call a witness in civil action g without the consent of the parties”. The Supreme Court of Nigeria, in the case of Isaac Omo- regbee v Daniel Pendor Lawani (1980) 3–4 SC 108 at 120 considered the issue of calling a witness in which the court h cited an English case referred to in Calvert (supra) and held:– “Accordingly, the general law of our evidence is that neither a Judge, nor an umpire in arbitration proceedings, has any right to call a witness without the consent of the parties.” i It therefore follows that a Judge has no power to personally obtain evidence and rely on it in a civil case not adduced be- fore him by the parties. A trial is not an investigation and in- vestigation is not the function of a court. A trial is the public j demonstration and testing before a court of the case of the

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, BENIN DIVISION) Ba’aba JCA 258 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) contending parties. The demonstration by the assertion and a evidence, and the testing by cross-examination and argument. The function of the court is to decide between the parties on the basis of what has been so demonstrated and tested. (See Duriminiya v C.O.P. (1961) NNLR 70, 73–74.) b The trial or Appellate Court can, as of right raise issues that may aid the determination of the issues in controversy but cannot decide such issues without the parties’ Counsel reacting to such issues raised suo motu by the court. (See c R.A.F. Finnih v J.O. Imade (1992) 1 NWLR (Part 219) 511 and Kuti (Trading as Abusi Odu Transport) v Oludodimu Jibowu (1972) 6 SC 147.) In order to maintain the judicial neutrality and thereby enable the Judge refrain from decid- d ing a case on issues raised by him suo motu in his judg- ments, the best posture for the Judge is to confine himself on issues of facts solely raised by the parties. (See Ochonma v Unosi (1965) NMLR 321.) It cannot be disputed that in the e instant appeal the learned trial Judge did not invite the par- ties’ Counsel to address him on the amount he obtained suo motu by computing the figures on exhibits F–F37 which he subsequently held to be the amount the respondent was enti- tled to be paid by the appellants. f The cases referred to by the learned Counsel for the re- spondent at pages 13 to 19 of his brief in respect of the com- putation and award of a lesser amount are clearly distin- guishable from the case under consideration in that in the g cases referred the court in each case relied on the evidence properly adduced in its judgment. Whereas, in the case un- der consideration there is no evidence of the exchange rate whatsoever adduced by the either of the parties. In fact the h learned trial Judge complained of his difficulty being faced with figures in Deutschmark. For example in Vulcan Gases Ltd v G.F. Ind. A.G. (2001) 9 NWLR (Part 719) 610 at 656– 657, the lower court relied on an undisputed basis for compu- i tation, since the two solicitors who drew up the terms of set- tlement computed the Naira equivalent of US$631,241 to be N824,508. The Supreme Court held that in the lower court’s computation, the lower court acted on the fact before it upon which it could act without the assistance of Counsel which is j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, BENIN DIVISION) Ba’aba JCA Aiyetoro Comm Trading Co Ltd v. Nig Agric and Co-op Bank 259 a not the position in the instant appeal where the learned trial Judge suo motu computed the figures in exhibits F–F37. Learned S.A.N. for the appellants relying on the provisions b of section 97(2)(e) of the Evidence Act, contended that ex- hibits F–F37 wrongly admitted by the learned trial Judge. Section 97(2)(e) of the Evidence Act Cap 112 Laws of the Federation, 1990 reads:– “97(2)(e) Secondary evidence may be given of the existence, c condition or contents of a document in the following cases:– (2) The secondary evidence admissible in respect of the original document referred to in the several d paragraphs of subsection (1) of this section is as follows:– (e) In paragraph (h) the copies cannot be re- ceived as evidence unless it be first proved that the book in which the entries copied e were made was at the time of making one of the ordinary books of the bank, and that the entry was made in the usual and ordinary course of business, and that the book is in the custody and control of the bank, which f proof may be given orally or by affidavit by a partner or officer of the bank, and that the copy has been examined with the original entry and is correct, which proof must be given by some person who has examined g the copy with the original entry and may be given orally or by affidavit.” I think the law is clear that if inadmissible evidence has been received then it is the duty of the Court of Appeal to reject it h and decide the case on the legal evidence. (See Owoniyi v Omotosho (1961) 2 SCNLR 57, (1961) 1 All NLR 304.) It should be noted that the appellants raised an objection to the admissibility of exhibits F–F37 during the hearing but the learned trial Judge overruled the objection. i In any event, exhibits that are inadmissible in law still re- main inadmissible whether an objection was raised or not. I agree with the submission of the learned S.A.N. for the appel- lants that exhibits F–F37 were wrongly admitted by the j learned trial Judge. (See Yassin v Barclays Bank DCO (1968)

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All NLR 171; ACB Ltd v Yesufu (1976) All NLR 328 and a ACB Ltd v Oba (1993) 7 NWLR (Part 304) 173.) It is not the length of evidence given in tendering a bank statement of account that matters but the substance of the evi- b dence given, nor is it compulsory that the precise words set out in section 97(2)(e) should be used by the witness or the Judge taking down his evidence. It is enough that substan- tially the requirements of the section are observed. (See ACB c Ltd (supra) 339–340.) Relying on ACB Ltd (supra), I am un- able to agree with the learned trial Judge that exhibits F–F37 are letters. I hold that exhibits F–F37 titled “disbursement ad- vice/debit notes” are nothing but statements of account and their admission in evidence must be in compliance with sec- d tion 97(2)(e) of the Evidence Act. It is also clear with the greatest respect to the learned trial Judge that apart from the fact that there is no evidence to support his findings, he also descended into the arena which is fatal to his decision. e With the greatest respect to the learned trial Judge, I com- pletely disagree with his findings at page 229 of the record that since there is no other evidence of actual money spent outside the disbursement advice issued, the learned trial f Judge, concluded that these are evidence of all the money actually disbursed and spent on behalf of the defendants, as that is a negative assertion. It is not in law for the appellants to prove a negative assertion. The burden is on the respon- g dent who has made a positive assertion to prove it by evi- dence. (See G.F. Ind. v A.G. (supra) 667.) In my view, the findings of the learned trial Judge are perverse and not as a result of proper judicial discretion. (See Kuma v Kuma h (1936) 5 W.A.C.A. 4; Adimora v Ajufo (1988) 3 NWLR (Part 80) 1 at 15; Nzekwu v Nzekwu (1989) 2 NWLR (Part 104) 373 and Atolagbe v Shorun (1985) 1 NWLR (Part 2) 360.) I therefore resolve issues i, ii, iv and vi in favour of the appellants. i On Issues i, ii, iv and vi, I will allow the appeal and do not consider it necessary to proceed to determine all the issues. For the reasons stated herein, I allow the appeal and set aside the judgment of the learned trial Judge. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, BENIN DIVISION) Ba’aba JCA Aiyetoro Comm Trading Co Ltd v. Nig Agric and Co-op Bank 261 a On the counter-claim, the learned trial Judge after evaluat- ing the evidence adduced, held at pages 237–238 of the re- cord as follows:– b “(1) That the first defendant is liable to the plaintiff in the sum of N1,230.603.26 being the total money disbursed in con- nection with the transactions leading to the delivery of the five fishing trawlers – laifotape 1 to laifotape 5, less N35,000 which the records show that has been repaid i.e. c N1,195,603.26. (2) That the subject matter of the legal mortgage viz: the five fishing trawlers were not sold by the plaintiff. (3) That the purported sale by the auctioneer was not duly d authorised by the plaintiff and since it is common ground that it was invalid, nobody was prejudiced by the auction- eer’s action. (4) Consequently, nobody was put into possession and there- fore the defendant’s interest were not in anyway jeopardised e and therefore the counter-claim does not arise.” I have read the evidence adduced by the parties and agree with the learned trial Judge that the appellants failed to prove their counter-claim which the respondent denied. I f have no reason to interfere with the findings of the learned trial Judge in respect of the counter-claim except for his comment on notice. I do not find it necessary to elaborate on the issue of whether proper notice was given to the second g defendant as it will ultimately have no effect on the decision on the counter-claim having regard to my conclusion in re- spect of the respondent’s claim. I therefore resolve Issue (v) against the appellants and affirm the decision of the learned trial Judge, dismissing the counter-claim. h In the result, I hold that there is merit in the appeal. I there- fore hereby allow the appeal and set aside the judgment of the learned trial Judge, Ajayi, J delivered on 4 May, 1989 in i Suit No. HOK/124/86. The order of the learned trial Judge “for the sum of N1,230,603.26 minus the N35,000 already repaid i.e. N1,195,603.26 plus 9% interest calculated from the date this case was filed up to date i.e. between 17 July, 1986–4 May, 1989” including the order of sale of the landed j property subject matter of the equitable mortgage and costs

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, BENIN DIVISION) Ba’aba JCA 262 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) awarded in favour of the respondent are hereby set aside and a substituted with an order dismissing Suit No. HOK/124/86. I hereby affirm the order of the learned trial Judge dismissing the counter-claim of the appellants. I award costs assessed at N5,000 in favour of the appellants against the respondent. b ROWLAND JCA: I had the privilege of reading before now the draft of the judgment just delivered by my learned brother, Ba’aba, JCA, I agree entirely with his reasoning and conclusions. I have nothing useful to add. I also allow this c appeal. I abide with the consequential orders in the leading judgment including the order on costs. IBIYEYE JCA: I have had the opportunity of reading before now the judgment of my brother, Ba’aba, JCA, just deliv- d ered. I entirely agree with his reasoning and conclusion that the appeal is meritorious. I too, accordingly, allow the ap- peal and abide by the consequential orders including costs. Appeal allowed. e

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United Bank for Africa Plc v. Alhaji Garba Abdullahi 263 a United Bank for Africa Plc v Alhaji Garba Abdullahi COURT OF APPEAL, KADUNA DIVISION b SALAMI, MUHAMMAD, UMOREN JJCA Date of Judgment: 18 JUNE, 2002 Suit No.: CA/K/72/2000

Banking – Deed of legal mortgage – Invalidity thereof – c Remedy available to mortgagee – Whether can claim for money lent Illegality – Fraud – Court not to aid Limitation of action – Whether accrued right can be sus- d pended Mortgage – Deed of legal mortgage – Action to void deed of mortgage – Limitation period thereof – How determined – Whether an accrued right can be suspended – Section 4 e Limitation Law of Kaduna State 1991 considered Practice and procedure – Pleadings – Amendment – Writ of summons and statement of claim – Where introduces statute barred claim – Court not to allow f Facts The respondent filed a suit against the appellant at the Ka- duna State High Court in respect of a loan transaction. The g respondent later brought a motion for leave to amend his writ of summons and statement of claim to add new issues seeking to invalidate the Deed of Mortgage dated 25 May, 1988. h This is an interlocutory appeal against the decision of the Kaduna State High Court of Justice delivered on 19 January, 2000 granting the plaintiff leave to amend his writ of summons as well as the statement of claim by adding ad- i ditional seven fresh reliefs. The ruling was consequent upon an application for leave to amend the writ of summons and statement of claim. After the motion had been argued the learned trial Judge in a reserved ruling delivered on 11 November, 1999 called on both parties to further address j on whether the fresh claims were not statute barred.

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Thereafter Counsel caused further affidavits and further a counter affidavits to be deposed to and addressed the court on the issue raised in the ruling of 11 November, 1999. The learned trial Judge delivered another reserved ruling in which all the reliefs sought were granted. b The defendant was dissatisfied with the ruling and ap- pealed to this Court on three grounds of appeal contained in its amended notice of appeal. c Held – 1. Where a mortgage deed by which a loan is secured is in- valid, the mortgagee is still entitled to his money, not on the mortgage deed but on the principle of money had and d received. 2. By the provision of section 4 of the Limitation Law of Kaduna State 1991, an action to void a deed of mortgage cannot commence after the expiration of 10 (ten) years e from the date on which the cause of action accrued. The cause of action in the instant case accrued when the re- spondent was made to execute a deed of mortgage con- trary to the provision of Registration Law on 26 May, 1988. f 3. There is no principle of law, under common law or statu- tory law to the effect that after a right of action had ac- crued, it could be suspended or stopped from running until the happening of certain events in future. g 4. The court will not lend itself to be used as a vehicle of fraud. 5. It is therefore settled that amendment of writ of sum- h mons or pleadings which will have the effect of reviving a cause of action which is barred by statute of limitation at the time of amendment is not permissible. Appeal allowed. i Cases referred to in the judgment

Nigerian Adimora v Ajufo (1988) 3 NWLR (Part 80) 1 j

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United Bank for Africa Plc v. Alhaji Garba Abdullahi 265 a Afolayan v Ogunrinde (1990) 1 NWLR (Part 127) 369 Agbetoba v Lagos State Executive Council (1991) 4 NWLR (Part 188) 664 b Badejo v Federal Ministry of Education (1996) 8 NWLR (Part 464) 15 Bello v Attorney-General of Oyo State (1986) 5 NWLR (Part 45) 828 c Eboigbe v NNPC (1994) 5 NWLR (Part 347) 649 Egbe v Adefarasin (1985) 1 NWLR (Part 3) 549 d Egbe v Adefarasin (No. 2) (1987) 1 NWLR (Part 47) 1 Emiator v Nigerian Army (1999) 12 NWLR (Part 631) 36 LPDC v Fawehinmi (1985) 2 NWLR (Part 7) 300 e Nfor v Ashaka Cement Co Ltd (1994) 1 NWLR (Part 319) 222 Savage v Uwaechia (1972) 3 SC 214 f Thomas v Olufosoye (1986) 1 NWLR (Part 18) 669 UBN Ltd v Penny Mart (1992) 5 NWLR (Part 240) 228 Wilson v Oshin (2000) 9 NWLR (Part 673) 442 g Foreign Pritam Kaur v Russel and Sons Ltd (1973) 1 All ER 617 h Rhodes v Smethurst 150 ER 1335 Warner v Sampson (1959) 1 QBD 297

Nigerian statutes referred to in the judgment i Constitution of the Federal Republic of Nigeria, 1979, sec- tions 6(6)(a) and 236 Illiterates Protection Law Cap 74 Laws of Kaduna State, j 1991

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Land Registration Law Cap 85 Laws of Kaduna State, 1991, a sections 8 and 24 Limitation Law Cap 89 Laws of Kaduna State, 1991, sec- tions 4 and 11 b Nigerian rules of court referred to in the judgment High Court of Kaduna State (Civil Procedure) Rules, 1987, Order 24 Rule 6(1) c Books referred to in the judgment Black’s Law Dictionary, page 201 Civil Procedure in Nigeria by Fidelis Nwadialo, page 385 d Halsbury’s Laws of England (3ed) Volume 24, pages 200– 201, paragraph 358 Supreme Court Practice, 1979, Volume 1, page 339 e Counsel For the appellant: T. Aluko-Olokun, Esq. For the respondent: S. Atung, Esq. f

Judgment SALAMI JCA: (Delivering the lead judgment) This is an in- terlocutory appeal against the decision of the Kaduna State g High Court of Justice delivered on 19 January, 2000 grant- ing the plaintiff leave to amend his writ of summons as well as the statement of claim by adding additional seven fresh reliefs. The ruling was consequent upon an application for h leave to amend the writ of summons and statement of claim. After the motion had been argued the learned trial Judge in a reserved ruling delivered on 11 November, 1999 called on both parties to further address on whether the fresh claims i were not statute barred. Thereafter, Counsel caused further affidavits and further counter affidavits to be deposed to and addressed the court on the issue raised in the ruling of 11 November, 1999. The learned trial Judge delivered another reserved ruling in which all the reliefs sought were granted. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Salami JCA United Bank for Africa Plc v. Alhaji Garba Abdullahi 267 a The defendant was dissatisfied with the ruling and ap- pealed to this Court on three grounds of appeal contained in its amended notice of appeal. b Briefs of argument, in accordance with practice and proce- dure of this Court, were settled at amended appellant’s brief and respondent’s brief. In the amended appellant’s brief these issues were framed:– c “1. Whether the cause of action in respect of the proposed addi- tional claims of the plaintiff by which he challenged the va- lidity of the deed of legal mortgage dated 25 May, 1988 arose on 25 May, 1988 and are therefore statute barred or it d arose in 1994 or any time thereafter and were as a result not statute barred. 2. Whether the cause of action arose when the plaintiff’s right to challenge the deed of legal mortgage arose on 25 May, 1988. e 3. Whether pursuant to Order 24 Rule 6 of Kaduna State High Court (Civil Procedure) Rules the defendant was precluded from raising objection to the fresh claims and it was prema- ture to raise objection to the addition of the fresh claim on f the ground that they were statute barred when application was made by the plaintiff to add the fresh claims. OR Whether it was proper for the appellant to raise objection to g the addition of fresh claims which were alleged to be statute barred when application was made by the applicant to add the fresh claim and whether the trial court had power and jurisdiction to consider and determine whether or not the objection was valid at that stage.” h The following issues were identified as calling for determi- nation in the respondent’s brief of argument:– “1. Whether the provisions of Order 24 Rule 6 of the Kaduna i State High Court (Civil Procedure) Rules, 1987 make it mandatory for the issue of statute of limitation to be specifi- cally pleaded and particularised for trial and determination in the substantive suit. (Ground 3) 2. Whether in the circumstances of this case, the cause of ac- j tion arose and thereby time began to run from the date of

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the execution of the deed of legal mortgage or from the date a or dates when the appellant bank demanded for payment of the loan by the respondent. OR 3. Whether there was any justifiable dispute or lis inter partes b from the very moment of the execution of the deed of the legal mortgage in respect of which any of the parties, espe- cially the respondent, could have invoked the judicial pow- ers or jurisdiction of any court. (Grounds 1 and 2).” c The appellant, having related its three grounds of appeal respectively to its three issues proceeded to frame an alterna- tive issue which it failed to relate to any of the grounds of appeal. The respondent did the same thing in his own brief of argument. The appellant did not finger any of its d three grounds of appeal as giving rise to the alternative issue understandably because two issues cannot be frame from one ground. It is settled law that an issue or issues for de- termination, in an appeal, need to encompass or derive from e one or more grounds of appeal but not a multiplicity of is- sues arising from the same ground of appeal Nfor v Ashaka Cement Co Ltd (1994) 1 NWLR (Part 319) 222 and Agbe- toba v Lagos State Executive Council (1991) 4 NWLR (Part f 188) 664, (1991) 6 SCNJ 1. In the absence of any ground of appeal embracing the alternative issue, I think, it is incompe- tent and is for that reason struck out. The appellant’s Issue 1 is a variation of its Issue 2 and both g could be taken together in the manner learned Counsel for appellant eventually canvassed them in the appellant’s brief of argument. They both cover the same issue as respondent’s Issue 2. I think this is the only issue calling for consideration and determination in this appeal. h At the hearing of the appeal, Counsel adopted and relied on their respective briefs of argument. The defendant will hereinafter be referred to as the appellant while the plaintiff will be referred to as the respondent. i In arguing the appeal learned Counsel for appellant con- tended that learned trial Judge found that the respondent had a right to challenge the deed from the day of its execution and what he meant by challenging the deed is nothing but a j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Salami JCA United Bank for Africa Plc v. Alhaji Garba Abdullahi 269 a cause of action. Learned Counsel argued that some of the reliefs sought by the amended writ became enforceable as far back as 1988 and are for that reason time barred. Learned Counsel argued further that the cause of action in respect of b the deed accrued on the date of execution while the three let- ters referred to by the trial Judge gave rise to some other rights. He concluded his argument by submitting that the pe- riod of limitation began to run on the day the cause of action c arose and expired on 25 May, 1988 thereafter the respon- dent’s right to institute an action in respect of the same mat- ter is extinct. In this connection learned Counsel for respondent argued d that since there existed between the parties a relationship of banker and customer a cause of action could only have arisen upon a demand by the bank for the payment of the loan. He then submitted that that time for the purpose of the e limitation law could only be computed from the date of such demands which could be any of the dates on the letters of demand, that is, exhibit AA dated 25 July, 1994 or exhibit BB dated 3 February, 1995 or exhibit DD dated 19 Febru- f ary, 1996. Learned Counsel contended further that it is preposterous to contend that a cause of action arose as from the date of the purported execution of the deed of legal mortgage when g as at that date there was no lis or dispute between the parties which a court can adjudicate upon in exercise of its judicial powers or jurisdiction pursuant, inter alia, to sections 6(6)(a) and 236 of the 1979 Constitution. He further con- h tended that in the absence of lis or justiciable dispute be- tween the parties such a plaintiff will only be inviting the court to indulge in an academic or hypothetical exercise Badejo v Federal Ministry of Education (1996) 8 NWLR (Part 464) 15. He submitted that before a court can adjudi- i cate there must be a dispute requiring determination or lis inter partes. Vide L.P.D.C. v Gani Fawehinmi (1985) 2 NWLR (Part 7) 300, 364. Learned Counsel for respondent having rightly, in my re- j spectful view, conceded that the fact of the respondent’s

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Salami JCA 270 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) illiteracy manifested on the date of the purported execution a of the deed of legal mortgage nevertheless he went ahead to contend that respondent’s right to plead his illiteracy was a vested right which remained in abeyance until a dispute arose between him and the appellant. It was according to b Counsel a contingent right to be invoked when the occasion for doing so avails itself. He cited the case of Wilson and another v A.B. Oshin and others (2000) 9 NWLR (Part 673) 442, 461 per Karibi-Whyte, JSC. I have read the case to c which I am referred and am unable to agree that it is an au- thority for the proposition propounded by learned Counsel for respondent. It is talking about vesting of interest in a chieftaincy matter where statute of limitation has no role to d play. The concession of the learned Counsel for the respon- dent is to the effect that the cause of action arose on the day the deed of mortgage was executed but the respondent tacti- cally withheld his right to bring an action to declare the deed invalid until such a convenient time when he could exploit e the alleged invalidity to his benefit just as he used the pur- ported invalid mortgage to his advantage by drawing down on the money lent to him by the bank. He took money from the bank on the strength of the mortgage deed which he f knew at the material time was void and now wants to defeat the same transaction by the validity or otherwise of the same document. There is no sense in holding the alleged right in abeyance “to be invoked when the occasion for doing so g avails itself ”. Such an occasion would never avail itself as learned Counsel for respondent and the respondent must have learnt by now because no court would lend itself to be used as a vehicle of fraud. Assuming without so deciding that the mortgage deed, on which the loan was pegged, were h invalid, the appellant would equally be entitled to their money not on the mortgage but on the principle of money had and received. i The concession of the learned Counsel for the respondent as well as the finding of the learned trial Judge to the effect that the cause of action accrued on the 25 May, 1988 but the respondent right to bring an action was contingent to be in- voked on happening of certain events puts appellant’s case j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Salami JCA United Bank for Africa Plc v. Alhaji Garba Abdullahi 271 a beyond doubt. In this connection learned trial Judge rea- soned, inter alia, as follows in his ruling:– “I agree with Toro that their exhibits AA, BB and DD are the let- ters of demand and the dispute arose from those dates 25 July, b 1994, 3 February, 1995 and 19 February, 1996 from these dates to date are not up to 10 years. It is true that the right of plaintiff to challenge exhibit C existed from its execution but there was no cause of action i.e. to say that there was no dispute until the bank c ‘defendant’ now wrote his letter of demand thereby a dispute arose between the plaintiff and defendant.” (Italics mine.) Clearly learned trial Judge is adept but not sincere or impar- tial. The learned trial Judge, in the portion of his judgment d set out above, was merely playing on words or approbating and reprobating. What learned trial Judge referred to as the right of respondent to challenge exhibit C means no less than a cause of action which enables the plaintiff to chal- lenge the deed by seeking for a declaration that the deed of e mortgage be declared null and void for failure to comply with the provisions of the Illiterates Protection Law Cap 74 of the Laws of Kaduna State of Nigeria, 1991. I have looked in vain in the Limitation Law Cap 89 of the Laws of Kaduna f State of Nigeria, 1991 for a provision suspending or stop- ping time from running after the right to bring an action had accrued until happening of certain events in future as pro- posed by learned trial Judge in his ruling and learned Coun- g sel for respondent in his submission before us. In truth, there is no such principle of law in common law nor statute law. The intention of respondent is clear. What emerges from those postures is that the respondent proposes to wait in am- bush for the appellant until he brings an action for the re- h spondent’s indebtedness and validity or otherwise of the mortgage as a defence would be foisted on it to defeat the claim. Otherwise why draw down on the loan when one is aware that the security given to secure it is bad. i Notwithstanding admission of the learned Counsel for re- spondent, in the respondent’s brief, that the cause of action in respect of the deed accrued on 25 May, 1988 and the find- ing of the learned trial Judge to that same effect, I intend to j examine the submission of Counsel to determine whether or

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Salami JCA 272 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) not a cause of action existed as far back as 25 May, 1988. A a cause of action is a right existing in one party to make a claim or demand or a redress on another for one’s right. A cause of action exists or accrues only when a right to make challenge in respect of the subject matter against another. b The phrase “cause of action” is defined in the Black’s Law Dictionary at page 201 as meaning:–

“The fact or facts which give a person a right to judicial redress or c relief against another. The legal effect of an occurrence in terms of redress to a party to the occurrence. A situation or state of facts which would entitle party to sustain action and give him right to seek judicial remedy in his behalf.” d See Bello and others v Attorney-General of Oyo State (1986) 5 NWLR (Part 45) 828, 876 where Karibi Whyte, JSC said:– “I think a cause of action is constituted by the bundle or aggregate of facts which the law recognises as giving the plaintiff a substan- e tive right to make the claim against the relief or remedy being sought. Thus the factual situation on which the plaintiff relies to support his claim must be recognised by the law as giving rise to a substantive right capable of being claimed or enforced against the defendant. In other words, the factual situation relied upon must f constitute the essential ingredient of an enforceable right or claim (see Trower and Sons Ltd v Ripstein (1944) AC 254 at page 263; Read v Brown 22 Q.B.D. 128; Cooke v Gill (1873) LR 8 C.A. 107; Sugden v Sugden (1957) 1 All ER 300 and Jackson v Spittal (1870) LR 5 C.P. 542.) Concisely stated, any act on the part of the g defendant which gives to the plaintiff his cause of complaint is a cause of action.” And in Afolayan v Ogunrinde (1990) 1 NWLR (Part 127) 369, 382–3 Obaseki, JSC simplified the matter when he h said:– “In its simplest terms, I would say that a cause of action means:– (1) a cause of complaint; i (2) civil right or obligation fit for determination by a court of law; (3) a dispute in respect of which a court of law is entitled to invoke its judicial powers to determine. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Salami JCA United Bank for Africa Plc v. Alhaji Garba Abdullahi 273 a It consists of every fact which it would be necessary for the plain- tiff to prove if traversed, in order to support his right to judgment – Cook v Gill (1873) LR 8 C.P. 107; Read v Brown (1889) 22 Q.B.D. 128. When facts establishing infraction of or trespass on b those rights and obligations exist side by side, a cause of action is said to have accrued.” (See also Egbe v Adefarasin (No. 2) (1987) 1 NWLR (Part 47) 1; Savage and others v M.O. Uwechia (1972) 3 SC 214, c 221 and Thomas v Olufosoye (1986) 1 NWLR (Part 18) 669, 682 and Union Bank of Nigeria Ltd and another v Penny Mart (1992) 5 NWLR (Part 240) 228, 239.) d To discover respondent’s civil right or obligation fit for de- termination by a court of law it would be necessary to recite the four additional reliefs particularly (i) and (ii) thereof sought to be added to the indorsement to the writ of sum- mons. They read as follows:– e “1. To add the following declarations in the Indorsement to the writ of summons, viz:– (i) a declaration that the deed of legal mortgage dated 25 May, 1988 prepared by the defendant whereby the f plaintiff purported to mortgage his property situate and known as No. 24, Ruma Road, Tudun Wada Bye pass Kaduna, is illegal, entirely null and void and of no le- gal effect whatsoever in that same was not executed in compliance with the mandatory provisions of sections g 8 and 24 of the Land Registration Law, Cap 85, LKS, 1991 because the plaintiff being a person illiterate in the English language the said deed of legal mortgage was never executed by him before a Magistrate or a h justice of the Peace. (ii) a declaration that the said deed of legal mortgage dated 25 May, 1988 prepared by the defendant for the aforementioned purposes was made executed in breach of the mandatory provisions of the Illiterates Protection i Law Cap 74 Laws of Kaduna State, 1991, in that the plaintiff being illiterate in the English Language the said deed of legal mortgage was never read over and explained to the plaintiff by the defendant to his under- standing before the plaintiff signed and/or before same j was signed for him.

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(iii) a declaration that consequent upon declaration (i) and a (ii) above, that the plaintiff is not indebted to the de- fendant in any sum and in anyway or manner whatso- ever in respect of which his aforementioned property is a security or collateral. Accordingly, that the aforesaid b plaintiff’s landed property is not mortgaged or encum- bered by virtue of the said purported deed of legal mortgage or at all.” The substance of the material fact which he would require c for sustaining the action, if traversed, is that the deed of mortgage executed on 25 May, 1988 was invalid the same having not been executed in compliance with the provisions of sections 8 and 24 of the Land Registration Law Cap 85 of the Laws of Kaduna State of Nigeria, 1991. And being an d illiterate person, the deed of legal mortgage prepared for the transaction was made or executed in breach of the manda- tory provisions of the Illiterates Protection Law Cap 74 of the Laws of Kaduna State of Nigeria, 1991. These material e facts are sufficient to sustain the two declarations sought in the proposed reliefs (i) and (ii). The cause of action became complete so that he can commence and maintain an action from the day he executed the deed of mortgage on 25 May, f 1988. The same is now caught by the limitation law, in the circumstance of this case, after the effusion of the time limit of ten (10) years (see Adimora v Ajufo (1988) 3 NWLR (Part 80) 1, (1988) 6 SCNJ 16). The limitation time does not stop running nor wait till damage is suffered. The cause of action g arose from when the breach occurred and not when damage was suffered. The period for limitation will commence to run from the date the cause of action accrued. The cause of action in the instant appeal accrued when respondent was h made to execute a deed of mortgage contrary to the provi- sions of Land Registration Law Cap 85 and Illiterates Pro- tection Law Cap 74 and not when various letters of demand were written (see Rhodes v Smethurst 150 ER 1335; Pritan i Kaur v Russel and Sons Ltd (1973) 1 All ER 617; Egbe v Adefarasin (1985) 1 NWLR (Part 3) 549; Eboigbe v NNPC (1994) 5 NWLR (Part 347) 649, (1994) 6 SCNJ 71, 78 and Emiator v Nigeria Army (1999) 12 NWLR (Part 631) 362, 372, (1999) 9 SCNJ 52.) The cause of action which accrued j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Salami JCA United Bank for Africa Plc v. Alhaji Garba Abdullahi 275 a on 25 May, 1988 would be caught by statute of limitation by virtue of section 4 of Limitation Law Cap 89 of the Laws of Kaduna State of Nigeria, 1991 when the right of action thereof would be extinguished. b Section 11 of the Limitation Law Cap 89 which prescribes for time limiting redemption action would not avail the re- spondent. c Section 11 provides as follows:– “11. When a mortgagee of land has been in possession of any of the mortgaged land for a period of ten years after the expi- ration of the time fixed for redemption no action to redeem the land of which the mortgagee has been so in possession d shall be brought to recover it by the mortgagor or any per- son claiming through him.” Although an action for redemption might still be within time, the period of limitation not commencing to run until e after expiration of the time fixed for redemption. But the re- spondent proposed amendment to the writ of summons is not seeking to redeem the mortgaged property rather he is ask- ing for the voidance of the mortgage which in effect means f that it never existed. It necessarily follows that if the action were to be successful and the deed voided there would be in law, no mortgaged property to redeem in the manner envis- aged by section 11 of the Limitation Law Cap 89. g I agree with learned Counsel for appellant that the provi- sions of Order 24 Rule 6(1) of the Kaduna State High Court (Civil Procedure) Rules invoked by the learned trial Judge does not arise until the amendment has been lawfully ob- h tained. It is therefore incumbent on him not to permit the fresh issues to be included in either the writ of summons or statement of claim. The cause of action, although alive and legal the right of action in respect of them had been extin- guished or taken away by the statute of limitation since 25 i May, 1988. If the appellant delays his opposition against their inclu- sion in the writ until after the application had been granted he would be guilty of negligence, inadvertence and derelic- j tion of duty to both his client and the court for allowing the

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Salami JCA 276 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) revival of a moribund right of action. He would be faced a with a fiat accompli. The reason being that once amendment is made it relates back to the date of the amended process. An amended writ becomes the origin of the action. In War- ner v Sampson (1959) 1 Q.B.D. 297, 321 it was stated that:– b “Once pleadings are amended, what stood before amendment is no longer material before the court and no longer defines the issues to be tried.” Halsbury’s Laws of England (3ed) Volume 24 at paragraph c 358 on page 201 stated thus:– “If a writ has been amended, the original writ, not the amendment, is the commencement of the action.” d In effect if appellant had folded its arms and allowed the or- ders sought to be made without resistance and without rais- ing the issue of limitation of time now being raised it would have been estoppel from raising it and must be deemed that the original writ of summons contained the amendment be- e ing sought. The 10 years period of limitation time expired on 25 May, 1988 if the respondent is desirous of instituting an action in respect of time barred remedy he no longer has the right of f action. He could not introduce it surreptitiously by amending the writ as well as pleading in an existing suit in order to give validity to an otherwise dead or stale cause of action. In this connection, the learned authors of Halsbury’s Law of g England (3ed) at page 200 said:– “A plaintiff will not be allowed to amend his pleadings to intro- duce a cause of action which is barred by the statute at the time of attempted amendment . . . The court will refuse to allow a writ to h be amended by the addition of a party when the effect of the amendment will be to defeat the operation of the statute.” See also Civil Procedure in Nigeria by Fidelis Nwadialo at page 385 where the learned author stated as follows in para- i graph 25.10:– “(iii) Amendment After Limitation Period OR Where cause of Action Is NOT Existent; 25.10 An amendment the effect of which will be to set up a claim that is statute barred will not be allowed. This j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Salami JCA United Bank for Africa Plc v. Alhaji Garba Abdullahi 277 a principle is clearly stated in Weldon v Neal where it is said ‘We must act on the settled rule or practice, which is that amendments are not admissible when they preju- dice the rights of the opposite party as existing at the b date of such amendments’. If an amendment were al- lowed setting up a cause of action, which, if the writ were issued in respect thereof at the date of the amend- ment, would be barred by the Statute of Limitation, it would be allowing the plaintiff to take advantage of her c former writ to defeat the statute and taking away an ex- isting right from the defendant, a proceeding which, as a general rule, would be, in my opinion improper and un- just.” d The appellant, in his brief, referred the Court also to the Su- preme Court Practice, 1979 otherwise known as White Book Volume 1 at page 339 under the caption Rights Accrued; where the authors like in Civil Procedure Rules in Nigeria by Nwadialo cautioned against permitting an amendment e which would take away defendants existing right at the time of the amendment and defeating the Statute of Limitation. Such amendment should not be granted since the grant would prejudice the defendant, the appellant in the instant f appeal. The learned authors said:– “Right Accrued: Amendments which would prejudice the rights of the opposite party existing at date of proposed amendment are not, as a rule, admissible. Thus, a plaintiff will not be allowed to amend by setting up fresh claims in respect of cause of action, g which, since the issue of the writ, have become barred by the Stat- ute of Limitations. Weldon v Neal 19 Q.B.D. 394; Lancaster v Moss 15 TLR 476.” (Italics mine.) It is, therefore, settled that amendment of writ of summons h or pleading which will have the effect of reviving a cause of action which is barred by the Statute of Limitation at the time of amendment is not permissible. It is not permissible because it would take away the defendant’s right which has i vested and therefore prejudicial to him. The proposed cause of action is different from the existing ones and its introduc- tion is intended respectfully to over reach the appellant. An amendment which will prejudice the other party will not be accepted. The courts are created to do substantial and not j cloistered justice.

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In the circumstance, the appeal succeeds and it is allowed. a The decision of the learned trial Judge is set aside. The ap- plication for amendment is refused and consequently dis- missed. b MUHAMMAD JCA: I have read before now the judgment just delivered by my Lord Salami, JCA. He has exhaustively dealt with all the issue canvassed in this appeal. I am in full agreement with his reasoning and conclusion. The appeal has merit and is allowed by me. I abide by all the conse- c quential orders made in the leading judgment. UMOREN JCA: I have read in draft the judgment of my learned brother, I.A. Salami, JCA, just delivered. I agree with his reasoning and conclusion that the appeal has merits d and should be allowed. I hereby also allow it. I agree with other consequential orders made in the lead judgment in- cluding order as to costs. Appeal allowed. e

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Pius Oku v. Emmanuel Opuene Banigo 279 a Pius Oku and another v Emmanuel Opuene Banigo and others b COURT OF APPEAL, PORT-HARCOURT DIVISION OGEBE, AKPIROROH, IKONGBEH JJCA

Date of Judgment: 4 JULY, 2002 Suit No.: CA/PH/159/99 c Banking – Banker and customer relationship – Whether within jurisdiction of State High Court – Section 230(1)(d) Decree No. 107 of 1993 d Jurisdiction – Banker and customer relationship – Whether within jurisdiction of State High Court – Section 230(1)(d) Decree No. 107 of 1993 Facts e This is an appeal against the judgment of the High Court holden at Port-Harcourt delivered by NDU, J (as he then was) on 25 June, 1997 in Suit No. PHC/227/88. f The claim of the first and second respondents at the Court below in paragraph 18 of their amended statement of claim is as follows:– (a) “A declaration that the purported sale of the Late Madam Joyce Banigo’s property situate at Port-Harcourt, Rivers g State identified as Rumuomasi Obio, off Lord Emmanuel Drive, behind Jobs Maulden industry Nigeria Limited and which is registered (Conveyance) as No. 28 at page 28 in Volume 29 of the Lands Registry in the Office at Port- h Harcourt and which sale was advertised in the Nigerian Tide Publication of 24 December, 1985, and sold the same day to the first defendant, a nominee of the third defendant is null and void, unconstitutional, unconscionable and against the terms of the mortgage and against the provisions i of the Auctioneers Law (Cap 12 of the Laws of the Eastern Nigeria applicable in the Rivers State). (b) A declaration that the third defendant then as a Director of the fourth defendant, is a trustee of the said property and cannot cause the buy or sale of the said property to himself j or to a nominee of himself, the first defendant.

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(c) An order rectifying the books of the fourth defendant relat- a ing to any transaction or dealing relating to the said prop- erty to reflect the name of the Deceased Mortgagor and now in the name of the Administrator and Administratrix of the Estate of late Madam Joyce Banigo. b (d) An Order compelling the first and third defendants to pay over to the plaintiffs all rents, and arrears of rent paid to them by Nigerian National Petroleum Corporation Port- Harcourt or any other Tenants on the said premises contain- ing a detached 3 Bedroom Storey Building. c (e) Perpetual injunction restraining the first and third defen- dants, their servants and agents from disturbing or further disturbing the plaintiffs’ enjoyment of the said property.” d The facts of the case put briefly are as follows:– The first and second respondents, Administrator and Ad- ministratrix of the Estate of late Madam Joyce Banigo, the owner of the Property situates off Lord Emmanuel Drive e Rumuomasi registered as No. 28 at page 28 Volume 29 of the Lands Registry, Port-Harcourt. She mortgaged the prop- erty to the third respondent to secure a loan. The repayment of the initial loan plus accrued interest were overdue and no payment was made. The third respondent foreclosed the f mortgage and eventually exercised its right of sale as con- tained in the Deed of Mortgage of the said property to the first appellant. The management of the third respondent or- dered the cancellation of the sale because it did not comply g with the conditions of sale as approved by it and this was communicated to the appellants. Meanwhile, the first and second respondents have taken possession of the property before this Suit was filed. h At the end of hearing, the trial the Court granted all the re- liefs claimed by the first and second respondents. Dissatisfied with the judgment, the appellants have ap- pealed to the Court of Appeal. i The main issue that calls for determination in this appeal is whether or not the Rivers State High Court has jurisdiction to hear and determine the case by virtue of the proviso in section 230(1)(d) of Decree No. 107 of 1993. j

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Pius Oku v. Emmanuel Opuene Banigo 281 a Section 230(1)(d) of Decree No. 107 of 1993 provides as follows:– “Not withstanding to the contrary in the Constitution and in addi- b tion to such other jurisdiction as may be conferred upon it by an Act of the National Assembly or a Decree, the Federal High Court shall have and exercise Jurisdiction to the exclusion to any other Court in Civil causes and matters arising from:– (a) . . . c (b) . . . (c) . . . (d) Banking, banks, other financial institutions, including any d action between one bank and other, any action by or against the Central Bank of Nigeria arising from banking, foreign exchange, legal tender, bills or exchange letter of credit, promissory note and other fiscal measures: Provided that this paragraph shall not apply to any dispute between an in- e dividual customer and his bank in respect of transaction be- tween the individual customer and the bank.” Held – Per curiam f “There is no dispute that the Federal Mortgage Bank of Ni- geria is a bank having regards to the provisions of the law setting it up, particularly sections 5(1)(a) and 6(1)(a) and (b) of the Federal Mortgage Bank Decree No. 82 of 1993 g which qualified it as a bank. Using the above as guidelines, I entirely agree with the submission of learned Counsel for the respondents that the State High Court has jurisdiction to entertain the matter, one has to look at the nature of the transaction between the h parties. When late Mrs Joyce Banigo used her property as a security for the loan she got from the third respondents the relationship of individual customer and its bank was created and the proviso in section 230(1)(d) applies to the transac- i tion with equal force.” In conclusion, I am of the clear and firm view that the Court below had jurisdiction to entertain the matter by virtue of the proviso to section 230(1)(d) of Decree No. 107 of 1993. j Appeal dismissed.

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Cases referred to in the judgment a

Nigerian Bi Zee Bee Hotels Ltd v Allied Bank Nigeria Ltd (1996) 8 b NWLR (Part 465) 176 Federal Mortgage Bank of Nigeria v Nigeria Deposit Insur- ance Corporation (Liquidators of United Commercial Bank Limited) in Liquidation (1999) SC (Part 3) 412 c

Nigerian statute referred to in the judgment Constitution (Suspension and Modification) Decree No. 107 of 1993, section 230(1)(d) d

Counsel For the appellants: F.U. Okoro, Esq. e For the first – second respondents: G.A. Douglas, SAN (with him Miss Umazinwa) For the third respondent: D.D. Kabarri, Esq. f Judgment AKPIROROH JCA: (Delivering the lead judgment) This is an appeal against the judgment of the Rivers State High Court holden at Port-Harcourt delivered by NDU, J (as he g then was) on 25 June, 1997 in Suit No. PHC/227/88. The claim of the first and second respondents at the Court below in paragraph 18 of their amended statement of claim h is as follows:– (a) “A declaration that the purported sale of the Late Madam Joyce Banigo’s property situate at Port-Harcourt, Rivers State identified as Rumuomasi Obio, off Lord Emmanuel Drive, behind Jobs Maulden industry Nigeria Limited and i which is registered (Conveyance) as No. 28 at page 28 in Volume 29 of the Lands Registry in the Office at Port- Harcourt and which sale was advertised in the Nigerian Tide Publication of 24 December, 1985, and sold the same day to the first defendant, a nominee of the third defendant j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, PORT-HARCOURT DIVISION) Akpiroroh JCA Pius Oku v. Emmanuel Opuene Banigo 283 a is null and void, unconstitutional, unconscionable and against the terms of the mortgage and against the provisions of the Auctioneers Law (Cap 12 of the Laws of the Eastern Nigeria applicable in the Rivers State). b (b) A declaration that the third defendant then as a Director of the fourth defendant, is a trustee of the said property and cannot cause the buy or sale of the said property to himself or to a nominee of himself, the first defendant. (c) An order rectifying the books of the fourth defendant relat- c ing to any transaction or dealing relating to the said prop- erty to reflect the name of the deceased mortgagor and now in the name of the Administrator and Administratrix of the Estate of late Madam Joyce Banigo. d (d) An Order compelling the first and third defendants to pay over to the plaintiffs all rents, and arrears of rent paid to them by Nigerian National Petroleum Corporation Port- Harcourt or any other Tenants on the said premises contain- ing a detached 3 Bedroom Storey Building. e (e) Perpetual injunction restraining the first and third defen- dants, their servants and agents from disturbing or further disturbing the plaintiffs’ enjoyment of the said property. The facts of the case put briefly are as follows:– f The first and second respondents, Administrator and Ad- ministratrix of the Estate of late Madam Joyce Banigo, the owner of the Property situates off Lord Emmanuel Drive Rumuomasi registered as No. 28 at page 28 Volume 29 of g the Lands Registry, Port-Harcourt. She mortgaged the prop- erty to the third respondent to secure a loan. The repayment of the initial loan plus accrued interest were overdue and no payment was made. The third respondent foreclosed the h mortgage and eventually exercised its right of sale as con- tained in the Deed of Mortgage of the said property to the first appellant. The management of the third respondent or- dered the cancellation of the sale because it did not comply with the conditions of sale as approved by it and this was i communicated to the appellants. Meanwhile, the first and second respondents have taken possession of the property before this Suit was filed. At the end of hearing, the trial Court granted all the reliefs j claimed by the first and second respondents.

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Dissatisfied with the judgment, the appellants have ap- a pealed to the Court of Appeal. In accordance with the Rules of Court, the appellants filed a brief of argument and raised only one issue for determination as follows:– b “Whether the trial Court had jurisdiction to entertain the claim and decree the Orders it made.” The first and second respondents filed a brief of argument and also distilled one issue for determination as follows:– c (1) “Whether the High Court lacks jurisdiction to entertain the case and to decide on it in view of provisos to section 7(1)(d) of Decree No. 60 of 1991 and section 230(1)(d) of Decree No. 107 of 1993.” The third respondent filed a brief of argument and also d raised only one issue for determination as follows:– “Whether the Rivers State High Court presided over by Honour- able Justice I.N. Ndu has jurisdiction to hear and determine this case by virtue of the proviso in section 7(1)(e) of the Federal High e Court Amendment Decree No. 60 of 1991, and the proviso in sec- tion 230(1)(d) of the Constitution (Suspension and Modification) Decree No. 107 of 1993.” The main issue that calls for determination in this appeal is f whether or not the Rivers State High Court has jurisdiction to hear and determine the case by virtue of the proviso in section 230(1)(d) of Decree No. 107 of 1993. Learned Counsel for the appellants submitted forcefully g that the third respondent, the Federal Mortgage Bank of Ni- geria, a Government Statutory Company with Banking as its object and as the matter arose from Banking, a matter within the exclusive legislative competence of the Military Gov- h ernment at that time, the action was caught by section 2(7) of Decree No. 60 of 1991 and thus abated. He also relied heavily on Decree No. 107 of 1993 which came into force on 17 November, 1993 and modified Decree No 60 of 1991 and section 230(1)(e) of the 1979 Constitution. i It was also his contention that there is nothing in para- graphs (r) and (s) of section 230(1) (supra) to suggest that both the Federal High Court and State High Court have con- current jurisdiction to entertain matters specified in the j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, PORT-HARCOURT DIVISION) Akpiroroh JCA Pius Oku v. Emmanuel Opuene Banigo 285 a section. He further argued that from 17 November, 1993 un- til 25 June, 1997 when judgment was delivered, it was caught by the provisions of Decree No. 107 and section 230(1)(s) (supra) and relied on the case of University of b Ilorin v Olutola (1988) 12 NWLR (Part 576) 72 at 79. He finally submitted that in consequence of lack of juris- diction and nullity of the decision, the trial Court could not decree the orders it made. Reliance was placed on the cases c of Western Steel Works Ltd v Iron and Steel Workers Union (1986) 3 NWLR (Part 30) 617 and Bronik Motors Ltd v Wema Bank Ltd (1983) 1 SCNL 296. Learned Senior Counsel for the first and second respon- d dents submitted that by virtue of the proviso in section 7(1)(e) of Decree No. 60 of 1991 and section 230(1)(d) of Decree No. 107 of 1993 which specifically provided that the provisions of the said Decrees shall not apply in respect of e an individual customer and his bank. It was also his conten- tion that the provisos to section 7(1)(e) of Decree No. 60 and section 230(1)(d) of Decree No. 107 of 1993 and looking at the nature of the transaction between late Madam Joyce f Banigo and the third respondent, the action falls within the exception provisos as the matter is between a customer and her bank. Reliance was placed on the cases of Federal Mortgage Bank of Nigeria v Nigerian Deposit Insurance Co operation (Liquidation of United Commercial Bank Ltd) in g Liquidation (1999) SC in (Part 3) 412 at 448 and Bi Zee Bee Hotels Ltd v Allied Bank Nigeria Ltd (1996) 8 NWLR (Part 465) 176 at 185. h He further argued that section 230(1)(d) (supra) referred to in paragraph 3.2 of the appellants Brief does not help the appellants’ case as there is also a proviso exemption which gave the State High Court jurisdiction. He finally submitted that in view of the state of the law as stated above, all the i cases cited by Counsel for the appellants to buttress their case are irrelevant to this matter and urged the Court to ig- nore them. Learned Counsel for the third respondent submitted that j the dispute between the third respondent and the appellants

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, PORT-HARCOURT DIVISION) Akpiroroh JCA 286 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) is a dispute between an individual customer, late Mrs Joyce a Banigo and the Bank which is excluded by virtue of section 7(1)(c) of Decree No. 60 of 1991. It was also his contention that as the dispute is between the third respondent, Federal b Mortgage Bank of Nigeria and individual customer, late Mrs Joyce Banigo in respect of banking transaction and by the proviso in section 230(1)(d) of Decree No. 107 of 1993, it did not affect the jurisdiction of the State High Court to hear and determine the matter. He further argued that by the pro- c viso in section 7(1)(e) of Decree No. 60 of 1991 and section 230(1)(d) of Decree No. 107 of 1993, the exclusive jurisdic- tion of the Federal High Court has been exempted and the State High Court has jurisdiction to hear the matter and re- d lied on the case of Federal Mortgage Bank of Nigeria v Ni- geria Deposit Insurance Corporation (Liquidators of United Commercial Bank Limited) in Liquidation (1999) SCW (Part 3) 412 at 448. e He finally submitted that reference by the appellants’ Counsel to section 2(7) of Decree No. 60 of 1991 is mislead- ing because he failed to address his mind to the Proviso to Decree No. 60 and Decree No. 107 (supra) on the issue of f jurisdiction. As I said earlier, the main issue that calls for my considera- tion in this appeal is whether or not the State High Court has jurisdiction to hear the case by virtue of the Proviso to sec- g tion 230(1)(d) of Decree No. 107 of 1993. At this stage, I consider it pertinent to reproduce section 230(1)(d) of De- cree. It provides as follows:– “Notwithstanding to the contrary in the Constitution and in addi- h tion to such other jurisdiction as may be conferred upon it by an Act of the National Assembly or a Decree, the Federal High Court shall have and exercise Jurisdiction to the exclusion to any other Court in Civil causes and matters arising from:– 1. . . . i 2. . . . 3. . . . 4. Banking, banks, other financial institutions, including any action between one bank and other, any action by or against j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, PORT-HARCOURT DIVISION) Akpiroroh JCA Pius Oku v. Emmanuel Opuene Banigo 287 a the Central Bank of Nigeria arising from banking, foreign exchange, legal tender, bills or exchange letter of credit, promissory note and other fiscal measures: Provided that this paragraph shall not apply to any dispute between an in- b dividual customer and his bank in respect of transaction be- tween the individual customer and the bank.” It is quite clear from the Proviso in section 230(1)(d) above that it would not apply to any dispute between an individual c customer and his bank in respect of transaction between the individual customer and the bank, it is my view that the pre- sent case falls within the proviso in section 230(1)(d) of De- cree No. 107 of 1993 because the dispute is between Mrs d Joyce Banigo an individual customer and the third respon- dent, Federal Mortgage Bank of Nigeria. In Federal Mort- gage Bank of Nigeria v Nigeria Deposit Insurance Corpora- tion (supra) Ogundare JSC delivering the lead judgment of e the Court said at page 419:– “The proviso in section 230(1)(d) would not apply where in a cus- tomer/banker relationship the customer is a bank. To say that where there is a dispute between two banks, the forum for the resolution of the dispute is the Federal High Court is to read into f section 230(1)(d) what is not there. A lot depends on the nature of the transaction between the two banks. The facts show that plain- tiff) like any other customer placed a short term deposit with the defendant on agreed interest. After some roll-overs, plaintiff g sought to retrieve its deposit and interest but defendant defaulted. In the absence of any evidence to the contrary about the custom in the industry I must hold that it is a simple customer/banker rela- tionship which the proviso in section 230(1)(d) exempts from the exclusive jurisdiction of the Federal High Court.” h Ogwuegbu, JSC at pages 370–371, paragraphs A–D said:– “The Court below per Uwaifo, JCA (as he then was) held as fol- lows:– “But I find it difficult, with due respect, to accept the sub- i mission of Professor Olawoyin that the action arising from the transaction which took place between the appellant and the respondent is an action between the bank and another falling within the purview of section 230(1)(d) through what he called ‘inter-bank placement’ which, however, he j did not define as to see whether it excludes every aspect of

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individual customer and bank relationship. The mere fact a that a bank takes an action against another bank does not make such action triable exclusively by the Federal High Court under section 230(1)(d). It must depend on the nature of the transaction and the capacity in which one of the b banks dealt with the other. There is therefore the need to examine such transaction and to look at the provision which talks of transaction between an individual customer and his bank to ascertain it must be taken, I think, that by deposit- ing money with the appellant bank for a given period so as c to earn interest payable by that bank, the respondent (though a bank) created the relationship in respect of that transaction of an individual customer and its bank. The N45,000,000. deposit for 90 days’ duration had been rolled- over four times at 40% interest per annum. The dispute d came about when at the maturity of the fourth roll-over pe- riod the appellant defaulted in repayment of the interest for that last quarter and the principal. I think the Lagos State High Court would have jurisdiction to hear the dispute as to liability under the proviso to section 230(1)(d) of Decree e No. 107 of 1993.” There is no dispute that the Federal Mortgage Bank of Nige- ria is a bank having regards to the provisions of the law set- ting it up, particularly sections 5(1)(a) and 6(1)(a) and (b) of f the Federal Mortgage Bank Decree No. 82 of 1993 which qualified it as a bank. Using the above as guidelines, I entirely agree with the submission of learned Counsel for the respondents that the g State High Court has jurisdiction to entertain the matter, one has to look at the nature of the transaction between the par- ties. When late Mrs Joyce Banigo used her property as a se- curity for the loan she got from the third respondents the re- h lationship of individual customer and its bank was created and the proviso in section 230(1)(d) applies to the transac- tion with equal force. i In conclusion, I am of the clear and firm view that the Court below had jurisdiction to entertain the matter by virtue of the proviso to section 230(1)(d) of Decree No. 107 of 1993. The appeal therefore lacks merits and I hereby dismiss it. The judgment of the Court below is hereby affirmed. The j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, PORT-HARCOURT DIVISION) Akpiroroh JCA Pius Oku v. Emmanuel Opuene Banigo 289 a appellants are to pay N3,000 costs to the first and second respondents and N2,000 costs to the third respondent. OGEBE JCA: I read in advance the lead judgment of my b learned brother Akpiroroh, JCA, just delivered and I agree with his reasoning and conclusion. The appeal lacks merit and I dismiss it with costs as awarded in the lead judgment. c IKONGBEH JCA: I agree. Appeal dismissed.

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a Kenfrank Nigeria Limited and others v Union Bank of Nigeria Plc COURT OF APPEAL, PORT-HARCOURT DIVISION b NSOFOR, AKPIROROH, IKONGBEH JJCA Date of Judgment: 10 JULY, 2002 Suit No.: CA/PH/121/99

Banking – Interest to charge by bank – Loan – Acknowl- c edgment of – Need not state the exact amount of – Loan – Admission of – Repayment of – Burden of as to repayment or as to reasons for non-repayment on defendant Facts d This is an appeal by the defendants before the High Court. The respondent, as plaintiff took out a writ of summons against the defendants on the undefended list claiming:– e “(1) The sum of N19,419,020.38, being as at 2 September, 1996; (2) interest on the said amount at the rate of 21% per annum from 3 September, 1996 until judgment is given; and (3) Interest on the judgment debt at the rate of 10% per annum f until the judgment debt is paid in full.” The lower court granted the reliefs sought by the respondent through the undefended list. The appellants were not satisfied and appealed to the Court g of Appeal. Held – 1. When once the debt is admitted, the mode or time for h repayment is a different matter. In other words once the defendant admits the receipt of the loan of overdraft, the burden as to repayment or as to the reasons for non re- payment is on the defendant. An acknowledgment of debt, need not state the exact amount of debt. i 2. On the issue of interest, a person who goes to a house where a kind of business is carried on and proceeds to engage without reservations in the business there carried on, must be deemed to have agreed to submit to and be j

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Kenfrank Nigeria Ltd v. Union Bank of Nigeria Plc 291 a bound by the usage and usually attached to the business and the obligations usually attached to the particular transaction in that business. A bank, by universal cus- tom, is entitled to charge interests. b 3. Bankers are bound to charge interest rates fixed from time to time by the Central Bank of Nigeria, and they have no discretion in this regard. c 4. A valid defence is not necessarily a good defence, but a good defence is always a valid defence. The disclosure of a defence in a defendant’s affidavit entitles him to an order giving him leave to defend. d 5. By all means Counsel had the right and duty to throw all his endeavours behind his clients cause. However, the line must be drawn somewhere. Where the defendant had unequivocally admitted indebtedness in writing and e expressed willingness to pay up, Counsel should encour- age along that path of honour rather than employ any le- gal brinkmanship to defeat the cause and course of jus- tice. f Appeal dismissed. Cases referred to in the judgment

Nigerian g Agwunedu v Onwumanse (1994) 1 NWLR (Part 321) 375 Agwuneme v Eze (1990) 3 NWLR (Part 137) 242 Akinola v Faseun and 2 others (1973) All NLR (Reprint) h 146 SC Bank of W.A. Ltd Sapele v Nwakuba (1967–68) MSNLR 116 Barclays Bank of Nigeria v Abubakar (1971) 10 SC 13 i John Holt and Co (Liverpool) Ltd v Fajemirokun (1961) 1 All NLR 427 Macaulay v NAL Merchant Bank Ltd (1990) 21 NSCC (Part 2) 433 j Nisbizawa Ltd v Jethwani (1984) 12 SC 234

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Okamba Ltd v Alhaji Sule (1990) 7 NWLR (Part 160) 1; a (1990) 11 SCNJ 1 Panache Communication Ltd v Aikhomu (1994) 2 NWLR (Part 327) 420 b Thadani v National Bank Ltd (1972) 1 SC 105 The Federal Military Govt. of the Federation and others v Sani (1990) 4 NWLR (Part 147) 688 c UNN v Orazulike Trading Co Ltd (1989) 5 NWLR (Part 119) 11 Union Bank of Nigeria Ltd v Ozigi (1994) 3 NWLR (Part 333) 385 d

Counsel

For the respondent: O.A. Obianwu, Esq. e Judgment IKONGBEH JCA: (Delivering the lead judgment) This is an appeal by the defendants before the Abia State High Court. f The respondent, as plaintiff took out a writ of summons against the defendants on the undefended list claiming – “(1) The sum of N19,419,020.38, being as at 2 September, 1996; (2) Interest on the said amount at the rate of 21% per annum g from 3 September, 1996 until judgment is given; and (3) Interest on the judgment debt at the rate of 10% per annum until the judgment debt is paid in full.” The writ was accompanied by particulars of claim and an h affidavit verifying the facts stated in the particulars. The writ of summons was issued on 8 October, 1996.

On 29 October, 1996 appearance was entered on behalf of i all the defendants. It was notified therein that “This is a pro- test appearance on grounds of non-service”. On 21 Novem- ber, 1996 Counsel on their behalf filed notice of intention to defend, supported by an affidavit said to disclose a defence. The affidavit was sworn to by the third defendant. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, PORT-HARCOURT DIVISION) Ikongbeh JCA Kenfrank Nigeria Ltd v. Union Bank of Nigeria Plc 293 a Elaborating on the question of protest appearance he de- posed in paragraphs 2–6 as follows:– “1. That I am the person sued as third defendant in this suit and I make this affidavit for myself and as the Chief Executive of b the first and second defendants and on their behalf. 2. That the writ of summons in this suit was not served on me at all. It was handed over to me by Miss Chika Ekeji, a staff of the second defendant. c 3. That my place of abode as the defendant is well-known as No. 172 Faulks Road. 4. That the writ of summons was also not served on the first defendant at all. It was also handed over to me by Miss d Chika Ekeji. 5. That the place of abode of the first defendant as the defen- dant is well known as No. 172 Faulks Road, Aba. 6. That the defendants have entered a conditional appearance e indicating a protest on ground of non-service.” (Italics mine.) On the defence on the merit he deposed in paragraphs 7–14 as follows:– f “7. That the defendants do not admit the plaintiff’s claim and state that they have defence to the suit on the merit. 8. That the first defendant denies paragraph 5 of the particu- lars of claim and paragraphs 2 and 3 of the supporting affi- g davit of Mr L.O. Anele and specifically state that she had no notice of, was never privy to, and is not a signatory to exhibit A attached to the plaintiff’s claim. 9. That the second and third defendants deny paragraph 4 of the particulars of claim and paragraph 5 of the support affi- h davit of Mr L.O. Anele and specifically state that they are neither privy to, nor signatories to exhibits B and C, at- tached to the plaintiff’s claim. 10. That in any event and without prejudice to paragraph 9 i hereof the said exhibits B and C made in 1985 and 1990 re- spectively have no relationship or correlative nexus with any loan transaction made between the plaintiff and the first defendant in 1991 as reflected in plaintiff’s exhibit B and C. 11. That the plaintiff and the defendants did not agree upon in- j terest chargeable at the rate claimed by the plaintiff or at all.

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12. That the claim against the second and third defendants a based on exhibits A, B, C, D, E, OA 2 and OA3 attached to the plaintiff’s claim is in any event statute-barred. 13. That the first defendant does not admit plaintiff’s exhibit J and the entries contained therein as a true statement of ac- b count between the plaintiff and the first defendant. 14. That the first defendant will counter-claim against the plain- tiff for breach of contract and claim 20,000. when pleadings are settled in this suit.” c When the case came up before I.F. Ogbuagu, J, on 3 De- cember, 1997 the first defendant was represented by one Miss Chika Ekeji, described as “Secretary”. While adjourn- ing the case to another date the learned trial Judge made d these observations and remarks:– “Court: This is a matter placed on the undefended list. The court notes that the appearance for the defendants was or is on protest for non-service. But the representative of the first defendants in court – Miss Chika Ekeji informs the court that she is the Secre- e tary to the Company. So, by virtue of Order 12 Rule 8 of the High Court Rules, 1988, applicable in Abia State, service of the writ of summons on her, was and is proper service in law on the first de- fendants. The court also notes that this suit, which was assigned to High Court 5, was transferred to this Court on 1 December, 1997. f There is no drawn up order yet. However, the defendants have filed a notice of their intention to defend the suit. One of the weighty grounds is based on the limita- tion law – to the effect that the action is statute barred. g In the circumstances this suit is adjourned to 28 January, 1998 for argument.” (Italics mine.) I have taken the trouble to set out these facts in some details because of the issues canvassed in this appeal. Their rele- h vance will become apparent in due time. After some more adjournment the Court eventually heard Counsel for the parties on whether or not there had been proper service on the defendants and whether or not the affi- i davit in support of the notice of intention to defend disclosed any defence on the merit. He resolved both issues against the defendants in a ruling/judgment he delivered on 29 July, 1998. Having held that no defence on the merit had been disclosed by the defendants he proceeded to enter judgment j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, PORT-HARCOURT DIVISION) Ikongbeh JCA Kenfrank Nigeria Ltd v. Union Bank of Nigeria Plc 295 a for the plaintiff on the undefended list in terms of their first and third heads of claim, He however dismissed the claim on the second head. b Aggrieved, the defendants have appealed to this Court. Chief U.N. Udechukwu, SAN, who prepared the appellants’ brief of argument, formulated the following three issues for de termination:– “(i) Whether service of the originating process on the defen- c dants was sufficiently proved to warrant the Court below exercising jurisdiction in the suit. (ii) Whether the Court below was justified when it held that the Notice of Intention to defend and the supporting affidavit d did not raise sufficient defence warranting the suit being transferred to the General Cause List for trial on pleadings. (iii) Whether the judgment for N19,419,020.38 as principal sum and accrued interest in favour of the plaintiff is justifiable on the face of the plaintiff’s claim and in the absence of e pleadings and evidence.” Mr O.A. Obianwu formulated three issues, his issues (ii) and (iii) being identical with Chief Udechukwu’s issues (ii) and (iii). I think, however, that the first issue as formulated by f Mr Obianwu is more appropriate than that by Chief Udechukwu. The latter’s does not appear to relate to any complaint against the decision of the Court below. Rather Senior Counsel is calling on us to deal at first instance with g the question whether or not there was proof of service of the originating process on the defendants. It is not our province to answer that question. Our jurisdiction is to determine whether or not the trial Judge had approached the question h correctly and whether or not his conclusions thereon are jus- tified in the circumstances. Consequently, I shall ignore Chief Udechukwu’s issue (i) and deal with Mr Obianwu’s, which reads:– i “(i) Whether the lower Court was correct in its conclusion that there was proper service of the writ of summons on the first and third defendants.” Learned Senior Counsel, for the appellants, started his ar- j guments on the first issue by drawing attention to the

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, PORT-HARCOURT DIVISION) Ikongbeh JCA 296 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) scathing observations by the learned Judge on the fraudulent a practice by Uche G. Wogu, the senior bailiff assigned the responsibility of effecting service of the writ of summons in this case. The Judge in his ruling had recalled Mr Wogu’s b habit of filing false affidavit of service even when in fact he had effected none. He observed that the senior bailiff had not thrown his evil habit, being “still deeply involved in his fraudulent practices of swearing to false affidavits of ser- c vices”. Learned Senior Counsel expressed surprise that in spite of this damning observation made against the bailiff the learned Judge was still able to conclude that “. . . service or no service, the Court has to really confine itself to d the merits of the notice of intention to defend the suit.” Relying on Management Enterprises Ltd v Olusanya (1987) 4 SC 367 and Skenconsult v Ukey [1981] 1 SC 6, Senior Counsel challenged this stance. According to him, “the e Court lacks the jurisdiction to confine itself to the merit of any suit when service of the originating process has not been sufficiently proved in the face of opposition”. It was Senior Counsel’s further submission that the Judge was in error in f holding service on Miss Chika Ekeji to be good service in the circumstances, especially as there was no order for sub- stituted service. According to learned Counsel, the Judge was wrong in assuming that Miss Ekeji was the Secretary of the second defendant/appellant, or a principal officer g thereof, as there was no evidence to that effect. Learned Senior Counsel urged us not to follow the decision of this Court in Panache Communications Ltd v Aikhomu (1994) 2 NWLR (Part 327) 420 in view of the Supreme Court deci- h sion in Management Enterprises Ltd v Olusanya (supra). Now, had the record of appeal in this case contained only the portions of the Judge’s observations and conclusions highlighted by learned Senior Counsel, I would have had no i difficulty in agreeing with him that the Judge erred in his conclusion. As it is, however, the Judge said a great deal more in between his observation on the bailiff’s conduct and his decision to proceed to an examination of the merit of the j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, PORT-HARCOURT DIVISION) Ikongbeh JCA Kenfrank Nigeria Ltd v. Union Bank of Nigeria Plc 297 a proposed defence. What he said there clearly cast a different light on his conclusions, making them more understandable. Immediately after his observations on the bailiff’s conduct he continued:– b “Be that as it may, from the endorsements on the court’s case file, the first defendants have always appeared in this case. As observed in the case of Madam Okesuji v Lawal (1991) NWLR (Part 170) 661 at 678; (1991) 2 SCNJ 1, there is no greater proof of service c than a party served, appearing personally in court. Now, as held by the Court of Appeal in the case of – Panache Communication Ltd and 2 others v Mrs Rebecca Aikhomu (1994) 2 NWLR (Part 327) 420 at 431 C–D, cited and relied on by Mr d Duru, thus:– ‘In this particular case, the bailiff served the writ of sum- mons on the first respondent by giving the writs to the lady who ultimately delivered the processes to those who were directly concerned, which action, in my view, means that e the people who were directly concerned, have been served personally. What has not been effected is the fact that the bailiff has not served the processes by himself in person to the people to be served. The requirement of the law here is f that the parties to be sued must be served personally, mean- ing that the processes must be given to them and that they are the people to receive them. The law does not require that a person to give it to them must give it to them by him- self ’. (Italics mine.) g The court also held, that leaving the processes at the registered of- fice of the Company, would seem to have been better served by giving the processes to someone, even though not among the prin- cipal officers stipulated in the rules, but whose duty would make it obligatory for him or her to deliver the processes to the persons h rightly concerned. It went on to bold that leaving the processes with the receptionist, would achieve the desired aim than throwing the process on the floor of the corridor of the registered office. That the ends of jus- i tice would be better met by accepting that services had been ef- fected, since the purpose of service of the processes, is to bring the matter of the processes to the attention of the person against whom the writ has been issued and or pending. In that case, the appel- lants acknowledged having received the processes. The court held j that that would amount to doing substantial justice.

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This appears to be the case in the instant suit. See paragraphs 2 a and 4 of the affidavit in support of the notice of intention to de- fend. It is no where averred in that affidavit that Miss Chika Ekeji, is not a Secretary to the defendant, but to the Managing Director as submitted by Mrs Akobundu. That she is a staff of the second de- b fendants, did not mean that she is not a Secretary to the second de- fendants or even a principal officer of that Company. However, on the authority of – Panache Communications Ltd and 2 others v Mrs Aikhomo (supra), service on Miss Chika Ekeji is good service, having regard to the acknowledgment of the third c defendant of receiving the processes, also meant for himself and the second defendants.” (Emphasis by italics made by the learned Judge.) The record clearly supports the Judge’s standpoint that on d this particular occasion the senior bailiff did in fact make a genuine effort to effect service and that the writ of summons was in fact timeously and effectively brought to the attention of the defendants. At the beginning of this judgment I set out e the relevant terms of the third defendant’s/appellant’s affi- davit, especially paragraphs 2 and 4, wherein he made clear that the writ meant for himself and the first defen- dant/appellant were in fact served on Miss Chika Ekeji. He made it clear also that Miss Ekeji handed the two writs over f to him. The fact that Counsel on behalf of the defendants was able to enter appearance on 29 October, 1996, just 21 days after the writs were issued on 8 October, 1996, testified to the fact that Miss Ekeji handed over to the third defen- g dant/appellant soon after she had received them from the bailiff. It must be observed, firstly, that not only was Miss Ekeji, who represented the first defendant/appellant in court on 3 h December, 1997 and 13 May, 1998, recorded as being the Secretary of that company, but also the record on 3 October, 1997 shows that she herself provided the Court with that in- formation. Neither the first nor third defendant/appellant has i challenged the record in this regard. It must, therefore, be taken as correct. Another point that must be noted is that the fact that the third defendant/appellant is the Managing Director and j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, PORT-HARCOURT DIVISION) Ikongbeh JCA Kenfrank Nigeria Ltd v. Union Bank of Nigeria Plc 299 a Chief Executive of the first and second defen- dants/appellants companies. This is clear from paragraph 3 of the particulars of claim, which has not been denied, and the third defendant’s/appellant’s own affidavit. b Now, how, in the circumstances of this case, could any- body complain that the first defendant/appellant had not been effectively served with the originating process? The rules of court prescribe as one mode of service on c a company service on the Secretary. See Order 12 Rule 8 of the Imo State High Court (Civil Procedure) Rules, 1988, applicable in Abia State. In this case the Secretary immedi- ately passed the writ to M.D/C.E.O. of the company, who is d in fact its alter ego. The latter took immediately action by passing the writs on to their lawyers. In my view, it be un- due technicality to insist that service on the defendants had not been proved. For these reasons I must agree with the e learned Judge that proper service on the first defendant was proved. I agree with the Judge also that proper service on the sec- ond and third defendants/appellants was proved. It must be f observed that while denying service on himself and the third defendant/appellant the third defendant/appellant made no such denial in respect of the second defendant/appellant. As for himself, as has been seen, he admitted that Miss Ekeji, g the self confessed-secretary of the first defendant/appellant and whom he himself described as a staff of the second de- fendant/appellant, immediately handed over to him the writ meant for service on him. As will be seen later in this judg- ment, the third defendant/appellant had always acted for and h on behalf of the second and third defendants/appellants and owns them. As observed earlier on, he was, and still is, the alter ego of the two companies. Receipt by him, even from Miss Ekeji, who had got them from the bailiff, was good and i proper service. The defendants/appellants, as I observed ear- lier on, are being unduly technical in pursing this line of pro- test. The facts of this case are on all fours with those of Panache j Communications Ltd v Aikhomu (supra). Consequently

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I must adopt the view expressed there. I do not agree with a Chief Udechukwu that the existence of the decision in Man- agement Enterprises Ltd v Olusanya precludes me from do- ing so. The facts and circumstances of that case are different from those of the present case. b For the reasons that I have given, I resolve the first issue against the appellants. On the second issue Chief Udechukwu submitted that the c averments in paragraphs 8–14 of the supporting affidavit “raise substantial questions for determination on the plead- ings in due course”. Whether the defence was weak or strong was, Senior Counsel argued, irrelevant at the stage reached. Relying on the decision of this Court in Jipreze v d Okonkwo (1987) 3 NWLR (Part 62) 737, he submitted that the Judge should not have attempted to the resolve “the con- flicting affidavit postures of the parties at that point”. e Of course, the law was correctly stated in Jiprege’s case. We are, however, not concerned in this appeal with the theo- retical principles of law in this area. What we are concerned here with is the application of those principles to the facts on the ground. f And what are the facts on the ground in this case? The plaintiff/respondent alleged in its particulars of claim and the affidavit in support that it loaned a certain amount of money to the first defendant/respondent that had attracted g interest, bringing the total alleged indebtedness to N19,000,000. It exhibited as exhibit A, the letter it wrote to the first defendant/appellant conveying approval for the grant of the loan or overdraft facility to it. The first defen- h dant/appellant denied knowledge of the letter or that it exe- cuted it. The plaintiff/respondent further alleged that the second and third defendants/appellants guaranteed the loan and executed exhibits B and C in evidence. They too denied i any knowledge of either document or that they were signato- ries to either one. In paragraph 8 of its affidavit the plaintiff specifically alleged:– “8. That the plaintiffs have by themselves and through their solicitors written demand letters to the defendants to pay up j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, PORT-HARCOURT DIVISION) Ikongbeh JCA Kenfrank Nigeria Ltd v. Union Bank of Nigeria Plc 301 a their indebtedness to no avail. Letter dated 9 March, 1995 is now shown to me and marked exhibit F, while letter dated 8 July, 1996 is exhibit G. The defendants have never disputed their indebtedness to the plaintiff as can be seen from ex- b hibits H, H1, and H2 attached hereof ”. (Italics mine.) It is pertinent here to reproduce exhibits F, G, H, H1 and H2. Exhibit F was a letter addressed by the plain- c tiff’s/respondent’s Regional Manager to the third defen- dant/appellant and read:– “Demand Notice Re: Indebtedness of Kenfrank Nigeria Ltd to Union Bank of Nige- d ria Plc Pursuant to the provisions of the Guarantee given by you to secure the Banking facilities granted to Kenfrank Nigeria Ltd, we hereby demand from you the payment of the sum of e N13,997,594.01 (Thirteen Million, Nine Hundred and Ninety-seven Thousand, Five Hundred and Ninety-four Naira, One Kobo only) which you guaranteed. TAKE NOTICE that unless the said sum is paid directly into Umocham Branch Aba of Union Bank of Nigeria f Plcwithin 30 days from the date of this letter, we shall initi- ate proceedings against you for the recovery of the out- standing sum with interest without any further notice from us.” g Exhibit G was a letter from the plaintiff’s/respondent’s so- licitors to the third defendant/appellant. It read:– “Re: N18,708,571 (Eighteen Million, Seven Hundred and Eight Thousand, Five Hundred and Eleven Naira Only) Due to Union h Bank of Nigeria Plc as at 5 July, 1996. Your file of papers has been passed on to us by our client, Union Bank of Nigeria Plc with firm instructions to recover the above sum of money from you without further reference to you since you i have failed, refused and or neglected to repay the above debt not- withstanding repeated demands. Please note that the failed banks decree has been mandated to cover cases such as yours; recalci- trant debtors who have defied all persuasion. The essence of this letter is to inform you that not only will we j prosecute you and your co-directors namely, 1. Mr Franklin

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Ikenna Obi, 2. Mr Kenneth Nwadinkpa and 3. Mr Christopher a Eguogu before the relevant tribunal, we shall also use our best en- deavour to ensure that your assets are impounded and disposed off to pay of this huge debt. You owe yourself and your family a duty to prevent the picture we b have painted for you by letting us have your cheque for the above sum seven days hence.” Exhibit II was a proposal submitted by the third defen- dant/appellant to the Managing Director of the plain- c tiff/respondent on 17 February, 1994 for the repayment of the loan. It read:– “Re Banking Facility Highlights d It is unfortunate to note that due to your numerous and un- avoidable official engagements we have not been able to talk with you since you assumed office as the Managing Di- rector of the Bank. e However, we hope that one of these days we might be lucky to meet with you and to explain most of our difficulties which some of them have been communicated to you or your highly placed officers through our various letters of which we hope such letters are in our file. f For the avoidance of doubt we enclose some of these letters to enable you to have a clear view of our difficulties before our file gets to you. Introduction: Kenfrank Nigeria Limited is a private Limited g Liability Company incorporated in 1982 with an initial share capital of N100,000 (One Hundred Thousand Naira) now increased to N1,000,000 (One Million Naira) paid up shares. Kenfrank Nigeria Limited is engaged in manufactur- ing of household and industrial wares e.g. soap, candle, h cosmetics, etc. On the steel line, produces springs which is the raw material to furniture and upholstery industries. We also produce office clips and pins. Our third production line is plastics originally intended to produce packaging materi- als but now the most vital line and it is in this area that we i want to expand. Kenfrank Nigeria Limited won Nation Merit Award in 1993 under manufacturing sector and scored 4 in the whole country for her ingenuity for manu- facturing high quality products with locally fabricated ma- chineries. Some of these product can be shown as samples. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, PORT-HARCOURT DIVISION) Ikongbeh JCA Kenfrank Nigeria Ltd v. Union Bank of Nigeria Plc 303 a Kenfrank Nigeria Limited has an asset base of well over N20,000,000. (Twenty Million Naira) present asset value. Fund: Kenfrank Nigeria Limited has a banking facility with Union Bank which stand at almost N10,000,000,00 (Ten b Million Naira). About N6,000,000. (Six Million Naira) out of the total sum are accrued interest and bank charges as can be seen from our Management Account recently submit- ted. c Funding Pattern: In August 1991, our account was restruc- tured from its former position of N3,000,000. (Three Mil- lion Naira) to an upward review of N5.7m. This method merged all our standing loans, overdrafts all bank charge to a loan facility of N3m and an overdraft facility of N2.7m. d This amount was originally designed to be disbursed through ADB facility where Foreign Exchange would be readily available to enable us follow our projections as to realise our expectation. But unfortunately, the bank decided to carry out this lending in house, discarding the idea of e ADB facilities. When this fund was approved it became almost inaccessible for us to get foreign exchange as at and when and how needed thereby keeping us almost one year waiting for the f date of approval to the date of receipt of our first batch of raw materials, that is from August, 1991 to September, 1992. During this period the interest on this account went up by almost N1.5m excess which swallowed up almost all the lodgements into that account and made it impossible for g us to draw from it. From that time till today we have not re- covered from the consequences of that delay. Whereas if the foreign exchange was available as we proposed in the issue of ADB facility, we would not have had this foreign ex- change problem. Still on funding pattern, because it was h difficult for us to get foreign exchange we resorted to buy- ing the foreign exchange locally through the parallel market so that we can keep the factory running. This practice also has its own side effect. i As you are aware there were a lot of variance in interest during the period where interest rate went up as far as 35% including bank charges, whereas our feasibility projection allowed for 18% or less. All these fiscal problems became the major problem that left us under this conditions today j . . .

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Our Prayer Considering the above explanations and for the a fact that we have all the infrastructure . . . we are of opinion if we are given a second chance under the new expansion programme, we would surely get out of the woods and make profit as projected and repay the facility including the in- b terest charges before four years from the date of approval. We enclose here a detailed feasibility study of the expan- sion which we are very sure that if approved will surely save the company from imminent Collapse and thereby re- pay the Bank’s fund to the last kobo. . . c Securities As you are aware our Managing Director who is fully behind this company, Kenfrank Nigeria Limited, gave out his own personal residential building at Aba personal guarantee, a mortgage of entire factory premises, chartered d mortgage on all the machineries and plants, all assets de- benture, floating and solid etc and most of these assets were acquired before a kobo was borrowed from Union Bank. Now you can see how optimistic, how committed our Managing Director and Chief executive is in this set up. e Therefore as we mentioned above, our major problem has been the government policies as it is the case in many other companies like ours. We therefore pledge and still insist that with the new expansion proposal, change in some of f the production line, and the untiring effort and the unques- tionable experience of our management team, also the new government policy in favour of the manufacturing sector, and our Managing Director as an industrial Manager, we are sure that we will turn the ugly position to a pleasant one.” g (Italics mine.) Exhibit H1 was another letter from the third defen- dant/appellant to the Manager of the plaintiff/respondent on 19 January, 1996, evidently in reaction to G and the follow h up to it, acknowledging indebtedness to the plain- tiff/respondent. It read:– “Re Payment of facility or Debt Owed to Union Bank We write to inform you about the present development on i the above-mentioned subject matter and to register our willingness in paying this debt according to the concession granted us sometime in July, 1995. We also want to inform you that we have been making ef- forts to make sure we utilise this kind gesture of yours. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, PORT-HARCOURT DIVISION) Ikongbeh JCA Kenfrank Nigeria Ltd v. Union Bank of Nigeria Plc 305 a We have therefore, finalised arrangement with a buyer of one of our properties at the cost of Six Hundred Thousand Naira (N600,000) which sum we will pay in on a different cover before the end of this month. b Although, most of our debtors are yet to pay, which initially were the main hope we had for this repayment but neverthe- less, all hopes are not lost hence our hopes are very high in making sure we repay this money as soon as possible. c Finally, we humbly request you to extend for us the repay- ment period to enable us meet up with the promises and proceeds from our various expectations. We thank you for your usual co-operations.” d Exhibit H2 was yet another letter from the third defen- dant/appellant to the Manager of the plaintiff/respondent on 28 February, 1996 acknowledging indebtedness to the plain- tiff. It read:– e “Re Payment of Facility for Debt Owed – Union Bank Plc We write to state clearly in the following paragraphs, the repayment programme which came up as one of the main points during our discussion of the above subject matter f yesterday. 1. Debt Owed Kenfrank Nigeria Ltd A total of about 4.9 million naira are debt owed to Kenfrank g Nigeria Ltd (Civil Engineering Division) by Federal Minis- try of Works and Housing. This amount they have promised to pay before the end of April. As this amount will be paid into Union Bank. 2. Sell of property h As we mentioned in our letter dated 24 January, 1996, we have finalised arrangement with a buyer of one of our prop- erties at the rate of N600,000 which part payment of N300,000. has already been paid to the bank, remaining, i N300,000. which the buyer promise to pay after finalising the arrangement with us and the bank. 3. Production Although, the factory has not been in production for some- j time now but, since few weeks, now, we have been able to

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reactivate the injection moulding machine and the generator a and we hope to commence production if a little cash comes our way to enable us buy raw materials and the proceeds will be sold and paid to the bank. 4. Contract Works in Progress b A total amount of contracts now awarded to us by various government organisations visa viz, Ministry of Works, Min- istry of Education, Petroleum Trust Fund, NNPC, etc., are altogether valued up to N40,000,000. c Profits for these contracts will be enough to offset these debts. Therefore, all we are asking for is a little time more to enable us actualise these repayment programme. Finally, remember that our problems are not as a result of d mismanagement rather, it is to some extent a national prob- lem that affected almost all the small scale and medium scale industries nation wide. Therefore, our vision for looking outside the industrial sec- tor and getting into other sectors of the economy to generate e new funds to repay time debt incurred by the industrial sec- tor is an effort that should be encouraged by all concerned.” (Italics mine.) The defendants/appellant said nothing at all in the affidavit f in support of the notice of intention to defend by way of denial of any of the facts alleged in paragraph 8 of the plaintiff’s/respondent’s affidavit or any of the document ac- companying it. The most serious allegation made by the plaintiff was that the first defendant/appellant, who had g acted for himself and on behalf of the second defen- dant/appellant to guarantee the loan taken by the first defen- dant/appellant, wrote three times in February, 1994 and January and February, 1996, acknowledging that the loan h had not been repaid and promising to repay it. This serious allegation was, as has been seen, left totally unanswered. The defendant/appellant specifically referred to exhibits A, B, D, E, OA2 and OA3 in his affidavit, saying that the plain- i tiff’s/respondent’s claim based on them was statute barred. He did not, however, raise the same defence in relation to the claim based on exhibits F, G, H, H1 and H2. Finally, the defendants/appellants said that they would be counter- claiming for the sum of N20,000,000 for breach of contract. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, PORT-HARCOURT DIVISION) Ikongbeh JCA Kenfrank Nigeria Ltd v. Union Bank of Nigeria Plc 307 a They did not, however, state any fact or circumstances from which one could infer any breach of contract. Now, can it be seriously said in the circumstances just high- b lighted that the defendants/appellants disclosed a defence on the merit in support of their notice of intention to defend? Considering the contents of the third defendant’s/ appel- lant’s affidavit that I set out earlier in this judgment and just c further highlighted, I have no hesitation at all in agreeing with the plaintiff/respondent and the learned trial Judge that the defendants/appellants failed to disclose a defence on the merit. It is true, as Chief Udechukwu pointed out, that “all d that the defendant need do at this stage is to join issues”. I also agree with learned Senior Counsel that “a Judge of first instance should not be fastidious and begin to comb through the conflicting affidavits for reason to stop the case at that stage in favour of the plaintiff”. But what does the Judge do e when no issues have been joined or where the opposing affi- davits cannot be truly said to be conflicting? I use the word “opposing” here only in the sense that the affidavits were put before the Court by parties opposed to each other in sup- f port of their respective cases, not necessarily because the af- fidavits contain conflicting assertions. Of course the Judge is bound to accept the fact on which no issue had been joined or with which no other fact stood in conflict. Such approach g cannot, in my view, amount to combing through affidavits in search of reason to stop the case in favour of any party. The Judge in the present case is perfectly justified when he pro- ceeded thus at pages 30–34 of the record:– h “The court, with respect, agrees which the propositions of law by Mrs Akobundu as to the effect as regards conflicting affidavit evi- dence citing and relying on the cases of O.C. Jipreze v Okonkwo (1987) 3 NWLR (Part 62) 378 at 744 paragraph 11; Ekuma v Sil- ver Eagle Shipping Agensies Ltd (supra) and UNN v Orazulike i Trading Co (1989) 5 NWLR (Part 119) 11 and 13 paragraph A B. These are all settled principles of law. However, without much ado, the court, with respect, agrees with and adopts, in their entirety, all the submissions of Mr Duru, in their written address. They are sound and truly reflect the position j and facts as appear in this case.

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It is settled, that even if a statement of defence is filed, a plaintiff a can still apply for summary judgment if the statement discloses no defence. (See Macaulay v Nal Merchant Bank (1990) 4 NWLR (Part 144) 283; (1990) 6 SCNJ 117.) In this case, it was also held, that a defendant who has no real de- b fence to the action, should not be allowed to dribble and frustrate the plaintiff and cheat him out of the judgment he is legitimately entitled to by delay tactics, aimed, not at offering any real defence to the action, but at gaining time within which he may continue to postpone meeting his obligations and indebtedness. (See also The c Federal Military Govt. of Nigeria and 3 others v Mallam Sanni (1990) 4 NWLR (Part 147) 688; (1990) 7 SCNJ 139 and also Ben Thomas Hotels Ltd v Sebi Furniture Co Ltd (1989) NWLR (Part 123) 523; (1989] 12 SCNJ 17; (1990) 1 BMLR183, cited and re- lied on by Mr Duru.)” d This is exactly what the defendants have tried to do, though unsuccessfully, in the instant case. As noted in my ruling in Suit No. A/269/97 – Orji Onwukew v Emeka Elesia deliv- ered on 27 January, 1998 (unreported), it is the easiest thing e for a very shrewd defendant or Counsel, to raise purported triable issues or prepare a conflicting affidavit in support of a notice of intention to defend. But a court has to be wary, to separate the wheat from the chaff. A Judge must not allow a defendant to draw wool over his eyes, even where the facts f of a particular case are clear and really incontestable. This is why in the said rules as regards matters placed on the unde- fended list, the court must be satisfied that the defendant has deposed to facts, which disclose a prima facie or reasonable g defence in order to be let in to defend the suit. (See John Holt and Co (Liverpool); Ltd v Fajemirokun (1961) 1 ANLR 492; UNN v Orazulike Trading Co Ltd (supra); The Federal Military Govt. of the Federation and others v Sani (supra); h Agwuneme v Eze (1990) 3 NWLR (Part 137) 242 at 254, 257 and Okamba Ltd v Alhaji Sule (1990) 7 NWLR (Part 160) 1; (1990) 11 SCNJ 1 at 7 and many others.) This is why it is settled, that a valid defence is not neces- i sarily, a good defence, but a good defence, is always a valid defence. The disclosure of a defence in a defendant’s affida- vit, entitles him to an order giving him leave to defend. (See Nisbizawa Ltd v Jethwani (1984) 12 SC 234 at 246, 260 261, 297 – per Obaseki, JSC.) j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, PORT-HARCOURT DIVISION) Ikongbeh JCA Kenfrank Nigeria Ltd v. Union Bank of Nigeria Plc 309 a The court is satisfied that the third defendant signed exhib- its B, C, D, D, H, H1 and H2 respectively. He is, therefore, bound by the contents. See the observation by the Supreme Court per Onu, JSC in the case of – Agwunedu and others v b Onwumanse (1994) 1 NWLR (Part 321) 375 at 401–402; (1994) 1 SCNJ 106 at 1386 citing the dictum of Scrutton, L.N. in – Blay v Pollard (1930) 1 K.B. 628 at 633. In exhibits F, G, H, H1 and H2, referred to in paragraph 8 c of the affidavit in support, all signed by the third defendant, who it is admitted in paragraph 1 of the affidavit, in support of the notice of intention to defend, is the Managing Director and Chief Executive of the first and second defendants. d Therein, the debt is admitted. In exhibit H2, he specified the payment programme. In exhibit H1 – See under the headings of “Fund”, “Funding Pattern”, “Our Prayer” and “Security”. In exhibit H1, the following appear, inter alia:– e “we write to inform you about the present development on the above-mentioned subject matter (which is repayment of facility or debt owed to Union Bank) and to register our willingness in pay- ing this debt according to the concession granted us sometime in July, 1995.” (Italics mine.) f “Yet, and yet, in spite of all these, the defendants, shamelessly and with effrontery, on oath, aver that they do not admit the plaintiffs’ claim and ‘state that they have a defence to the suit on the merit’. Incidentally, they did not state that the defence is a good defence g on the merits. It is now settled, that when once the debt is admitted, the mode or time for repayment is a different matter. In other words once the defendant admits the receipt of the loan of overdraft, the burden as to repayment or as to the reasons for non repayment is on the de- h fendant. (See Macaulay v Nal Merchant Bank Ltd and The Federal Military Govt. of Nigeria and others v Sani (supra)). As noted in the cases of – Akinola v Faseun and 2 others (1973) All NLR (Re- print) 146, SC and Thadani v National Bank Ltd (1972) 1 SC 105, cited and relied on by Mr Duru, an acknowledgment of debt, need i not state the exact amount of debt. On the issue of interest, well, it is settled, that a person who goes to a house where a kind of business is carried on and proceeds to en- gage without reservations, in the business, there carried on, must be deemed to have agreed to submit to, and be bound by the usage and j usually attached to the business and the obligations usually attached

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to the particular transaction in that business. (See Bank of W.A. Ltd a Sapele v Nwakuba (1967 68) MSNLR 116.) In any case, it is also settled, that a bank, by universal custom, is entitled to charge interests. (See Barclays Bank of Nigeria v Alhaji Abubakar (1971) 10 SC 13 at 23–24.) b As rightly pointed out by Mr Duru, the Supreme Court, in the case of Union Bank of Nigeria Ltd v Prof. Ozigi (1994) 3 NWLR (Part 333) 385; (1994) 5 K.L.R 1, (1994) 3 N.A.C.R. 1, cited and relied on by him, held, that if the prevailing interest rates (prime rates) fixed by the Central Bank of Nigeria, vary from time to time, then c interest rates stipulated or fixed by the bankers that are under obli- gation as banks to comply with the Central Bank’s guidelines, could not be fixed, the bankers or a bank for that matter, and the Union Bank of Nigeria (who incidentally are also the plaintiffs in the instant case) who are, or were the plaintiffs in the case, has to d vary from time to time, in response to the Central Bank of Nigeria guidelines – per Adio, JCA. In other words, bankers are bound to charge interest rates fixed from time to time by the Central Bank of Nigeria, and they have no discretion in this regard. It is to be noted that in exhibits B and e C – payment of interest is contained therein.” I can hardly add anything here, I think the Judge said it all. In the face exhibits F, H, H1 and H2, how can any serious minded person take the denial by the third defen- f dant/appellant seriously? To allow the appellants to get away with the denial of peripheral facts, when the meat of the matter was left unanswered would be to allow them to dribble the plaintiff out of the judgment to which it was law- g fully entitled. I condemn in the strongest terms this attempt. It shows ingratitude of the highest order on the part of the defendants/appellants. The benefit the largess provided by the plaintiff/respondent acknowledged this in the numerous letters they wrote. They not only acknowledged indebted- h ness, but also pleaded for, and did get, mercy. Yet when the matter came to Court they tried to use the ingenuity of a Senior Advocate of Nigeria to cheat the plaintiff out its due entitlement. I am not at all happy that Senior Counsel i should lend his name to such underhand conduct. By all means, Counsel had the right and duty to throw all his en- deavours behind his client’s cause. In my view, however, the line must be drawn somewhere. Where, as in this case, the defendant had unequivocally admitted indebtedness in writing j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, PORT-HARCOURT DIVISION) Ikongbeh JCA Kenfrank Nigeria Ltd v. Union Bank of Nigeria Plc 311 a and expressed willingness to pay up Counsel should encour- age along that path of honour rather than employ any legal brinkmanship to defeat the cause and course of justice. For these reasons I resolve this issue against the appellants. b The third issue also must be resolved against the appellant. They cannot now be heard to say that the plaintiff had not explained how the interest had mounted and brought the to- tal debt to N19,000,000 plus. On 9 March, 1995 the plaintiff c wrote exhibit F to the third defendant/appellant reminding him that the debt stood at N13,997,594.01, having been brought there by accrued interests. The third defen- dant/appellant wrote exhibits H, H1 and H2 thereafter in d February 1996 but did not complain about this. Indeed in exhibit H he acknowledged that “there were a lot of variance in interest charges during the period where interest rate went up as far as 35% including bank charges”. In July, 1996 he was informed by exhibit G that the debt had gone up to e N18,708,511. He did not react. In their so-called defence on the merit they did not suggest what interest rate was agreed on. In all the circumstances, I think the learned trial Judge rightly awarded to the plaintiff what it asked for. The defen- f dants disclosed no defence to it. This appeal lacks merit and is accordingly dismissed. The appellants shall pay costs of N5,000 to the respondents. NSOFOR JCA: I had the privilege of reading before now in g draft the leading judgment by my Lord, Ikongbeh, JCA just delivered.I confess that I am fully in agreement that the appeal is wholly unmeritorious and most deserving to be dismissed. I, therefore, affirm the judgment of the Court below and do hereby dismiss the appeal accordingly. The respondents are h entitled to the costs fixed at N5,000 against the appellants. AKPIROROH JCA: I have read in advance the lead judgment just delivered by my learned brother, Ikongbeh, JCA and I agree entirely with his reasoning and conclusion. i The appellants failed woefully to disclose a defence on the merits. The appeal therefore lacks merits and I too dismiss it. I abide by the order made as to costs. j Appeal dismissed.

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a United Bank for Africa Plc v Sani Abacha Foundation for Peace and Unity and others COURT OF APPEAL, ABUJA DIVISION b MUNTAKA-COOMASSIE, BULKACHUWA, ODUYEMI JJCA Date of Judgment: 10 JULY, 2002 Suit No.: CA/A/1/2001

Banking – Entry in Banker’s book – Computer produced c statement of account – Admissibility of – Whether admissi- ble in context of section 97 Evidence Act Cap 112 Laws of the Federation of Nigeria, 1990 Banking – Interest – Not only be pleaded but also strictly d proved Facts In course of argument of this appeal, there was a dispute whether a computer generated statement of account was ad- e missible as an entry in banker’s book under the provisions of section 97 of Evidence Act which provide:– “97(1) secondary evidence may be given of the existence, con- dition or contents of a document in the following cases. f (h) When the document is an entry in a bankers book. . . . in which the entries copied were made was at the time of making one of the ordinary books of the bank, and that the entry was made in the usual and ordinary course of business, and that the book is in g the custody and control of the bank, which proof may be given orally or by affidavit by a partner or officer of the bank and that the copy has been ex- amined with the original and is correct, which proof must be given by some person who has ex- h amined the copy with the original entry and may be given orally or by affidavit.” Held – i 1. Although section 96(1)(h) of the Act (which is the same with section 97 of the Evidence Act, 1990) provides that secondary evidence may be given of the existence, con- dition of contents of a document where the document is an entry in a bankers book, a banker’s book is defined in j

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United Bank for Africa Plc v. Sani Abacha Foundation for Peace 313 a section 2 of the Act as including “ledgers day books, cash books account books and all other books used in the ordinary business of a bank”. b Admittedly, this definition is not restrictive and could therefore be extended to mean something else which it does not ordinarily mean. Therefore, while the phrase may include a ledger card although this is far from clear, c could not be extended to mean a voucher from which, according to the evidence, the entries in the statement could not be admitted as secondary evidence of the en- tire in a bankers book by virtue of the provisions of sec- d tion 96(1)(c) of the Act. 2. It is quite unfortunate that in Nigeria no clarification has been done yet by way of amendment or promulgation of an Act, to exempt the statement of account contained in e a document produced by a computer from the conditions stated in section 97 of the Evidence Act, 1990. 3. Per curiam f “In the instant case, what happened during the tendering of exhibit D2 as contained in the record is as follows:– ‘DW2–1 see exhibit 9 (at) 5 December, 1997, this sum of N25.3m was paid. We prepared statement of account of Aisami by getting computer printed out. We caused g statement today through our network system. I recognise by (sic) account no. and I am aware of (it) through my investigation. I see this and say it is.’ This is far short of the requirements of section 97(2) of the h Evidence Act, 1990 for the document to be admissible. While I agree with the appellant’s Counsel that the docu- ment is relevant under sections 38 and 39 of the Evidence Act, but it did not satisfy the conditions necessary for its admissibility not evidence under section 97(1)(c) and 2(e) i of the Evidence Act. Though the appellant’s Counsel made reference to the modern day practice of using computers in the day to day business of the bank, it is my opinion that the law still remains as it is. It has not been amended by an Act of the National Assembly, although it is high time they did j that, and I am bound to apply the law as it is. In the cited

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case of Yesufu v ACB Ltd (supra) the Supreme Court made a the same point, at page 273, when it held thus:– Finally, while we agree that for the purpose of sections 96(1)(c) and 37 of the Act ‘bankers books’ and books of account could include ‘ledgers cards’ it would have been b much better, particularly with respect to a statement of account contained in a document produced by a com- puter, if the position is clarified beyond doubt by legisla- tion as has been done in England in the Civil Service Act, 1968 . . .” c Statement not admissible. Cases referred to in the judgment d Nigerian Egbue v Araka (1996) 2 NWLR (Part 433) 688 Yesufu v ACB Ltd (1976) All NLR (Part 1) 328 e Nigerian statute referred to in the judgment Evidence Act Cap 112 Laws of the Federation of Nigeria, 1990, section 97 Counsel f For the appellant: Mr Ademola E. Ekundayo For the respondents/cross-appellant: Mr J.C. Ezike Judgment g MUNTAKA-COOMASSIE JCA: (Delivering the lead judg- ment) This is an appeal against the judgment of the High Court of the Federal Capital Territory Abuja. The plaintiffs, now respondents in their writ of summons originally placed h under the undefended list claim against the defendants, now appellant as follows:– “1. The sum of N25.3 million (Twenty Five Million, three hun- dred thousand naira only) being money wrongfully and/or i negligently ‘transferred’ from the first plaintiffs’ account No. 201078886 with the Abuja Branch of the defendant bank. 2. Further, or in the alternative, the plaintiff’s claim the said sum as a debt arising from the contract of banker/customer j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ABUJA DIVISION) Muntaka-Coomassie JCA United Bank for Africa Plc v. Sani Abacha Foundation for Peace 315 a between the parties which debt the defendant has failed to pay despite repeated demand; 3. In the further alternative, the plaintiff’s claim the said sum as their money converted by the defendant; b 4. Further, or in the alternative, the plaintiff’s claim the said sum as money had and received by the defendants to the plaintiffs’ uses; 5. A consecutive and cumulative claim of interest on the said c at the rate of 21% per annum, from 7 July, 1998 until pay- ment.” This action was later transferred to the general cause list for hearing. Pleadings were filed and exchanged on the order of d the trial court. Hearing then commenced in earnest. The plaintiffs opened their case by calling the third plain- tiff, Alhaji Idi Faruk, as PW1. The witness is a member of Trustee of the first plaintiff. He told the court that the first e plaintiff (Abacha Foundation in short) opened a current ac- count with the defendant. He stated that the first plaintiffs’ account has never been in red. He testified that two cheques were issued on the said account; one to Sheraton Hotel and f Towers Limited and another to Messrs Nahaman Construc- tion and Real Estate Company Limited totalling the sum of Twenty-five million Naira, (N25m), which cheques were dishonoured. The cheque issued in the name of Nahaman Construction Limited for the sum of N18,073,670 was ad- g mitted as exhibit 1. The other cheque of the Sheraton Hotels was also dishonoured. The plaintiffs were surprised because there was more than N25m in the account. The witness in- quired from the defendant why the two cheques were dis- h honoured and he was told that the cheques were dishonoured on the directives from the head office. He also wrote official letter of complaint to the Bank which was admitted as ex- hibit M.2. The letter was No. FA/AHM/45/099/98. There i was no reply to the letter and a reminder was written, the let- ter dated 15 September, 1998 with Reference No. P126/18/GA/906/98 was admitted in evidence as exhibit 3. The defendant’s Bank only replied that action is being taken on exhibit M.2. The letter of reply was admitted as exhibit j No. 4.

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As a result of this, the plaintiffs briefed their solicitor who a wrote a letter of demand to the defendant, the letter was ad- mitted as exhibit no. 5. The witness stated that Sheraton and Nahaman Construction threatened to take the plaintiffs to court because of the bounced cheques. The plaintiffs had no b knowledge that any was amiss in their account; rather the plaintiffs normally received the statement of account show- ing that there is enough money in the account. he stated that the defendant appointed one of their staff, Hadiza Adamu to c be overseeing the plaintiffs’ account. She is an account offi- cer. The said Hadiza Adamu informed the plaintiffs that there was a transaction involving selling of foreign exchange and d asked the plaintiffs to give value to the transaction. The de- fendant then wrote that an account has been opened and she is one of the signatories. The letter written by the defendant No. CBN/COMM/ABJ/279/970610112/97 was admitted as e exhibit 7. The plaintiffs then made funds available for all payment both in Naira and in foreign currency. On 4 Febru- ary, 1997 the plaintiffs had paid N40 million to the account. This is as the result of the sale of US500,000 (Five Hundred f Thousand Dollars) at an exchange rate of N80.00k to one U.S. Dollar. One Messrs Farsman Bureau D Change Ltd re- ceipt for the sum of N40m was admitted as exhibit 8. He de- nied ever instructing the Bank to transfer any money from g the account. He again denied knowledge of any court order transferring money from the account to anywhere. Under cross-examination he admitted that the first plaintiff gets its money from donations and individuals. He denied h knowledge of any crime in depositing 25m into the account. He also denied knowing one Dahiru Hamza. The PW2 is one Abubakar S Ahmed, an accountant, who is in charge of the account. He was in court as a result of the i subpoena served on him prepared the statement of account after comparing the entries in the ledger book with the Bank, who compared and found the entries to be correct. The statement of account of the plaintiff up till 9 July, 1999 was admitted as exhibit no. 9. He stated that it is not necessary j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ABUJA DIVISION) Muntaka-Coomassie JCA United Bank for Africa Plc v. Sani Abacha Foundation for Peace 317 a for the account officer to inform customers of deposit on the account, but the is no harm if he or she does so. He admitted that Hadiza Adarnu is a staff of the Bank. The first plain- tiff’s statement of account from 4 February, 1997–26 May, b 1999 was also admitted and marked exhibit 10. This witness has not been cross examined. PW3 was one Faruk Suleiman. He is the owner of Farsman Bureau De Change. He identified exhibit 8 to be a purchase c receipt issued by his company evidence of payment of N40m to the first plaintiff’s account for the purchase of $500,000. After that N25m was transferred from the account to Grema who was to pay for dollars. Hadiza Adamu con- d firmed that N25.3m was credited to his account, after that he released the dollars. Under cross examination this witness stated that the inter- nal transfer is about N25.3m and the difference was in cash. e Alhaji Yawale bought for Grema. The defendant in turn called three witnesses, namely, DW1–3. f DW1 Umaru Musa, who is a banker with the defendant. He admitted that the plaintiffs are defendant’s customers. He said that sometime in July, 1998, a fraud involving the sum of N823,225,000 was discovered, which was investigated. He participated in the investigation. The Chief Inspector g summoned all the staff in the Inspection Division, including himself, and gave each of them a copy of the report on the fraud. The report was admitted as exhibit D1. He went through the statement of account. He knew there is an ac- h count in the name of Arta Agro Allied in UBA Plc account No. 201991921G. The witness stated that a report was made to the Police. The witness was aware that the sum of N25.5m was transferred from the first plaintiff’s account N i through exhibits 9 and 10. The sum of 25.3m was trans- ferred from Maiduguri Main Branch into the plaintiffs’ ac- count. Under cross-examination he denied being a party to the alleged fraud. He was working in Lagos Inspection sub- sector at the time of the alleged fraud and he never worked j in Maiduguri. He admitted that the sum of N25.3m was

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ABUJA DIVISION) Muntaka-Coomassie JCA 318 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) issued by the holder who was having an account at a Maiduguri Branch and it was in favour of UBA and he did not know if the plaintiffs were contacted before the transfer. The DW2 is one Abubakar Aliyu Madaki. He knows Has- b san Grema during the investigation of a case of fraud in UBA involving N823,000,000 allegedly transferred from Lagos main office to UBA Bank and deposited at Arta Al- lied Agro Company Ltd. During his investigation, he dis- c covered that part of this money, about N500,000,000 was transferred to Hassan account at UBA, only N62,000 was in the account before the transfer. The sum of N500m was dis- tributed to various accounts all over the Federation, out of this, the sum of N25.3m was transferred to the plaintiffs’ ac- d count from the UBA, Maiduguri wrote a report, and I then gave our instruction that all such account where this money was distributed to should be blocked to the extent of the ac- count transferred to each account pending conclusion of in- e vestigation. This led to the blocking of the accounts of the affected customers; including the first plaintiff. Under cross-examination, he admitted that he had no power to block customer’s account unless through the court. f That he obtained a court order in Lagos to block the account of the first plaintiff and that the case is presently being in- vestigated. The witness admitted that none of the plaintiff is involved in the fraud. During the course of investigation one g Ahmed Mahdi was the Director of the first plaintiff, and he explained how he gave Farsinan Bureau-De-Change in F.C.T. the sum of USD500,003. DW3, is one Patrick Makinale, an Inspector with the de- h fendant, he is the Assistant Chief Inspector in charge of the North. He admitted that Hassan Grema is a customer with the defendant he knew him when he was charged to court in N Maiduguri by the Police. This case is about 823,000,000. i fraud committed by depositors, which passed through Has- san Grema’s account in Maiduguri. The fraud was commit- ted through Arta Allied Agro Ltd’s account with the support of the defendant’s staff. From its account it was distributed to other various account, and 25.3m issued by Mr Grema j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ABUJA DIVISION) Muntaka-Coomassie JCA United Bank for Africa Plc v. Sani Abacha Foundation for Peace 319 a and paid to the plaintiff’s account. That Hassan Gremas statement of account was admitted and marked exhibit DW2. He stated that the N25.3m in the plaintiffs account was part of the money. He stated that the plaintiffs did not b lodge this sum of money with the defendant. Under cross-examination, he admitted that the plaintiffs were not contacted by the bank, and they did not reply to any of the letters written to the Bank. He admitted that for- c mer staff of the bank with four serving ones colluded with people outside to defraud the Bank. He was shown Hassan Grema, forged voucher, and then sent the voucher to Maiduguri where the fraud was initiated. d At the conclusion of each party’s case both Counsel ad- dressed the court. The trial Judge in his judgment, gave judgment in favour of the plaintiffs, and ordered as fol- lows:– e “To my mind the only evidence that can deprive the plaintiffs of N25.3m from its account is that of proof of conviction of fraud, forgery or theft of that or other sum which was shown by court proceeding to be stolen money and traced to the account; and in f the absence of that, that sum properly belongs to first plaintiff who can deal with it as he wished. The defendant in my view. improp- erly without first plaintiff’s consent or knowledge or court order displayed had to that extent and authorising (sic) transfer N25.3m belongs to first plaintiff from its account to first defendant sus- g pense account, this to my mind is money improperly had and re- ceived and defendant to return it with interest at the rate of 21% per annum from 7 July, 1998 until payment.” (See pages 53–54 of the record of proceedings.) h It is against this judgment that the appellant had appealed to this Court. The grounds of appeal as contained in the amended notice of appeal shown of their particulars are as follows:– i 1. “The learned trial Judge erred in law when he held in his judgment that the sum of N25.3m was improperly had and received by the defendant. 2. The learned trial Judge erred in law when he failed in his judgment to rely on exhibit D2, (the SOC of Aisami Grema) j and the evidence of DW1 and DW2.

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3. The learned trial Judge erred in the (sic) law when he a awarded in favour of the plaintiff the sum of N25.3m and interest of 21% per annum. 4. The judgment is against the weight of evidence. 5. The learned trial Judge erred in law and on the facts when b he held that:– ‘there is no evidence before this Court that this money is part of a larger stolen sum and thereby came to a wrong decision.’ c 6. The learned trial Judge erred in law when he failed to give consideration to the relevant issues for determination for- mulated by the defendant in the determination of the case and thereby came to a wrong conclusion. d 7. The learned trial Judge erred in law in not considering the patent illegality manifests in the conduct of the plaintiff’s purported sale of foreign currency and thereby lent the ma- chinery of Justice to the enforcement of illegality.” The plaintiffs also cross appealed. The grounds of appeal e without their particulars are hereunder reproduced:– 1. “The lower court erred in law in admitting exhibit Dl in Evidence. 2. The learned trial Judge erred in law in admitting the state- f ment of account marked exhibit D2. 3. The learned trial Judge erred in law in basing his judgment on the proposed statement of defence and the evidence founded thereon.” g In accordance with the rules of this Court, briefs of argu- ment were filed and served by both parties. The appellant in its brief of argument formulated the following three issues for determination:– h 1. “Whether the lower court took proper advantage of a court of first instance in receiving, evaluating and making divi- sions of the evidence before the court and submissions made thereon. i 2. Whether it was proper for the court to use its machinery for the validation of the foreign exchange illegality patently manifest in the matter before the court. 3. Whether the pre emptory award of interest in the matter was proper in the circumstances of this case.” j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ABUJA DIVISION) Muntaka-Coomassie JCA United Bank for Africa Plc v. Sani Abacha Foundation for Peace 321 a While the respondents in their brief of argument also formu- lated three issues for determination, which are hereunder re- produced:– b (a) Did the judgment of the court below occasion any miscarriage of justice; (b) Is the plaintiff’s cause of action, arising from the contract or transaction between the parties, ex facie illegal. c (c) In the circumstances of this case, was the interest claimed by the plaintiffs properly awarded. In support of the cross appeal, the respondent/cross- d appellants formulated two issues for determination thus:– “1. Was the court below right to admit exhibit D2 in evidence inspite of the objection that the said document being a sec- ondary evidence of an entry in a bankers book, is not ad- missible in evidence without the prior fulfillment of the e statutory conditions stipulated under section 97 of the Evi- dence Act and when the said document is not covered by any of the pleadings. 2. Whether in the circumstances of this case the court below was right in countenancing the proposed statement of de- f fence when no statement of defence was ever filed or served and when the proposed statement of defence did not deny the plaintiffs claim.” The appellant also adopted these issues in the reply filed to g the cross-appellant’s brief of argument. At the hearing of this appeal, the appellant adopted its brief of argument. The learned Counsel to the appellant in ampli- fication of the brief submitted that where crime is alleged in h a civil matter, it is not in all cases that the crime must be proved beyond all reasonable doubt, particularly where a crime is alleged against a third party. He relied on the case of First African Trust Bank Ltd v Partnership Co Ltd (2001) i 1 NWLR (Part 695) 517/522. Where a third party can be af- fected by the effect of allegation of fraud even if he is inno- cent of fraud, the fraud alleged by the appellant will operate against him. He urged this Court to allow the appeal. On the cross appeal he also adopted the appellants reply brief, and j urged the court to order a retrial.

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The learned Counsel to the respondent in the main appeal, a Ezike, Esq. adopted the respondent’s brief of argument. In his oral submission he submitted that the appellant’s sub- mission that a fraud was perpetrated by a third party is a re- sounding concession by the appellant that they are liable. He b submitted that a fraud must be that of a party or parties to a suit. He referred to the Record of proceedings and submitted that at the lower court the appellant only mentioned fraud and said that the respondents are innocent of the fraud. The c third party is the appellant’s employee. On the issue of ille- gality raised by the appellant, he submitted that the issue was not canvassed at the lower court, and no leave was sought and obtained before this Court, for the issue to be d raised, and he therefore submitted that the issue is not com- petently before this Court. He referred us to the case of Onuchekwa v NDIC (2001) 5 NWLR (Part 760) 371 at 388– 389 and submitted that no fact relating to illegality was pleaded and no statute was referred to. On the cross appeal, e he submitted that the appellant did not file any statement of defence before the lower court. A proposed statement of de- fence was filed, and it was never deemed filed, and no fee paid. He urged this Court to dismiss the appeal. f In reply the learned Counsel to the appellant submitted that issues of statement of defence was never raised in the course of trial. It was only raised during the address stage. The fee was paid on the motion for enlargement of time to file the g statement of defence. Hence the statement of defence was properly filed and served and the respondents did not oppose the motion. The respondents in their brief of argument objected to Is- h sues 1 and 2 of the issue for determination as framed in the appellant’s brief of argument on the ground that it raised the issue of Mistake and Illegality for the first time on appeal without the leave of court, and urged that they be struck out. i In reply, the appellant submitted that the issues as raised are within the contention of the defendant grounds of appeal. These issues have been pleaded, argued and even relied upon by both parties and the Judge at the trial. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ABUJA DIVISION) Muntaka-Coomassie JCA United Bank for Africa Plc v. Sani Abacha Foundation for Peace 323 a Now, it is trite that for an issue for determination to be competent it must be based on a ground of appeal. (See Amadi v NNPC (2000) 6 SCNJ 1 at 11.) The complaint, b however, is not that the issues were not based on the grounds of appeal but that they were being raised for the first time on appeal without leave. If the issues were being raised for the first time before this Court without leave, un- c doubtedly they would be incompetent and they would be li- able to be struck out. (See Salami v Mohammed (2000) SCNJ 281/288.) I have carefully gone through the pleadings and the evi- d dence adduced by the parties, particularly the defence, and I could not see where the issue of illegality of the transaction between the plaintiffs/respondents and Farsman was raised before the lower court. Having not raised, the issue before e the lower court, the appellant could not raise same before this Court without the leave of this Court. The result there- fore is that the issue of illegality being incompetent before this Court is hereby struck out, consequently, ground seven f of the amended notice of appeal that raised the said issue is also struck out for being incompetent. In the case of Salami v Mohammed (2000) 6 SCNJ 281/288, the Supreme Court of Nigeria Per Wali, JSC, stated g the position clearly as follows:– “It is my view that all the grounds of appeal can be said to be rais- ing matters that were not raised and canvassed in the Court of Ap- peal. As provided by the 1979 Constitution, which is applicable to h this Court, appeals go from the Court of Appeal to this Court and where any issue is being raised for the first time before this the pre-requisite to do so is leave of this Court.” This position also applies to this Court. Any issue that was i not raised before the High Court or any other lower court, and is being raised for the first time in this Court must be with leave of this Court, failure to obtain the requisite leave of court renders the issue incompetent. (See also Atoyebi v Governor of Oyo State (1994) 5 SCNJ 62 and Uoniksa- j lolonisk v Vhoff (1994) 2 SCHLR 98.)

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In addition, to allow the appellant to raise this issue would a amount to the making a different case from the one pre- sented before the lower court. Parties are bound by their pleadings, and none of the parties would be allowed to pre- b sent a different case from the one presented in his pleadings. To do otherwise is to deny the other party the right to fair hearing and to spring a surprise on him. Secondly, an appeal is a continuation of the case presented before the lower c court, is it not so, and a new or different case, and in any event, the appeal court will not allow a party to present a dif- ferent case from that presented before the lower court. I refer to Adegoke Motors v Adesanya (1989) 3 NWLR (Part 109) d 266; S.G.B. v S.G.B. (Nigeria) Ltd (1997) 4 NWLR (Part 467) 393 at 408–409 and Akuneziri v Okenwa (2000) 15 NWLR (Part 691) 526/551. However, this does not mean that this Court will not allow e a party to raise a fresh point or issue on appeal in a proper situation where the leave is sought. Leave, in my opinion, will normally be given where the issue being sought to be raised is substantial and already covered by the evidence ad- f duced before the lower court and will therefore not require any new evidence to support it. (See Adeniran v Interland Transport Ltd (1991) 12 SCNJ 27 and Atoyebi v The Gover- nor of Oyo State (supra).) g In the determination of the appeal therefore, I will prefer the two remaining issues for determination in the appellant’s brief of argument. On the first issue the appellant submitted that the lower h court did not properly consider the case before it. He cited the cases of; (1) Olufosoye v Olorunfemi (1989) 1 NWLR (Part 95) 26 at 40 and (2) Chukwu v Nneji (1990) 6 NWLR (Part 156) 313–375. He then submitted that the lower court i did not put the evidence of both parties on the imaginary scale of justice before he reached his conclusion. The judg- ment, according to him, is less than 20 lines of the most cur- sory consideration. The main thrust of the few lines of the j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ABUJA DIVISION) Muntaka-Coomassie JCA United Bank for Africa Plc v. Sani Abacha Foundation for Peace 325 a judgment are concerned with the conclusion of the court. All the issues set out by the defence Counsel were ignored. He therefore submitted that the adjudication of the lower court b its adjudicatory function is fatal to the validity of the judg- ment. The respondents in their brief of argument submitted that the trial Judge painstakingly made findings of facts based on c the evidence before him. They submitted that the appellant did not appeal against the fundamental findings of the lower court, and as such these findings are subsisting and sound. d Earlier in this judgment, I have set out, in some details, the evidence of the witnesses called by both parties. I have painstakingly done this in order to enable me know the na- ture and the evidence actually adduced before the lower e court. The appellant in this issue, called into question the manner and ways the learned trial Judge wrote his judgment. This, according to the appellant’s Counsel, rendered the judgment f a nullity. In resolving this issue, the question that needs to be answered at this juncture, is how should the judgment of court be written. In the case of Osafile v Paul Obi (1990) 5 SCNJ 118 at 127 the Supreme Court of Nigeria, Per g Nnaemeka-Agu, JSC stated the position clearly thus:– “I believe it is useful to begin my consideration of the main issue for determination in this appeal by advising myself that a judg- ment in a civil case is made up of more or less five distinct parts. h These are the introduction of the issues in controversy between the parties, the cases of either side in support of its case, the resolution of the issues of fact and of law put forward by each party and the courts conclusions based on the resolution of the issues and claims before the court. It is only in the resolution of issues and the con- i clusions that the opinion of the court as I understand it to have been used in the appeal is relevant.” Applying these principles to the case at hand, I have no dif- ficulty in holding that the judgment complained of complied j with the principles of law as stated by the Supreme Court. A

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ABUJA DIVISION) Muntaka-Coomassie JCA 326 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) cursory look at the judgment of Saleh, CJ, shows the state- a ment of the facts of the case, brief statement of evidence of the witnesses of both parties and the addresses of Counsel. Before the learned trial Judge proceeded to evaluate the evi- dence, he stated in the judgment thus:– b “The foregoing is the statement of claim and proposed statement of defence. The evidence adduced here by both plaintiff and de- fendant and address by both Counsel for defendant and plaintiff . . .” c This goes to show that the learned trial Judge had in his mind the decision in Mogaji v Odofin (1978) 4 SC 91 at 93 as regard his duty to consider the cases of both parties before arriving at his decision. d After considering the evidence of both parties, the trial Judge found as follows:– “To my mind the only evidence that can deprive the plaintiff of e N25.3m from its account is that of proof of conviction for fraud, forgery or theft of that or other sum which was shown by court proceedings to he stolen money and traced to that account and in the absence of that, that sum properly belongs to the plaintiffs who can deal with it as it wishes.” f Inspite of this fundamental finding of the lower court, appel- lant did not appeal against this finding. The effect of this, with respect, is obvious, the said finding is subsisting and valid. (See Dabup v Kolo (1993) 9 NWLR (Part 317) 254 at g 369 and Olarewaju v The Governor of Oyo State (1992) 11– 12 SCNJ 92.) From the evidence on the record, the following facts are not in dispute:– h (a) The first plaintiff/respondent is a customer with the appellant; (b) The first respondent’s account was credited with the i sum of N25.3m; (c) The said account of N25.3m was placed in a sus- pended account by the appellant without the consent of the respondents; and j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ABUJA DIVISION) Muntaka-Coomassie JCA United Bank for Africa Plc v. Sani Abacha Foundation for Peace 327 a (d) That this was done without any lawful authority or court order. Based on these undisputed facts, it is my view that the find- b ings of the lower court as quoted above were supported by the evidence adduced in court, and I so hold. I therefore re- solved this issue in favour of the respondents. Turning to the third issue for determination as framed by c the appellant, it was submitted on behalf of the appellant that there was no evidence to support the award of 21% interest rate per annum granted by the lower court. The appellant re- lied on the cases of UBN v Spok Nigeria Ltd (1998) 12 d NWLR (Part 578) 338; Oshinjinn v Alhaji Elias (1970) 1 All NLR 153 and Nzeribe v Dave Eng. Co Ltd (1994) 5 NLR (Part 361) 124 and submitted that interest, being claim in special damage, must be proved strictly in order to entitle e the respondents to judgment. The respondents submitted that the interest awarded was pleaded and proved; he referred to paragraph 26(4) of the statement of claim and evidence of PW1 and PW2. He then f submitted that the respondents’ claim of interest is founded on equity. He referred to the case of Habutts Plasticine Lim- ited v Wayne Tank and Pump Corp. Ltd (1970) Q.B. 447 at 448. He then submitted that 21% per annum is the prevailing g rule of interest. I have carefully gone through the pleadings and the evi- dence adduced in proof thereof before the lower court and I found as a fad that the rate of interest of 21% per annum was h pleaded in paragraph 26(4) of the statement of claim but same was vehemently denied in paragraph 25 of the state- ment of defence which placed the onus of proof squarely on the plaintiffs/respondents. See section 137 of the Evidence i Act. However, there is no iota of evidence adduced by the plaintiffs/respondents in support of the rate of interest pleaded. Pleadings are mere averment and it requires evi- dence on the part of the plaintiffs to prove the facts pleaded. Any pleaded fact, it goes without saying, that was not j proved or supported by evidence is deemed abandoned. (See

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Ajuwon v Akanni (1993) 12 SCNJ 32 and Lhyacinth Nzeribe a v Dave Engineering Co Ltd (1994) 9 SCNJ 197.) It is true that the prevailing rate of interest was 21% per annum as submitted by the respondents Counsel, where is b the evidence to that effect on the record to support the claim. In the case of UBN v Spok Ltd (Supra) this Court had stated the legal position as follows:– “It is trite law that the courts from time immemorial are reluctant c to award interest generally Ladon, Chatham 4 Dover RY v South Eastern RY (1993) A.C. 429, thereby giving the rule of law that in- terest must not only be pleaded but also strictly proved. Barclays Bank D.C.O. v Yesufu Alabi (1961) All NLR 536.” In view of the above, I hold that the respondent had totally d failed to prove the 21% interest per annum claimed in para- graph 26(4) of the statement of claim. I therefore resolve this issue in favour of the appellant. On the cross appeal, the first issue deals with the admissi- e bility of exhibit DW2 Aisami statement of account. This statement was admitted without specifically complying with the provision of section 97 of the Evidence Act. The respon- dents submitted that this failure rendered the documents in f admissible. The respondents relied on the cases of: (1) Ye- sufu v ACB Ltd (1976) 1 All NLR (Part 1) 328 at 334–346 and Egbue v Araka (1996) 2 NWLR (Part 433) 688 at 708. In reply, the appellants Counsel submitted that sections 38 g and 39 permit the admissibility of exhibit D2. He submitted that in the modern day business in any bank that wants to meet up with the customers demands will definitely depend on computer for its accounting system. It is indeed not pos- h sible for the court to close its eyes to the use of computer print-out as an evidence in proof of cases related to banks. This issue borders on the interpretation to be placed on provisions of section 97(1)(b) and 2(e) of the Evidence Act i which provides as follows:– “97(1) secondary evidence may be given of the existence, con- dition or contents of a document in the following cases. h. When the document is an entry in a bankers book. . . . in which the entries copied were made was at j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ABUJA DIVISION) Muntaka-Coomassie JCA United Bank for Africa Plc v. Sani Abacha Foundation for Peace 329 a the time of making one of the ordinary books of the bank, and that the entry was made in the usual and ordinary course of business, and that the book is in the custody and control of the bank, which proof b may be given orally or by affidavit by a partner or officer of the bank and that the copy has been ex- amined with the original and is correct, which proof must be given by some person who has ex- amined the copy with the original entry and may be c given orally or by affidavit.” Considering the provisions of this section in the case of Ye- sufu v ACB Ltd (supra), the Supreme Court per Fatayi- Williams, JSC of blessed memory held as follows:– d “Although section 96(1)(h) of the Act (which is the same with sec- tion 97 of the Evidence Act 1990) provides that secondary evi- dence may be given of the existence, condition of contents of a document where the document is an entry in a bankers book, a bankers book ‘is defined in section 2 of the Act as including’ ledg- e ers day books, cash books account books and all other books used in the ordinary business of a bank. Admittedly, this definition is not restrictive and could therefore be extended to mean something else which it does not ordinarily f mean. Therefore, while the phrase may include a ledger card although this is far from clear, we do not think it could be ex- tended to mean a voucher from which, according to the evidence, the entries in the statement could not be admitted as secondary evidence of the entries in a bankers book by virtue of the provi- g sions of section 96(1)(c) of the act and the learned trial Judge was in error in admitting it as such.” In the instant case, what happened during the tendering of exhibit D2 as contained in the record is as follows:– h “DW2–1 see exhibit 9 (at) 5 December, 1997, this sum of N25.3m was paid. We prepared statement of account of Aisami by getting computer printed out. We caused statement today through our network system. I recognise by (sic) account number and I am aware of (it) through my investigation. I see this and say it is.” i This is far short of the requirements of section 97(2) of the Evidence Act 1990 for the document to be admissible. While I agree with the appellants Counsel that the document is relevant under sections 38 and 39 of the Evidence Act, but j it did not satisfy the conditions necessary for its

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ABUJA DIVISION) Muntaka-Coomassie JCA 330 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) admissibility not evidence under section 97(1)(c) and 2(e) of a the Evidence Act. Though the appellant Counsel made refer- ence to the modern day practice of using computers in the day to day business of the bank, it is my opinion that the law still remains as it is. It has not been amended by an Act of b the National Assembly, although it is high time they did that, and I am bound to apply the law as it is. In the cited case of Yesufu v ACB Ltd (supra) the Supreme Court made the same point, at page 273, when it held thus:– c “Finally, while we agree that for the purpose of sections 96(1)(c) and 37 of the Act ‘bankers books’ and books of account could in- clude ‘ledgers cards’ it would have been much better, particularly with respect to a statement of account contained in a document d produced by a computer, if the position is clarified beyond doubt by legislation as has bee’ done in England in the Civil Service Act, 1968 . . .” It is quite unfortunate that in Nigeria no clarification has e been done yet by way of amendment or promulgation of an Act, to exempt the statement of account contained in a document produced by a computer from the conditions stated in section 97 of the Evidence Act, 1990. I will not f deviate from my primary function of interpreting the law as made by the legislature to that of law making. I therefore hold that the lower Court was in error when it admitted exhibit D2 in evidence in this case. (See also the case of Eg- g bue v Araka (1996) 2 NWLR (Part 433) 688 at 708.) Finally, Issue No. 2 in the cross appeal deals with the al- leged failure of the appellant to file the statement of defence. Even though a motion to file the statement of defence out of h time was filed same was not argued or granted. The respon- dent therefore submitted that there was no defence properly filed before the lower court. The learned Counsel to the appellant submitted that the i statement of defence was referred to and relied on by both parties and even the Judge in reaching the decision, hence the plaintiffs cannot now trace back their steps on this issue or else this will be a miscarriage of justice. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ABUJA DIVISION) Muntaka-Coomassie JCA United Bank for Africa Plc v. Sani Abacha Foundation for Peace 331 a On the record of proceedings, the defendant/appellant did file a motion to file their statement of defence out of time, but it was not recorded anywhere that the said motion was b moved or granted, on this basis, one can say that there was no statement of defence filed in this case. But this matter did not obviously stop there. At the lower court, the defen- dant/appellant called three witnesses to give evidence in c support of the said statement of defence without any objec- tion from the plaintiffs’ Counsel documents were either ad- mitted or rejected based on the said statement of defence. Infact the whole trial was concluded based on the said d statement of defence up till the address stage. If the plain- tiffs/respondents’ Counsel was convinced that there was no statement of defence he would have objected at the earlier stage i.e. by not allowing evidence to be adduced based on the said statement of defence. He had taken steps and con- e doned the irregularity of failing to regularise the proper fil- ing of the statement of defence and cannot therefore com- plain. See the case of Ayanwale v Atanda (1988) 1 SCNJ 1 at 12 where it was held thus:– f “As regards Issue No. 2 which relates to the pleadings filed in the suit and covers Ground 4 of the ground of appeal, suffice it to say in general, where a party has consented to a wrong procedure at the trial and in fact suffers no injustice, it would be too late to g complain on appeal that wrong procedure was followed. (See Akhilu v Principal Lotteries Officer Mid western State (1972) 1 All NLR 299, CFAO v Onitsha Industries Ltd (1932) 11 NLR 102 and Colony Dev B.D. v Kamson (1955) 21 NLR 73.)” h Where a statement of claim was filed out of time, served on the defendant as such and the latter filed a statement of de- fence without protest and allowed the case to proceed to trial and final determination, it would be too late for such defen- i dant to complain on appeal against the statement of claim. (See Okwechime v Phillip Igbidadaher (1964) NMLR 132.) That being the case, and in view of the principle of law enumiciated in the above cases, I resolve the Issue No. 2 in j the cross appeal in favour of the appellant herein.

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Finally both the appeal and cross appeal succeed in part. a For the avoidance of any possible doubt I hereby order as follows:– 1. That exhibit D2 was wrongly admitted by the trial b court, and same is hereby marked rejected. 2. That there is statement of defence in this case. 3. That the award of 21% interest per annum on the N sum of 25.3m from 7 July, 1998 is hereby set c aside; and 4. The award of the sum of N25.3m to the plain- tiffs/respondents is hereby affirmed. That amount shall be paid to the respondents immediately. d Parties shall bear their own respective costs. BULKACHUWA JCA: I have read before now the judgment just delivered by my learned brother, Muntaka Coomassie, JCA. e I agree with his reasons and the conclusions reached, therein and adopt them as mine. Both the appeal and the cross appeal succeed in Part. I abide with the consequential orders in the lead judgment. f Each party to bear his own costs. ODUYEMI JCA: I have had the privilege of reading in ad- vance, the judgment just delivered by my learned brother, Muntaka Coomassie, JCA. g I adopt his reasoning and conclusions as mine. I allow both the appeal and the cross appeal in part respec- tively. h I abide by the orders contained in the judgment as well as with the order that each party should bear its own cost in the appeal. Statement not admissible. i

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Songhai Ltd v. United Bank for Africa 333 a Songhai Limited v United Bank for Africa and others b COURT OF APPEAL, KADUNA DIVISION SALAMI, MOHAMMED, OMAGE JJCA Date of Judgment: 11 JULY 2002 Suit No.: CA/K/152/2001 c Mortgage – Nature of Mortgage – Power of sale – Defect in sale – Whether affects buyer d Mortgage – Power of sale – Mortgagor alleging abuse of power conferred by the mortgage – What to show Facts e The appellant was a customer of the first respondent Bank at its Kaduna North branch. In the course of the relationship between the appellant and the first respondent, the appellant obtained a loan from the first respondent Bank and secured f that loan by Mortgage and Debenture Deeds executed on some named landed properties of the appellant including No. 8 Degel Road G.R.A Kaduna. In order to recover the outstanding loan, the first respondent exercised its powers under the relevant provisions of the Mortgage and Deben- g ture Deeds and appointed the second respondent Receiver and Manager over the assets of the appellant in order to fa- cilitate the recovery of the loan. In exercise of his power as Receiver and Manager, the second respondent sold the ap- h pellant’s property at No. 8 Degel Road, G.R.A. Kaduna to the third respondent for the sum of N5,000,000 which the third respondent duly paid before proceeding to perfect its title with the fourth and fifth respondents. The appellant i which was not happy with the steps taken by the first re- spondent against it towards the recovery of the outstanding loan, filed this action at the lower court against all the five respondents basing its claims principally on the fact that it was not indebted to the first respondent at all and as such the j sale of its property by the second respondent to the third

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334 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) respondent was illegal, null and void. At the conclusion of a the hearing in the case, the learned trial Judge dismissed the appellant’s claims in their entirety but granted the counter- claims of the third respondent against the appellant. The ap- pellant was not happy with the Judgment of the trial court b against it, hence this appeal. Held – 1. A mortgage consists of two parts. It is a personal con- c tract for a debt secured by an estate. In equity the estate becomes the pledge or security for the debt, with a con- dition for redemption of the property upon payment of the debt. A mortgage agreement indeed is infact a condi- d tional sale of the property with an equity of redemption, that is the right of recovery of the property upon pay- ment of the debt. 2. Therefore upon the creation of legal mortgage between e the parties the usual method of discharge of the debt upon this payment of the mortgage debt is by the issue of a deed of discharge, which entitles the mortgages to a reversion of the title on the land to the borrower. f 3. The situation as it stood at the time that the plaintiff, now appellant, sought the order of court to declare that the appointment of the Receiver/Manager by the first de- fendant is irregular unlawful void and of no effect, and g that the purported sale of No. 8 Degel Road, GRA Ka- duna is an abuse of the power conferred by the mortgage and debentures the plaintiff now appellant has the fol- lowing onus, under the provision of section 135(1) of the h Evidence Act. That the said exhibit 3 in the proceedings has been discharged and that the plaintiff/appellant is not indebted to the first respondent and must prove by evi- dence in any case, that the extent of his liability to the i first respondent is not ripe in terms of time and amount to warrant the appointment of a Receiver/Manager. The plaintiff now appellant on whom the onus lay in the court below, did not discharge the onus. j

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Songhai Ltd v. United Bank for Africa 335 a 4. The onus lies on the party who seeks to establish a state of facts to prove the facts. That is why in section 135(1) of the Evidence Act laws of the Federation of Nigeria, the rule is subscribed thus “whoever desires any court to b give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that these facts exist”. There is ostensibly no initial duty imposed on the defendant until the plaintiff has first dis- c charged his onus of proof. 5. In the face of the testimony of the appellant that exhibit 3 between the parties exist, and the acknowledgment that a right exists in the mortgage agreement for the first re- d spondent to sell the mortgaged property under the said exhibit it is of no consequence to a third party who pur- chased the mortgaged property whether the time to sell the property has arisen; because any defect in the sale of e the property to such a third party will not invalidate the sale to him. 6. Any defect contained in the sale whatsoever the appel- lant may only be entitled to costs, since he has ensured f that no encumbrances is attached to the property evi- dence of this exist in the printed record. The third re- spondent has also certified himself, that the mortgage had the power of sale of the mortgaged property, that the loan had become due for payment. The third respondent g is therefore entitled to a transfer of the title to the pur- chased property under the provision of the Law of Prop- erty of Kaduna State. h Appeal dismissed. Cases referred to in the judgment

Nigerian i Ajero v Ugorji (1999) 10 NWLR (Part 621) Arowolo v Fabuyi (2002) 4 NWLR (Part 757) 356 Balogun v Labiran (1988) 6 SCNJ 71 j Bank of the North v Aliyu (1999) 7 NWLR (Part 612) 622

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Bello v Alao (1989) 3 NWLR (Part 118) a Bello v Eweka (1981) 1 SC 101 Buraimoh v Adeniyi (1990) 4 SCNJ 1 Esika v Medolu (1997) 2 NWLR (Part 485) 54 b Imana v Robinson (1979) 3–4 SC 1 Kadpingi v Odu (1936) 2 WACA 337 National Bank of Nigeria Ltd v Standard Consolidated Dredg- c ing Construction Co Ltd (1999) 5 NWLR (Part 548) 144 Niger Construction Limited v Ogungbemi (1987) 11–12 SCNJ 133 Obasuyi v Business Ventures Ltd (2000) FWLR (Part 10) d 1722 Oguchi v F.M.B. Nigeria Ltd (1996) 6 NWLR (Part 156) 330 Oyedepo v Adenle (1993) 9 NWLR (Part 316) 244 e Victory Merchant Bank v Pelfaco (1993) 9 NWLR (Part 317) 340; (1993) 9 NWLR (Part 340) 354

Counsel f For the appellant: Mrs B. Ajao For the first and second respondents: Charles Mafua For the third respondent: E.C. Aneme g Judgment MOHAMMED JCA: (Delivering the lead judgment) This is an appeal against the Judgment of Abiriye, J of the Kaduna State High Court of Justice sitting at Kaduna and delivered h on 16 December, 1999 dismissing the plaintiff’s claim and entering judgment for the third defendant in its counter- claim. The appellant in this appeal as the plaintiff had insti- tuted its action against the defendants now respondents and i claimed the following reliefs in its amended writ of sum- mons:– “1. A declaration that the appointment of the second defendant by the first defendant as Receiver and Manager to the first plaintiff is irregular, unlawful, void and of no effect. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Mohammed JCA Songhai Ltd v. United Bank for Africa 337 a 2. A declaration that the purported sale or assignment of the plaintiff’s property lying and situate at No. 8 Degel Road, G.R.A. Kaduna or any other plaintiffs property by the first and second defendants, is an abuse of the exercise of the b powers conferred by the Mortgage(s) and Debentures’ Deeds on the first and second defendants. 3. A declaration that the purported sale or assignment of the plaintiff’s property lying and situate at No. 8 Degel Road, G.R.A. Kaduna by the first and second (sic) without prior c notice to the (sic) applicants, is a breach of the oral agree- ment and professional assurances entered into between the plaintiffs and the second defendant. 4. A declaration that the purported sale or assignment of the d plaintiffs property lying and situate at No. 8 Degel Road, G.R.A Kaduna, by the second (sic) respondent to the third (sic) respondent is a contravention of section 22 of the Land Use Act, and is unlawful, null and void. 5. A Declaration that all acts carried out by or on behalf of the e second defendant, purporting to act for and on behalf of the first plaintiff, by virtue of his appointment as Receiver and Manager to the first plaintiff, from the date of the second defendant’s purported appointment are null, void and unlawful. f 6. A declaration that the interest charges posted by the first defendant on the first plaintiff’s accounts were and are ex- traneous to the agreement between the first plaintiff and the first defendant. g 7. A declaration that the first plaintiff is not indebted to the first defendant in the sum which formed the basis of the purported sale of No. 8 Degel Road, G.R.A. Kaduna or sale of any property covered by the Mortgage(s) Debenture(s). 8. An order of perpetual injunction restraining the second de- h fendant from further performing or purporting to perform by any means or manner the functions of Receiver and Manager to the first plaintiff. 9. An order of injunction restraining the first defendant from i performing or purporting to perform through its agents, ser- vants, privies or any other person either solely or in substi- tution of the second defendant, the functions of Receiver and Manager to the first plaintiff. 10. An order of perpetual injunction restraining the defendants j more especially the third defendant, their agents, servants

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privies or assigns, from taking possession or exercising any a right(s), ownership, over the plaintiffs property lying and situate at No. 8 Degel Road, G.R.A. Kaduna. 11. An order of perpetual injunction restraining the first and second defendants (sic) its servants, agents, or privies from b exercising any right over the other properties of the plain- tiffs forming securities under the Mortgage and Debenture Deeds executed between the plaintiff and the first defen- dant. c 12. An order setting aside any sale or purported sale of part or all of the securities covered by the Mortgage and Debenture deeds executed between the plaintiffs and the first defen- dant. d 13. An order of injunction restraining the fourth and fifth de- fendants, their agent(s), nominee(s), servant(s), organ(s), Ministry or Departments of the Kaduna State Government from issuing any consent to alienate, or any certificate of occupancy covering that property known as lying sand situ- e ate at No.8 Degel Road, G.R.A. Kaduna and No.15 Degel Road, G.R.A. Kaduna and other properties forming securi- ties under Mortgage and Debenture Deeds executed be- tween the (sic) applicants and the first defendant. 14. The first plaintiff claims an account of all credits and debits f posted on the first plaintiff accounts No. 1387 and 2078 and any other account maintained by the first plaintiff with the first defendant; or opened by the first defendant for the first plaintiff at its Kaduna North Branch or any other branch. g 15. General damages in the sum of N250,000. 16. Costs accruable to this action. 17. In the alternative to paragraph 10 above, the plaintiffs claim against the first and second defendants the sum of h N25,000,000 as special damages for wrongful sale of the said property to the third defendant.” In their reaction to the above claims, first and second defen- dants now respondents filed a joint statement of defence i while the fourth and fifth defendants, now respondents, took steps in defending the action as statement of defence dated 4 July, 1994 was filed on their behalf. However, the third de- fendant now respondent not only filed its own statement of j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Mohammed JCA Songhai Ltd v. United Bank for Africa 339 a defence but also filed a counter-claim and claimed against the plaintiff now appellant as follows:– “Whereof the third defendant counter-claims from the plaintiffs thus:– b (a) A declaration that the sale/assignment of the property situ- ate at and known us No. 8 Degel Road, Kaduna to the third defendant is valid. (b) A declaration that the continued occupation of the property c by the plaintiffs is wrongful. (c) An order for the recovery of the property against the plain- tiffs and consequent order ejecting the plaintiffs from the property. (d) An order of perpetual injunction restraining the plaintiffs, d their agents, servants, privies or assigns from taking posses- sion of the property or in any way trespassing into the prop- erty. (e) An order compelling the plaintiffs to account and pay over to the third defendant all monies/rents/mesne profits col- e lected in respect of the property from 20 November, 1992 until vacant possession is given to the third defendant. (f) General damages in the sum of N5,000,000 for trespass.” At the hearing of this case at the trial court, the appellant as f the plaintiff called four witnesses who testified in support of its claims. Of the five defendants in the action, only the third defendant called one witness who testified in its own de- fence and in support of its counter-claim while the remain- ing third defendants, first, second and fifth defendants called g no evidence at all in support of their respective defences but rested their cases on the respective cases made out by the plaintiff and the third defendant. At the end of the hearing, the learned trial Judge in his Judgment delivered on 16 De- h cember, 1999, dismissed the plaintiff’s claims in their en- tirety but granted all the reliefs sought by the third defendant in its counter-claim. The relevant part of this Judgment reads:– i “As the plaintiffs have failed to prove any of their claims, the only option left to the court is to dismiss them in their entirety. I ac- cordingly hereby make an order dismissing the claims of the plain- tiffs against the defendants. On the evidence of DW1 which is credible and was not discredited j under cross-examination which was also supported by the

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evidence of PW1, 2 and 3, 1 think the third defendant’s counter- a claim succeeds. I accordingly enter Judgment in favour of the third defendant as per the claims in the counter-claim. (a) The sale/assignment of the property situate at and known as No. 8 Degel Road, G.R.A. Kaduna to the third defendant is b hereby declared valid. (b) The continued occupation of the property by the plaintiff is also declared wrongful. (c) The third defendant shall recover the property from the c plaintiffs. An order is hereby made ejecting the plaintiffs from the property. (d) An order of perpetual injunction is hereby made restraining the plaintiffs, their agents, servants, privies or assigns from d taking possession of the property or in any way trespassing unto the property. (e) An order is also made compelling the plaintiffs to account and pay over to the third defendant all monies/rents/mesne e profits collected in respect of the property, from 20 Novem- ber, 1992 until vacant possession is given to the third de- fendant. (f) third defendant is awarded N 500,000 (Five Hundred Thou- f sand Naira)/general damages for trespass”. Aggrieved by this decision, the plaintiff which is now the appellant has appealed to this Court against the judgment of the trial court by its notice and grounds of appeal containing g 9 grounds of appeal. In accordance with the rules of this Court, briefs of argument were duly filed and served. In the appellant’s brief of argument dated 16 November, 2001, five issues for the determination of the appeal were h formulated from the 9 grounds of appeal filed by the appel- lant. The five issues are:– “(a) Whether or not the appellant proved by its evidence that it was not indebted to the first respondent (this is covered by i Grounds 1 and 2 of the Notice of appeal). (b) Whether or not section 149(d) of the Evidence Act and the case of Saraki v Sociète General Bank is applicable in the instant case (this is covered by Grounds 3 and 4 of the No- tice of Appeal). j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Mohammed JCA Songhai Ltd v. United Bank for Africa 341 a (c) Whether or not the Honourable Judge erred when he held that I think the third defendants counter-claim such (this covered by Ground 5 of the Notice of Appeal). (d) Whether or not the sale and the sum awarded for trespass b was valid (this is covered by Grounds 6 and 7 of Notice of Appeal). (e) Whether or not the Honourable Judge erred by not consider- ing the alternative relief of the appellant (This is covered by c ground 8 of the Notice of Appeal).” In the respondents’ brief of argument filed on behalf of the first and second respondents however only two issues were distilled from the 9 grounds of appeal. The issues are:– d “1. Whether the appellant adduced sufficient and credible evi- dence to establish its claim, particularly denial of indebted- ness to the second defendant/respondent. (Arising from 1, 2, 3, 4, 8 and 9 of Notice and Grounds of Appeal). 2. Whether the third defendant proved its counter-claim to en- e title it to damages awarded by the trail court. (Arising from 5, 6 and 7 of the Notice and Grounds of Appeal).” However, in the respondent’s brief of argument filed on be- half of the third respondent, as many as six issues were iden- f tified from the 9 grounds of appeal, for the determination of the appeal. The six issues are as follows:– “1. Whether the appellant proved that it was not indebted to the first respondent thereby discharging the burden on it to prove its case. g 2. Whether the facts, evidence and circumstances of this case warrant the application of section 149(d) of the Evidence Act Cap 112 Laws of the Federation of Nigeria, 1990. 3. Whether it is in all cases that a defendant should lead evi- h dence in a matter to secure victory. 4. Whether the third respondent did not prove its counter- claim to warrant the judgment in its favour. 5. Whether the sale to the third respondent/Purchaser was not valid. i 6. Whether the learned trial Judge need consider the appel- lant’s alternative claim when the appellant did not prove its case.” Although the fourth and fifth respondents were duly served j with the appellant’s brief of argument and the first, second

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Mohammed JCA 342 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) and third respondents’ briefs of argument respectively, up to a the time this appeal came up for hearing on 11 June, 2002, no respondent’s brief of argument was filed on their behalf. Consequently, the appeal was heard on the appellant’s brief b of argument and the first, second and third respondents’ brief of argument respectively without hearing the fourth and fifth respondents in line with the provision of Order 6 Rule 10 of the Court of Appeal Act Cap 62 of the Laws of the Federation of Nigeria, 1990. c Having regard to the circumstances of this case and the complaint of the appellant in its grounds of appeal, I shall proceed to determine this appeal on the issues as identified in the appellant’s brief of argument. However before pro- d ceeding to resolve these issues, it is appropriate to state even though briefly the background of the facts that gave rise to this appeal. The appellant was a customer of the first respondent Bank e at its Kaduna North branch. In the course of the relationship between the appellant and the first respondent, the appellant obtained a loan from the first respondent Bank and secured that loan by Mortgage and Debenture Deeds executed on f some named landed properties of the appellant including No. 8 Degel Road G.R.A Kaduna. In order to recover the outstanding loan, the first respondent exercised its powers under the relevant provisions of the Mortgage and Deben- ture Deeds and appointed the second respondent Receiver g and Manager over the assets of the appellant in order to fa- cilitate the recovery of the loan. In exercise of his power as Receiver and Manager, the second respondent sold the ap- pellant’s property at No. 8 Degel Road, G.R.A. Kaduna to h the third respondent for the sum of N5,000,000 which the third respondent duly paid before proceeding to perfect its title with the fourth and fifth respondents. The appellant which was not happy with the steps taken by the first re- i spondent against it towards the recovery of the outstanding loan, filed this action at the lower court against all the five respondents basing its claims principally on the fact that it was not indebted to the first respondent at all and as such the sale of its property by the second respondent to the third j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Mohammed JCA Songhai Ltd v. United Bank for Africa 343 a respondent was illegal, null and void. At the conclusion of the hearing in the case, the learned trial Judge dismissed the appellant’s claims in their entirety but granted the counter- claims of the third respondent against the appellant. The ap- b pellant was not happy with the judgment of the trial court against it, hence this appeal. The first issue for determination is whether the appellant had proved by its own evidence that it was not indebted to c the first respondent. It was argued for the appellant that it had led unchallenged and uncontroverted evidence through its witnesses PW1 and PW3 and documentary, evidence par- ticularly exhibit A that there were no ascertainable debt from d the account of the appellant with the first respondent. That as there were inconsistencies in the statement of account of the appellant, on the authority of National Bank of Nigeria Ltd v Standard Consolidated Dredging Construction Com- e pany Ltd (1998) 5 NWLR (Part 548) 144 at 154, the indebt- edness of the appellant had not been proved. It was finally submitted that as the onus of showing the existence of in- debtedness was on the first respondent which had failed to discharge the onus, the appellant had proved its case that it f was not indebted to the first respondent. For the first and second respondents however, it was ar- gued that the appellant being the plaintiff at the trial had the burden of proof of calling evidence to establish its claim that g it was not indebted to the first respondent by virtue of sec- tion 137 of the Evidence Act. That it was by virtue of the same provision of the law that the appellant was required to prove that the appointment of the second respondent as Re- h ceiver and Manager of the appellant was illegal and wrong- ful, that the exercise of powers by the second respondent in disposing and assigning the Mortgaged property of the ap- pellant to the third respondent was illegal and wrongful and i that the recognition and registration of title of the third re- spondent by the fourth respondent was illegal and wrongful. Learned Counsel pointed out that even by the evidence of the appellant’s own witness PW3, the appointment of the second respondent as Receiver and Manager of the appellant j was not at all in dispute. Also not in doubt was the exercise

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Mohammed JCA 344 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) of the powers conferred on the second respondent in dispos- a ing the appellant’s property in the absence of any deed of release issued on the property. That relying on the case Ene- vuhe v Ukpakara (1996) 7 SCNJ 192 at 203, the appellant b having failed to discharge the onus of proof placed on him by law, the lower court was right in dismissing its claims because the case of National Bank of Nigeria Ltd v Standard Consolidated Dredging Construction Co Ltd (1998) 5 c NWLR (Part 548) 144 relied upon by the appellant is not relevant in the present case as the first respondent did not ask for Judgment in any sum against the appellant. As for the third respondent, it was contended in its brief d that the burden of proof was on the appellant as the plaintiff in the case to have proved its claims on the well known principle that he who asserts must prove. The case of Elemo and others v Omolade and others (1968) NMLR 359 and e section 135 of the Evidence Act were relied upon in support of this submission. The argument of the appellant that the burden of proof was on the first respondent to prove that the appellant was indebted to it, is erroneous. That as the first respondent did not admit or assert any fact in its statement of f defence, the burden of proof still remains with the appellant as stated in Alhaji Aliyu Balogun v Alhaji Shittu Labiran (1988) 6 SCNJ 71 at 80 and Chief B. Buraimoh v Chief Maliki Adeniyi Esq and others (1990) 4 S.C.J.N. 1. Learned g Counsel further pointed out that in the present case, the ap- pellant did not make out a prima facie case warranting any rebuttal from the first respondent which was entitle to rely on the evidence called by the appellant to support its case in h line with the case of Niger Construction Limited v Chief A.O. Ogungbemi (1987) 11–12 SCNJ 133. In the resolution of this issue, the relevant reliefs claimed by the appellant in its action against the respondents which in i question is the 7th declaratory relief which reads:– “A declaration that the first plaintiff is not indebted to the first de- fendant in the sum which formed the basis of the purported sale of No. 8 Degel Road, G.R.A., Kaduna or sale of any property cov- ered by the Mortgage(s) Debenture(s).” j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Mohammed JCA Songhai Ltd v. United Bank for Africa 345 a It is very clear from this relief that the appellant was chal- lenging the sale of its property on the basis that it was not owing the first respondent Bank anything. It is trite that the basic principle governing the incidence of burden of proof is b that, he who asserts must prove. This is only a rule for de- ciding on whom the obligation of going further if he wishes to win, rests. This means that the burden shifts from side to side in consonance with developing circumstances in the c case. (See Kate Enterprises Ltd v Daewoo (Nigeria) Ltd (1985) 2 NWLR (Part 5) 116 and Honika Sawmill (Nigeria) Ltd v Hoff (1994) 2 NWLR (Part 326) 252 at 266.) It is for this reason that the burden of proof in a civil suit such as the d instant case lies on that party which would fail if no evi- dence at all were given on either side. Thus, at the stage of pleadings on this relief claimed by the appellant as the plain- tiff, the law clearly rests the burden of proof that the appel- lant was not indebted to the first respondent at the time of e the sale of the appellant’s property No. 8 Degel Road, G.R.A. Kaduna, on the appellant. In the absence of any ad- mission or assertion by the first respondent in respect of the claim by the appellant, the burden of proof remained with f the appellant as explained by the Supreme Court in Balogun v Labiran (1988) 3 NWLR (Part 80) 60. The question is whether from the evidence on record be- fore the learned trial Judge the appellant had succeeded in g discharging this burden of proof. It is indeed quite plain from the evidence of the witness called by the appellant and particularly the documentary evidence contained in the Mortgage Deed exhibit 3 executed between the appellant h and the first respondent and the first respondent’s letter to the appellant exhibit 5 that the loan obtained by the appel- lant from the first respondent which was secured by the Deed of Mortgage was still outstanding at the time the first i respondent appointed the second respondent Receiver and Manager on the appellant to realise the outstanding loan. This case having been heard on pleadings, the question of the indebtedness of the appellant to the first respondent was a fact in issue which required proof by the appellant as the j plaintiff without the first respondent saying anything. (See

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Lewis and Peat (N.R.I.) Ltd v Akhimen (1976) 7 SC 157 at a 162.) Of course the law is trite that where a fact or facts are pleaded and no evidence is led to prove them no onus is cast on the other party to disprove the fact or facts not estab- lished. (See Edosomwan v Ogbeyfun (1996) 4 NWLR (Part b 442) 266 at 278.) In the instant case, as the appellant, as the plaintiff claiming this particular relief did not adduce evi- dence in proof of the averments in its statement of claim to be entitled to the relief claimed, no onus had been shifted on c the first respondent to disprove the fact alleged by the appel- lant that it was not indebted to the first respondent. This is- sue is therefore resolved in favour of the respondents. The second issue for determination is whether section d 149(d) of the Evidence Act Cap 112 Laws of the Federation of Nigeria, 1990 and the case of Saraki v Sociète General Bank are applicable in the present case. Learned Counsel to the appellant referred to the provision of the section which e says:– “that evidence which could be and is not produced would if pro- duced be unfavourable to the person who holds it.” and argued that PW1 who failed to produce some document f which relate to the outstanding account showing the out- standing indebtedness of the appellant to the first respon- dent, the trial court was wrong in not construing the provi- sion against the first respondent. That failure of first, second, g fourth and fifth respondents to lead evidence in support of their pleadings means such averments have been abandoned on the authority of Saraki v Sociète General Bank (1995) 1 NWLR (Part 371) 325 at 339. Learned Counsel concluded that in the absence of evidence from first respondent to h prove that the sale of appellant’s property was valid and that the appellant was indebted to it, the provisions of section 149(d) of the Evidence Act should have been construed against the first respondent. i On this issue, first and second respondents had argued that section 149(d) of the Evidence Act is not applicable to them. Their learned Counsel referred to Aguda’s Law and Practice of Evidence in Nigeria page 269 paragraphs 21–54 and j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Mohammed JCA Songhai Ltd v. United Bank for Africa 347 a argued that section 149(d) of the Evidence Act cannot be used to shift the burden of proof in criminal cases and that the section has to be read subject to section 137 of the same Evidence Act. That relying on the cases of Re: Adewumi b (1988) 3 NWLR (Part 83) 4 and Imana v Robinson (1979) 3–4 SC 1, section 149(d) of the Evidence Act cannot also be used to shift the burden of proof in civil cases such as the instant case as the plaintiff must rely on the strength of his c own case and not on the weakness of the defendants case as stated in Bello v Emeka (1981) 1 SC 101. For the third respondent, it was argued that the provision of section 149(d) of the Evidence Act does not apply to the d present case because the respondents did not withhold the production of any evidence. The present issue relates to the proper application of the provisions of section 149(d) of the Evidence Act Cap 112 of e the Laws of the Federation of Nigeria, 1990 which states:– “149. The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts f of the particular case, and In particular the court may pre- sume:– (a) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (b) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx g (c) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (d) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.” h The question to be addressed in resolving this issue is whether any evidence was withheld in the instant case by the first respondent in particular to record that the appellant hav- ing called four witnesses who testified on its behalf includ- i ing an officer of the first respondent Bank but failed woe- fully to establish its case against the respondents, the first and second respondents were perfectly justified in law in re- fusing to call evidence in support of their statement of de- fence. In other words the appellant having failed to establish j the specific reliefs it claimed against the respondents, the

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Mohammed JCA 348 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) relief for a declaration that it was not indebted to the first a respondent, the first respondent was released of any burden to call evidence to show the level or extent of the indebted- ness of the appellant to it before the appellant’s property was sold to the third respondent. (See Honika Sawmill (Nigeria) b Ltd v Hoff (1994) 2 NWLR (Part 326) 252 at 266.) In any case the reliefs claimed by the appellant as plaintiff before the trial court being declaratory reliefs in nature were re- quired to have been proved or established before they could c have been granted even if the facts were admitted by the re- spondents. This is because the court does not make declara- tions of right either on admissions or in default of pleadings but only if the court is satisfied by evidence. (See Bello v d Eweka (1981) 1 SC 101.) Consequently having regard to the circumstance of the instant case, section 149(d) of the Evi- dence Act and the case of Saraki v Sociète General Bank are not applicable. e The third issue is whether the learned trial Judge was in er- ror when he held that I think the third defendant’s counter- claim. It was submitted for the appellant that a careful pe- rusal of pages 111–112 of the judgment of the lower court, it is quite clear that the evidence of the witnesses of the plain- f tiff now appellant was not evaluated by the trial Judge be- fore arriving at that decision. That even the evidence of the third respondent did not prove the counter-claim because of the word “I believe” alone was not enough if the case of Hill g Station Hotel v Adeyi (1996) 4 NWLR (Part 442) 294 at 311 is taken into consideration. That as the trial court had failed to assess and properly evaluate the evidence adduced by the parties, this Court is being called upon, on the authority of h Nneji v Chukwu (1996) 10 NWLR (Part 478) 265 at 278 to proceed and evaluate the evidence in order to obviate mis- carriage of justice. The first and second respondents, however contended that i the trial court properly evaluated the evidence at page 111 before concluding that the third respondent’s counter-claim was proved. That DW1 gave evidence and tendered Deed of Assignment exhibit 6 establishing the third respondent’s title to the property which turned the appellant into a trespasser j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Mohammed JCA Songhai Ltd v. United Bank for Africa 349 a on the property since 1992. That as the appellant offered no challenge at all to the evidence led by the third respondent in proof of its counter-claim, the appellant was deemed to have admitted the counter-claim. It was further argued that on the b evidence before the lower court, the third respondent having proved a better title to the property, was deemed to be in possession to support its claim for damages for trespass against the appellant having regard to the cases of Yusuf and c Others v Akindipe and others (2000) 5 SCNJ 128 at 136 and Ngene v Igbo (2000) 2 SCNJ 136 at 149. That since the ap- pellant offered no defence to the counter-claim, only mini- mal evidence was required to prove it as stated in Ajero v d Ugorji (1999) 7 SCNJ 40 at 59. The stand of the third respondent on this issue is that it had pleaded and proved by evidence its counter-claim in respect of which the appellant offered no defence and as such the e counter-claim was deemed admitted. That as the evidence of DW1 on the counter-claim was not challenged or contra- dicted by the appellant, the evaluation of the evidence as was done by the lower court was sufficient taking into con- sideration the credibility of the evidence adduced. The cases f of Adejumo and others v Ayantegbe (1989) 6 SCNJ 76 and Onafowakan v State (1987) 7 SCNJ 238 were cited and re- lied upon. This issue centred principally on the failure of the learned g trial Judge to evaluate the evidence in support of the third respondent’s counter-claim. The complaint of the appellant in this respect is certainly not without justification because all the learned trial Judge said on the evidence in support of h the counter-claim at page 111 of the record of this appeal before granting the counter-claim is as follows:– “On the evidence of DW1 which is credible and was not discred- ited under cross-examination which was also supported by the evi- i dence of PW1, 2 and 3, I think the third defendant’s counter-claim succeeds. I accordingly enter judgment in favour of the third de- fendant as per the claims in the counter-claim.” It is quite clear from the part of the Judgment of the trial court quoted above that the learned trial Judge apart from j making reference to the evidence of DW1, PW1, 2 and 3

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Mohammed JCA 350 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) which he regarded as proving the third respondent’s counter- a claim, no attempt was made by him to assess or evaluate evidence on record in support of the counter-claim. It is trite that the law does not allow an Appellate Court to interfere b with the findings of the trial court where such findings are based on credibility of witnesses. What the Appellate Court should do in such cases is to find out whether there is indeed evidence on which the trial court could have acted in arriv- ing at its findings. That is to say once there is sufficient evi- c dence on record from which the trial court could have made its findings of fact, the Appellate Court cannot interfere. (See Akinloye v Eyiyola (1968) NMLR 92 at 95; Amadi v Nwosu (1992) 5 NWLR (Part 241) 273 and Onwugbufor v d Okoye (1996) 1 NWLR (Part 424) 252 at 290.) In the instant case, the appellant though filed a defence to the third re- spondent’s counter-claim, led no evidence whatsoever in support of that defence through its witnesses whose evi- e dence infact was rather in support of the counter-claim as found by the learned trial Judge. This is because even the witnesses of the appellant and DW1 had confirmed in their evidence that the appellant was indebted to the first respon- f dent, that the second respondent was dully appointed Re- ceiver and Manager over the assets of the appellant and that in exercise of the powers of the second respondent the prop- erty of the appellant at No. 8 Degel Road, G.R.A. Kaduna g was sold to the third respondent who became its rightful owner since 20 November, 1992 and therefore entitled to possession giving support to all its claims including dam- ages for trespass. The evidence being largely documentary h particularly the Deed of Assignment exhibit 6 is indeed enough to support the third defendant’s counter-claim which required only minimal proof in the absence of defence. (See the case of Ajero v Ugorji (1999) 10 NWLR (Part 621) 1 at 18.) Therefore, there being enough evidence on record to i support the counter-claim, the law does not allow this Court as Appellate Court to interfere in the findings of the trial court. (See Arowolo v Ifabiyi (2002) 4 NWLR (Part 757) 356 at 372.) j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Mohammed JCA Songhai Ltd v. United Bank for Africa 351 a The fourth issue for determination is whether the sale and the sum awarded for trespass was valid. The appellant had argued on this issue that the sale of its property to the third b respondent was not valid as the appellant was not indebted to the first respondent. That having regard to the case of Bank of the North v Aliyu (1999) 7 NWLR (Part 612) 622, as the condition precedent to the sale were not met, the sale c was invalid as the property was sold at under value. As for the issue of the award of N500,000 general damages for trespass to the third respondent, the appellant submitted that it amounted to double compensation as the third respondent d did not give evidence in its support. The case of Esika v Me- dolu (1997) 2 NWLR (Part 485) 54 at 70 was cited in sup- port of this argument. In the first and second respondents’ brief, it was argued on e this issue that the third respondent led unchallenged evi- dence to establish its claims for general damages or trespass which are direct, natural and probable consequences of the trespass. The case of Obasuyi v Business Ventures Ltd f (2000) FWLR (Part 10) 1722 was relied upon in support of this submission. As for the third respondent, it was argued that the question of whether the sale of the appellant’s property to the third g respondent was valid had already been resolved in the first issue for determination in this appeal. That the third respon- dent being a bona fide purchaser of mortgaged property is protected by law as stated in the case of Oguchi v F.M.B. h Nigeria Ltd (1990) 6 NWLR (Part 156) 330 at 343. This is because to the third respondent, in the event of any wrongful sale of a Mortgaged property, the remedy of the Mortgagor is only in damages as was decided in Victory Merchant Bank Ltd v Pelfaco Ltd (1993) 9 NWLR (Part 317) 340. Relying i further on the case of Ekaeteh v Nigerian Housing Develop- ment Ltd (1973) NSCC Volume 8 page 373 at 380, it was argued that for the appellant to succeed in setting aside the sale, it must prove that there was fraud and collusion be- j tween the first, second and third respondents.

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This is a rather double barrel issue because the question of a the validity of the sale of the property is a separate issue while the question of the award of N500,000 general dam- ages for trespass is quite another issue. In any case I entirely agree with the submission of the first and second respon- b dents that the questions of the validity of the sale of the property to the third respondent and the question relating to the award of damages for trespass to the third respondent had already been considered and resolved in Issues 1 and 3 c in this Judgment. In Issue 1, it had already been resolved that the appellant had failed to prove its claims against the respondents, particularly its claim that it was not indebted to the first respondent. Similarly, the question of the award of d N500,000 general damages for trespass to the third respon- dent was part and parcel of the counter-claim of the third re- spondent which was considered and resolved in the third is- sue for determination in this Judgment. Therefore this issue had already been determined against the appellant. In any e case the third respondent in proof of its counter-claim had led uncontradicted and unchallenged evidence proving its title to the Mortgaged property and its entitlement to general damages for trespass. Therefore in the absence of proof of f fraud and collusion between the first, second and third re- spondents in the sale of the appellant’s mortgaged property, the lower court was quite right in upholding the assignment of the property. (See Ekaeteh v Nigerian Housing Develop- g ment Ltd (1973) NSCC Volume 8 373 at 380.) The fifth and the last issue for determination in this appeal is whether the lower court was in error in not considering the appellant’s alternative relief. The appellant had argued that h among the reliefs it claimed in its writ of summons at page 3 of the record, relief 17 is an alternative relief which was not considered by the lower court in its judgment and that this was an error on the part of the lower court. Apart from this, i no further argument was advanced in support of this issue by the appellant. No argument was presented in respect of this issue in the first and second respondent’s brief of argument. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Mohammed JCA Songhai Ltd v. United Bank for Africa 353 a In the third respondent’s brief of argument however, it was pointed out that the appellant having called evidence but failed to prove its case, the lower court was quite right in dismissing the appellant’s case without averting specifically b to the alternative relief. This is rather a half hearted issue as even the appellant apart from pointing out that its alternative relief no. 17 in its writ of summons at page 3 of the record was not considered c by the trial court, no further arguments were advanced in support of this issue. In any case this alternative relief is only one of the 17 distinct reliefs sought by the appellant in its writ of summons which it had claimed in its further d amended statement of claim. The findings of the learned trial Judge is his Judgment dismissing the entire reliefs claimed by the appellant as the plaintiff before the trial court was that on the evidence of the four witnesses called by the e appellant, none of the reliefs claimed by it was established or proved. Thus, having dismissed the claims of the appel- lant in their entirety, the learned trial Judge had no reason whatsoever to single out the 17th alternative relief for sepa- rate consideration and determination being part and parcel of f 17 reliefs claimed by the appellant which it had failed to es- tablish by credible evidence. This issue is also resolved against the appellant. In the result, all the five issues raised by the appellant in its g brief of argument having been resolved against it, the appeal itself is bound to fail and the same is hereby dismissed with N6,000. costs to the first and second respondents and N3,000 costs to the third respondent. h SALAMI JCA: I have read the judgment of my learned brother Mahmud Mohammed, JCA, just delivered. I agree with the reasoning contained therein and the conclusion ar- rived thereat. For the reasons contained therein which I i adopt as mine, I, too, dismiss the appeal and affirm the deci- sion of the learned trial Judge, Abiriye, J. I abide by all the consequential orders including the order as to costs proposed in the lead judgment of my learned j brother, Mohammed, JCA.

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OMAGE JCA: In this appeal, the writ of summons in the a commencing suit in the court below was filed in 1992 in Suit No. KDH/KAD/631/92. The plaintiff who is the appellant filed a further amended statement of claim dated 27 May, 1997. Because the statement of claim supersedes the writ, I b will quote the plaintiff’s claim in the court below as con- tained in the further amended statement of claim. It is:– “(1) A declaration that the appointment of the second defendant by the first defendant as Receiver and Manager to the first c plaintiff is irregular, unlawful, void and of no effect. (2) A declaration that the purported sale or assignment of the plaintiff’s property lying and situate at No 8 Degel Road, GRA, Kaduna or any of the plaintiff’s property by the first d and second defendants is an abuse of the exercise of the power conferred by the mortgage(s) and debenture deeds on the first and second defendants. (3) A declaration that the purported sale or assignment of the plaintiffs property lying and situate at No. 8 Degel Road, e GRA Kaduna by the first and second (defendants) without prior notice agreement and professional assurances entered into between the plaintiffs and the second defendant. (4) A declaration that the purported sale or assignment of the plaintiffs property lying and situate at No. 8 Degel Road, f GRA, Kaduna by the second respondent to the third re- spondent is a contravention of section 27 of the Land Use Act and is unlawful null and void. (5) A declaration that all the Acts carried out by the second de- g fendant purporting to all on behalf of the first plaintiff by virtue of his appointment as Receiver and Manager to the first plaintiff from the date of the second defendant pur- ported appointment are null void and unlawful. (6) A declaration that the interest charges posted by the first h defendant on the first plaintiff accounts were and are extra- neous to the agreement between the first plaintiff and the first defendant. (7) A declaration that the first plaintiff is not indebted to the i first defendant in the sum which formed the basis of the purported sale of No. 8 Degel Road, GRA Kaduna or sale of any property covered by the mortgage(s) debentures, etc. The plaintiff claimed from the five defendants, but particularly against the first, second and third defendants, their servants and j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Omage JCA Songhai Ltd v. United Bank for Africa 355 a agents even main orders of injunction, and for general damages of N250,000. Cost accruable to the action:– Alternatively the plaintiff claims the sum of N250,000 as special and general damages.” b The plaintiff’s claims were against first, second, third, fourth and fifth defendants and all the defendants filed different statements of defence. The third defendant filed a counter- claim. After evidence was taken, the learned trial court, Co- c ram, J Abiriyi found as follows:– “(a) The sale/assignment of the property situate at and known as No. 8 Degel Road, GRA Kaduna to the third defendant is hereby declared valid. d (b) The continued occupation of the property by the plaintiff is also declared wrongful. (c) The third defendant shall recover the property from the plaintiff. An order is hereby made ejecting the plaintiff from the property. e (d) An order of perpetual injunction is hereby made restraining the plaintiffs their agents, servant’s privies or assigns from taking possession of the property or in any way trespassing unto the property. f (e) An order is also made compelling the plaintiffs to account and pay over to the third defendant all monies/rents/mesne profits collected in respect of the property from 20 Novem- ber, 1992 until vacant possession is giving to the third de- fendant. g (f) The third defendant is awarded N500,000. (Five Hundred Thousand Naira) general damages for trespass.” The plaintiff was dissatisfied with the decision, and he filed this appeal. The appellant filed nine grounds of appeal and h formulated five issues for determination of the appeal. Here they are:– 1. Whether or not the appellant proved by its evidence that it was not indebted to the first respondent. (Grounds 1 and 2). i 2. Whether or not section 149(d) of the evidence Act and the case of Saraki v Society Generale Bank is applicable in the instant case. (Grounds 3 and 4). 3. Whether or not the Honourable Judge erred when he held that “I think the third defendant counter-claim succeeds”. j (Ground 5).

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4. Whether or not the sale and the sum awarded for trespass a was valid. (Grounds 6 and 7). 5. Whether or not the Honourable Judge erred by not consider- ing the alternative relief of the appellant. (Ground 8). b The first and second respondents formulated the following issues which in their view is the real issues for determination for appellant. They are:– (1) Whether the appellant adduced sufficient and credible evi- dence to establish its claim particularly denial of indebted- c ness to the second defendant respondent. From grounds of appeal nos. 1, 2, 3, 4, 8 and 9. (2) Whether the third defendant proved its counter-claim to en- title it to danger awarded by the trial court. Arising from d Grounds 5 and 6. The second respondent formulated the fol- lowing issues. “Whether the appellant proved that it was not indebted to the first respondent thereby discharging the bur- den on it to prove its case”. (3) Whether the facts evidence and core circumstances of this e case warrant the application of section 149(d) of the evi- dence Act Cap 112 Laws of the Federation of Nigeria, 1990. (4) Whether it is in all cases that a defendant should lead evi- dence in a matter of secure victory. f (5) Whether the third respondent did not prove its counter- claim to warrant the judgment in its favour. (6) Whether the sale to the third respondent purchase was not valid. g (7) Whether the learned trial Judge need consider the appellant alternative claim when the appellant did not prove its case. I have set out the issue of all the parties who filed brief in this appeal to enable an easy joinder of the issue of the par- h ties where possible. The fourth and fifth respondents did not file any brief. Indeed the judgments of the court below made no order affecting the fourth and fifth defendants. In the ap- pellant’s issue (a) he has put into issue in this appeal the i person on whom the onus of proof lies. Issue one of the first and second respondents and Issue 1 of the second respon- dent in its issue suitable issue also of the (a) onus of proof:– 2(b) The party on which it lies. Issue (a) of the appellant’s issue one of the first and second respondents and Issue 1 of the j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Omage JCA Songhai Ltd v. United Bank for Africa 357 a third respondent may suitably be considered together in this appeal, and will be conveniently dealt together in these pre- sents. Issue (b) of the appellant and Issue 2 of the third re- spondent are on the same compliant and the effect of the b provision of section 149(d) Evidence Act. The two proposi- tions in their different briefs will be considered as one issue. 3. The appellant’s Issues (c) and (d) and Issues 4 and 5 of the third respondents brief, and issue 2 of the second respon- dents brief will be considered as one issue. c 4. The appellant’s Issues (c) and (d) spell into the response thereto in third respondent’s Issue 4. Issue (d) (e) are, an- swer in issue 6 of the third respondents bray. There arc thus four issues to be considered and determined in this appeal. d In the appellant’s Issues 1 and 2 or (a) and (b) the appellant argued and submitted that he submitted in the court below he tendered an unchallenged and uncontroverted evidence to show that he was not indebted to the first respondent, and e that the plaintiff witness in the court below whom he sub- poenaed to testify on his brief testified that he was in credit with the first respondent. The appellant submitted that there were inconsistencies in the account which made it impossi- f ble to conclude that the appellant was indebted to the first respondent. Consequently, the document tendered by the re- spondent, submitted at trial by the appellant, the onus of proof of the debt averred by the first respondent. Upon which the first respondent appointed a Receiver/Manager g who arranged the sale of the appellant’s property at 8 Degel Road shifts on the first respondent. The appellant relied also on National Bank v Standard Consolidated Dredging Con- struction Company Limited and said that the first respondent h has the onus to prove that the appellant is indebted to the first respondent and the appellant urged the court to hold the issue in his favour. The first and second respondents in their briefs asked the question us to who has the burden of proof, i and submitted that it is trite law that the burden of proof in a civil matter lies on the person against who judgment of the court would be given if no further evidence is adduced. The first and second respondents refer to section 137 Evidence Act Laws of the Federation of Nigeria, 1990. In their briefs j the first and second respondents quoted the testimony of

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PW1, when he said. “The legal mortgage forms were actu- a ally completed for the loan transaction. Before it deteriorates we were giving them statements as they could not honour their obligation. After several notices, we requested a Re- ceiver Manager to realise the properties. Paragraphs 23 and b 24 of the statement of claim are not true”. The respondent says, as confirmed by the PW1 that “There was no discharge order/dee of release of the plaintiff before the appointment of the Receiver”. The two quoted testimonies c submitted that the first and second respondents. That even the testimony of the plaintiff/appellant show that the appel- lant/plaintiff in the court below was still indebted to the first respondent. The first respondent therefore justified its posi- d tion not to tender evidence in proof of its statement of defence when the plaintiff by itself had admitted liability to the loan received by a mortgage debenture. The first and second re- spondent submitted that the appellant rather than discharge its e burden of proof of denying the existence of the loan, has in the court below established the existence of the loan to the first respondent when loan was secured by mortgage. The respondents submitted that the Supreme Court in Oy- f ovbiare v Omamurhomu (2001) FWLR 1229 (Part 68) at page 1239 paragraphs A–C has set out the incident for dis- charge of onus of proof. This has not been complied with by the appellant and asks g that the issue be resolved against the appellant. In its re- sponse and submission to the appellants issue on the latter’s claim to have proved his claim in the court below, the third respondent wrote in its brief as follows:– That the basic principle of the burden of proof is that the person h who asserts must prove it. That the onus of proof in this claim is on the appellant if, and the appellant did assert that the first respondent had no right to sell the appellant house at No. 8 Degel Road on a i claim that he the appellant was owing the first respondent. The onus therefore is on the appellant if he seeks an order of the court to set aside the sale, to prove that:– (1) He owes no debt to the first respondent. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Omage JCA Songhai Ltd v. United Bank for Africa 359 a (2) Even if he is indebted to the first respondent on whose decision appoints a Receiver Manager was made, before the instruction was given to sell the house of the appellant and that the time has not b arisen for the sale to have been made. The third re- spondent submitted that as the appellant the plaintiff in the court below has failed to discharge the onus of proof, imposed by section 135 of the Evidence Act. c He can not hope to succeed in his claim in the court below. The issue formulated by the appellant in this Court should be resolved against him. Having considered Issue 1 in this appeal, it is appropriate at d this stage to state the facts of the case in order to secure a good appreciation of the issue canvassed and the resolution of the said Issue 1 before I consider and determine the other issues in this appeal. As in this appeal, the facts originating e the matter in court commenced in the middle, but I now at- tempt to restate from the beginning. It started from the tes- timony of the plaintiff’s witness concerning the first respon- dent. The plaintiffs first witness in the court below is a bank official in the employment of the first respondent. The said f first PW had been summoned by the plaintiff now appellant to testify and tender the plaintiff’s statement of account ledger. From this it is concluded that a banking transaction existed between the appellant and the first respondent. g The PW1 also tendered the statement of account of the ap- pellant with the first respondent, which was admitted as ex- hibit 1, in current account C/A 20101387 – 2. The first entry on the account was in the court below read as h N5,504,293.49k. The deed of mortgage between the plaintiff now the appellant and the first respondent was tendered through the first PW as exhibit 3. The said exhibit 3 was signed by the plaintiff now the appellant and the first re- i spondent. The witness deposed that a Receiver Manager was appointed, the first respondent sent several reminders to the plaintiff now appellant to inform and subsequently remind the plaintiff now appellant of its liability to the first respon- j dent, and demanded from the plaintiff/appellant the

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Omage JCA 360 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) discharge of it obligation PW1 said the plaintiff now appel- a lant had with the first respondent, a relationship which grew from credit concern to commitment concern, which culmi- nated in the mortgage document exhibit 3 on the loan trans- action of the plaintiff now appellant, with the first respon- b dent. The plaintiff now appellant could not honour its obliga- tions to the first respondent despite several notices issued by c the first respondent to the plaintiff now appellant. The first PW concluded his testimony on behalf of the plaintiff by saying that the power to appoint a Receiver Manager is as included iii exhibit 3 tendered before the court below. The above testimony of the plaintiff witness has shown that the d first respondent that is the UBA Plc appointed a Receiver to realise the liability of the plaintiff now appellant to it. The Receiver Manager was cited as the second respondent. The Receiver Manager acting under exhibit 3 in the proceeding e sold the building property of the plaintiff. The property is described as No. 8 Degel Road, GRA Kaduna. It is in order to cause of revisal of the sale to a third party cited in suit be- low and called here as the third respondent, that the plaintiff f now appellant commenced the proceedings in the court be- low. As recorded above the court below refused the prayers of the plaintiff, who now appeals. The first respondent did not testify at the hearing in the court below, but filed plead- ings of defence which arc rightly deemed abandoned as no g testimony was given in its support. The third respondent filed a counter-claim in which it sought a declaration by the court of his right to the property and for damages for trespass against the appellant for con- h tinuing trespass to the property. In considering the first issue raised by the appellant, that he has proved by unchallenged evidence that he is not in- i debted to the first respondent, and the submissions of the first, second and third respondents in their briefs that the ap- pellant as the plaintiff in the court below has not discharged the onus of proof on him. It is well to consider here not only whether the appellant discharged the burden of proof in the j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Omage JCA Songhai Ltd v. United Bank for Africa 361 a court below, but to consider also whether infact the burden lies on the plaintiff now appellant to discharge the burden. To consider these issues, we need to consider the scenario b of events at the time that the first respondent as the appointer of the second respondent cited as Receiver/Manager under exhibit 3. The legal mortgage tendered is the proceedings. By the testimony of the plaintiff witness a mortgage transac- c tion existed between the plaintiff now appellant and the first respondent. A mortgage consist of two parts. It is a personal contract for a debt secured by an estate. In equity the estate becomes the pledge or security for the debt, with a condition for redemption of the property upon payment of the debt. A d mortgage agreement added is infact a conditional sale of the property with an equity of redemption. That is the right of recovery of the property upon payment of the debt. (See Mansei v Cobhgm (1905) 1 E.H. 568.) Therefore upon the e creation of legal mortgage between the parties the usual method of discharge of the debt upon this payment of the mortgage debt is by the issue of a deed of discharge, which entitles the mortgages to a reversion of the title on the land f to the borrower. The testimony in the court below tendered by the plaintiff witness is that in exhibit 3, a deed of mortgage between the parties that is the plaintiff and the first dependant exists over g the property known as No. 8 Degel Road, GRA Kaduna and that no deed of discharge of the mortgage exists. This testi- mony was given by the plaintiffs witness PW1. The situation as it stood at the time that the plaintiff now h appellant sought the order of court to declare that the ap- pointment of the Receiver/Manager by the first defendant is irregular, unlawful, void and of no effect, and that the pur- ported sale of No. 8 Degel Road, GRA Kaduna is an abuse i of the power conferred by the mortgage and debentures. The plaintiff now appellant has the following onus, under the provision of section 135 of the Evidence Act (1). That the said exhibit 3 in the proceedings has been discharged and that the plaintiff/appellant is not indebted to the first respon- j dent and must prove by evidence in any case, that the extent

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Omage JCA 362 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) of his liability to the first respondent is not ripe in terms of a time and amount to warrant the appointment of a Receiver Manager. The plaintiff now appellant on whom the onus lay in the court below, did not discharge the onus. b Instead what the plaintiff/appellant did in the court below was to produce evidence which is at variance and are incon- sistent with the onus he should discharge in the court below. In Ogoda v Aduhigba (1971) 1 All NLR 68 at 72–73 the finding was made that it is necessary to assess the strength c of a plaintiff case, by looking at the pleadings and the evi- dence tendered in court. Where they are inconsistent with the pleadings, and the evidence is at variance with the plead- ings such evidence will have no value. It will be discounte- d nanced because it is contrary to the issue joined. As the tes- timonies tendered by the plaintiff in the court below are dis- countenanced and I so rule, then the plaintiff has failed completely to establish the onus placed on him by section e 135 of the Evidence Act, to prove that he is not liable under the mortgage, deed between him and the first respondent. The case of the plaintiff in the court below was therefore properly dismissed for his failure to discharge the onus of proof. Viewed in another way, the facts show that the plain- f tiff in the below needed to show that he was not liable to the first respondent on the mortgage transaction yet his proof in the court below is that exhibit 3 exists, and the appellant failed in the court below to tender a deed of discharge of the g mortgage. The onus to establish the existence of the debt does not as submitted by the appellant shift to the first re- spondent, who has completed the sale and has notice to lose if no evidence is tendered to show that the appointment is wrong or unlawful of the appointment of the Receiver, or if h no evidence is tender to show that the sale of No. 8 Degel Road is an abuse of power in the mortgage deed. In the event, I resolve the first issue in this appeal against the appellant. i The issue asking whether or not section 149(d) of the Evi- dence Act is applicable in this appeal appear to me to be vague as it makes no reference to the particular situation when it may or may not be applicable. My understanding of j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Omage JCA Songhai Ltd v. United Bank for Africa 363 a the issue is that it refers to the occasion when the first P.W. was testifying for the plaintiff when the witness said certain documents, from his employers have been destroyed and could not be located for tendering in the court below. The b witness was testifying for the plaintiff, is it proper for the plaintiff now as appellant to traverse its own testimony? I am not aware of the provisions of the law of evidence which enables the appellant to do so. The testimony in the court c below said that documents of over ten years are usually de- stroyed by the Bank, consequently it is not that the docu- ments are available, and were witheld. The document are said not to be available to the party who should have posses- d sion of it. If the question posed by the appellant is to be an- swered truthfully. The provisions of section 149(d) of the Evidence Act is not applicable in this appeal. I therefore resolve the issue against e the appellant. The appellant’s Issue C, or 3 in his brief asks whether or not the Honourable Judge erred when he held that:– “I think the third defendants counter-claim succeeds.” f Issue 2, of the first and second respondents asked whether the third defendant proved its counter-claim to entitle it to damages awarded by the trial court. In that question, the first and second respondents, advert in g response to the issue arising from Grounds 5 of the appellant grounds of appeal, which crystallised in the appellant’s Issue C or 3. The third respondent who filed a counter-claim asked in h his Issues 3 and 4(3) whether it is in all eases that a defen- dant should lead evidence in a matter to secure victory. “Whether the third respondent did not prove its counter-claim to warrant the judgment in its favour.” i Would the court below have pronounced on the counter- claim if he found the claim not proved, as his opinion. Ad- mittedly the choice of the expression I think is not the rec- ognised legal term for stating that a proof of a claim has been made; but the question must be clearly answered, does j the choice of the phrase a “I think” deny the obvious proof

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Omage JCA 364 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) by the third respondent of the counter-claim? My respectful a view is that it does not. The three issues quoted above deal specifically with the issue of proof. The third respondent in its third issue has asked whether a defendant should in all b cases lead evidence? As I have stated in the earlier part of this, the onus lies on the party who seeks to establish a state of facts to prove those facts. That is why in section 135(1) of the Evidence Act Laws of the Federation of Nigeria, the rule c is subscribed thus, whoever desires any court to give judg- ment as to any legal right or liability dependent on the exis- tence of facts which he asserts must prove there fads exist. There is ostensibly no initial duty imposed on the defendant d until the plaintiff has first discharged his onus of proof. It is at that time if the defendant does not accept the facts proved by the plaintiff that he, the defendant has the onus shifted on him. (See section 137 of the Evidence Act.) If e therefore you look at the provisions of the Evidence Act cited above, it is a clear, good and competent way of resolv- ing a dispute. It comes down to the same duty for example. Prove that I owe you, and when you have proved so, and I f don’t agree, I now must show why what you proved is incor- rect. The second stage is for the Judge to determine whose proof, the evidence shown is true. Initially therefore the de- fendant does not need to testify at the hearing in court. After the plaintiff has made his proof, and discharged his burden, g or if the plaintiff fails to so discharge the burden, the defen- dant may not need to defend, or even testify in court. The rule of the system allows him if he so chooses to rely on the failure of the plaintiff to prove his case, as this is why the h defendant must succeed, that is to say that he asks for judg- ment in his favour. When this happens, it is said that the de- fendant may rely on the weakness of the plaintiff case. (See Bello v Alao (1989) 3 NWLR (Part 118) at 124.) However, i the plaintiff is seldom allowed to rely on the weakness of the defendant’s case since unless the onus shifts as in section 137 Evidence Act the defendant has no onus of proof. The plaintiff must rely on the strength of his case to succeed. (See Kadping v Odu (1936) 2 W.A.C.A. 337.) j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Omage JCA Songhai Ltd v. United Bank for Africa 365 a Has the third defendant not proved his counter-claim? Cer- tainly the printed record showed that the counter-claimant testified at the hearing. As he was the plaintiff in the counter-claim, he proved how he bought the property at No. b 8 Degel Road, without notice of any encumbrance. The party who had encumbrance on the property was the first re- spondent who was selling the property. The third respondent also proved in the court below how he secured the consent c of the Governor of Kaduna State to validate the sale of the property. It is a provision of the 1990 Kadunu State Law of Property section 126(2) that “a transfer made in exercise of the power of sale conferred by the edict or any enactment, the purchase or sale is not impeachable, on the ground that d due notice were not given and or as to whether the right to- sale under the mortgage has arisen”. It is evident that the third respondent has complied with the e rules on the burden of proof in his counter-claim and at the same time offered a defence to the plaintiff’s claim, in any case an oplict will not interfere in finding of fact in a court below. In the face of the record, though the use of the phrase “I think” is inappropriate to describe and return a verdict of f the discharge of the burden of proof, the third respondent has discharged the burden of his counter-claims, and the an- swer to the appellant’s Issue c or 3, is yes, but it does not de- tract from the facts as contained in the printed record in the g appeal, since the appellants proved facts to support the counter-claim of the third respondent. The fourth issue of the appellant is numbered (d), on pages 4/7 of the appellants brief, and numbered 4 on pages 5/7 in the h appellants brief, it asks whether or not the sale was valid, and the sum awarded for trespass was valid. The third respondent also asked whether the sale to him of No. 8 Degel Road, GRA Kaduna was not valid. I have stated above the scenario of the i facts as contained in the printed record; I will here make a fur- ther reference to the relevant issues of the facts in passing. It is indisputable, that a mortgage transaction and debenture agree- ment existed between the appellant and the first respondent. The appellant himself referred to the existence of the transac- j tions as a matter of fact and sought in his pleading and

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Omage JCA 366 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) evidence that certain power exist, and these transactions which a he alleged the first and second respondents abused. In the face of the testimony of the appellant that exhibit 3 between the par- ties exist, and the acknowledgment that a right exist in the mortgage agreement for the first respondent to sell the mort- b gaged property under the said exhibit it is of no consequence to a third party who purchased the mortgaged property whether the time to sell the property has arisen; because any defect in the sale of the property to such a third party will not invalidate c the sale to him. (See Victory Merchant Bank v Pelfaco Per Edozie, JCA in (1993) 9 NWLR (Part 340) 354 paragraphs a– b.) The sale of the mortgaged property at No. 8 Degel Road, GRA to the third respondent is valid, even if the time to sell the d said property had not arisen. In the facts in the instant appeal, evidence in the printed record show that the third respondent made copious enquir- ies before the purchase which incidentally (the third respon- e dent need not have one) and found that the said property was free of encumbrance before he bought. For the efforts of the third respondent it was relevant to say that if any defect is contained in the sale whatsoever the appellant may only be entitled to costs, since he has ensured that no encumbrances f is attached to the property evidence of this exist in the printed record. The third respondent has also certified him- self. That the mortgage had the power of sale of the mort- gaged property, that the loan had become due for payment. g The third respondent is therefore entitled to a transfer of the title to the purchased property under the provision of the Law of Property of Kaduna State. (See Oguchi v FMB Nige- ria Ltd per Oguntade, JCA (1990) 6 NWLR (Part 156) 330 h at 335.) I resolve the fourth issue against the appellant in fa- vour of the third respondent. On the ancillary issue on whether the sum awarded by the court for trespass was right, in my view the question is one i which in response raises the issue of “res ipsa loquitor”. In the sense that the facts above, and the conclusions reached thereon speak for itself. Generally, an action in trespass suc- ceeds in favour of a person who is in actual physical or con- structive possession of the property (i) See England v j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Omage JCA Songhai Ltd v. United Bank for Africa 367 a Palmer (1955) 1 W.A.G. 659 (ii) Oyadeji v Adenle (1993) 9 NWLR (Part 316) 224 (iii) Hadica Juredel Animashaun v Olojo (1990) 6 NWLR (Part 154) 111, when the sale of No. 8 Degel Road, GRA Kaduna was concluded the property in b the premises passed to the third respondent who then be- came entitled to possessing of the premises. At the stage, he is third respondent as the purchaser be- came possessed of the right to take possession of the prop- c erty at No. 8 Degel Road, GRA Kaduna. The appellant continued to reside therein without the con- sent of the purchaser who is entitled to possession of the house. The appellant at that time became a trespasser to the d house at No. 8 Degel Road. The proper definition of the law of trespass is any invasion of the private property of another in possession be it so minute, is an invasion. Therefore no man can set foot on the ground of another e without the licence of that other. In my view the award of damages by the learned trial Judge was in accordance with the discretion of the trial Judge who saw the witness after the said court had found the tort of trespass had been com- f mitted by the appellant. In sum, I am in agreement with the reasoning and conclusion of my learned brother M. Mo- hammed, JCA I also hold that the appeal fails. It is dis- missed. I abide by the consequential order for costs con- tained in the lead judgment. g Appeal dismissed.

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a Margarida Salvado De Lluch v Sociète Bancaire Nigeria Limited b COURT OF APPEAL, LAGOS DIVISION GALADIMA, CHUKWUMA-ENEH, SANUSI JJCA

Date of Judgment: 15 JULY 2002 Suit No.: CA/L/310/2000

Banking – Negligence of banker – Issue of – Whether State c High Court has jurisdiction – Section 251(1)(d) of the Con- stitution of the Federal Republic of Nigeria, 1999

Jurisdiction – Issue of – Very fundamental – What Court to d do Jurisdiction – Negligence of banker – Issue of – Whether State High Court has Jurisdiction – section 251(1)(d) of the Constitution of the Federal Republic of Nigeria, 1999 e Facts This was an appeal against the ruling of Akinsanya, J of the Lagos State High Court delivered on 31 March, 2000. The f learned trial Judge found that the High Court lacked jurisdic- tion to entertain the plaintiff’s (now the appellant) suit and thereby struck it out. The appellant as plaintiff in the lower court filed writ of g summons and statement of claim claiming the sum of US$350,000 from the respondent as the defendant on the ground that the respondent negligently allowed two of its customers namely Francis Phillips and Anthony Jiwueze to use their accounts with the respondent to swindle the said h appellant of large sums of money. It was further alleged by the appellant that the respondent bank did not keep to the laid down law and procedure in the i opening and operation of the accounts as aforesaid. It was also alleged that the respondent bank did not ensure that standards expected to be followed by a prudent and reason- able banker were adhered to in the opening and operating of the said accounts. j

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Margarida Salvado De Lluch v. Sociète Bancaire Nigeria Ltd 369 a On 18 November, 1999 the respondent was served with the lower court process in respect of the suit whereupon it briefed its Counsel. However, the respondent subsequently entered a conditional appearance and filed a notice of pre- b liminary objection dated 24 November, 1999 challenging the jurisdiction of the lower court to entertain the suit and con- sequently praying that the suit be struck out and an ex parte order granted by the court on 10 November, 1999 set aside. c After hearing the parties submissions the learned trial Judge upheld the notice of preliminary objection and struck out the appellant’s suit. Dissatisfied with this ruling the ap- pellant appealed. d Section 251(1)(d) which is relevant to the consideration of this appeal. It provides:– “Notwithstanding anything to the contrary contained in this Con- stitution and in addition to such other jurisdiction as may be con- e ferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters:– (a) . . . (b) . . . f (c) . . . (d) connected with or pertaining to banking, banks, other finan- cial institutions including any action between one bank and another, any action by or against the Central Bank of Nige- g ria, arising from banking, foreign exchange, coinage, legal tender, bills of exchange, letter of credit, promissory note and other fiscal measures, Provided, that this paragraph shall not apply to any dispute between an individual cus- tomer and his bank in respect of transactions between the h individual customer and the bank.” Held – 1. The issue of jurisdiction of the court is indeed, very fun- damental. It goes to the root of the whole case and it af- i fects the power or competence of the court. 2. However, it is trite that where a court lacks jurisdiction it should promptly decline jurisdiction otherwise its subse- quent proceedings including its judgment or orders j would be a nullity. When a court is to determine whether

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it has jurisdiction to entertain an action or not, it must a first of all examine the writ of summons and the state- ment of claim for it is the plaintiff’s claim that deter- mines the jurisdiction of a court. b 3. It is clear from the above provision that the Federal High Court has only exclusive jurisdiction over matters enu- merated in section 251(1)(d) of the 1999 Constitution where such relate to fiscal measures or the revenue of the Federal Government. c 4. The appellant’s claim before the High Court of Lagos State does not in any way relate to any fiscal measure of the Federal Government neither does it relate to the revenue of the Federal Government. It is a claim d founded on the negligence of the respondent Bank. Clearly the High Court of Lagos State has jurisdiction to entertain the suit. e 5. Even though Decree No. 107 and the 1999 Constitution enlarged the exclusive jurisdiction of the Federal High Court and reduced the hitherto unlimited jurisdiction of the High Court of Lagos State provided by section 236(1) of 1979 Constitution, the High Court of Lagos f State still has jurisdiction to entertain any claims con- nected with bank and banking except such claims were connected with fiscal measures or revenue of the Federal Government of Nigeria. Therefore, the learned trial g Judge with due respect, was wrong when she held that section 251(1)(d) of the 1999 Constitution has changed the position of the law. Lagos State High Court still has jurisdiction to entertain this action. h 6. The interpretation given by the Supreme Court in section 7(1) of Federal High Court Act Cap 134 Laws of the Federation of Nigeria, 1990 in the following cases are still relevant. These are judicial authorities on the propo- i sition that the ordinary banker customer relationship is outside the purview of paragraph (d) of section 251(1). These are Bronik Motors Ltd v Wema Bank Ltd (1983) 1 SCNLR 296 and Jammal Steel Structures v ACB (1973) NCLR 94; (1973) 1 All NLR 208. j

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Margarida Salvado De Lluch v. Sociète Bancaire Nigeria Ltd 371 a 7. In recent decisions of this division in Owena Bank (Ni- geria) Plc v Punjab National Bank (2000) 5 NWLR (Part 658) 635 at 643–645; where there was dispute on money had and received in the ordinary course of bank- b ing business and where there was no claim relating to any fiscal measure or revenue, this Court held that the Lagos State High Court had jurisdiction in such a matter. This case too, represents the correct position of the law c on the issue for determination in this appeal. Appeal allowed.

Cases referred to in the judgment d Nigerian Agwuna v Attorney-General of Federation (1995) 5 NWLR (Part 396) 418 e Attorney-General of Lagos State v Dosunmu (1989) 3 NWLR (Part 111) 552 Bronik Motors Ltd v Wema Bank (1983) 1 SCNLR 296 f Jammal Steel Structures v ACB (1973) 1 All NLR (Part 2) 208 Labaran v Okoye (1995) 4 NWLR (Part 389) 303 Madukolu v Nkemdilim (1962) 2 SCNLR 341 g Owena Bank (Nigeria) Plc v Punjab National Bank (2000) 5 NWLR (Part 658) 635

Nigerian statutes referred to in the judgment h Constitution of the Federal Republic of Nigeria, 1979, sec- tion 230(1) Constitution of the Federal Republic of Nigeria, 1999, sec- i tion 251(1)(d) Constitution (Suspension and Modification) Decree No. 107 of 1993, section 230(1) Federal High Court Act Cap 134 Laws of the Federation of j Nigeria, 1990, section 7(1)

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Counsel a For the appellant: Chief Bolaji Ayorinde (with him H.S.C. Ojei, Esq.) For the respondents: Paul Usoro, Esq. (with him M.O. Liadi, b Esq.)

Judgment GALADIMA JCA: (Delivering the lead judgment) This is an c appeal against the ruling of Akinsanya, J of the Lagos State High Court delivered on 31 March, 2000. The learned trial Judge found that the High Court lacked jurisdiction to enter- tain the plaintiff’s (now the appellant) suit and thereby d struck it out. The appellant as plaintiff in the lower court filed writ of summons and statement of claim claiming the sum of US$350,000 from the respondent as the defendant on the e ground that the respondent negligently allowed two of its customers namely Francis Phillips and Anthony Jiwueze to use their accounts with the respondent to swindle the said appellant of large sums of money. f It was further alleged by the appellant that the respondent bank did not keep to the laid down law and procedure in the opening and operation of the accounts as aforesaid. It was also alleged that the respondent bank did not ensure that g standards expected to be followed by a prudent and reason- able banker were adhered to in the opening and operating of the said accounts. On 18 November, 1999 the respondent was served with the h lower court process in respect of the suit whereupon it briefed its Counsel. However, the respondent subsequently entered a conditional appearance and filed a notice of pre- liminary objection dated 24 November, 1999 challenging the jurisdiction of the lower court to entertain the suit and con- i sequently praying that the suit be struck out and an ex parte order granted by the court on 10 November, 1999 set aside. After hearing the parties submissions the learned trial Judge upheld the notice of preliminary objection and struck j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Galadima JCA Margarida Salvado De Lluch v. Sociète Bancaire Nigeria Ltd 373 a out the appellant’s suit. Dissatisfied with this ruling the ap- pellant now appealed to this Court on 16 August, 2000; rais- ing in the notice of appeal three grounds as follows:– Grounds of Appeal b “A. The learned trial Judge erred in law when she held that:– ‘Consequently, the decision of the Supreme Court based upon the 1999 Constitution will not be relevant to the pre- sent suit because the Constitution of 1999 has reversed the c position. Where Bronik Motors Ltd v Wema Bank Ltd case said the State High Court has exclusive jurisdiction and that the Federal High Court has no jurisdiction is no longer the law. The reverse is the position and the only exclusion lies within the provision where there is Customer/Banker rela- d tionship between the parties.’ B. The learned trial Judge erred in law when she held that whereas under section 251(1) of the 1999 Constitution (which is indeed a re-enactment of the Constitution (Sus- pension and Modification) Decree No. 107 of 1993) the po- e sition of the Federal High Court and the State High Court in section 251(1):– ‘Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdic- f tion as may be conferred upon it by an Act of the Na- tional Assembly, the Federal High Court shall have ex- ercise jurisdiction of any other court in civil causes and matters. (a) relating to the revenue of the Government of the g Federation. (b) . . . (c) . . . (d) connected with or pertaining to banking, banks, h other financial institutions including any action be- tween one bank and another, any action by or against the CBN arising from Banking, Foreign Ex- change, Legal Tender, Bills of Exchange, Letters of Credit, Promissory Notes and other fiscal measures. i Provided that this paragraph shall not apply to any dispute between an individual and his bank in respect of transac- tions between the individual and the bank and she inter- preted same to mean that the High Court of a State cannot entertain the matters not connected with banking (fiscal) j measures.

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C. The learned trial Judge erred in law when she held:– ‘I am a more in agreement with the defendant’s Counsel’s submis- sion that the plaintiff cannot come under the proviso to sec- tion 251(1)(d) of the 1999 Constitution in order to vest the State High Court jurisdiction to try the suit because she is b not a customer and she does not maintain any account with the defendant.” In accordance with the practice of this Court, the appellant and the respondent through their respective learned Counsel c filed and exchanged briefs of argument. The appellant distilled the following single issue from the three grounds of appeal for determination of the appeal:– “Whether the High Court of Lagos State has jurisdiction over this d suit being an action between a bank and a person who is not a cus- tomer of the bank, the action raising issues of negligence in the or- dinary course of banking practice and business only and not relat- ing to any matter of fiscal measure or revenue of the Federal Gov- ernment of the Federation.” e The respondent, on their own part also raised single issue for the determination of the appeal as follows:– “Does the Lagos State High Court have jurisdiction to adjudicate over a suit on banking practice in the absence of banker/customer f relationship between the parties hereof having regard to 1999 Con- stitution of the Federal Republic of Nigeria.” At the hearing of this appeal Chief Ayorinde, Esq. and Paul Usoro, Esq, the learned Counsel for the appellant and the g respondent respectively, adopted and relied on the briefs of argument prepared and exchanged by parties. Having closely studied the issues identified in the parties respective briefs of argument I do not find any striking dif- h ference. However, I must say that the question raised in the appellant’s brief comprehensively covers the grounds on which the appeal is based. I shall therefore consider this ap- peal on the issue so raised by the appellant in its brief. i Basically the issue here is that of jurisdiction, that is whether the learned trial Judge rightly declined jurisdiction over the appellant’s suit. The issue of jurisdiction of the court is indeed, very fundamental. It goes to the root of the whole case and it affects the power or competence of the j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Galadima JCA Margarida Salvado De Lluch v. Sociète Bancaire Nigeria Ltd 375 a court. (See Madukolu v Nkemdilim (1962) 2 SCNLR 341 and Labaran v Okoye (1995) 4 NWLR (Part 389) 303 at 307.) b However, it is trite that where a court lacks jurisdiction it should promptly decline jurisdiction otherwise its subse- quent proceedings including its judgment or orders would be a nullity. When a court is to determine whether it has juris- c diction to entertain an action or not, it must first of all exam- ine the writ of summons and the statement of claim for it is the plaintiff’s claim that determines the jurisdiction of a court. The claim of the appellant in the suit is as stated in its writ and statement of claim found on pages 1 to 5 of the re- d cord of proceedings. In this connection, I will reproduce paragraphs 3–19 of the statement of claim as follows:– “3. Sometime in 1993, the plaintiff was approached by one Francis Chibuzor Phillips a Nigerian with a business pro- e posal to wit that the said Phillips would secure on behalf of the plaintiff several contracts with the Central Bank of Ni- geria and the Nigerian National Petroleum Corporation (‘NNPC’) to the tune of US$55,000 specifically for con- f struction of the Central Bank of Nigeria and NNPC staff Housing Projects in Abuja. 4. The said Francis Chibuzor Phillips between 1992 and 1994 provided the plaintiff with several information and docu- ments which were all false in respect of the said business g proposal. The plaintiff shall rely on all correspondences re- ceived from the said Phillips and his agents including let- ters, fax and telex messages, copies of contractual agree- ments, memorandum of co-operation and transfer docu- ments. h 5. Particularly on 24 March, 1993 and 14 May, 1993, the said Francis Chibuzor Phillips induced the plaintiff to pay cer- tain monies to the tune of US$350,000 to accounts main- tained by the said Francis Chibuzor Phillips and another i Anthony Jiwueze and which accounts were maintained with the defendant bank. 6. The monies as aforesaid were paid into the said accounts by the plaintiff in his honest belief that same will be used by Francis Chibuzor Phillips and as part of commission fees j and tax payments in furtherance of the agreement that a

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contract worth the sum of US$55,000 would be secured for a the benefit of the plaintiff. 7. That as at June, 1994, the said Francis Chibuzor Phillips visited the plaintiff at Andora, near Spain and demanded that more monies be transferred to Nigeria through the de- b fendant Bank in order to pay further taxes on the contract award. The plaintiff was given new documents by the said Phillips and which documents were purportedly from the Central Bank of Nigeria and other financial authorities in Nigeria. c 8. That by July, 1994, the said Francis Chibuzor Phillips de- manded for all original papers/and documents in the plain- tiff’s custody under the pretext that the Central Bank of Ni- geria was about to finally award the envisaged contract and d pay the expected sum to the plaintiff. The plaintiff in the honest belief that she was dealing with a genuine business proposal handed over the said original papers, letters and documents. e 9. Sometime in October, 1994, the plaintiff, not hearing from Phillips and now becoming uneasy with Phillips’ silence decided to make independent enquiries. To her amazement and distress, she discovered that all correspondences (which she had copies of) with the said Phillips were false. f 10. The plaintiff will rely on copies of all correspondences with the said Phillips, Central Bank officials and copies of the pages of the Travelling Passport of the said Phillips which she obtained from him during his visit to Andora in 1994. g 11. Upon her discovery in October, 1994 that the said Francis Chibuzor Phillips had obtained monies from her under false pretences, the plaintiff embarked on a futile search for the said Phillips who had now disappeared. h 12. The said Phillips and his associate Anthony Jiwueze used accounts opened with the defendant Bank to obtain by de- ceit monies from the plaintiff. 13. Specifically on 24 March, 1993 through a bank transfer, (a copy of the transfer advice will be relied upon) the plaintiff i transferred the sum of US$50,000 to account number 622365-USD-013 for the benefit of Anthony Jiwueze at the defendant Bank. This money was transferred on behalf of the plaintiff through her Overseas bankers, Messrs Bansa- badell Finance S.A. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Galadima JCA Margarida Salvado De Lluch v. Sociète Bancaire Nigeria Ltd 377 a 14. Specifically on 14 May, 1993, through a bank transfer, (a copy of the transfer advice will be relied upon), the plaintiff transferred the sum of US$300,000 to the same account number 622365-USD-013, this time for the benefit of Fran- b cis C Phillips. This money was transferred to the defendant bank through ANZ Banking Group, London. 15. The plaintiff pleads that the defendant negligently allowed the said accounts to be opened and operated by the said Francis C Phillips and Anthony Jiwueze. c 16. The plaintiff alleges that the defendant did not keep to laid down law and procedure in the opening and operation of the said account, thereby allowing the operators, now at large to use the account as an instrument of deceit which resulted in d the transfer of the plaintiff’s monies into the said accounts. 17. The plaintiff alleges further that the defendant did not ensure that standards expected to be followed by a prudent and rea- sonable Banker where adhered to in allowing Francis Chibu- zor Phillips and Anthony Jiwueze in opening, operating and e specifically using Account Number A/C 622365-USD-013 to receive money by deceit from the plaintiff. 18. The plaintiff since her discovery sometime in October, 1994 that she had been tricked into transferring monies into ac- f count Number A/C 622365-USD-013 has not acted in any- way to condone the defendant’s actions, neither is she in connivance with the said Francis Chibuzor Phillips and An- thony Jiwueze, but she has spent the period since October, 1994 as aforesaid making enquiries, reports and complaints g to relevant authorities and also seeking and receiving ade- quate legal advice which would aid her recovery of the monies wrongfully transferred and received into Account Number A/C 622365 USD013 as aforesaid. 19. Whereof the plaintiff claims the sum of US$350,000 (Three h Hundred and Fifty Thousand United States Dollars) which was transferred into Account Number 622365-USD-013 plus interest payments at the rate of 21% per annum which interest payments have accrued on the monies so transferred from the dates of transfer till date of judgment in this Suit i and thereafter at the rate of 7% until the judgment debt is fully liquidated.” Essentially the appellant’s claim is based on the negligence of the respondent to comply with proper banking practice in j the opening and operation of bank accounts in the

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Galadima JCA 378 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) respondent’s bank thereby allowing two persons, namely, a Francis C. Phillips and Anthony Jiwueze now at large to use the said accounts to swindle the appellant of large sum of US$350,000 (Three Hundred and Fifty Thousand United States Dollars). It is clear that the appellant is complaining b that the respondent was negligent as a bank and that if it had ensured compliance with established banking practice, the said swindlers would not have been able to use the respon- dent bank to swindle the appellant. The appellant has c averred that she transferred money to the swindlers because they had a bank account with the respondent bank. She is saying that opening and operating a bank account presup- poses that the bank has ensured that all the requirements of d established banking practice guiding the opening and opera- tion of a bank account must have been meticulously com- plied with, most especially since the respondent bank knew or should know its customers very well before allowing them to open and “operate” the accounts. e Such is the nature of the claim of the appellant before the lower court. The question is whether the lower court has ju- risdiction in this action, which raises issue of negligence in the ordinary course of banking practice and business only f and not relating to any matter of fiscal measure or revenue of the Federal Government. To answer this question, resort has to be made to the rele- vant statutory and constitutional provisions. g Firstly, section 7(1) of the Federal High Court Act Cap 134 Laws of the Federation of Nigeria, 1990 defines the jurisdic- tion of the Federal High Courts in civil cases as follows:– h “The court shall have and exercise jurisdiction in civil cases and matters:– (a) relating to the revenue of the Government of the Federation in which the said Government or any organ thereof or a per- son suing or being sued on behalf of the said Government is i a party; (b) connected with or pertaining to:– (i) the taxation of companies and of other bodies estab- lished or carrying on business in Nigeria and all other persons subject to Federal taxation; j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Galadima JCA Margarida Salvado De Lluch v. Sociète Bancaire Nigeria Ltd 379 a (ii) customs and excise duties; (iii) banking, foreign exchange, currency or other fiscal measures; (c) arising from:– b (i) the operation of the Companies and Allied Matters Act or any other enactment regulating the operation of Companies incorporated under the Companies and Al- lied Matters Act; c (ii) any enactment relating to copyright, patents, designs, trade marks and merchandise marks; (d) of admiralty jurisdiction.” Section 230(1) of Decree No. 107 of 1993 which amends d section 230 of the 1979 Constitution also defines the juris- diction of the Federal High Court in civil causes and matters. It is noteworthy that section 251(1) of the 1999 Constitution is a repeat of section 230(1) of Decree No. 107 of 1993. I now reproduce section 251(1)(d) which is relevant to the e consideration of this appeal. It provides:– “Notwithstanding anything to the contrary contained in this Con- stitution and in addition to such other jurisdiction as may be con- ferred upon it by an Act of the National Assembly, the Federal f High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters:– (a) . . . (b) . . . g (c) . . . (d) connected with or pertaining to banking, banks, other finan- cial institutions including any action between one bank and another, any action by or against the Central Bank of Nige- ria, arising from banking, foreign exchange, coinage, legal h tender, bills of exchange, letter of credit, promissory note and other fiscal measures, Provided, that this paragraph shall not apply to any dispute between an individual cus- tomer and his bank in respect of transactions between the individual customer and the bank.” (Italics for emphasis.) i It is clear from the above provision that the Federal High Court has only exclusive jurisdiction over matters enumer- ated in section 251(1)(d) of the 1999 Constitution where such relate to fiscal measures or the revenue of the Federal j Government.

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The appellant’s claim before the High Court of Lagos State a does not in any way relate to any fiscal measure of the Fed- eral Government neither does it relate to the revenue of the Federal Government. It is a claim founded on the negligence of the respondent Bank. Clearly, the High Court of Lagos b State has jurisdiction to entertain the suit. I agree with the learned Counsel for the appellant’s submission that even though Decree No. 107 and the 1999 Constitution enlarged the exclusive jurisdiction of the Federal High Court and re- c duced the hitherto unlimited jurisdiction of the High Court of Lagos State provided by section 236(1) of 1979 Constitu- tion, the High Court of Lagos State still has jurisdiction to entertain any claims connected with bank and banking ex- d cept such claims were connected with fiscal measures or revenue of the Federal Government of Nigeria. Therefore the learned trial Judge with due respect, was wrong when she held that section 251(1)(d) of the 1999 Constitution has changed the position of the law. Lagos State High Court still e has jurisdiction to entertain this action. I therefore hold that the interpretation given by the Supreme Court in section 7(1) of Federal High Court Act Cap 134 of 1990 in the following cases are still relevant. These are judicial authorities on the f proposition that the ordinary banker customer relationship is outside the purview of paragraph (d) of section 251(1). These are Bronik Motors Ltd v Wema Bank Ltd (1983) 1 SCNLR 296 and Jammal Steel Structures v ACB (1973) g NCLR 94; (1973) 1 All NLR (Part 2) 208. In recent decision of this division in Owena Bank (Nigeria) Plc v Punjab National Bank (2000) 5 NWLR (Part 658) 635 at 643–645; where there was dispute on money had and received h in the ordinary course of banking business and where there was no claim relating to any fiscal measure or revenue, this Court held that the Lagos State High Court had jurisdiction in such a matter. This case too, represents the correct position of the law on the issue for determination in this appeal. i To my mind the provisions of section 251(1) are clear and unambiguous. Where the words used (d) (supra) are clear and unambiguous, the courts should apply a literal interpre- tation to such words. Again, where a statute seeks to oust the j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Galadima JCA Margarida Salvado De Lluch v. Sociète Bancaire Nigeria Ltd 381 a jurisdiction of a court the courts ought to jealously guard their jurisdiction and interpret such statute strictly and not to attempt to extend same beyond its least onerous meaning, unless clear words are used to justify such extension. (See b Attorney-General of Lagos State v Dosunmu (1989) 3 NWLR (Part 111) 552 and Agwuna v Attorney-General of Federation (1995) 5 NWLR (Part 396) 418.) I am really disturbed by the respondent’s view expressed c in its brief that even if the appellant’s claims could be sus- tained at the High Court before 1999 such claims could not be prosecuted at the High Court upon coming into effect of the 1999 Constitution. I think there is a misconception of the d relevant laws in the respondent’s brief. I agree with the learned Counsel for the appellant that the issue is not whether section 7(1) of the Federal High Court Act Cap 134 Laws of the Federation, 1990, is or not at variance with both e sections 230(1) of Decree No. 107 of 1993 and 251(1) of the 1999 Constitution. I think the contention of the appellant is that in law, the facts and circumstances of this case do not give rise to a matter which is under the exclusive jurisdiction f of the Federal High Court as provided for under section 251(1) of the 1999 Constitution. As I have already observed the wordings and import of section 251(1) of the 1999 Constitution and section 230(1) g of Decree No. 107 of 1993 if carefully studied, are “practi- cally” the same. There is no controversy surrounding the ex- clusivity of the Federal High Court to adjudicate over certain matters. h I do not agree with the learned Counsel for the appellant that the views expressed by the respondent in distinguishing the case of Bronik Motors; Jammal Steel and Owena Bank cases (supra) is an attempt to “overrule” and “flaw” the au- i thorities in disregarding the established doctrine of judicial precedent. The learned Counsel with due respect appreciates the doctrine and its applicability. However, the facts still remains that these two sections that is 230(1) and 251(1) as cited (supra) do not make all matters pertaining to banks and j banking and which are not matters between banks and their

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Galadima JCA 382 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) customers to fall under the exclusive jurisdiction of the Fed- a eral High Court. That is why these judicial authorities are unanimous on the proposition that the ordinary banker cus- tomer relationship is outside the purview of paragraph (d) of section 251(1) of the 1999 Constitution. Ordinary cases in- b volving banker – customer relationship include dispute in respect of overdraft, or the negligent payment of a forged cheque or negligent dishonouring of customer’s cheques and all banking transactions having nothing to do with the Fed- c eral Revenue. The Owena Bank case (supra) cannot be distinguished readily from the instant case. That case does not limit the type of banking cases that may be handled by the State High d Court to cases involving “money had and received” in the ordinary course of banking business. The decision in the Owena case on the contrary makes it quite clear that once the subject matter of the dispute does not relate to any fiscal e measure or revenue of the Federal Government, the Federal High Court cannot exercise exclusive jurisdiction. The dis- pute could be the negligence of a bank as it is the case in this appeal. f In the final analysis I find merit in the appeal. It is allowed. Accordingly, I make the following orders:– (1) The ruling of Akinsanya, J delivered on the 31 March, 2000 is hereby set aside. g (2) The High Court of Lagos State is competent to adjudicate on all claims of the appellant as plaintiff in the lower court as against the respondent. (3) The order granted by the learned trial Judge upon an ex parte motion dated 24 June, 1999 is hereby re-instated. h (4) The case is hereby remitted to the Chief Judge of Lagos State High Court for reassignment to another Judge for ex- peditious trial. I award no costs to the appellant. i CHUKWUMA-ENEH JCA: I agree. SANUSI JCA: I had the opportunity of reading in advance the judgment of my learned brother, Suleiman Galadima, JCA. The learned Justice of Court of Appeal has ably dealt j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Sanusi JCA Margarida Salvado De Lluch v. Sociète Bancaire Nigeria Ltd 383 a with all the salient issues raised and commented on the rele- vant constitutional provisions. I agree with the opinion of my learned brother, that the b core issue in the matter is that of negligence of bank and no involvement on issue of fiscal measure or revenue. There is therefore nothing to oust the jurisdiction of Lagos High Court. Thus for the fuller and detailed reasons given in the leading judgment I too overrule the objection and set aside c the lower court’s decision striking out the suit. I abide by the orders made in the leading judgment. Appeal allowed.

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a First Bank of Nigeria Plc v Excel Plastic Industry Limited b COURT OF APPEAL, CALABAR DIVISION EDOZIE, EKPE, OLAGUNJU JJCA

Date of Judgment: 20 NOVEMBER, 2002 Suit No.: CA/C/106/2001 c Banking – Bankers book – Entries in – Admissibility of – Section 97(1)(h) Evidence Act Cap 112 Laws of the Federa- tion of Nigeria, 1990 Banking – Foreign Exchange – Bank dealing in – Whether d agent of Central Bank of Nigeria Banking – Foreign Exchange allocation by Central Bank – Foreign Exchange cover – Whether means allocation of for- eign currency by Central Bank e Banking – Interest – Claim of – Principles governing Evidence – Documentary – How construed f Facts The respondent in these proceedings, a limited liability manufacturing company was the plaintiff in Suit No. C/387/94 dated 2 September, 1994 filed at the Calabar High g Court against its bankers the defendant herein appellant. The claim as spelt out in paragraph 18 of the respondent’s state- ment of claim which supersedes the writ of summons is in the following terms:– h “Wherefore the plaintiff claims against the defendant are as fol- lows:– (1) Repayment of the total sum of DFL464,270.65 to the plain- tiffs together with interest thereon calculated at the average i rate of 17.5% per annum from 1981 till 30 September, 1994 amounting totally to DFL3,215,330.54 or N39,816,402.23. (2) Interest on the said N39,816,402.23 calculated at the current bank rate from October, 1994 until this case is finally de- termined. j

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First Bank of Nigeria Plc v. Excel Plastic Industry Ltd 385 a (3) General damages in the sum of N150,000,000 for:– (a) Loss of business/earnings for 12 years including loss of plaintiff’s good standing, its commercial and credit worthiness with its foreign partners. b (b) Continuing loss of business/earning to the plaintiff by its deprivation by the defendant, of necessary capital. (c) Exposure of the plaintiff, to the risk of litigation by its foreign partners for breach of contract as a result of the c defendant’s refusal to remit monies placed with it for onward remittance to their said foreign partners. (d) Stagnation and stultification of plaintiff’s corporate and economic growth, from 1981 to date.” d The appeal was from the judgment given against the appel- lant in an action for breach of contract with multiple reliefs for refund of the money paid under the contract with interest and general damages for sundry losses suffered by the re- spondent who was the plaintiff at the trial court. It is com- e mon ground that the contract between the parties as fully de- scribed in the leading judgment was for remittance by the appellant, a commercial bank, of foreign currency to the re- spondent’s partners in the Netherlands for payment for the f goods supplied to her. Because of the foreign currency ele- ment the discharge of the contract involved the authorisation of payment of the remittance by the Central Bank of Nigeria (“CBN”) which must provide the necessary foreign currency g backing as the only competent authority over the manage- ment of foreign currencies in the country. Against that factual backdrop the bone of contention in the appeal before us on which issue was joined by the parties h was whether as claimed by the respondent and accepted by the trial court, the Central Bank of Nigeria had remitted the foreign exchange to the appellant’s account with the Stan- dard Chartered Bank of New York the disbursement of i which the appellant failed to effect or whether as contended by the appellant in one breath only part of the amount of foreign exchange applied for was remitted to the respon- dent‘s creditor or as claimed in another breath the Central Bank did not issue foreign exchange for remittance for the j benefit of the respondent’s creditor.

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The decision of the court below was based on the appel- a lant’s letter of 13 December, 1989, exhibit F, as the proof that the Central Bank of Nigeria had provided the appellant with the requisite amount of foreign currency which the ap- pellant paid into her New York Account without disbursing b the money to the respondent’ foreign creditor. The letter, exhibit F, reads:– “We thank you for your letter dated 28 November, 1989 and ad- c vise that foreign exchange cover in respect of the above has been released by the Central Bank of Nigeria. However, the collections are still awaiting allocation of foreign currency . . .” Held – d 1. It is the law that where the consideration of documentary evidence to resolve a relevant issue in a case is princi- pally involved, the demeanour of witnesses can hardly play any part. e 2. In construing exhibit F, it is a fundamental rule of con- struction of instrument that its several clauses must be interpreted harmoniously so that the various parts of the instrument are not brought in conflict to their natural meaning. f 3. Per curiam Guided, as I am by the foregoing canons and reading through the extract in exhibit F quoted above which at the risk of repetition is set out below:– g “We thank you for your letter dated 28 November, 1989 and advise that foreign exchange cover in respect of the above has been released by the Central Bank of Nigeria. However, the collection are still awaiting allocation of h foreign currency . . .” There are two sentences therein. The first sentence talks of release of foreign exchange cover. If that means the release of foreign currency, there would have been no need for the second sentence which says that “the collections are still i awaiting allocation of foreign currency”. It is my humble view that exhibit F did not convey or evince the meaning that foreign currency had been released and allocated in re- spect of the transactions in question. This interpretation is consistent with the evidence of DW1 to the effect that at the j

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First Bank of Nigeria Plc v. Excel Plastic Industry Ltd 387 a time the respondent’s applications, exhibits J–J3 were re- ceived at the Central Bank of Nigeria, it was, in short sup- ply of foreign currency and that a re financing scheme was put in place to settle creditors. This is also in agreement b with the appellant’s letter exhibit H part of which reads:– “Our International Banking Division have advised us of their inability to allocate foreign currency on the cap- tioned collection in view of the fact that these are pre 1984 maturity applications. We have accordingly ad- c vised remitters to provide us with their disposal instruc- tion to enable us dispose with the proceeds in our books and close our files accordingly . . .” With much respect to learned Counsel to the respondent, I d can see nothing in exhibit F or exhibit H or a combination of both to suggest that the appellant Bank admitted that it had been allocated foreign exchange in respect of respondent’s applications. The learned Judge of the Court below had erred in an enormous dimension in his opinion to the contrary. e 4. By virtue of section 96(1)(h) now section 97(1)(h) of the Evidence Act, secondary evidence may be given of the existence, condition or contents of a document when, in- ter alia, the document is an entry in a banker’s book; and f by section 96(2)(e) now section 97(2)e) of the said Evi- dence Act the form of secondary evidence that is admis- sible is a copy of an entry in the banker’s book. 5. Per curiam g “The respondent made no effort whatsoever to tender a copy of an entry in the book of the Standard Chartered Bank of New York to establish its claim that the Central Bank lodged its foreign currency therein. In the light of the h foregoing it is my judgment that on the pleadings and the totality of the evidence adduced by the parties the respon- dent has failed to establish that the appellant Bank received from the Central Bank foreign exchange in the sum of DFL464,270.65 for remittance to the respondent’s overseas i partner and further that the rejection of exhibit R was of no consequence to the whole case. The consequence is that the respondent’s principal claim in paragraph 18(1) of the state- ment of claim fails together with the ancillary or conse- quential reliefs for interest and general damages in sub j paragraphs 2 and 3 of paragraph 18 of the said statement of

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claim. This conclusion disposes of the entire Appeal in fa- a vour of the appellant.” 6. With respect to the claim for interest, the law is now clear that a claim for interest must be specifically b pleaded. The pleading should spell out whether the claim for interest is under a contract, express or implied or un- der mercantile usage, the relevant contractual term or any other relevant facts and matters relied upon for the entitlement. If the claim for interest is based on the equi- c table jurisdiction of the Court, all the relevant facts and matters relied upon to support the claim should be clearly stated. 7. A claim based on a special rate of interest sounds in spe- d cial damages and must be strictly pleaded and likewise proved. For such a claim to deserve or merit considera- tion by a Court of law, it must be stated in the endorse- ment of the claim to the writ of summons or in the e statement of claim whether the claim is based on con- tract or statute and the ground upon which the claim is based. 8. Per curiam f “In the case on hand, transactions on remittance of foreign exchange overseas are regulated by law under which the appellant Bank is an authorised dealer which can according to the laid down procedure purchase foreign exchange from g the CBN for remittance abroad. The appellant bank held out itself as a Bank licensed to transact business in foreign ex- change and in that capacity received the naira equivalent of the monies to be remitted and charged the respondent fees and commissions which were paid and duly receipted for. h The respondent’s applications on Forms ‘M’ were made to the appellant Bank and according to the procedure were forwarded to CBN for processing, approval and allocation of foreign currency for remittance to the respondent’s over- seas suppliers through the appellant’s Bankers in New i York. To my mind, it is invidious to suggest that if the ap- pellant Bank neglected to forward the respondent’s applica- tion to CBN or if file CBN having approved and allocated foreign exchange the respondent neglected to remit same to the beneficiary that it cannot be held liable and mulcted or j

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First Bank of Nigeria Plc v. Excel Plastic Industry Ltd 389 a damnified in damages for its default. That will be a travesty of justice. Whether or not the appellant Bank is described as an agent of the CBN, the question of illegality in the trans- actions between the appellant and the respondent did not b arise in so far as the appellant is by law an authorised dealer in foreign exchange and acted within the confines of law regarding foreign exchange transactions. It is my view that the appellant Bank is not an agent of CBN and even if it is, in the circumstances of this case it is suable for its default.” c 9. Per curiam “The leading judgment has dealt at length with the interpre- tation that is open on the import of that letter to save any repetition. It will be enough to say that the concluding sen- d tence of that letter moderates the meaning of the earlier sen- tence that ‘foreign exchange cover . . . has been released by the Central Bank of Nigeria’, for if foreign exchange cover is intended in the grammatical context as signifying an allo- cation of the amount applied for there would have been no e need for the clarification in the last sentence that the re- leased foreign exchange cover awaits allocation of foreign currency. In my view, ‘for exchange cover’ in that context means no more than a tentative approval for allocation which is contingent upon availability of foreign currency to f match the allocation.” Appeal allowed.

Cases referred to in the judgment g Nigerian Agbaje v Adigun (1993) 1 NWLR (Part 269) 261 h Ajayi v Fisher (1956) 1 FSC 90 Alade v Olukade (1976) 1 ANLR (Part 1) 67 Alfotrin Ltd v Attorney-General of the Federation (1996) 9 NWLR (Part 475) 634 i Anyaebosi v R.T. Briscoe (1987) 6 SCNJ 9 Attorney-General of Oyo State v Fairlakes Hotels Ltd (1989) 5 NWLR (Part 121) 255 j Balogun v Agboola (1974) 10 SC 111

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Carlen (Nigeria) Ltd v Unijos (1994) 1 NWLR (Part 323) a 631 Chigbu v Tonimas (Nigeria) Ltd (1993) 3 NWLR (Part 593) 115 b Ezeonwu v Onyechi ( 1986) 3 NWLR (Part 438) 499 Gbadamosi v Kabo Travels Ltd (2000) 8 NWLR (Part 668) 243 c Highgrade Maritime Services Ltd v First Bank Ltd (1991) 1 NSCC 119; (1991) 1 NWLR (Part 167) 290 Himma Merchants Ltd v Aliyu (1994) 5 NWLR (Part 347) 667 d Lawal v Dawodu (1972) 8–9 SC 83 Oguma Associated Co Ltd v I.B.W.A. Ltd (1988) 1 NWLR (Part 72) 658 e Ojokolobo v Alamu (1987) 3 NWLR (Part 61) 377 Okpiri v Jonah (1961) 1 SCNLR 174

Olujinle v Adeagbo (1988) 2 NWLR (Part 75) 238 f Onyiuke v Okeke (1976) ANLR 148 Owonyin v Omotosho (Vol. 2) (1961) NSCC 179, (1961) All NLR 304 g Pan Bisbilda Nigeria Ltd v First Bank (2000) 1 NWLR (Part 642) 684 Raimi v Akintoye (1986) 3 NWLR (Part 20) 97 Rickett v B.W.A. (1960) 5 FSC 113 h Saeby Jernstoberi M.F. A/S v Olaogun Enterprises Ltd (1999) 14 NWLR (Part 637) 128 Unilife Development Co Ltd v Adeshogbu (2001) 4 NWLR i (Part 704) 609 Unity Life Insurance Ltd v I.B.W.A. Ltd (2001) 7 NWLR (Part 713) 610 Yesufu v ACB Ltd (1976) 1 ANLR 264 j

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First Bank of Nigeria Plc v. Excel Plastic Industry Ltd 391 a Nigerian statute referred to in the judgment Evidence Act Cap 112 Laws of the Federation of Nigeria, 1990, sections 91(3), 97(1)(h) b Counsel For the appellant: Ben Anachebe, Esq. (with him J.O. Omotebe) c For the respondent: Chief Assam E. Assam

Judgment d EDOZIE JCA: (Delivering the lead judgment) The respon- dent in these proceedings, a limited liability manufacturing company was the plaintiff in Suit No. C/387/94 dated 2 Sep- tember, 1994 filed at the Calabar High Court against its bankers the defendant herein appellant. The claim as spelt e out in paragraph 18 of the respondent’s statement of claim which supersedes the writ of summons is in the following terms:– “Wherefore the plaintiff claims against the defendant are as fol- f lows:– (1) Repayment of the total sum of DFL464,270.65 to the plain- tiffs together with interest thereon calculated at the average rate of 17.5% per annum from 1981 till 30 September, 1994 g amounting totally to DFL3,215,330.54 or N39,816,402.23. (2) Interest on the said N39,816,402.23 calculated at the current bank rate from October, 1994 until this case is finally de- termined. h (3) General damages in the sum of N150,000,000 for:– (a) Loss of business/earnings for 12 years including loss of plaintiff’s good standing, its commercial and credit worthiness with its foreign partners. i (b) Continuing loss of business/earning to the plaintiff by its deprivation by the defendant, of necessary capital. (c) Exposure of the plaintiff, to the risk of litigation by its foreign partners for breach of contract as a result of the defendant’s refusal to remit monies placed with it for j onward remittance to their said foreign partners.

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(d) Stagnation and stultification of plaintiff’s corporate a and economic growth, from 1981 to date.” As is evident from the above reliefs, the respondent’s claim arose from the failure by the appellant bank to remit foreign b currency to the respondent’s foreign partners Wavin (Over- seas) B.v of Holland in Netherlands in payment for goods supplied to the respondent. The respondent’s case is that in 1976, it entered into a Technical Licence Agreement with its foreign partners, the Wavin (Overseas) B.v of Holland for c the supply of raw materials, machinery, tools, etc. for the manufacture of plastic pipes. To pay for the goods, the re- spondent sourced for foreign currency through the appellant, its Bankers. Between October, 1981 and May, 1982, the re- d spondent through Bills, exhibits A, B, C, D, L and M and another which was rejected paid to the appellant an amount of money in local currency for the purchase of a total sum of DFL464,270.65. The applications for the purchase were e made In Forms “M” vide exhibits J–J3. The respondent had paid all the necessary charges and commissions. According to the procedure, the appellant Bank was expected to process the applications and send them with the local currency to the Central Bank of Nigeria (“CBN”) which Bank on approval f of the applications allocates and remits the required foreign currency to the appellant’s correspondent Bank for eventual disbursement to the overseas partner or exporter. It is the respondent’s case that despite all the payments g made to the appellant Bank, no remittances were made to its foreign partners in consequence of which they refused to ex- tend to it the concessions usually accorded their customers. By a letter dated 28 November, 1989, (exhibit E) the re- h spondent wrote to the appellant Bank enquiring why the money was not remitted to the foreign partners. In its reply as per letter dated 13 December, 1989 (exhibit F) the appel- lant Bank intimated the respondent that it (appellant) had i obtained covers on all the transactions except one for the sum of DFL120,810.49 which the CBN rejected for split order. Surprisingly, the appellant Bank by another letter dated 14 February, 1990 (exhibit H) informed the respon- dent that the appellant’s International Banking Division was j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Edozie JCA First Bank of Nigeria Plc v. Excel Plastic Industry Ltd 393 a unable to allocate foreign currency on the transactions. In consequence, the respondent commenced the proceedings leading to this appeal. b The appellant’s defence as reflected in its further amended statement of defence is that the duty of the appellant in re- spect of the respondent’s applications for foreign currency was to accept and forward the applications for approval and allocation of foreign exchange to the Central Bank of Nige- c ria on behalf of the respondent and that the actual remittance of foreign currency to the foreign partner was contingent upon approval and allocation of foreign exchange by the Central Bank of Nigeria. It is the appellant’s case that d though the respondent’s applications except the one rejected for split order were approved by the CBN the latter did not actually allocate foreign currency for the approved transac- tions and this fact was confirmed by the CBN’s letter refer- e enced LEG/F03/Vol.v/92 dated 9 January, 2000 (exhibit R) which letter though admitted without objection was discoun- tenanced by the trial court on the ground that it was made when proceedings were pending. The appellant further as- serted that the goods ordered by the respondent from Wavin f Overseas B.v for which it deposited its Naira equivalent had since been supplied to and taken delivery of by the respon- dent which no longer is entitled to the money deposited as this now belongs to the foreign partner. Letters for the dis- g posal of the money had been written by the appellant to the foreign partner but no instruction had been given. After due trial in the course of which the respondent’s Man- aging Director (PW1) alone presented the respondent’s case h and Mr M.A. Adeoti Senior Manager of CBN (DW1) and David Gibson Ibangha (DW2) of the appellant’s Bank pre- sented the latter’s case, the court below gave consideration to the whole case and the written addresses of Counsel and in its i judgment delivered on 15 December, 2000 Coram S.A. Obi, J found for the defendant to which it adjudged to be paid the sum of DFL464,270.65 with interest at the rate of 17.5% from 1982 till judgment and payment and the sum of N60,000,000. (Sixty Million Naira) as general damages. The j Court further made an order that all monies not used to

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Edozie JCA 394 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) purchase foreign currency be returned to the respondent in a local currency. It is against this judgment that the appellant has lodged the instant appeal premised on ten grounds of ap- peal as set out in the amended notice of appeal contained in the supplementary record of appeal pages 312 to 316 filed b with the leave of the Court. In the appellant’s brief of argu- ment filed and adopted by Counsel in furtherance of the ap- peal, six issues were identified for determination, viz:– “1. Whether, on the totality of evidence adduced, the appellant c Bank received the foreign exchange sum of DFL464,270.65 from the plaintiff (as claimed) or from the Central Bank of Nigeria for use of the plaintiff’s overseas partners to war- rant the Judgment of the lower Court (Grounds 1 and 5). d 2. Whether the learned trial Judge was entitled to expunge ex- hibit R suo motu without determining whether the maker (i.e. CBN) was ‘a person interested’ as envisaged under sec- tion 91(3) of the Evidence Act. (Ground 7). 3. Whether the award of interest is legally justifiable given the e state of pleadings and evidence adduced. (Ground 2). 4. Whether the finding of negligence and award of general damages in the context of available pleadings and evidence, is sustainable. (Grounds 3 and 4). f 5. Whether the Judgment being appealed is sustainable despite agency status of the appellant and the absence of findings of fact determining whether it Is the CBN or the appellant that allocates/remits forex overseas. (Grounds 6 and 9). 6. Whether the lower Court is entitled to assume jurisdiction g having held that the defendant Bank ‘never acted as agent of CBN’ in the forex transactions with the plaintiff. (Ground 8).” On his part, Counsel to the respondent, in his brief formu- h lated three issues, viz:– “i. Whether cognisance being taken of the pleadings and the evidence in this case (particularly exhibit R, an extra judi- cial letter written in answer to a subpoena) the learned trial i Judge was wrong in entering judgment for the plaintiff. (Grounds 7 and 10). ii. Whether in the circumstances of this suit, and for the pur- pose of the Exchange Control Act, the appellant Bank was an agent of Central Bank of Nigeria. (Grounds 6, 8 and 9). j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Edozie JCA First Bank of Nigeria Plc v. Excel Plastic Industry Ltd 395 a iii. Whether in the circumstances of the non-remittance of the said sum, the plaintiff was entitled to Its refund, Interest and general damages in the terms ordered in the judgment. (Grounds 1, 2, 3, 4 and 5).” b Issues 1 and 2 in the appellant’s brief were argued together; they are covered by the respondent’s Issues i and iii. The main point in controversy is whether from the pleadings and evidence led by the parties, the appellant admitted receiving c foreign exchange in the total sum of DFL464,270.65 for re- mittance to the respondent’s foreign partners. Learned Counsel to the respondent referred to paragraph 6 of the statement of claim and the reply thereto in paragraphs 11, d 12, 13 and 15 of the appellant’s further amended statement of defence and submitted that by the appellant’s averments in paragraphs 11, 12, 13 and 15 of its defence, it admitted the facts pleaded in the respondent’s claims to the effect that the respondent paid and the appellant received money to re- e mit the sum of DFL464,270.65 to Wavin in Holland and that the relevant approvals were obtained for the remittance. Re- lying on section 75 of the Evidence Act, it was submitted that what is admitted needs no further proof and that parties f are bound by their pleadings vide the cases of Lemonu v Alli Balogun (1975) 3 SC 87; Shell B.P. Ltd v Abedi (1974) 1 All NLR 1; Akinbinu v Osene (1992) 1 NWLR (Part 215) 97 and Emegokwe v Okadigbo (1973) 4 SC 113. It was contended g that the respondent’s foreign partners having by exhibit K confirmed that it received no remittances; the burden was upon the appellant to show that they actually remitted the money. h The appellant’s Counsel drew attention to the fact that the principal claim of DFL464,270.65 awarded to the respon- dent did not take into cognisance the rejected application for DFL120,810.49 vide paragraph 9 of the statement of claim i and an additional sum of DFL6,940 the covering documents of which were rejected in evidence both of which sums ought to have reduced the principal sum awarded to DFL336,520.16. On the main question as to whether there was an admission that the appellant received the sum of j DFL464,270.65, it was contended that any such admission is

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Edozie JCA 396 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) based on mere speculation which stemmed from the extra- a neous interpretation and imputation placed on appellant’s letters addressed to the respondent dated 13 December, 1989 and 14 February, 1990 (exhibits F and H respectively). Re- ferring to the case of Ivienagbor v Bazuaye (1999) 9 b N.W.L.R. (Part 620) 552 it was submitted that speculation is of no probative value. The Court is invited to re-evaluate exhibits F and H to ascribe to them the appropriate probative value and for the authority to embark upon that exercise, c reference was made to the case of Adeniji v Onagoruwa (2000) 1 NWLR (Part 639) 1 and Union Bank of Nigeria Plc v Ozigi (1994) 3 NWLR (Part 210) 119. Counsel referred to the contents of exhibit F in which the appellant Bank stated d that “foreign exchange cover” has been released by CBN but that it (appellant) was awaiting allocation of foreign ex- change. DW1, an official of the CBN in his evidence had testified under cross examination that when CBN says that cover has been given, it meant that it has released foreign e exchange. It was submitted that that piece of evidence which was not pleaded and elicited under cross examination was refuted by DW2, an officer of the appellant Rank who testi- fied that by exhibit F foreign exchange cover had been re- f leased but that foreign exchange had not been provided. Counsel argued that it was wrong for the Court below to have adopted hook line and sinker the evidence of DW1 on the implication of “CBN cover” in the face of the contradic- g tory evidence of DW2 on the point. He submitted that when contradiction exists on a material fact in the evidence of two witnesses called by the same party, the Court cannot specu- late on an imagined explanation for such contradiction and proceed to choose which of the witnesses to believe and in h support of the contention; he relied on the cases of Arehia v State (1982) 4 SC at 88–89 and Itauma v Akpe Ime (2000) 1 NWLR (Part 680) 156. i It was further submitted that the oral evidence of DW1 as to the implication of “CBN cover” being contradictory of the express contents of exhibit F and since it was unpleaded and elicited under cross examination, it ought to have been ex- punged from the record citing the cases of Okonkwo v CCB j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Edozie JCA First Bank of Nigeria Plc v. Excel Plastic Industry Ltd 397 a (Nigeria) Plc (1997) 6 NWLR (Part 507) 48; Salaudeen v Mamma (2000) 14 NWLR (Part 686) 63 and Akinrinmade v Lawal (1996) 2 NWLR (Part 429) 218. Finally, learned Counsel submitted that the rejection of the CBN letter ex- b hibit R which resolved the issue as to whether foreign cur- rency was released was fatal to the judgment since the said exhibit R though made when proceedings were pending was not shown to have been made by person interested as pro- c vided by section 91(3) of the Evidence Act. The fundamental question in controversy relates to plead- ings, that is, when issues are joined by the parties or when d the facts pleaded by one party are admitted by the other party. In the case of Midford Edosmwen v Kenneth Ogbey- fun (1996) 4 NWLR (Part 442) 266 at 275, the Supreme Court following its earlier decision in Lewis and Peat (N.R.I.) Ltd v Akhimien (1976) 7 SC 157 at 162 held that e where pleadings are filed and exchanged as a result of which a material fact is affirmed by one of the parties but denied by the other, the question that is raised as a result thereof is an issue of fact. If a defendant refuses to admit a particular alle- f gation in a statement of claim, he must state so specifically and he does not do that satisfactorily by pleading that he is not in a position to admit or deny the particular allegation raised by the plaintiff and/or that he will at the trial put the plaintiff to the strictest proof thereof (see Nwadike v Ibekwe g (1987) 4 NWLR (Part 67) 218; Lawal Owosho v Dada (1984) 7 SC 149 at 162 and Asafa Foods Factory v Alraine (Nigeria) Ltd (2002) NWLR (Part 781) 253). While it is conceded that material facts in a statement of claim must be specifically h traversed, the present position of the law is that in order to find out what should be deemed to have been admitted in the pleading of the defendant, it is necessary to consider the en- tire statement of defence including the general traverse as a i whole. In the case of Pan Asian African Co Ltd v National Insurance Co (Nigeria) Ltd (1982) 9 SC 1 at 48, the Supreme Court per Obaseki, JSC held that whereas a defendant is ex- pected to deny every material averment in the statement of claim expressly or by necessary implication, he is not to be j deemed to have admitted a point if it is clear from his

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Edozie JCA 398 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) statement of defence, read as a whole, that he did not intend a to admit the fact. In the same vein, Oputa JSC in the case of Ojo Ajia and others v Opoola Alao (1986) 12 SC 193 at 244; (1986) 5 NWLR (Part 45) 802 had this to say:– b “To constitute a traverse, it is not necessary that every paragraph of the statement of claim should be specifically denied. That may be done. But what is essential is that the case put forward by de- fendant conflicts in material particulars with that put forward by the plaintiff and thus put the different material averments in issue.” c (See Nigeria Bottling Co Plc v Oboh (2000) 11 NWLR (Part 677) 212 at 223 and Titiloye v Olupo (1991) 7 NWLR (Part 205) 519.) With the forgoing guiding principles in mind, it is necessary to refer to the relevant paragraphs of the pleadings d of both parties on the question of the release of foreign cur- rency by the CBN in respect of the transactions under con- sideration. In this regard, paragraphs 6 and 7 of the state- ment of claim are material. They read in part as follows:– e “6. In 1981 and 1982, the plaintiff had purchased from the de- fendant, for onward remittance to its foreign partners (with all charges and purchase price paid), the total sum of four hundred and sixty four thousand, two hundred and seventy Dutch Guilders (464,270.16 DFL) under, and by means of f the following respective transactions:– (a) 1981 October (i) Bill for collection NO MBX g 120/89/89 for the sum of – DFL13,315.00 (ii) Bill for collection No. 58/81/6077 for the sum of – 31,942.85 (iii) Bill for collection No. h 58/81/6077 for the sum of – 120,810.49 (b) 1982 February Bill for collection No. 58/82/60 for the sum of – 6,940.00 i (c) 1982 March (i) Bill for collection No. 58/82/6 101 for the sum of – 10,252.00 (ii) Bill for Collection No. – 31,250.00 j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Edozie JCA First Bank of Nigeria Plc v. Excel Plastic Industry Ltd 399 a (d) 1982 May Bill for collection No. 58/82/6100 for the sum of – 249,760.30 b Total – DFL 464,270.86 7. Except for Item (a)iii above all the transactions in para- graph 6 were duly approved by the CBN . . . and the total sums actually approved for remittance out of the total DFL464,270.65 was DFL343,460.16.” c Paragraphs 1, 11, 12, 13, 1 4, 15, 16 and 18 of the appel- lant’s defence are germane and they are reproduced in part thus:– “1. Save and except where it is expressly and specifically ad- d mitted, the defendant denies each and every allegation of fact contained in the plaintiff’s statement of claim as if they were herein set out seriatim and specifically traversed. 11. The defendant states that transactions referred to in para- e graphs 6(a), (b), (c) and (d), of the statement of claim repre- sent application forwarded by the defendant to the CBN on behalf of the plaintiff . . . The defendant deposited these monies with CBN. 12. In October, 1981 three applications were forwarded to the f CBN by the defendant on behalf of the plaintiff, viz:– (i) Bill for collection No. MBC/1 20/89/89 for...... DFL13,315.00 (ii) Bill for collection No. g BC/58/81/6077 for ...... DFL31,942.86 (iii) Bill for collection No. BC/58/81/6073 for ...... DFL120,810.49 13. Items (i) and (ii) in paragraph 12 above went through at the h CBN and the amount remitted accordingly. No problem. 14. Item (iii) in paragraph 12 above was rejected by the CBN for the reason they called ‘SPLIT ORDE.R.’. This is the cause of action . . . i 15. Even after the applications mentioned in paragraph 12 above, the plaintiff in 1982 above presented another appli- cation to the CBN through the defendant and all went through and the amounts were duly remitted by CBN to their beneficiaries abroad as follows:– j (i) . . .

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(ii) . . . a (iii) . . . (iv) . . . 16. In respect of the applications mentioned in paragraphs 12 b and 15 above, the CBN vide its letter referenced LEG/F03/Vol.v/92 dated 9 January, 2000 confirmed that Foreign currency has not been released or paid in favour of the plaintiff’s application the subject matter of this action. The said letter shall be relied upon at the trial and it is c hereby pleaded. 17. Approval of an application and actual remittance of foreign money to the beneficiary abroad both of which functions are done by the Central Bank are two different things. There d are instances where the Central Bank of Nigeria gives ap- proval but has no foreign money to transmit abroad. The plaintiff’s applications fall Into this category. 18. The Central Bank of Nigeria could consider the applications only upon receipt of the Naira equivalent so deposited. e 19. The Central Bank of Nigeria did not in fact issue Foreign Exchange cover for any of the transactions the subject of this action because:– (a) The Central Bank of Nigeria import application sched- f ules containing these transactions . . . which should have borne evidence of such remittance do not . . . (b) There is no documentation of payment of any of those transactions in the Central Bank of Nigeria as would g have been if money was paid by the Central Bank of Nigeria on them. (c) At all times material to the transactions the subject of this action, in particular from early 1980 to 31 Decem- h ber, 1983, no foreign exchange allocation and or pay- ment was made by the Central Bank of Nigeria in re- spect of the category of payment into which these ones fall.” The respondent filed a Reply to the appellant’s further i statement of defence and it is necessary to reproduce para- graph 3 thereof which reads thus:– “3. The plaintiff states categorically that upon the application of the plaintiff for the purchase of foreign currency the subject j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Edozie JCA First Bank of Nigeria Plc v. Excel Plastic Industry Ltd 401 a matter of this suit the defendant obtained the necessary ap- provals and covers from the Central Bank of Nigeria and duly advised the plaintiff and the Foreign currency was duly remitted to their account with Standard Chartered Bank of b New York but the defendant’s International Banking Divi- sion refused and or neglected to allocate the relevant for- eign currency to the plaintiff’s suppliers, WAVIN.” It is manifest from paragraphs 6 and 7 of the statement of claim and paragraph 3 of the Reply that the substance of the c respondent’s case on the pleadings is that it paid to the ap- pellant Bank in local currency an equivalent sum of DFL464,270.65 for remittance of the foreign currency to the respondent’s foreign partners; that the amount was approved d by the CBN except the application in respect of the sum of DFL120,810.49 which was rejected and that the approved amount was duly remitted by CBN to the appellant’s ac- count with the Standard Chartered Bank New York for even- e tual disbursement to the respondent’s foreign partners which disbursement the appellant Bank failed to effect. The appel- lant bank in paragraphs 11, 12 of its defence admitted re- ceiving the respondent’s local currency but although in para- f graphs 13 and 15 of the defence, the appellant appeared to give the impression that part of the required foreign currency applied for was approved and remitted by CBN for the bene- ficiaries, abroad, paragraphs 16, 17, 18 and 19 of the said defence debunk that assertion. It seems to me therefore that g though the defence was clumsy and inelegantly formulated, reading through it as a whole, it is reasonable to infer that the appellant Bank did not assert or admit that the foreign currency in question had been allocated by the CBN and re- h mitted to the appellant’s account with the Standard Char- tered Bank of New York. The real bone of contention in which issue was joined by the parties is whether or not the CBN had remitted the foreign exchange to the appellant’s i account with the Standard Chartered Bank of New York. While the respondent maintained that there had been such remittance, the appellant stated the contrary. It is the law that in civil cases, the onus probandi rests upon the party who would fail if no evidence at all, or no more evidence as j the case may be were given on either side. Such onus

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Edozie JCA 402 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) probandi therefore rests, before evidence is gone into upon a the party asserting the affirmative of the issue and it rests after evidence is given upon the party against whom the Court at the time the question arises would give judgment if no further evidence were adduced (see Insurance Brokers of b Nigeria v Atlantic Textiles Manufacturing Company Ltd (1986) 8 NWLR (Part 466) 316 at 318). It is not the law that the adverse party should prove a negative assertion, rather the burden is on the party who makes a positive assertion to c prove the assertion by evidence (see Vulcan Gases Ltd v Ge- sellschaft F. Industries (2001) 9 NWLR (Part 719) 610 at 667). In the instant case, the respondent having made a posi- tive assertion to the effect that the CBN remitted the foreign d currency in question to the appellant’s account with the Standard Chartered Bank of New York, the burden lies on it the respondent to prove that assertion by credible evidence. In paragraph 13 of the statement of claim the respondent e pleaded its letter to the appellant dated 29 November, 1989 (exhibit E) and the appellant’s replies thereto dated 13 De- cember, 1989 and 14 February, 1990 respectively (exhibits F and H). The respondent was at pains to anchor its case on exhibits F and H to contend that the Central Bank of Nigeria f had allocated and released the foreign currency meant for its foreign partners. That contention was accepted by the Court below on its interpretation of exhibit F as explained by DW1. Learned Counsel to the appellant has urged that this g Court should re evaluate exhibit F and disturb the finding of the trial Court thereon. Generally, an Appellate Court does not embark on the re evaluation of a finding of fact of a trial Court. But there is a h distinction between a finding of fact based on the credibility of a witness and a finding of fact which is an inference drawn from established fact or from the construction or in- terpretation of documents tendered before the Court. In the i latter case, an Appellate Court is in as good a position as the trial Court to appraise such inference on established facts or on the documentary evidence (see Okpiri v Jonah (1961) 1 SCNLR 174; (1961) All NLR 102 at 104, 105; Lawal v Da- wodu (1972) 8–9 SC 83 at 114–115, Balogun v Agboola j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Edozie JCA First Bank of Nigeria Plc v. Excel Plastic Industry Ltd 403 a (1974) 10 SC 83 at 111, 112 and Felix Okoli Ezeonwu v Charles Onyechi and others (1986) 3 NWLR (Part 438) 499 at 526.) b In the instant case, the material part of exhibit F that needs to be construed reads thus:– “We thank you for your letter dated 28 November, 1989 and ad- vise that foreign exchange cover in respect of the above has been c released by the Central Bank of Nigeria. However, the collections are still awaiting allocation of foreign currency.” (Italicing sup- plied.) A Senior Manager of the Central Bank Adewuyi Adeoti d (DW1) testified that at the time the respondent’s applica- tions exhibits J–J3 were received at the Central Bank, the latter was short of foreign exchange and that an arrangement was put in place for all creditors to submit particulars of e their claims for settlement and further that all transactions that met with the directives of the Government were issued with Promissory Notes by CBN on behalf of the Federal Government. In answering question under cross examination f on the meaning of “foreign exchange cover” in exhibit F the witness stated on page 145 line 26 et seq. “The thing (sic) exhibit F says that foreign exchange cover had been released by the Central Bank. I confirm that when CBN says g cover has been given, it means it has released the foreign exchange . . .” Testifying on the same point, DW2, a staff of appellant Bank at page 157 lines 10–14 opined:– h “Exhibit F is a letter dated 13 December, 1989 issued by the de- fendant to the plaintiff advising the plaintiff of non supply of for- eign exchange by CBN. Foreign exchange cover had been released as per exhibit F but foreign exchange had not been provided.” i In its appraisal of the evidence, the Court below at page 297 line 9 et seq reasoned thus:– “DW1 under cross-examination replied that when the Central Bank of Nigeria says cover has been given, it means it has released j the Foreign currency as contained in paragraph 19 exhibit F. This

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Court is of the opinion that the money of the plaintiff is with the a defendant because the defendant obtained the cover and the money was remitted to the defendant’s account in New York but they have refused to pay the suppliers.” The appellant’s Counsel has criticised this finding contend- b ing, firstly, that the testimony of DW1 was elicited under cross-examination and was an unpleaded fact and secondly that it overlooked the contrary evidence of DW2 and thirdly that an entry in a Banker’s Book can only be established by c admissible secondary evidence pursuant to section 97(2)(e) of the Evidence Act, vide the case of Unity Life and Fire In- surance Ltd v I.B.W.A. (2001) 7 NWLR (Part 713) 610; Oguma Associated Co Ltd v I.B.W.A. Ltd (1988) 1 NWLR d (Part 72) 658 and Yesufu v ACB Ltd (1976) ANLR 264. On the other hand, learned Counsel to the respondent has hailed the aforesaid finding of the trial Court arguing that by virtue of section 134 of the Evidence Act, the oral evidence of e DW1 was admissible to assist the Court in determining the probative value to be attached to documentary evidence. He cited and relied on the following cases: Young Jack v Whyte (2001) 85 L.R.C.N. 45 and Attorney-General of Oyo State v Fairlakes Hotels Ltd (1989) 5 NWLR (Part 121) 255. f The point in controversy is the meaning of the contents of exhibit F earlier reproduced – whether or not it amounts to an admission by the appellant that foreign exchange in rela- tion to the respondent’s application had been allocated by g Central Bank of Nigeria. As I had earlier observed, exhibit F being documentary evidence, this Court is competent to evaluate it. It is the law that where the consideration of documentary evidence to resolve a relevant issue in a case is h principally involved, the demeanour of witnesses can hardly play any part (see Olujinle v Adeagbo (1988) NWLR (Part 75) 238). In construing exhibit F, I must bear in mind that it is a fundamental rule of construction of instrument that its i several clauses must be interpreted harmoniously so that the various parts of the instrument are not brought in conflict to their natural meaning (see Ojokolobo and others v Alamu and another (1987) 3 NWLR (Part 61) 377 and Unilife De- velopment Co Ltd v Adeshogbu (2001) 4 NWLR (Part 704) j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Edozie JCA First Bank of Nigeria Plc v. Excel Plastic Industry Ltd 405 a 609 at 626). As stated by the learned Authors of Halsbury’s Laws of England Volume (12ed) paragraph 1469:– “The best construction of deeds is to make one part of the deed expound the other and so make all the parts agree. Effect must so b far as possible be given to every word and every clause.” Guided, as I am by the foregoing canons and reading through the extract in exhibit F quoted above which at the risk of repetition is set out below:– c “We thank you for your letter dated 28 November, 1989 and ad- vise that foreign exchange cover in respect of the above has been released by the Central Bank of Nigeria. However, the collection are still awaiting allocation of foreign currency . . .” d There are two sentences therein. The first sentence talks of release of foreign exchange cover. If that means the release of foreign currency, there would have been no need for the second sentence which says that “the collections are still e awaiting allocation of foreign currency”. It is my humble view that exhibit F did not convey or evince the meaning that foreign currency had been released and allocated in re- spect of the transactions in question. This interpretation is f consistent with the evidence of DW1 to the effect that at the time the respondent’s applications exhibits J–J3 were re- ceived at the Central Bank of Nigeria, it was, in short supply of foreign currency and that a re financing scheme was put g in place to settle creditors. This is also in agreement with the appellant’s letter exhibit H part of which reads:– “Our International Banking Division have advised us of their in- ability to allocate foreign currency on the captioned collection in h view of the fact that these are pre 1984 maturity applications. We have accordingly advised remitters to provide us with their dis- posal instruction to enable us dispose with the proceeds in our books and close our files accordingly . . .” i With much respect to learned Counsel to the respondent, I can see nothing in exhibit F or exhibit H or a combination of both to suggest that the appellant Bank admitted that it had been allocated foreign exchange in respect of respondent’s applications. The learned Judge of the Court below had erred j in an enormous dimension in his opinion to the contrary.

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In the course of the testimony of DW2, a letter dated 19 a January, 2000 addressed by the CBN to the appellant Bank was tendered and admitted in evidence without objection as exhibit R. This letter, exhibit R, stated categorically that for- eign exchange had not been released by the Central Bank of b Nigeria in respect of the respondent’s applications for for- eign exchange. In his judgment, the learned trial Judge ex- cluded or rejected the said exhibit R on the ground that it was made and procured when proceedings In relation to the c exhibit, were already pending relying on section 91(3) of the Evidence Act. Learned Counsel to the appellant has chal- lenged the action of the trial Judge contending that exhibit R was not caught by section 91(3) of the Evidence Act in that d it was not made by a person interested as envisaged by the section. He cited and relied on the cases of Anyaebosi v R.T. Briscoe (1987) 6 SCNJ 9; Highgrade Maritime Services Ltd v First Bank Ltd (1991) 1 NSCC 119 and Gbadamosi v Kabo Travels Ltd (2000) 8 NWLR (Part 668) 243. In his re- e sponse, Counsel to the respondent stressed that exhibit R was an extra judicial statement made in response to a sub- poena issued to the CBN at the instance of the appellant Bank and was caught by section 91(3) of the Evidence Act f since the CBN the maker of exhibit R was an interested party in the pending proceedings. Admittedly, it is the Law that where evidence has been improperly admitted, both the trial Court and the appeal g court have power to expunge such evidence from their re- cord and decide the case on the properly and legally admit- ted evidence. (See Ajayi v Fisher (1956) 1 FSC 90; Owonyin v Omotosho (1961) 1 All NLR 304, 307; Chigbu v Tonimas h (Nigeria) Ltd (1993) 3 NWLR (Part 593) 115 at 141 and Agbaje v Adigun (1993) 1 NWLR (Part 269) 261.) It is how- ever well settled that where certain documents are admissi- ble in evidence upon fulfillment of certain conditions or un- i der certain circumstances, a party who fails to object to their admissibility in the trial Court cannot do so in the appeal Court. However, where evidence complained of is in no cir- cumstance admissible in law, the evidence cannot be acted upon even if the parties admitted it by consent. (See Raimi v j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Edozie JCA First Bank of Nigeria Plc v. Excel Plastic Industry Ltd 407 a Akintoye (1986) 3 NWLR (Part 26) 97; Abolade Alade v Sa- lami Olukade (1976) 1 All NLR (Part 1) 67; Minister of Lands, Western Nigeria v Dr. Nnamdi Azikiwe and others b 169/68 of 31/1/61 and Owonyin v Omotosho (1961) 1 All NLR 304, 308, (1961) 3 SCNLR 57.) In the present case, the Court below would be justified in rejecting exhibit R as it did only if it qualifies as evidence that is inadmissible under c any circumstance. Section 91(3) of the Evidence Act relied upon by the Court below to reject exhibit R enacts:– “Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact d which the statement might tend to establish.” For a statement to be rendered inadmissible under the sec- tion, it must be made by “a person interested” and “when proceedings are pending or anticipated” involving a dispute e as to any fact which the statement might tend to establish. It seems to me that the Court below did not advent Its mind to the question whether the statement, exhibit R was made by “a person interested” as envisaged by the section since it f made no decision in that regard. Both Counsel invited this Court to rule on the issue and determine whether or not ex- hibit R was rightly rejected by the Court below. I decline that invitation partly because an appeal is predicated on the existence of a decision appealed against (see Ogunbiyi v Is- g hola (1986) 6 NWLR (Part 452) 12 at page 23 and Babalola v The State (1989) 4 NWLR (Part 105) 264). Since the Court below did not decide the point whether the maker of exhibit R was an interested party, that is, a person who has no temp- h tation to depart from the truth on one side or the other, vide Highgrade Maritime Services Ltd v First Bank (Nigeria) Ltd (1991) 1 NWLR (Part 167) 290 that issue cannot be raised on appeal without the leave of this Court. More importantly, i a determination whether exhibit R was rightly rejected by the Court below is completely irrelevant to the whole case. This is so, because as I had earlier indicated the appellant Bank which had maintained that the Central Bank of Nigeria did not remit foreign exchange for the respondent’s applica- j tion had no burden of proving its negative assertion and

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Edozie JCA 408 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) consequently it did not matter whether or not it tendered ex- a hibit R. It is the respondent that made a positive assertion to the effect that Central Bank had remitted the foreign ex- change for the transaction in question which has the burden of establishing that assertion. The onus of proof in civil b cases lies on the plaintiff to satisfy the Court that he is enti- tled on the evidence adduced by him to the claim he asserts and in doing so, he must rely on the strength of his own case and not on the weakness of the defence see Kodilinye v Odu c (1935) 2 W.A.C.A. 336 at 337 and Nwagbogu v Ibeziako (1972) 1 All NLR 200 in the instant case, it was incumbent on the respondent to show by credible evidence that the Central Bank had paid into the appellant’s account with the d Standard Chartered Bank of New York the foreign currency in respect of its (respondent’s) transaction in question. By virtue of section 96(1)(h) now section 97(1)(h) of the Evi- dence Act, secondary evidence may be given of the exis- tence, condition or contents of a document when, inter alia, e the document is an entry in a Banker’s Book; and by section 96(2)(e) now section 97(2)(e) of the said Evidence Act the form of secondary evidence that is admissible is a copy of an entry in the Banker’s Book vide Unity Life and Fire Insur- f ance Co Ltd v I.B.W.A. Ltd (supra) at 624–625. The respon- dent made no effort whatsoever to tender a copy of an entry in the book of the Standard Chartered Bank of New York to establish its claim that the Central Bank lodged its foreign g currency therein. In the light of the foregoing it is my judg- ment that on the pleadings and the totality of the evidence adduced by the parties the respondent has failed to establish that the appellant Bank received from the Central Bank for- eign exchange in the sum of DFL464,270.65 for remittance h to the respondent’s Overseas partner and further that the re- jection of exhibit R was of no consequence to the whole case. The consequence is that the respondent’s principal claim in paragraph 18(1) of the statement of claim fails to- i gether with the ancillary or consequential reliefs for interest and general damages in subparagraphs 2 and 3 of paragraph 18 of the said statement of claim. This conclusion disposes of the entire appeal in favour of the appellant. However, it j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Edozie JCA First Bank of Nigeria Plc v. Excel Plastic Industry Ltd 409 a may not be out of place to make some comments albeit briefly on other issues raised for determination. The appellant’s third and fourth issues for determination b challenge the findings on negligence and the award of gen- eral damages and interest and as they are related, they will be considered together with the respondent’s second issue, which they encompass. It is the appellant’s contention that the Court below was in c error to have found the appellant liable in negligence, as the respondent’s cause of action was not based on negligence, the particulars of which were not pleaded. The cases of Odugbo v Abu (2001) 14 N.W.L.R. (Part 732) 45; United Bank for Ltd v d Achoru (1990) 6 NWLR (Part 156) 254 and Strabag Con- struction Nigeria Ltd v Ogerekpe (1991) 1 NWLR (Part 170) 732 were cited. It was further contended that the award of general damages was based on erroneous principle as such e award belongs to the realm of tort and not contract which is the respondent’s cause of action in the instant case. The cases of Ndinwe v Igbinedion (2001) 5 NWLR (Part 205) 140 and P.Z. and Co Ltd v Ogedengbe (1972) All NLR 205 were al- N f luded. It was submitted that the general damages of 60 mil- lion awarded was outrageous and excessive and were based on items of special damages that were not particularised vide Astra Ind. Ltd v N.B.C.I. (1988) 4 NWLR (Part 546) 357. In regard to the award of interest canvassed under appellant’s g second issue, it is the contention of the appellant’s Counsel that the trial Court was in error to have awarded post judg- ment interest at the rate of 17.5% as that was not claimed; that in respect of the pre judgment interest the respondent did not h plead nor lead evidence of any legal grounds of its claim and that the fax message (exhibit K) by the respondent’s foreign partners relied upon by the lower Court as the basis of the award of interest was not binding on the respondent. Citing i the cases of Saeby Jernstoberi M.F. A/S. v Olaogun Ent. (1999) 1 4 NWLR (Part 637) 128 and Kaduna State Trans- port Authority v Oladele (1999) 10 NWLR (Part 622) at 62 as authorities for the manner in which the claim for interest should be pleaded, Counsel submitted that the respondent’s j statement of claim was bereft of essential particulars. Finally,

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Edozie JCA 410 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) learned Counsel referred to the unreported judgment of this a Court, Lagos Division: Appeal No. CA/L/399/86: Savannah Bank of Nigeria Ltd v Adegoke Motors Ltd delivered on 30 April, 1998 in which the Court below heavily relied upon and b submitted that the facts of that case are not on all fours with the present one. In response, Counsel to the respondent, in his brief of ar- gument referred to the evidence of PW1 to the effect that the c appellant Bank did not notify him of its failure to make the remittance to the respondent’s foreign partners and submit- ted that the trial Court was right to have held the appellant liable in negligence citing in support the Savannah Bank d case (supra). Counsel submitted that the respondent was en- titled to the refund of DFL464,270.65 paid for in 1981–82 to pay for the goods supplied to it (respondent) but which was not eventually remitted to the respondent’s suppliers. On the award of general damages in the sum of N60,000,000, e Counsel referred to the case of Concord Press (Nigeria) Ltd v Asaolu (1999) 10 NWLR (Part 621) 123 on the circum- stances under which an appellate Court will interfere with the award of damages made by the trial Court, and submitted f that the appellant had not established that the trial Court acted under a mistake of law or acted in disregard of princi- ples of law or that the amount awarded was ridiculously too high or too low. On the award of interest at the rate of 17.5% g on the principal claim, it is the contention of the respondent that the award was in keeping with the pleadings and was necessitated by the fax message exhibit K from the foreign partners. In regard to the contention that there was no claim for interest on the post-judgment debt, it was contended that h it was not necessary to specifically claim such interest as by Order 40 Rule 7 of the High Court (Civil Procedure) Rules Cross River State, the High Court is vested with jurisdiction to grant post judgment interest whether or not it was prayed i for. The contentions of the parties under consideration fall into two compartments, viz, the finding of liability in negligence and the award of general damages and interest. With respect j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Edozie JCA First Bank of Nigeria Plc v. Excel Plastic Industry Ltd 411 a to the order adjudging the appellant liable in negligence in handling the respondent’s transaction, it is not disputed that the respondent’s claim in the main is predicated on breach of b contract. However it has since been recognised that an ac- tion In tort for negligence can arise from a breach of con- tract. See the case of Chief Abusonwan v Mercantile Bank of Nigeria Ltd (No. 2) (1987) 3 NWLR (Part 60) 196 at 208 c where Karibi-Whyte, JSC observed thus:– “Since the 1920’s the trend has developed discarding the 19th Century view that a tort cannot arise from the breach of contract. It is now the law that action in tort for negligence can arise dehors contract of the parties.” d To establish negligence, the plaintiff must show that the de- fendant owed him a duty of care, that the said duty has been breached and that the breach has occasioned loss or damages to him. (See Esiegre v Agholor (1990) 7 NWLR (Part 161) e 234.) A plaintiff must not only plead particulars of the neg- ligence, he must lead evidence of the negligence. (See Nige- rian Bottling Company Ltd v Ngonadi (1985) 1 NWLR (Part 4) 739 and United Bank for Africa Ltd v Achoru (1990) 6 f NWLR (Part 156) 254–275.) In the instant case the respon- dent’s cause of action as disclosed on the pleadings was breach of contract by the appellant for failure to remit the foreign exchange to respondent’s overseas suppliers. Al- g though that breach of contract could give rise to an action in tort for negligence, the respondent could have claimed in negligence setting out detailed particulars and circumstances relating thereto. In the present case the respondent’s plead- h ings apart from a casual reference of “neglect to allocate foreign currency” in paragraph 16 did not allege nor give particulars of negligence on the part of the appellant with respect to the respondent’s application for foreign exchange. In the Savannah Bank’s case heavily relied upon by the re- i spondent’s Counsel, part of the claims were:– “(i) declaration that the defendant was negligent in handling the plaintiff’s letter of credit; (ii) special and general damages suffered by the plaintiff as a j result of negligence and breach of contract”.

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There is no such claim specifically in negligence in the pre- a sent case. Notwithstanding that, the learned trial Judge at page 303 line 5 et seq, held as follows:– “After a critical assessment of this suit, the Court is of the opinion b that the respondent was negligent and reckless in the handling of the transaction so he must pay commensurate damages.” This is tantamount to a declaration that the appellant is liable in negligence but this was not prayed for. A Court has no power to grant to a party any relief that he has not specifi- c cally claimed. it can award less but not more than is claimed by a party. (See Felix Okoli Ezeonwu v Charles A. Onyechi and 2 others (1996) 3 NWLR (Part 438) 498, 520–521 and Ekpenyong and others v Nyong and others (1975) 2 SC 71, d 80–81.) Even if the respondent had claimed in negligence, the claim was bound to fall since the respondent could not establish that the CBN allocated the foreign currency which the appellant neglected to remit to the respondent’s foreign e partners. It is my humble view that the Court below was palpably in error to have adjudged the appellant liable in negligence. In regard to the award of damages and interest, both Coun- f sel stated quite correctly in their briefs, the principles upon which an Appellate Court will be justified in interfering with an award of damages by the Court of trial. These principles as enunciated in several decisions are as follows: where the trial Court, acted under a mistake of law, or acted in disre- g gard of principles of law; or took irrelevant matters into con- sideration or disregarded relevant matters, or acted on a mis- apprehension of fact, or the award is ridiculously too high or ridiculously too low or when injustice will result if the Ap- h pellate Court does not interfere. (See UBN v Odusote Book- store (1995) 9 NWLR (Part 421) 558; Concord Press (Nige- ria) Ltd v Asaolu (1999) 10 NWLR (Part 621) 123; Ijebu ode Local Government v Adedeji Balogun and Co Ltd i (1991) 1 NWLR (Part 166) 136 and Onaga and others v Mi- cho and Co (1961) 12 SCNLR 101.) As earlier indicated, the respondent’s action is founded in contract not in the tort of negligence. The measure of damages or the rule governing the award of damages in contract has been clearly stated in j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Edozie JCA First Bank of Nigeria Plc v. Excel Plastic Industry Ltd 413 a the celebrated case of Hadley v Baxendale 9 Exch 341 and it is this that where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should b be such as may fairly and reasonably be considered either as arising naturally, that is, according to the usual course of things from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of c the parties at the time they made the contract, as the prob- able result of the breach of it. The rule has been referred to with approval in the case of Victoria Laundry (Windsor) Ltd v Newman Industries Ltd (1948) 2 K.B. 528; East Ham Cor- d poration v Bernard Sunley and Sons Ltd (1966) A.C. 406 at 450 451 and KouFos v Czerinkow Ltd (1967) 3 WLR 149 1. The rule has been adopted and followed by the courts in this country, vide Omonuwa v Wahab (1976) 4 SC 37; Taiwo v Princewill (1961) All NLR 240 and Kusfa v United Bawo e Construction Co Ltd (1994) 4 NWLR (Part 336) 1. In the case in hand, reading through the judgment of the Court below, it is obvious that that Court made the award of general damages on the footing that the appellant was liable f in negligence for failure to disburse to the respondent’s for- eign partners the foreign exchange allegedly remitted by the Central Bank to the appellant’s correspondent Bank in New York. Having decided that the respondent’s cause of action g was not founded in negligence but in contract, the sum of N60 Million awarded to the respondent, as general damages was an award based on wrong principle. With respect to the claim for interest, the law is now clear h that a claim for interest must be specifically pleaded. The pleading should spell out whether the claim for interest is under a contract, express or implied or under mercantile us- age, the relevant contractual term or any other relevant facts i and matters relied upon for the entitlement. If the claim for interest is based on the equitable jurisdiction of the Court, all the relevant facts and matters relied upon to support the claim should be clearly stated. (See Saeby Jernstoberi; M.F. A/S. v Olaogun Ent. (1999) 14 NWLR (Part 637) 128 and j Alfotrin Ltd v Attorney-General of Federation (1996) 9

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NWLR (Part 475) 634 at 663.) As stated in the case of a Himma Merchants Ltd v Aliyu (1994) 5 NWLR (Part 347) 667, a claim based on a special rate of interest sounds in special damages and must be strictly pleaded and likewise proved. For such a claim to deserve or merit consideration b by a Court of law, it must be stated in the endorsement of the claim to the writ of summons or in the statement of claim whether the claim is based on contract or statute and the ground upon which the claim is based. (See Ekwunife v c Wayne (W.A.) Ltd (1989) 5 NWLR (Part 122) 422; (1989) 12 SCNJ 98 and Thirwell v Oyewumi (1992) 4 NWLR (Part 144) 405.) In the instant case, all that was stated concerning the claim for interest can be found in paragraph 17 of the d statement of claim with the following averment:– “17. The defendant as a Bank is aware of the time values of money and know that the rate of interest has ranged from 13% in 1982 to 72% in 1993. The plaintiff shall lead evi- dence and tender Central Bank of Nigeria Guidelines on in- e terest charges for the period in question and prove that 17.5% herein claimed was less than the average interest charged within the period.” Apart from the fact that the ground for the claim of interest f was not indicated, the Central Bank Guideline pleaded was not tendered in evidence nor did the fax message exhibit K relied upon by the Court below specify any rate of interest. Learned Counsel to the respondent made the point, quite g rightly, in my view, that the trial Court has the jurisdiction to award a post judgment interest whether or not such claim was prayed for but the rate of interest so awardable is lim- ited to a rate not exceeding ten Naira per centum per annum h vide Order 40 Rule 7 Cross River State High Court (Civil Procedure) Rules. (See the case of Himma Merchants Ltd v Aliyu (1994) 5 NWLR (Part 347) 667.) The Court below was right to have awarded a post judgment interest, which was i not pleaded, but it was equally in error to have made the award at the rate of 17.5% thereby exceeding the statutory limit. For the various reasons stated above, it is my judg- ment that the decision of the Court below adjudging the ap- pellant liable in negligence and general damages in the sum j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Edozie JCA First Bank of Nigeria Plc v. Excel Plastic Industry Ltd 415 a of N60 million and special damages of interest at the rate of 17.5% on the pre and post judgment debt cannot be sus- tained. b Issues 5 and 6 in the appellant’s brief were argued to- gether. For ease of reference they read as follows:– “5. Whether the Judgment being appealed is sustainable despite agency status of the appellant and the absence of findings of fact determining whether it is the CBN or the appellant that c allocates/remits forex overseas (Grounds 6 and 9). 6. Whether the lower Court is entitled to assume jurisdiction having held that the defendant Bank ‘never acted as agent of CBN’ in the forex transaction with the plaintiff (Ground d 2).” The above issues are covered by respondent’s Issue No. ii which at the risk of repetition reads “(ii) Whether in the circumstances of this suit and for the pur- e pose of the Exchange Control Act, the appellant Bank was an agent of Central Bank.” The point in controversy is as correctly stated succinctly by the respondent’s Counsel, that is whether the appellant Bank f acted as agent of the CBN in respect of the respondent’s ap- plication for foreign exchange. The appellant’s Counsel has canvassed that having regard to the Exchange Control Act 1962 Cap 113 Laws of Federation of Nigeria 1990; the Ex- change Control (Delegation of Powers) Notice No. 82 of g 1962 and Exchange Control (Appointment of Authorised Dealers) Notice No. 31 of 1968, the appellant Bank formerly called the Barclays Bank DCO was appointed authorised dealer in foreign exchange under the direct supervision of h CBN as the statutory sole agency authorised to remit forex overseas. Therefore, it was argued that as agent the appellant Bank cannot be sued or held liable for the torts, acts or omis- sions arising in the course of acting for its disclosed princi- i pal citing the case of Qua Steel Products Ltd v Bassey (1992) 5 NWLR (Part 239) 67. Alternatively, it was con- tended that if the appellant did not act as the agent of the CBN, then the appellant was without authority to remit forex overseas save through CBN by virtue of section 11 of the j Exchange Control (Anti-Sabotage) Act Cap 114 Laws of the

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Federation of Nigeria 1990. In that event, it was further ar- a gued the purported contract between the respondent and the appellant for remittance of forex directly by the latter to re- spondent’s overseas partners without recourse to CBN is il- legal and unenforceable vide the cases of Pan Bisbilda Nige- b ria Ltd v First Bank (2000) 1 N.W.L.R. (Part 642) 684 and Onyiuke v Okeke (1976) ANLR 148. For the respondent, it was submitted that the appellant Bank never acted as agent of CBN as they are authorised dealers in foreign exchange, a c status which permits them to trade and deal in foreign ex- change following certain laid down procedures and not as anybody’s agent. Counsel referred to section 3(1) of the Ex- change Control Act which invests an authorised dealer to d deal in foreign exchange and the Exchange Control (Ap- pointment of Authorised Dealers) Notice of 1962 appointing the appellant as an authorised dealer in foreign exchange and argued that there is nothing in those provisions or In the law and notices cited by the appellant to show that there was an e agency relationship between the appellant and CBN, adding that had the law and notices intended to appoint the defen- dant agent to CBN for the purpose of buying and selling for- eign exchange they would have stated so. f I incline to agree in toto with the respondent’s submis- sions. According to the learned authors of Black’s Law Dic- tionary (6ed) at 62, agency is a relationship between two persons, by an agreement or otherwise, where one (the g agent) may act on behalf of the other (the principal) and bind the principal by words and actions. Relation in which one person acts for or represents another by latter’s authority, either in the relationship of principal and agent, master and h servant or employer or proprietor and independent contrac- tor. Actual agency exists where the agent is really employed by the principal. The law has long been established that an agent of a disclosed principal incurs no liability: (See Niger i Progress Ltd v N.E.L. Corporation (1988) 3 NWLR (Part 107) 68, Khoman v John (1937) 15 NLR 12.) The general rule is that a contract made by an agent acting within the scope of his authority for a disclosed principal is in law the contract of the principal and he the principal and not the j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Edozie JCA First Bank of Nigeria Plc v. Excel Plastic Industry Ltd 417 a agent is the proper person to sue or be sued upon the con- tract. (See Carlen (Nigeria) Ltd v Unijos (1994) 1 NWLR (Part 323) 631 at 659.) b The principle however is not inflexible. There is no agency in the case of wrongdoer. A person who is himself a wrong- doer cannot be the principal of another who is also a wrong- doer. The relationship of agent and principal has no applica- tion in the case of a wrongdoer. (See Rickett v B.W.A. (1960) c 5 FSC 113; (Vol. 1) (1960) NSCC 81.) It is equally the law that where a person makes a contract in his own name with- out disclosing either the name or the existence of a principal, he is personally liable in the contract to the other contracting d party even though he be in fact acting on the principal’s be- half. (See West African Shipping Agency (Nigeria) Ltd v Alh. Musa Kalla (1978) 3 SC 21 at 28.) Recently, in the case of Asafa Foods Factory v Alraine (Nigeria) Ltd (2002) NWLR e (Part 781) 253 the Supreme Court stated that the fact that a person is an agent and is known to be so does not of itself necessarily prevent his incurring personal liability. Whether he does so is to be determined by the nature and terms of the contract and the surrounding circumstances. Where he con- f tracts on behalf of a foreign principal, there is a presumption that he is incurring a personal liability unless a contrary in- tention appears. In that case, the Supreme Court per Uwaifo, J.S.C. adopted with approval the opinion of Lord Scarman g in Hanlay Young Kai Yung v Hong Kong and Shanghai Banking Corp (1981) A.C. 787 (P.C.) where at page 795 it was observed:– “It is not the law that if a principal is liable, his agent cannot be. h The true principle of the law is that a person is liable for his en- gagement (as per his torts) even though he is acting for another unless he can show that by the law of agency he is to be held to have expressly or impliedly negatived his personal liability.” i In the case on hand, transactions on remittance of foreign exchange overseas are regulated by law under which the ap- pellant Bank is an authorised dealer which can according to the laid down procedure purchase foreign exchange from the CBN for remittance abroad. The appellant bank held out itself j as a Bank licensed to transact business in foreign exchange

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Edozie JCA 418 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) and in that capacity received the naira equivalent of the mon- a ies to be remitted and charged the respondent fees and com- missions which were paid and duly receipted for. The respon- dent’s applications on Forms “M” were made to the appellant Bank and according to the procedure were forwarded to CBN b for processing, approval and allocation of foreign currency for remittance to the respondent’s overseas suppliers through the appellant’s Bankers in New York. To my mind, it is in- vidious to suggest that if the appellant Bank neglected to for- c ward the respondent’s application to CBN or if the CBN hav- ing approved and allocated foreign exchange the respondent neglected to remit same to the beneficiary that it cannot be held liable and mulcted or damnified in damages for its de- d fault. That will be a travesty of justice. Whether or not the appellant Bank is described as an agent of the CBN, the ques- tion of illegality in the transactions between the appellant and the respondent did not arise in so far as the appellant is by law an authorised dealer in foreign exchange and acted within the e confines of law regarding foreign exchange transactions. It is my view that the appellant Bank is not an agent of CBN and even if it is, in the circumstances of this case it is suable for its default. I will resolve these issues in favour of the respon- f dent against the appellant but this is neither here nor there. It does not tilt the scale of justice in favour of the respondent. The appeal is meritorious. Accordingly, the appeal is allowed, the judgment of Obi, J g delivered on 15 December, 2000 is hereby set aside except the order that all monies which were not used to purchase foreign currency be refunded to the respondent in local cur- rency against which order there was no appeal. The sum of h N5,000 costs is awarded in favour of the appellant against the respondent. EKPE JCA: I had the advantage of reading in advance the leading judgment of my learned brother, Edozie, JCA which i has just been delivered. He has exhaustively dealt with the controversial issues presented in the appeal. I entirely agree with his reasoning and conclusion that the appeal is meritorious and should be allowed. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Ekpe JCA First Bank of Nigeria Plc v. Excel Plastic Industry Ltd 419 a For the reasons contained in the leading judgment, I too hereby allow the appeal. I also abide by the consequential orders made in the leading judgment including the order as to costs. b OLAGUNJU JCA: I had the opportunity of reading in ad- vance the judgment just delivered by my learned brother, Edozie, JCA, setting aside the judgment of the trial court save that the money paid in local currency that was not used c for purchase of foreign currency and on which there was no appeal be refunded to the respondent. I am in full support of the leading judgment that has examined exhaustively the material points raised by both sides. But in so doing it be- d hoves me to nail my colours to the must for the purpose of lending emphasis to my concurrence. First is the general background. The appeal is from the judgment given against the appellant in an action for breach e of contract with multiple relief for refund of the money paid under the contract with interest said general damages for sundry losses suffered by the respondent who was the plain- tiff at the trial court. It is common ground that the contract f between the parties as fully described in the leading judg- ment was for remittance by the appellant, a commercial bank, of foreign currency to the respondent’s partners in the Netherlands for payment for the goods supplied to her. Be- g cause of the foreign currency element the discharge of the contract involved the authorisation of payment of the remit- tance by the Central Bank of Nigeria (“CBN”) which must provide the necessary foreign currency backing as the only competent authority over the management of foreign curren- h cies in the country. Against that factual backdrop the bone of contention in the appeal before us on which issue was joined by the parties is i whether as claimed by the respondent and accepted by the trial court the Central Bank of Nigeria had remitted the for- eign exchange to the appellant’s account with the Standard Chartered Bank of New York the disbursement of which the appellant failed to effect or whether as contended by the ap- j pellant in one breath only part of the amount of foreign

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Olagunju JCA 420 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) exchange applied for was remitted to the respondent‘s credi- a tor or as claimed in another breath the Central Bank did not issue foreign exchange for remittance for the benefit of the respondent’s creditor. b The inconsistency by the appellant about whether any amount of foreign currency was allocated by the Central Bank for remittance to the respondent’s foreign creditor is one knotty issue that arose for resolution of which this Court c has to seek an answer from the interpretation of the corre- spondence exchanged by the appellant and respondent, viz, exhibit E by the respondent dated 28 November, 1989 and exhibit F and H written by the appellant on 13 December, 1989 and 16 February, 1990, respectively, to the result of d which the letter of Central Bank of Nigeria dated 19 Janu- ary, 2000, exhibit R, takes an important place. The decision of the court below was based on the appel- lant’s letter of 13 December, 1989, exhibit F, as the proof e that the Central Bank of Nigeria had provided the appellant with the requisite amount of foreign currency which the ap- pellant paid into her New York Account without disbursing the money to the respondent foreign creditor. An interpreta- f tion of that document demonstrated how porous is the infer- ence drawn from that letter that the foreign currency of the value applied for had been wade available to the appellant by the Central Bank. The letter, exhibit F, reads:– g “We thank you for your letter dated 28 November, 1989 and ad- vise that foreign exchange cover in respect of the above has been released by the Central Bank of Nigeria. However, the collections are still awaiting allocation of foreign currency . . .” h The leading judgment has dealt at length with the interpreta- tion that is open on the import of that letter to save any repe- tition. It will be enough to say that the concluding sentence of that letter moderates the meaning of the earlier sentence i that “foreign exchange cover . . . has been released by the Central Bank of Nigeria”, for if foreign exchange cover is intended in the grammatical context as signifying an alloca- tion of the amount applied for there would have been no need for the clarification in the last sentence that the j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Olagunju JCA First Bank of Nigeria Plc v. Excel Plastic Industry Ltd 421 a released foreign exchange cover awaits allocation of foreign currency. In my view, “for exchange cover” in that context means no more than a tentative approval for allocation which is contingent upon availability of foreign currency to b match the allocation. While I have my reservation about the remissness by the appellant which in her pleading is blowing hot and cold over the amount remitted to the respondent’s foreign creditor that c error does not relieve the respondent of the burden of estab- lishing positively as the fulcrum of her action that the Cen- tral Bank of Nigeria did in fact pay the amount she applied for to the appellant in foreign currency. If the respondent d failed to do so by the method prescribed for proving a case that is well articulated in the leading judgment, the law does not give her the liberty to make up the weakness of an oppo- nent as a proof of her own ease. To do so is to be in for a e bumpy ride as the burden of proof lies on the plaintiff to prove his case which is never satisfied by the plaintiff biting the weakness of the case for the defendant to whom the bur- den is not shifted until the plaintiff has established a prima f facie case. Equally erroneous is the decision by the learned trial Judge to disregard the Central Bank of Nigeria’s letter of 19 Janu- ary, 2000 addressed to the appellant, exhibit R, on the pre- g test that writing, the; document during the pendency of the proceedings under review contravened subsection 91(3) of the Evidence Act. The leading judgment has in a thorough review demonstrated the impropriety of exclusion of that document from consideration in the deliberation over the h parties case to spare any repetition of the same point. It suf- ficient it to say that the fact that the letter, exhibit R, is a de- nial by the General Bank of Nigeria that foreign exchange bad been released in respect of the respondent’s application i portrays the exclusion of that piece of evidence a tenden- tious as calculated to strengthen the respondent’s punny case. Thus the respondent’s case has collapsed on the shifted j platform of the appellant’s letter of 13 December, 1989,

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Olagunju JCA 422 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) exhibit F on which it was precariously grafted. The artificial a props sought to reinforce the case by excluding a legal evi- dence, exhibit R, having been exposed for that it is it dealt a finishing stroke to the rickety of case sending it tumbling. Indeed, the learned trial Judge erected the respondent’s case b on a quicks and by opting for a snappy victory for the re- spondent who with the lure at an instance victory over his opponent abandoned her duty of establishing what she had held out in her pleading that she would prove as a founda- c tion for the relief she was seeking from the court. It is for the foregoing reasons and for the fuller reasons skillfully welded together by the leading judgment that I will also allow this set aside the judgment of the learned trial d Judge. I adopt all the consequential orders made in the lead- ing judgment together with order for costs. Appeal allowed.

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Savannah Bank Nigeria Plc v. Biode Pharmaceutical 423 a Savannah Bank Nigeria Plc and another v Biode Pharmaceutical Industries Limited and another b FEDERAL HIGH COURT, LAGOS DIVISION SANYAOLU J Date of Judgment: 20 NOVEMBER, 2002 Suit No.: FHC/L/CS/351/2001 c Banking – Liquidation of bank – Principles governing Judge – Relying in his judgment on point of want of jurisdic- tion or competence of plaintiff to bring an action – How Judge to proceed d Practice and Procedure – Judge relying in his judgment on point of want of jurisdiction or competence of plaintiff to bring an action – How Judge to proceed e Receiver – Instituting proceeding in his own name – Action incompetent – Defect not curable by Order 2 Rule 2(2) Fed- eral High Court (Civil Procedure) Rules, 2000 Facts f On the 28th day of February, 2002, the defen- dants/applicants filed a notice of preliminary objection in this Court pursuant to section 6(6)(a) and (b) of the 1999 Constitution seeking to strike out this suit in its entirety on g the ground that the Court lacks jurisdiction to entertain same since the plaintiffs/respondents have no locus standi to insti- tute and/or maintain the action. On 7 March, 2002 learned Counsel for the defen- h dants/applicants moved his notice of preliminary objection. He submitted that the position of the law on Receivership was that before a Receiver assumed his duties in the Receiv- ership he must obtain leave of this Court. That leave of this i Court was not obtained before the commencement or indeed the institution of this action. The Counsel for the defendants/applicants also contended that the action was incompetent because the Liquidator j brought it in his own name.

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However before ruling was given there was a change in the a status of the plaintiff, who had gone into liquidation, and the Judge suo motu asked Counsel to address him further on the issue considering the provision of the Banks and Other Fi- nancial Institution Decree. b Held – 1. Where a Judge in his judgment relies on a point of want of jurisdiction on the part of the Court, or lack of compe- c tence on the part of the plaintiff in bringing the action, the action can and ought to be determined without the necessity of considering each of the claims before the Court. d 2. A privately appointed Receiver under a Deed of Deben- ture and instrument of appointment is deemed to be an agent of the appointer. Nevertheless, it is trite that the Receiver so appointed being an agent of the appointer cannot institute proceedings in his own name as the sec- e ond plaintiff had done in the present suit. 3. Further, that this defect cannot be cured by the provi- sions of Order 2 Rule 2(2) of our Rules of Court. f 4. In cases involving Banks as the first plaintiff is in the present case, where the process of liquidation is set in motion either before or during the commencement of an action, the legal position is regulated by the Banks and Other Financial Institutions Decree (“BOFID”). By vir- g tue of section 38(3) thereof the NDIC may be appointed as the official Receiver or provisional liquidator thereof by the Governor of the CBN and when so appointed shall have the powers conferred by or under CAMA h 1990. Consequently, by virtue of the provisions of section 425(1)(a) of Companies and Allied Matters Act Cap 59 Laws of the Federation of Nigeria, 1990, a liquidator so i appointed shall have the power to bring or defend any action or other legal proceedings in the name and on be- half of the Bank under liquidation. It also follows that by virtue of the provisions of section 417 of Companies and Allied Matters Act Cap 59 Laws of the Federation of j

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Savannah Bank Nigeria Plc v. Biode Pharmaceutical 425 a Nigeria, 1990, no action or proceedings shall be pro- ceeded with or commenced against the Bank except by leave of Court. b 5. Per curiam “I have taken judicial notice of the fact that the first plaintiff herein went into liquidation after the commencement of the present action. And further that the NDIC has been ap- pointed as the provisional liquidator pursuant to the powers c conferred on the Governor of the Central Bank of Nigeria under section 38(3) of BOFID. The law therefore requires the first plaintiffs to comply with the provisions of section 425(1) of Companies and Allied Matters Act Cap 59 Laws of the Federation of Nigeria, 1990, for it to continue with d the action already commenced in the name of the Bank in the present case. It is therefore the conclusion of this Court that by the com- bined effect of the provisions of section 38(3) of Banks and e Other Financial Institution Decree as well as section 425(1)(a) of Companies and Allied Matters Act Cap 59 Laws of the Federation of Nigeria, 1990, the continuation of the present action commenced in the name of the first plain- tiff herein is incompetent on the ground that the first plain- f tiff lacks the locus standi to continue with the action at this stage of the proceedings for reasons given above.” Suit struck out

Cases referred to in the judgment g Nigerian Amokomowo v Andu (1985) 1 NWLR (Part 3) 530 h Bello v Eweka (1981) 1 SC 101 Musa v Ehidiamhen (1994) 3 NWLR (Part 334) 544 NDIC v FMB (1997) 2 NWLR (Part 490) 735 Re: Adetona (1994) 3 NWLR (Part 333) 481 i

Nigerian statutes referred to in the judgment Banks and Other Financial Institutions Decree No. 25 of j 1991, section 38(3)

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Companies and Allied Matters Act Cap 59 Laws of the Fed- a eration of Nigeria, 1990, sections 417, 425(1)(a)

Counsel b For the plaintiffs/respondents: A.O. Akinwunmi, Esq. (with him O.I. Osisanya (Miss) For the defendants/applicants: O. Sofowora, Esq. (with him S. Kolawole (Mrs) and L.I.N. Ezeana, Esq.) c Judgment SANYAOLU J: On 28 February, 2002, the defen- dant’s/applicant’s Counsel filed a Notice of Preliminary ob- d jection in this Court pursuant to section 6(6)(a) and (b) of the 1999 Constitution seeking to strike out this suit in its en- tirety on the ground that the Court lacks jurisdiction to enter- tain same since the plaintiffs/respondents have no locus e standi to institute and/or maintain the action. On 7 March, 2002 learned Counsel for the defen- dants/applicants moved his notice of preliminary objection before me. He submitted that the position of the law on Re- f ceivership is that before a Receiver assumes his duties in the Receivership he must obtain leave of this Court. That leave of this Court was not obtained before the commencement or indeed the institution of this action. He said that the writ of summons in this case was taken out on 7 May, 2001 along g with the motion on notice on the same date. That the state- ment of claim also dated 7 May, 2001 was also filed that same date. He said that there was also an affidavit of ur- gency filed on 7 May, 2001 and that however a motion ex h parte dated 16 May, 2001 was filed on that date. That it was only in that motion ex parte that the plaintiff requested for leave of this Court contemporaneously with other prayers to continue this action and to continue same against the defen- i dants. He submitted that following the case of Inter- Contractors Nigeria Ltd v UAC (1988) Volume 19 NSCC page 737 at 751 the position of the law is that an application for leave cannot be joined with other prayers and relied on Adegboyega v Awu (1992) 7 NWLR (Part 255) j

[2002 – 2004] 11 N.B.L.R. (PART I) (FEDERAL HIGH COURT, LAGOS DIVISION) Sanyaolu J Savannah Bank Nigeria Plc v. Biode Pharmaceutical 427 a page 576, 587–589. He contended that the condition prece- dent to the exercise of my jurisdiction in this matter has not been complied with. That the law requires the plaintiff or applicant to bring an originating summons for leave first be- b fore the commencement of an action to enable the Re- ceiver/Manager take over the properties of the defendants in this case. He referred me to Fumudo v Aboro (1991) 9 NWLR (Part 214) page 210 at 232. Also Ume v Nigeria Re- c nowne Trading Co Ltd (1997) 8 NWLR (Part 516) page 344 at 352. He further submitted that the procedure adopted by the plaintiffs is not in compliance with the requirement of the law as enunciated in the case of InterContractors v UAC d (supra). That the law is specific that leave must be by origi- nating summons. He submitted that it is a fundamental error which cannot be glossed over. He said that in K.S.O. and Al- lied Products Ltd v Kofar Trading Co Ltd (1996) 3 NWLR (Part 436) pages 244 at 254 the Supreme Court confirmed e the position in an earlier case that where a statutory provi- sion or Rule of Court is made for the making of claim, that ought to be used in making it. That the Court relied on La- han v Attorney-General of Western Region (1963) 3 NSCC f page 182. Learned Counsel submitted that the other issue is whether the second plaintiff can bring an action in his own name. That having been appointed a Receiver under the Deed of g Debenture and the Instrument of Appointment, the second plaintiff should not have brought this action in his own name, because he is an agent of the Company. For this sub- mission, he relied on Re: Adetona (1994) 3 NWLR (Part h 333) page 481, 489–490. On the grounds canvassed, he urged me to strike out this case. That the plaintiff has no locus to institute or maintain same. i In reply, learned Counsel for the plaintiffs/respondents submitted that the objection is misconceived. He conceded that to clothe the Court with jurisdiction, the plaintiff must show that he has the pre-requisite locus standi, but con- j tended that in showing locus standi the only thing, the Court

[2002 – 2004] 11 N.B.L.R. (PART I) (FEDERAL HIGH COURT, LAGOS DIVISION) Sanyaolu J 428 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) looks at is the statement of claim. That the objection is a against the locus standi of the first and second plaintiffs. He said that looking at the claim, there can be no doubt that the first plaintiff has in paragraphs 1, 4, 5, 6, 7, 8 and 11 of the statement of claim disclosed sufficient interest in the subject b matter of the claim as a creditor to the defendants debenture holder and appointee of the second plaintiff. He submitted that it is obvious that if the reliefs sought in the suit are granted, it will facilitate the recovery of the debt granted by c the first plaintiff to the first defendant. That the first plaintiff being a party to the fixed and floating debenture dated 12 December, 1992 and also a party to the tripartite Deed of Legal Mortgage dated 27 November, 1995 as well as the d Deed of Appointment of a Receiver dated 30 April, 2001 is a necessary party to the suit. He submitted that it is not pro- hibited for a principal and agent of a disclosed Principal to be parties in the same suit. He referred me to Alale v Olu (2001) 7 NWLR (Part 711) page 119 and submitted that the e first plaintiff in instituting this suit has exercised its constitu- tional right of action in respect of a matter which touches upon his right and interest. He urged this Court to hold that the first plaintiff has locus standi to institute the suit and to f continue same. As regards the second plaintiff, learned Counsel conceded that where there is a condition precedent to the institution of an action and that condition is not met, the plaintiff is g robbed of the locus to institute the action. However, he con- tended that where a Receiver sues in his own name as was done in this suit, there is no requirement that he obtains leave of Court to sue. He therefore contended that his appli- h cation was superfluous. He submitted that the law is that where a Receiver is appointed by Court, he neither repre- sents the security holder nor the debtor but an officer of the Court who by virtue of section 389 of CAMA shall act in i accordance with the directions and instructions of the Court. That it is clear that the rationale behind asking a Receiver appointed by court to always seek leave of Court is because the law requires him to act in accordance with the instruc- tions and directions of Court. j

[2002 – 2004] 11 N.B.L.R. (PART I) (FEDERAL HIGH COURT, LAGOS DIVISION) Sanyaolu J Savannah Bank Nigeria Plc v. Biode Pharmaceutical 429 a On the other hand, learned Counsel submitted that a pri- vately appointed Receiver is deemed to be an agent of the ap- pointee. He referred me to section 390(1) of CAMA submit- ted that this is a radical departure from the previous state of b the law. That it is not in doubt that if a Receiver is prevented from obtaining possession, proceedings can be taken to obtain that possession or to prevent that interference. He referred to Bayly v Went (1884) 15 L.T. 764. Also Law relating to Re- c ceiver and Managers by H. Hubert 1984 at page 64. He submitted that the question for determination in the ap- plication is whether a Receiver can take out such proceed- ings without the requirement of procuring the leave of d Court. Also that the second issue is whether a Receiver can take out such proceeding in his own name as was done in this suit. On Issue 1, learned Counsel submitted that the law as es- e poused in the two cases relied on by learned Counsel for the applicants is that a Receiver appointed in a mortgage action i.e. appointed by Court requires leave before he can com- mence, defend, or continue proceedings in the name of the f company in Receivership. That in these cases, the Supreme Court did not consider the different legal consequences that arise from appointment of a Receiver. He submitted that he may sue in his own name in such case and that this applies to all types of Receivers. That in such a situation, his cause of g action may arise from his possession or interference with the acquisition of such possession. For this he referred me to Laws Relating to Receivers and Managers by Hubert 65 at 297–298 also Kerr on Receivers (17ed) page 178. He submit- h ted in the current suit, the second plaintiff has made no at- tempt to institute the action as Receiver. That he has simply exercised his constitutional right of access to Court that all the Court had to look at is whether on the face of the claim, i the second plaintiff has shown sufficient interest in the sub- ject matter to have been joined as a party. Also whether he would suffer some real and tangible injury or hardship. He submitted that on a perusal of the claim the Court would need to consider whether the second plaintiff person is disqualified j under section 387(1) of CAMA, 1990. That the Court will

[2002 – 2004] 11 N.B.L.R. (PART I) (FEDERAL HIGH COURT, LAGOS DIVISION) Sanyaolu J 430 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) also wish to consider the debenture, the tripartite deed of a mortgage and deed of appointment. He submitted that these are issues which relate personally to the second plaintiff in his capacity as a Nigerian, entitled to earn a living. b On the mode of commencement of the action, he referred me to Order 2 Rule 2(2) of the Federal High Court (Civil Procedure) Rules, 2000 and submitted that on the considera- tion of all the issues raised earlier and particularly that the c second plaintiff sued in his own name and not as a Receiver, that he has done nothing to foul the law. Finally, he urged me to dismiss the objection. Replying on points of law, learned Counsel for the defen- d dants/applicants on the submission that the Re- ceiver/Manager was appointed out of Court, submitted that the position of the law as stated in InterContractors Nigeria Ltd v UAC (supra) is still applicable and binding on this Court which decision was relied on in Union Bank of Nige- e ria Ltd v Tropics Food Ltd (1992) 3 NWLR (Part 228) page 231 at 243–247. That section 337 of Decree No. 51 of 1968 is in pari materia with the provisions of sections 370, 391 and 394 of CAMA, 1990. For this he referred me to Page f 246 of the Report, as well as to section 209 of CAMA on remedies available to debenture holders. He further referred me to Continental Iron Steel v Tejumola Nigeria Ltd and another Suit No. FHC/L/CS/1342/99 delivered on 17 Febru- g ary, 2000. He submitted that the Union Bank case has put a nexus between the InterContractors case and CAMA. That unless and until the Supreme Court changes its position in the Inter Contractor case, this Court is bound. He relied on Yonwuren v Modern Science Nigeria Ltd (1985) 1 NSCC h Volume 16 page 243; Alao v NIDB (1999) 9 NWLR (Part 617) page 103 at 111 as well as Ohanaka v Achiegbo (1998) 9 NWLR (Part 564) page 37 at 62. i Learned Counsel submitted that Nigerian Courts are no longer bound by English decisions. He relied on UBN Nige- ria Ltd v Oki (1999) 8 NWLR (Part 614) page 222 at 255 and Aloba v Balogun (1997) 6 NWLR (Part 509) page 509 at 578 as well as A.G.F. v Guardian News Papers Ltd (1999) j

[2002 – 2004] 11 N.B.L.R. (PART I) (FEDERAL HIGH COURT, LAGOS DIVISION) Sanyaolu J Savannah Bank Nigeria Plc v. Biode Pharmaceutical 431 a NWLR (Part 618) page 187 at 253. He submitted that the submission of learned Counsel on section 393 of CAMA is misconceived vis-à-vis the position of the law. That apart from section 5 of schedule 11 of CAMA, he relied on clause b 8 on page 7 of the Deed of Debenture Exhibit SA2. That the Receiver/Manager is an agent of the company and not the Bank. He relied on all the documents before the Court and contended that the submission that Counsel sued in his per- c sonal capacity as an insolvency practitioner entitled to his means of livelihood is not supported by any known law. He urged me to grant their preliminary objection and to strike out the Suit in its entirety. d The application was thereafter adjourned for Ruling by this Court but in the interim, this Court observed that the posi- tion of one of the parties has changed as plaintiff since the institution of the present action and ordered that the Court be e addressed on the competence of the action in this regard. In addressing the Court on the issue raised suo motu by the Court, learned Counsel for the plaintiff contended that de- spite the change in the status of the first plaintiff the action f is still competent for the purpose of continuing with the pro- ceedings at the stage, even though a provisional liquidator has been appointed since the plaintiff is not dead and that by the appointment of this liquidator the Banking Licence of g the first plaintiff was revoked. She submitted that what that means is that the first plaintiff may no longer continue with the business of Banking, but that however, it is not legally dead. She contended that the question whether a Company has ceased to exist cannot arise until the company is dis- h solved. Learned Counsel submitted further that dissolution of a company is deemed to take place in the absence of any other i event three months after the Corporate Affairs Commission registers the Returns and Accounts which the liquidator is duty bound to submit through the Corporate Affairs Com- mission. For this he referred me to section 478(4) of CAMA, 1990 as well as to Musa v Ehidiamhen (1994) 3 NWLR j (Part 334) 544 at 557. Also Abekeh v NDIC (1995) 7 NWLR

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(Part 406) 208. For the foregoing reasons learned Counsel a submitted that the suit is competent. It is pertinent to men- tion here in passing that on 23 October, 2002 shortly before learned Counsel for the plaintiff canvassed the above argu- ments before me, there was filed in this Court by learned b Counsel for the plaintiffs, an application seeking for an or- der granting leave to join the Nigeria Deposit Insurance Corporation to continue with the prosecution of the Suit in the name and on behalf of the first plaintiff till judgment. c Now, reverting to the issue raised suo motu by this Court, learned Counsel for the defendants said that based on the provisions of the law, he agrees that the company is deemed to be alive since the Returns have not been filed at the Cor- d porate Affairs Commission. For this he relied on NDIC v FMB (1997) 2 NWLR (Part 490) 735 at 756–737. He how- ever submitted that the law is not clear as to the continuation of proceedings after the commencement of liquidation con- e sidering that the Suit was filed when the first plaintiff was still operating. He therefore urged me to proceed to deliver the Ruling in order to put this matter to rest. I shall begin the consideration of the issues raised in the f present application by stating the principle of law as laid down by our Supreme Court in Amokomowo v Andu (1985) 1 NWLR (Part 3) at 530 to the effect that where a Judge in his judgment relies on a point of want of jurisdiction on the g part of the Court, or lack of competence on the part of the plaintiff in bringing the action, the action can and ought to be determined without the necessity of considering each of the claims before the Court. (See also Bello v Eweka (1981) 1 SC at 101.) I believe this principle also applies to the in- h stant case and I shall therefore proceed to determine the is- sues in the present application without the necessity of hav- ing to consider all the grounds of law canvassed before me in the course of argument. i I propose to deal first with the capacity of the second plaintiff in bringing the present action. In other words whether the second plaintiff herein can institute the present action in his own name. j

[2002 – 2004] 11 N.B.L.R. (PART I) (FEDERAL HIGH COURT, LAGOS DIVISION) Sanyaolu J Savannah Bank Nigeria Plc v. Biode Pharmaceutical 433 a It is on record that learned Counsel for the plain- tiff/respondent in the present application conceded in the course of argument that where there is a condition precedent to the institution of an action, and that condition is not yet b met, the plaintiff is robbed of the locus to institute the ac- tion. He however contended that where a Receiver sues in his own name as was done in the present suit, there is no re- quirement that he obtains leave of Court to sue and that c therefore the application for leave before the Court was su- perfluous. While I agree that a privately appointed Receiver under a Deed of Debenture and Instrument of appointment is d deemed to be an agent of the appointer, nevertheless, it is trite that the Receiver so appointed being an agent of the ap- pointer cannot institute proceedings in his own name as the second plaintiff had done in the present suit (see Re: Ade- e tona (1994) 3 NWLR (Part 333) page 481, 489–490.) Learned Counsel for the plaintiff/respondent in the present application has also contended that the second plaintiffs in the present case has simply exercised his constitutional right f of access to Court as a legal practitioner enjoined to earn a living. I must say that I am unable to accept this argument in that the cause of action in the instant case is not a personal action accruing to the second plaintiff herein in the course of g his duty as a legal practitioner but that which arises by virtue of the duties of the second plaintiff as Receiver appointed by the appointer. They are therefore not issues which relate per- sonally to the second plaintiff in his capacity as a Nigerian entitled to earn a living as canvassed by learned Counsel for h the plaintiffs/respondents. Furthermore, I am of the view that this submission by learned Counsel is not supported by law. I have therefore come to the conclusion that the second plaintiff herein has no locus standi to institute or maintain i the present action in its present form. Further, that this de- fect cannot be cured by the provisions of Order 2 Rule 2(2) of our Rules of Court. I now come to consider the capacity of the first plaintiff in j the present suit.

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I believe this issue was raised suo motu by this Court and a that it is one in respect of which arguments were canvassed by a learned Counsel for the parties before me. That there is no dispute that the first plaintiff herein is presently in liqui- dation and that the present case was filed when the first b plaintiff was still a going business. The pertinent question now is whether the first plaintiff can continue the proceed- ings in its name after the commencement of liquidation as the situation now presents itself. c In Musa v Ehidiamhen (1994) 3 NWLR (Part 334) 544 at 558 the Court of Appeal held that a company under liquida- tion, voluntary or compulsory is still a living legal person until it is dissolved. d In the above mentioned case the Court of Appeal held that when the Suit was instituted G.B.O. was still under liquida- tion and has not been dissolved. Further, that it still retained its legal personality which was separate and distinct from e that of the U.A.C. The Court of Appeal in coming to the above decision re- lied on an excerpt from Gowers Principles of Modern Com- pany Law (4ed) at page 719 part of which reads as follows:– f “The liquidation or winding up (the two terms are used indiscrimi- nately) of a company is a process whereby its life is ended and its property advertised for the benefit of its creditors and members. The closest analogy to what occurs is afforded by the administra- g tion of a deceased’s estate as administrator called a liquidator is appointed and he takes control of the Company, collects its assets, pays its debts and finally distributes any surplus among the mem- bers in accordance with their rights. But the process differs from the administration of deceased’s estate in that the estate being ad- h ministered is that of a person still living. Only at the end of the winding up will the company be dissolved, administration pre- cedes death not vice versa.” The Court further held that the property of a company un- i der liquidation does not vest in the liquidator and that the liquidator only assumes the function of the directors as is subject to the duty to deal with its assets under the statutory scheme laid down in the Companies and Allied Matters Act, 1990. j

[2002 – 2004] 11 N.B.L.R. (PART I) (FEDERAL HIGH COURT, LAGOS DIVISION) Sanyaolu J Savannah Bank Nigeria Plc v. Biode Pharmaceutical 435 a Consequently, the Court came to the conclusion that the negligence of G.B. Ollivant (Nigeria) Ltd though under liq- uidation albeit described as a division of UAC (Nigeria) Limited, being a separate legal entity with rights to sue and b to be sued cannot be visited on UAC (Nigeria) Limited. However, in NDIC v FMB (1997) 2 NWLR (Part 490) 735 which case involved a Bank under liquidation as in the pre- sent case, the Court of Appeal held that by the provisions of c section 38(3) of BOFID, the NDIC may be appointed by the Governor of the CBN as the official Receiver or as a provi- sional liquidator of a company. Further, that when so ap- pointed the NDIC shall have the powers conferred by or un- d der CAMA, 1990, and shall be deemed to have been ap- pointed a provisional liquidator by the Federal High Court for that purpose. That under section 425(1) of CAMA, 1990 the liquidator shall have power to bring or defend any action e or other legal proceedings in the name and on behalf of the company under liquidation. It is therefore my respectful view that in cases involving Banks as the first plaintiff is in the present case, where the f process of liquidation is set in motion either before or during the commencement of an action, the legal position is regu- lated by the Banks and Other Financial Institutions Decree (“BOFID”). By virtue of section 38(3) thereof the NDIC g may be appointed as the official Receiver or provisional liq- uidator thereof by the Governor of the CBN and when so appointed shall have the powers conferred by or under CAMA, 1990. h Consequently, by virtue of the provisions of section 425(1)(a) of Companies and Allied Matters Act Cap 59 Laws of the Federation of Nigeria, 1990, a liquidator so ap- pointed shall have the power to bring or defend any action or i other legal proceedings in the name and on behalf of the Bank under liquidation. It also follows that by virtue of the provisions of section 417 Companies and Allied Matters Act Cap 59 Laws of the Federation of Nigeria, 1990, no action or proceedings shall be proceeded with or commenced j against the Bank except by leave of Court.

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I have taken judicial notice of the fact that the first plaintiff a herein went into liquidation after the commencement of the present action. And further that the NDIC has been ap- pointed as the provisional liquidator pursuant to the powers conferred on the Governor of the Central Bank of Nigeria b under section 38(3) of BOFID. The law therefore requires the first plaintiffs to comply with the provisions of section 425(1) of the Companies and Allied Matters Act Cap 59 Laws of the Federation of Nigeria, 1990, for it to continue c with the action already commenced in the name of the Bank in the present case. It is therefore the conclusion of this Court that by the com- bined effect of the provisions of section 38(3) of Banks and d Other Financial Institution Decree as well as section 425(1)(a) Companies and Allied Matters Act Cap 59 Laws of the Federation of Nigeria, 1990, the continuation of the present action commenced in the name of the first plaintiff e herein is incompetent on the ground that the first plaintiff lacks the locus standi to continue with the action at this stage of the proceedings for reasons given above. Having come to the same conclusion in the course of this f Ruling on the capacity of the second plaintiff in this action, I hold that the first and second plaintiffs herein lack the locus standi to institute the present action as presently constituted; and or to continue with same. It is accordingly struck out.

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Oredola Okeya Trading Co Ltd v. Bank of Credit and Commerce 437 a Oredola Okeya Trading Co Limited and another v Bank of Credit and Commerce Int. and another b COURT OF APPEAL, LAGOS DIVISION OGUNTADE, ADEREMI, CHUKWUMAH-ENEH JJCA Date of Judgment: 2 DECEMBER, 2002 Suit No.: CA/L/250/95 c Banking – Overdraft – Demand Notice necessary before right of action can arise Land Use Act – Section 22 – Import of Mortgage – Effect of – Power of Mortgagee d Facts The case of the plaintiff/appellant before the High Court of Lagos is that between 4 July, 1984 and 13 December, 1984 N e the first plaintiff/appellant borrowed a total sum of 275,000 from the first defendant/respondent a banking institution. By virtue of a Deed of Mortgage dated 24 May, 1984 registered as No. 3 at page 3 Volume 5399 the property situate and being at No. 12 Alhaji Ribadu Road, South West Ikoyi, f Lagos was charged by the second plaintiff/appellant its owner to secure the said loan granted to the first plain- tiff/appellant. The mortgage deed although executed on the 24 May, 1984, the consent of the Governor was not obtained g until 22 June, 1984. The plaintiff at the lower court con- tended that the sale of the property described in the Mortgage Deed by first defendant/respondent to the second defen- dant/respondent/cross-appellant was null and void as the sale h contravened the mortgage terms and that the mortgage deed itself was void as it was executed before the mandatory con- sent of the Governor as required under sections 22 and 26 of the Land Use Act No. 6 of 1978 could be obtained. i The case of the defendant/first respondent and the second respondent/cross-appellant was that the first and second ap- pellants as the surety and the owner of the property charged and the first respondent are the parties to the said deed of mortgage. When the first appellant failed to repay the loan j within three months, the Demand Notice as required under

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438 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) the Mortgage Deed was served. After the expiration of the a three months from the receipt of the notice. The property, which was used to secure the loan was sold to the second respondent at open market value. Thereafter, the Governor gave his consent for the transaction. b The learned trial Judge after taking evidence and in a re- served judgment dismissed both the plaintiffs’/appellants’ claim and the counter-claim of the second respondent. c Being dissatisfied with the judgment of the lower court, the plaintiff appealed. The appellants argued that it was wrong for the trial Judge to have held that the letter written by the Executive Director of the first plaintiff/appellant to the so- d licitor of the first respondent acknowledging the Demand Notice dated 27 May, 1998, to the appellants by the first re- spondent’s Solicitors when there was no credible evidence that the second plaintiff/appellant ever received the said Demand Notice, let alone authorising the writing of an ac- e knowledgement. That the mortgage debt was, therefore due until the Demand Notice has been delivered to the appel- lants. The first respondent, on the other hand, had argued that the f fact that there was outstanding mortgage debt against the appellant is supported by the evidence before the lower court and also there was evidence on record that the Demand No- tice was served on the first plaintiff/appellant and receipt ac- g knowledged. Held –

1. The legal estate in a mortgaged property is vested in the h mortgagee and until the property is redeemed by the mortgagor, he (the mortgagor) cannot transfer a valid ti- tle in the mortgaged property to a third party. The pow- ers of the mortgagee to deal with the mortgaged property are often circumscribed. i 2. It is also an implied term in the relationship between a banker and his customer that there should be no right of action for the repayment of an overdraft until there has been a Demand or Notice given (see Augwu v Malami j

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Oredola Okeya Trading Co Ltd v. Bank of Credit and Commerce 439 a and another (1992) 9 NWLR (Part 264) 242 at 252). The cause of action does not arise until there has been a de- mand or notice given when therefore there is no specific date agreed upon for the repayment of an over draft, as b in the present case, a demand should be made or notice given. In other words, a cause of action on an unpaid over draft is not deemed to accrue where no specific date for payment is agreed upon until there has been a de- c mand made or notice given. 3. Section 22 Land Use Act, 1978 does not forbid the par- ties into entering into an agreement of the nature entered into by the first and second appellants on the one hand d and the first respondent on the other. The agreement to alienate without the consent, of the Governor was not void ab initio rather it remained inchoate until the con- sent of the Governor was obtained. e 4. In civil proceedings once pleadings have been settled and issues have been joined, the duty of the Court is to proceed to the trial of the issues so joined. Where, how- ever one of the parties fails or refuses to submit the is- f sues raised on him in his pleadings for trial by calling to evidence in their support a trial Judge, until there are other legal reasons dictating to the contrary must resolve the case against the default party. g Main appeal dismissed, cross appeal allowed Cases referred to in the judgment

Nigerian h Awojugbagbe Light Industries Ltd v Chinukwe (1995) 4 NWLR (Part 390) 379 Imana v Robinson (1979) 3 and 4 SC 1 i Ishola v S.G.B. (Nigeria) Ltd (1997) 2 NWLR (Part 488) 405 Obmiami Brick and Stone (Nigeria) Ltd v African Continen- tal Bank Limited (1992) 3 NWLR (Part 229) 260 j Ojemen v Momodu (The Ogirrua of Irrua) (1983) 3 SC 173

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440 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I)

Onagoruwa v Akinremi (2001) 13 NWLR (Part 729) 38 a Solanke v Abed (1962) 1 All NLR (Part 2) 230 Trenco (Nigeria) Ltd v African Real Estate and Investment Co Ltd and another (1978) 1 LRN 146 b

Foreign Denning v Edward (1961) AC 245 Lennard’s Carrying Co v Asiatic Petroleum Co Ltd (1915) c AC 705 The Gold Coast and Ashanti Electric Power Development Corp. Ltd v Attorney-General of the Gold Coast (1937) 3 WACA 215 d

Counsel For the appellant: Prince J.O. Ijaodola (with him Mr S.A. Olawoye) e For the second respondent: Mr E.O. Sofunde, SAN (with him Onuogha, Esq.)

Judgment f ADEREMI JCA: (Delivering the lead judgment) In the court below, High Court of Lagos State, Holden at Lagos (Coram Ope-Agbe, J) the appellants who were the plaintiffs before that court claimed against the respondents who were the de- g fendants jointly and severally as follows:– (1) An account of what, if anything is due, on a mort- gage dated 24 May, 1985 and made between the plaintiffs and the first defendants. h (2) An order that the plaintiff may be at liberty to re- deem the property comprised in the said mortgage. (3) An inquiry whether any and what parts of the said mortgaged property have been sold and if so by i whom and for what sums of money and by whom the purchase money has been expended. (4) An Order setting aside the sale of the property com- prised in the mortgage aforesaid by the first j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Aderemi JCA Oredola Okeya Trading Co Ltd v. Bank of Credit and Commerce 441 a defendants to the second defendant on the ground of collusion between the first and second defendants, ir- regularity, non-compliance with the conveyancing and Law of Property Act, 1881 and that the pur- b ported sale was not made in good faith. (5) As an alternative to the relief claimed in paragraph 4 hereof, N2,500,000 damages against the first defen- dant for the wrongful sale of the mortgaged property c by the first defendant to the second defendant. The second respondent who was the second defendant in the court below counter-claimed against the first and second ap- pellants (the plaintiffs – the original claim) and the first re- d spondent (the first defendant – the original claim) all of who were the defendants to the counter-claim jointly and sever- ally in the event that the claims of the plaintiffs by original action succeed only as follows:– e (i) A refund of the purchase price of N650,000. (ii) A refund of N114,752.24 being the consent fees paid to the Lagos State Government. f (iii) A refund of N50,000 being agency fees paid to Messrs Jide, Taiwo and Co. (iv) Compound interest on N150,000 at the rate of 30% per annum or such rate prevailing from time to time g from the 11 November, 1988 until a refund is made. (v) Compound interest on N120,000 at the rate of 27% per annum, or such other prevailing rate from time to time less 3% from the 27 October, 1988 until the h refund is made. (vi) Interest on the sum of N64,752.24. Particulars (a) As to N47,500 from the 31 March, 1989 until i the said sum is refunded at such interest rates prevailing from time to time. (b) As to N7,500 from the 16 May, 1989 until the said sum is refunded at such interest rates pre- j vailing from time to time.

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(c) As to N9,752.24 from the 14 August, 1989 un- a til the said sum is refunded at such interest rates prevailing from time to time. N (vii) 75,000 being Solicitors’ fees plus cost. b The pleadings filed and exchanged between the parties are the statement of claim dated 8 August, 1989, the statement of defence and counter-claim of the second defendant and the first amended statement of defence and the reply to the c first defendant’s amended statement of defence. The case of the first plaintiff/appellant as gleaned from their statement of claim is that between 4 July, 1984 and 13 December, 1984 it (first plaintiff/appellant) borrowed a total d sum of N275,000 from the first defendant/respondent, a banking institution. By virtue of a deed of mortgage dated 24 May, 1984 registered as no. 3 at page 3 in Volume 5399 the property situate and being at No. 12 Alhaji Ribadu Road, e South-West, Ikoyi – Lagos was charged by the second de- fendant/appellant, its owner to secure the said loan granted to the first plaintiff/appellant. The mortgage deed although executed on the 24 May, 1984, the consent of the Governor was not obtained until 22 June, 1984. It was their further f case that the sale of the property described in the mortgage deed by first defendant/respondent to the second defen- dant/respondent/cross-appellant was null and void as they contended that the sale contravened the mortgage terms and g that the mortgage deed itself was void as it was executed on 24 May, 1984 before the mandatory consent of the Gover- nor, as required under sections 22 and 26 of the Land Use Act No. 6 of 1978 could be obtained. h The case of the defendants/first respondent and the second respondent. Cross-appellant going by their pleadings, is that the first appellant, the second appellant the surety and the owner of the property charged and the first respondent are i the parties to the said deed of mortgage. The first appellant failed to repay the loan within three months. The Demand Notice, as required under the Mortgage Deed, was served. After the expiration of three months from the receipt of the notice, the property of the second which was used to secure j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Aderemi JCA Oredola Okeya Trading Co Ltd v. Bank of Credit and Commerce 443 a the loan was sold to the second, respondent at open market value. Thereafter the Governor gave his consent for the transaction. The second respondent further contended that the appellants were estopped from challenging the sale be- b cause they had accepted and used the proceeds of the sale. Of course, the second respondent had a counter-claim for the refund of the purchase price and damages in the event the sale was set aside. c The case thereafter proceeded to trial at which both sides called evidence. The learned trial Judge in a reserved judg- ment delivered on 10 July, 1991, dismissed both the plain- d tiffs/appellants’ claim and the counter-claim of the second respondent. Being dissatisfied with the said judgment, the plaintiff appealed therefrom to the Court of Appeal upon two grounds. With the leave of court, they filed three addi- tional grounds. Distilled from the grounds of appeal and the e additional grounds are three issues which as set out in the brief of the appellants, are in the following terms:– (1) Is the learned trial Judge’s judgment in tune with the state of the pleadings and the evidence adduced at f pages 350–372 of the record? (2) Did the learned trial Judge properly interpret the law governing a mortgage transaction? g (3) Was the mortgage deed exhibit A or J valid when it was executed before the statutory consent was ob- tained? The second respondent served a Notice of Preliminary Ob- h jection. However, in alternative to the said Notice, he has identified three issues for the determination of the appeal; couched in his brief, they are as follows:– (1) Whether the judgment of the learned trial Judge is i against the weight of evidence? (2) Whether the learned trial Judge misconstrued the law regulating mortgage transactions? (3) Whether on the totality of the material before the j learned trial Judge he ought to have vitiated the sale

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of the property in question by the first respondent to a the second respondent because the Governor’s con- sent was not first had and obtained to the Mortgage exhibit A or J and the subsequent sale? b The second respondent also cross appealed against that part of the decision of the court below that was against him upon one ground of appeal. Distilled from the only ground incorporated into the notice c of cross appeal is one issue for determination. As set out in his brief of argument it is in the following terms:– “Whether having regard to the finding of the trial Judge that this respondent led no evidence on the counter-claim it did not amount to a finding of an abandonment of the counter-claim for which it d ought to have been struck out.” When this appeal came before us on the 25 September, 2002 Dr Ijaodola learned Counsel for the appellant adopted his clients’ brief filed on the 23 February, 2002 and urged us to e allow the appeal. Mr Sofunde, learned Counsel for the re- spondents adopted the second respondent’s brief filed on 11 December, 2001. On Issue No. 3 which deals with the point of failure to obtain the Governor’s consent before the trans- f action was concluded, learned Counsel submitted that that issue cannot be taken against second respondent because that point was only taken up for the first time in the Reply to the statement of defence of the first defendant; he finally g urged that the appeal be dismissed. Issue 3 on the appellants’ brief is similar to Issue 1 on the second respondent’s brief. Issues 2 and 3 on the appellants brief are in all material re- spect identical to Issues 2 and 3, on the second respondent’s h brief. Lastly, I shall take the only issue raised by the second respondent in his cross appeal. I shall however, start with the Notice of Preliminary Objection filed on 11 December, 2001 by the second respondent. The first point taken in the said i Notice is that the additional grounds of appeal are incompe- tent as they were filed by the appellants without seeking and obtaining the leave of court. I have carefully scrutinised the records of appeal before me I cannot find any application j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Aderemi JCA Oredola Okeya Trading Co Ltd v. Bank of Credit and Commerce 445 a seeking the leave of this Court to file additional grounds of appeal. Order 3 Rule 2(5) of the Court of Appeal Rules pro- vides:– b “The appellant shall not without the leave of court urge or be heard in support of any ground not mentioned in the Notice of ap- peal, but the court may in its discretion allow the appellant to amend the grounds of appeal upon payment of the fees prescribed for making such amendment and upon such terms as the court may c deem fit.” (Italics mine for emphasis.) The word “Leave” in this rule has been defined to mean per- mission (see Ojemen and others v His Highness W.O. Mo- modu (The Ogirrua of Irrua) and others (1983) 3 SC 173). d More often than not the grounds of appeal incorporated into the Notice of Appeal are not often comprehensive such as to enable the appellant bring before the Appellate Court the to- tality of his arguments. Hence provisions are made in the e Rules of Court for an appellant who wishes to add to the original grounds by bringing an application to seek and ob- tain the permission of the Court to add to his original grounds. What is thus added after making the necessary ap- f plication is called the additional grounds. Rules of court and practice directions which are rules touching on the admini- stration of justice are there commanding obedience to them. To enable an appellant to add more to his original grounds of appeal it is imperative that he first brings an application to g seek and obtain leave of the court to file such additional grounds. If the law were to be otherwise, any appellant would be at large or have an unqualified right to file more grounds at any time it pleases him, this will defeat the pur- h pose of the Rules of court which is to provide a time table for the conduct of litigation. The situation in the instant ap- peal is worse than that where no excuse is offered and con- sequently, no indulgence should be granted in law. There i was no application made let alone giving excuse. The addi- tional grounds, for the reason of failure to bring an applica- tion seeking and obtaining leave to file them, are incompe- tent. I shall not countenance them. Although, the second re- spondent has further urged that since the additional grounds j are incompetent, Issue (3) which he conceives is based on

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Aderemi JCA 446 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) them is also incompetent I have had a careful study of Issue a (3) I think the contents are materially subsumed in grounds two on the Notice of Appeal. Even Issue Nos. 2 and 3 identi- fied by the second respondent, which are similar to Issue 2 in the appellant brief materially take their root from Ground b 2 of the Notice of Appeal. Having dealt with the preliminary objection, it is my view that the remaining issues on the appellant’s brief of argu- ment can conveniently be taken together with the issues c identified by the second respondent. The appellants in their brief have argued that it was wrong for the learned trial Judge to have held that exhibit K – a let- ter dated 15 June, 1988 written by Oladimeji Awolegbe, the d Executive Director to the Solicitor of the first respondent Messrs Kolawole Somade and Co Solicitors acknowledging the receipt of exhibit C – the Demand Notice dated 27 May, 1988 written to the appellants by the first respondent solici- e tors when, according to them, there was no credible evi- dence that the second plaintiff/appellant received the said notice, exhibit C let alone he authorising the writing of ex- hibit K. The mortgage debt was therefore not due until the f Demand Notice has been delivered to the appellants. On the other hand, the first respondent in his brief of argument, that the fact that there was outstanding mortgage debt against the appellants is supported by the evidence on record. So also is copious evidence on record that exhibit C, the Demand No- g tice was served on the first plaintiff/appellant and exhibit K is the acknowledgment of the receipt of exhibit C. It is clear from the pleadings and the evidence that the first appellant took loans from the first respondent and that by vir- h tue of a deed of a mortgage between the first and second ap- pellant (both plaintiffs) on the one side and the first defen- dant, the second defendant as surety charged his property covered by a Title Deed No. LO: 5399 with re-payment to the i first defendant/respondent. The legal mortgage was tendered as exhibit A. Generally, in law, the legal estate in a mort- gaged property is vested in the mortgagee and until the prop- erty is redeemed by the mortgagor, he (the mortgagor) cannot transfer a valid title in the mortgaged property to a third party. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Aderemi JCA Oredola Okeya Trading Co Ltd v. Bank of Credit and Commerce 447 a The powers of the mortgagee to deal with the mortgaged property are often circumscribed. Clause of exhibit A which regulates the powers which the mortgagor or the mortgagee b many exercise over a mortgaged property provides:– “The Power of Sale conferred on Mortgagees by the Convey- ancing and Law of Property Act, 1881 shall take effect as if sec- tion 20 of that Act had been omitted from that Act but the said power shall as between the Bank and a Purchaser be exercisable at c any time after such demand as aforesaid but as between the Bank and the Borrower the Bank shall not exercise the said power of sale until payment of the moneys hereby secured has been de- manded and the Borrower has made a default for one month in paying the same but this Provision is for the protections of the bor- d rower only and shall not affect a Purchaser or put him upon an en- quiry whether such default has been made.” From the going provision it is clear to me that no right of e action shall accrue to the banker (“the mortgagee”) until he has served a demand notice to the borrower (“the mortga- gor”). Similarly, the mortgagee cannot exercise its power of sale until the Demand Notice has been served. In interpret- f ing the afore-mentioned provision, the Supreme Court in Al- haji Aminu Ishola v S.G.B. (Nigeria) Ltd (1997) 2 NWLR (Part 488) 405 observed at page 422 thus:– “It is also an implied term in the relationship between a banker and g his customer that there should be no right of action for the repay- ment of an overdraft until there has been a Demand or Notice given (see Augwu v Malami and another (1992) 9 NWLR (Part 264) 242 at 252). The cause of action does not arise until there has been a demand or notice given when therefore there is no specific h date agreed upon for the repayment of an over draft, as in the pre- sent case, a demand should be made or notice given. In other words, a cause of action on an unpaid over draft is not deemed to accrue where no specific date for payment is agreed upon until there has been a demand made or notice given.” i In the instant case, it is not an implied term, rather it is a term clearly agreed upon by the parties. The question then is whether a Demand Notice was served by the first respon- dent/mortgagee on the first or the second appellants contend j that the Demand Notice was not served, the first respondent

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Aderemi JCA 448 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) and the second respondent/cross-appellant maintain that the a said Notice was duly served. The only witness called by the plaintiffs/appellants who incidentally is the second appellant said:– b “I am the Chairman of the Company. ‘I did not know one Chief Olurotimi Williams until this morning when my lawyer pointed him out to me. I had no business transaction with him. I am aware that the bank had stated that it has purportedly sold my property to him. I was c not notified before the purported sale took place.’” When cross-examined he said:– “It is correct that as at that date my company was still owing the d Bank Mr Oladimeji Awolegbe is still the Managing Director of the Company. . . The bank did not tell me that they were to sell it was after the bank sold it that I was informed.” The first defendant through its witness one Mrs Patricia e Olubunmi Soyebi, its Assistant Manager, said:– “In May, 1988, the Bank’s Lawyer wrote to the Company and Al- haji Awolegbe giving them three months notice to pay up and in- forming them that of sale if, the three months notice. I see exhibit f C. They are letters written by the bank to the Company Alhaji Awolegbe.” The second witness called by the defence was one Ademola Ajeigbe its Deputy Branch Manager who said:– g “We instructed our lawyers Messrs K.K. Somade and Co to send a Demand Notice to the Customer requesting them to pay up the debt. Our lawyer wrote the letter as instructed to the Company and Alhaji Y.A. Awolegbe. This is the letter. Exhibit C. I am aware that a reply was received by our lawyer and he sent us a copy of h the acknowledgment copy.” The third D/W one Mufutau Kayode Osho testifying said:– “A demand notice was written to Oredola Okeya Trading Com- i pany Limited and Aihaji Yesufu Awolegbe . . . A response was re- ceived to exhibit C. One of their Executive Directors Oladimeji Awolegbe replied on behalf of the two Oredola Okeya Trading Company and Alhaji Yesufu Awolegbe I have seen the letter. This is the letter.” j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Aderemi JCA Oredola Okeya Trading Co Ltd v. Bank of Credit and Commerce 449 a The letter dated 15 June, 1988 was tendered as exhibit K on the letter heading of the first appellant which reads:– “Kolawole Shomade and Co b Barristers, Solicitors and Notaries Public 4/6 Oil Mill Street, P. O. Box 7723, Lagos. c Dear Sir, Firstly, I will like to apologise for the delay in replying to the letter written to:– (1) Alhaji Yesufu Alabi Awolegbe. d (2) The Managing Director – Oredola Okoya Trading Co Ltd. On the 24 May, 1988 in reference to our Legal Mortgage Building, Plot 309, Ribadu, Ikoyi to the Bank of Credit and Commerce International Nigeria Limited. e The reasoning were (sic) that I, Mr Oladimeji Awolegbe an Executive Director of the Company was on overseas tour for consulting business in relations to acquisition and merger of a company, I shall like to inform you that I have f written to the Bank for re-organisation plan and I am pres- ently expecting favourable reply. Thank you very much, Sir. Yours Faithfully g for: Oredola Okeya Trading Co Ltd SGD Oladimeji Awoleghe Executive Director.” h The demand notice as I have said is exhibit C while the re- ply to it from the defendants is exhibit K which was written and signed by Oladimeji Awolegbe its Executive Director. It is not in dispute that Oladimeji Awolegbe was at the time i material to this case the Executive Director of the first ap- pellant; he, on decided authorities was the directing mind and will of the first defendant; and whatever he did on be- half of the company is regarded as having been done by the company (see (1) Trenco (Nigeria) Ltd v African Real Estate j and Investment Co Ltd and another (1978) 1 L.R.N. 146 and

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(2) Lennard’s Carrying Co v Asiatic Petroleum Co Ltd a (1915) A.C. 705). Before I answer Issues 1 on the appellants’ brief and 1 on the respondent/cross-appellant’s brief, I think it is appropri- b ate to now deal with the over-flogged issue of whether the Land Use Act, 1978 forbids agreement to alienate before Governor’s consent is obtained section 22 of the Land Use Act, 1978 requires the mortgagor to obtain the consent of the Governor before there can be transfer of his interest in the c property to the mortgagee. Section 22 Land Use Act, 1978 does not forbid the parties into entering into an agreement of the nature entered into by the first and second appellants on the one hand and the first respondent on the other. Interpret- d ing a similar provision on the Kenya Land Ordinance the Judicial Committee of the Privy Council in delivering its judgment in Denning v Edward (1961) A.C. 245 held that under the provisions of the law such as ours, the agreement e to alienate without the consent, of the Governor was not void ab initio rather it remained inchoate until the consent of the Governor was obtained. This decision has been followed in a number of decisions, in Nigeria starting with (1) Solanke v Abed and others (1962) 1 All NLR (Part 2) 230; (2) Awo- f jugbagbe Light Industries Ltd v Chinukwe (1995) 4 NWLR (Part 390) 379 and (3) Onagoruwa v Akinremi and others (2001) 13 NWLR (Part 729) 38. Having regard to all I have been saying, Issues 1 and 2 are g answered in the affirmative. With regard to Issue 3 although the Mortgage deed exhibit A entered into before the Gover- nor, consent cannot be said to be absolutely valid yet it was not void ab initio it remained inchoate pending the consent h of the Governor Issues 1, 2 and 3 on the respondent/cross- appellant’ are answered in the negative. The appeal of the appellants is therefore unmeritorious and must be dismissed. i I now go unto the cross appeal which may seem to be merely an academic exercise having regard to the treatment of the substantive appeal. The only issue formulated by the cross-appellant poses the question as to whether the learned trial Judge was right in dismissing the counter-claim when j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Aderemi JCA Oredola Okeya Trading Co Ltd v. Bank of Credit and Commerce 451 a the second respondent/cross-appellant did not lead any evi- dence in support. In civil proceedings, once pleadings have been settled and issues have been joined, the duty of the court is to proceed to the trial of the issues so joined (see b The Gold Coast and Ashanti Electric Power Development Corp. Ltd v Attorney-General of the Gold Coast (1937) 3 W.A.C.A. 215). Where however one of the parties fails or refuses to submit the issues raised by him in his pleadings c for trial by calling evidence in their support, a trial Judge, until there are other legal reasons dictating to the contrary, must resolve the case against the defaulting party (see Imana v Robinson (1979) 3 and 4 SC 1). The order to be made in d such circumstances as in the instant case, is as directed by the Supreme Court in the case of Obmiami Brick and Stone (Nigeria) Ltd v African Continental Bank Limited (1992) 3 NWLR (Part 229) 260 at page 299 it was observed by Olatawura, JSC thus:– e “Where a plaintiff or a defendant who files a counter-claim aban- dons his claim without leading any evidence the proper order to make is to strike out the case or the counter-claim. The learned trial Judge was wrong to have dismissed the counter-claim.” f Following the above decision in the Obmiami’s case, I say that the order of the trial Judge dismissing the counter-claim is wrong in law. In its place, I make an order striking out the counter-claim. The cross appeal thus succeeds. g In the final analysis the appeal which in my judgment, has been found to be unmeritorious, is hereby dismissed, the judgment of the court below subject to what I have said as to the order made on the counter-claim, is hereby affirmed. The h cross appeal succeeds and I substitute an order striking out the counter-claim for the order of the learned trial Judge dismissing same. The second respondent/cross-appellant is entitled to the cost of this appeal and cross appeal which I i assess and fix in his favour but against the appellants a N7,500. OGUNTADE JCA: The main issue in this appeal centred on whose evidence the lower court accepted as to the service of j the demand notice prescribed in the Deed of mortgage on

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Oguntade JCA 452 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) the first appellant. The court accepted that the notice was a issued and served. My learned brother has comprehensively considered the germane issues. I agree with his analysis of the issues and the conclusion thereon. I would dismiss the main appeal and allow the cross appeal. I award N7,500 b costs in favour of second respondent/cross-appellant against the appellants. CHUKWUMAH-ENEH JCA: I agree. c Main appeal dismissed, cross appeal allowed.

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United Bank for Africa Plc v. Coker Gbadebo 453 a United Bank for Africa Plc v Coker Gbadebo

COURT OF APPEAL, LAGOS DIVISION b OGUNTADE, GALADIMA, ADEREMI JJCA

Date of Judgment: 2 DECEMBER, 2002 Suit No.: CA/L/204/96

Banking – Banker and customer relationship – Amount c owed and due by customer on Loan facility – How deter- mined Evidence – Estoppel per rem judicatam – When does it apply d Judgment and orders – Interlocutory – Judgment on admis- sion – Judge later discovering that the ruling on admission was incorrect – Whether can revisit the order – Whether such interlocutory judgment can ground estoppel per rem e judicatam Practice and procedure – Exhibit – Release of by court – Order 33 Rule 21(1) and (2) of High Court of Lagos State (Civil Procedure) Rules, 1994 f Facts In Suit No. LD/690/89 before the Lagos State High Court, the appellant was the plaintiff and the respondent the defen- g dant. The appellant claimed from the respondent the follow- ing:– (a) Declaration that the defendant is indebted to the plaintiff in the sum of N475,453.42 (Four Hundred h and Seventy-five Thousand, Four Hundred and Fifty- three Naira, Forty-two Kobo) being the outstanding amount on the defendant’s account no. 6010001913 (formerly 651) with the plaintiffs Lagos University i branch in respect of overdraft and/or loan facilities made available to the defendant on the said account by the plaintiff at the defendant’s request. (b) An order of sale of the property known as no. 9/11 j Eyinwuawi Street, and registered as no. 26 at page

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26 in Volume 100 at the Lands Registry, Lagos a which title deeds are deposited as security for obtain- ing the said facilities. The plaintiff filed a statement of claim. The defendant at b first filed a statement of defence wherein he admitted owing the plaintiff only N50,000 of the sum claimed. The plaintiff brought an application for interlocutory judgment on the N50,000 which the defendant admitted owing. The lower court gave interlocutory judgment on 12 March, 1990 for c N50,000. The trial then commenced as to the balance out- standing when allowance was made for the N50,000 which the defendant admitted owing. The defendant later brought an application to amend his statement of defence which was d granted. In the third amended statement of defence, the de- fendant pleaded several bank tellers which showed that he had previously paid to the plaintiff more than he admitted owing the plaintiff. The excess payment in the defendant’s e favour as pleaded was N91,213. The defendant raised a counter-claim for N1,679,824 as the excess payment made to the plaintiff with interest. On 8 March, 1994 the plaintiff filed a defence to the f counter-claim contending that as the defendant had previ- ously admitted owing the plaintiff N50,000 for which inter- locutory judgment was given against the defendant, the doc- trine of res judicata operated and the defendant could not properly withdraw the admission. g On this state of pleading, the case was heard by Adeyinka, J on 12 April, 1996, the learned trial Judge in his judgment dismissed plaintiff’s claims and gave judgment in favour of the defendant for N91,741.47 with interest on the counter- h claim. He also directed that the defendant’s deed of lease which had been tendered as an exhibit in the course of hear- ing be returned to him. The plaintiff was dissatisfied with the judgment of the i lower court. It has brought this appeal against it. Held – 1. This was a claim between a bank and its customer. The success of the claim made by the plaintiff depended on j

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United Bank for Africa Plc v. Coker Gbadebo 455 a the accuracy of the account kept between the parties. The case of the plaintiff was based on a running account- ing practice meaning that the amount claimed as out- standing against the defendant could only be arrived by b deducting thereof the amount that had been paid. 2. For a party to rely on the previous judgment of a court as creating estoppel per rem judicatam, the judgment relied upon must have finally determined the issue in dispute c between the parties. 3. As to whether or not the defendant had fully repaid the loan, what the lower court needed to do was relate the tellers tendered as exhibits D1 to D14 to the account op- d erated by the defendant with the plaintiff and with refer- ence to the dates of payment. The lower court did this and came to the right conclusion. 4. The provisions of Order 33 Rules 21(1) and (2) of the La- e gos State High Court (Civil Procedure) Rules, 1994 did not prevent the lower court from making in its judgment whatever order it thought the justice of the case de- manded. It was for the court clerk to pay heed to the ap- f plicability of the above rule to the facts of the case and not release the exhibit until the period for filling an appeal has expired. The trial Judge could of course in its judg- ment specifically make the order that the exhibit be not g released until after three months but since in any case he is still to give an administrative directive in chambers as to the release of the exhibit, that he did not state so in his judgment would not have any consequence. h Appeal dismissed. Nigerian rules of court referred to in the judgment High Court of Lagos State (Civil Procedure) Rules, 1994, i Order 33 Rule 21(1), (2)

Counsel For the appellant: Mr D. Ayisire j For the respondent: Mr Omoniyi Ola

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Judgment a OGUNTADE JCA: (Delivering the lead judgment) In Suit No. LD/690/89 before the Lagos State High Court, the ap- pellant was the plaintiff and the respondent the defendant. b The appellant claimed from the respondent the following:– “(a) Declaration that the defendant is indebted to the plaintiff in the sum of N475,453.42 (Four Hundred and Seventy-five Thousand, Four Hundred and Fifty-three Naira, Forty-two Kobo) being the outstanding amount on the defendant’s ac- c count No. 6010001913 (formerly 651) with the plaintiffs Lagos University branch in respect of overdraft and/or loan facilitates made available to the defendant on the said ac- count by the plaintiff at the defendant’s request. d (b) An order of sale of the property known as No. 9/11 Eyin- wuawi Street, and registered as No. 26 at page 26 in Vol. 100 at the Lands Registry, Lagos which title deeds are de- posited as security for obtaining the said facilities.” The plaintiff filed a statement of claim. The defendant at e first filed a statement of defence wherein he admitted owing the plaintiff only N50,000 of the sum claimed. The plaintiff brought an application for interlocutory judgment on the N50,000 which the defendant admitted owing. The lower f court gave interlocutory judgment on 12 March, 1990 for N50,000. The trial then commenced as to the balance out- standing when allowance was made for the N50,000 which the defendant admitted owing. The defendant later brought g an application to amend his statement of defence which was granted. In the third amended statement of defence, the de- fendant pleaded several bank tellers which showed that he had previously paid to the plaintiff more than he admitted h owing the plaintiff. The excess payment in the defendant’s favour as pleaded was N91,213. The defendant raised a counter-claim for N1,679,824 as the excess payment made to the plaintiff with interest. i On 8 March, 1994 the plaintiff filed a defence to the counter-claim contending that as the defendant had previ- ously admitted owing the plaintiff N50,000 for which inter- locutory judgment was given against the defendant, the j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Oguntade JCA United Bank for Africa Plc v. Coker Gbadebo 457 a doctrine of res judicata operated and the defendant could not properly withdraw the admission. On this state of pleading, the case was heard by Adeyinka, b J on 12 April, 1996, the learned trial Judge in his judgment dismissed plaintiff claims and gave judgment in favour of the defendant for N91,741.47 with interest on the counter- claim. He also directed that the defendant’s deed of lease c which had been tendered as an exhibit in the course of hear- ing be returned to him. The plaintiff was dissatisfied with the judgment of the lower court. It has brought this appeal against it. In the ap- d pellant’s brief filed, the issues for determination were identi- fied as the following:– “(i) Whether on a correct assessment of the facts of his case, it is reasonable to come to the conclusion that the appellant is e indebted to the respondent upon the promise that respon- dent had repaid overdraft facility obtained from the appel- lant with an excess. (ii) Whether indeed if there was an excess payment the learned trial Judge was correct in awarding such sums as judgment f against the appellant when there was no evidence before him that respondent ever demanded the alleged excess or that his account was closed by the appellant against his au- thorisation. g (iii) Whether the judgment obtained on 12 March, 1990 (exhib- its P18) based on admission contained in the statement of defence and subsequently in an affidavit in support of a mo- tion for stay of execution was one obtained on the merits, and if so, whether it can be set aside by the learned trial h Judge. (iv) Following from (iii) above whether the issue of res judicata raised by the appellant in the ‘defence to counter-claim’ ought to avail it. i (v) Whether in the circumstances of this case the learned trial Judge was right to order a release forthwith to the respon- dent of the title documents (exhibits P45) which secure the overdraft, inspite of the appellant’s right of appeal and the provision of Order 33 Rule 21 of the High Court of Lagos j States (Civil Procedure) Rules, 1994.”

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The respondent in his brief raised six issues for determina- a tion. The issues read:– (i) Whether or not the trial Judge rightly held that the defen- dant/respondent had fully paid the money alleged to have b been loaned to the respondent by the plaintiff/appellant by the time Suit No. LD/690/8 was filed at the High Court of Lagos State. (ii) Whether in the face of the evidence before the court, the circumstances, and facts surrounding this case, the respon- c dent could be said to have liquidated the said N50,000. (Fifty Thousand Naira) loan overdraft and also paid an ex- cess of N91,213. by the time this action was taken by the appellant. d (iii) Whether the summary judgment given against the respon- dent on the 12 March, 1990 could be set aside if it was later detected that the judgment was taken by fraud and the Judge was misled by the fraudulent statement of the plain- tiff/appellant in arriving at his decision. This was while the e case has not been finally decided by the Judge. (iv) Whether the defendant/respondent who was deprived of the opportunity to know the statement of his account for many years despite his repeated demand for the said statement of account was right to file a counter-claim immediately he f laid his hands upon all the tellers with which he paid back to the plaintiff the money alleged to have he owed but paid back in excess. (v) Whether the plaintiff/appellant has the right to prevent the g defendant’s right to amend his statement of defence and file counter-claim while the substantive case was still before the trial court and the said final judgment has not been decided on merit. (vi) Whether the trial Judge was right not to abandon his duty so h as to stop the judicial investigation of the matter before the court based on the pleadings on both sides of the argument because the appellant said the trial Judge promised him that the court would not consider the fact of the interlocutory judgment no matter what happened later in the case? What i happened when fraud and dishonesty later surfaced?” I shall be guided in this judgment by the appellant’s issues. It must be observed here that appellant’s Counsel did not ar- gue the issues for determination one after the other. Rather, j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Oguntade JCA United Bank for Africa Plc v. Coker Gbadebo 459 a the argument of all the issues was done together as in a run- ning prose with the result that it was impossible to appropri- ate the substance of the arguments to specific issues. I shall b therefore in this judgment have to consider all the issues to- gether. I observed earlier that the plaintiff following an admission made by the defendant in his statement of defence for c N50,000 of the amount claimed brought an application for interlocutory judgment. On 12 March, 1990, the trial Judge in reaction to the application said:– “Ordered as prayed, leave is granted to the plaintiff to enter inter- d locutory judgment against the defendant for N50,000 being amount admitted by the defendant in his statement of defence.” The lower court proceeded to hear evidence in respect of the balance remaining on the amount claimed by the plaintiff. e Meanwhile the defendant filed an amended statement of de- fence the effect of which was to convey that he had taken only, a loan of N50,000 from the plaintiff bank and that the said loan had more than been fully paid. f In paragraph 10(h) to (q) of the fourth amended statement of defence it was pleaded thus:– “h. That the defendant caused his solicitor to write to the plain- N g tiff asking for statement of account of the 50,000 without any success. The defendant will rely on these letters. i. That the said overdraft of N50,000 which the plaintiff granted defendant has been finally repaid as follows:– N h a. By teller of 6 February, 1978 the sum of 20,000 on the defendant’s account 631. b. By teller of 24 July, 1978 the sum of N15,000 on the defendant account 631. c. By teller of 18 April, 1978 the sum of N10,000 on the i defendant‘s account 631. d. By teller of 11 May, 1978 the sum of N10,000 on the defendant’s account 631. e. By teller of 30 March, 1978 the sum of N11,440 on the j defendant’s account 631.

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f. By teller of 19 May, 1978 the sum of N15,000 on the a defendant’s account 631. g. By teller of 17 January, 1978 the sum of N10,000 on the defendant’s account 631. b h. By teller of 28 February, 1978 the sum of N1,000 on the defendant’s account 631. i. By teller of 26 March, 1978 the sum of N35,000 on the defendant’s account 631. c j. By teller of 5 May, 1978 the sum of N2,000 on the de- fendant’s account 631. k. By teller of 26 March, 1978 the sum of N5,000 on the defendant’s account 631. d l. By teller of 24 May, 1984 the sum of N2,000 on the defendant’s account 631. m. By teller of 2 February, 1981 the sum of N500 on the defendant’s account 631. e n. By teller of 31 May, 1989 the sum of N10,000 on the defendant’s account 631. o. By Insurance Company Ltd maturing Life Policy No. N 11523, 2,573. 23 November, 1988 defendant’s ac- f count. p. That these payments were paid into the account no. 631 operated by the defendant at the plaintiff’s branch at Akoka – Yaba and the total payments amounted to N141,213.00k. g q. That the defendant is not indebted to the plaintiff and he is not liable to the plaintiff’s claim.”

At the trial, the defendant tendered as exhibits D1 to D14 the h bank tellers by which the defendant paid back the loan of N50,000. The plaintiff did not challenge exhibits D1to D14 as forgeries. In other words it was not contested that the de- fendant paid to the plaintiff all the amounts shown on each of exhibits D1 to D14. In all the defendant had paid the sum i of N141,213 as against a loan of N50,000. Remarkably the sum of N141,213 had been paid to the plaintiff as far back as 1978. The defendant in his evidence in court testified that as at the time he made the admission that he was owing the j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Oguntade JCA United Bank for Africa Plc v. Coker Gbadebo 461 a plaintiff N50,000 in his statement of defence, he had not found the bank tellers exhibits D1 to D14. In his judgment, at page 145 of the record of appeal, Adey- b inka, J observed:– “It will amount to gross injustice if after granting an interlocutory judgment for a liquidated sum and it was established at the trial that the interlocutory judgment ought not to have been granted, the c court nevertheless allowed the interlocutory judgment to stand against a defendant. I will therefore determine whether by virtue of the amendment of the statement of defence, the defendant had in fact paid the d N50,000 before this action was instituted by the plaintiff. The de- fendant produced the tellers exhibits D1–D14 and the insurance sum exhibits D15 and D16 to show not only that he had paid the 1977 O/D of N50,000 but also that he had overpaid the plaintiff. The tellers exhibits D1–D4 covered the period 17 January, 1978 to e 31 January, 1989 but I will consider first now the tellers for the pe- riod January, 1978 to September 1978. I must say that the said bank tellers were admitted and tendered in evidence through the plaintiff’s witness.” f And at page 152, the trial Judge said:– “The interlocutory judgment of 12 March, 1990 for N50,000. was a nullity and so the issue of res judicata did not apply. The inter- locutory judgment of 12 March, 1990 for N50,000. ought not to g have been granted and is accordingly set aside.” It must be said here that the trial Judge thoroughly consid- ered the evidence on the circumstance leading to the admis- sion made by the defendant. He concluded that the plaintiff h had not been sending statements of account to the defendant and that the number of the defendant’s account was changed without information to the defendant. Finally the trial Judge made a finding that the defendant had repaid the loan i granted him as at 28 December, 1978. He also held that the defendant paid to the plaintiff N91,741.47 over and above what was due to the plaintiff. The appellant’s Counsel has argued in his brief that the j lower court was in error to have concluded based on exhibits

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D1 to D11 that the defendant between 17 January, 1978 and a 2 June, 1978 paid N135,140. The defendant vide exhibit P7 admitted owing the plaintiff N58,741.53. With respect to appellant’s Counsel, I think his arguments b overlooked the findings of the trial Judge at pages 138 to 140 of the record thus:– “The burden of proof was on the plaintiff to establish that as at 30 N April, 1993 the defendant was owing an O/D 475,453.02 with in- c terest at 25% per annum on account no. 6010001913 in view of the denial of the defendant in paragraph 3 of the fourth amended statement of defence and counter-claim and that he was not the owner of account no. 6010001913 and more so when it was agreed by the parties that the O/D facility of N50,000 of 1977 as per ex- d hibit P2 of 23 November, 1977 was granted account no. 631. The plaintiff did not produce in evidence the statements of account no. 631 for the period of the O/D from 30 November, 1977 to Sep- tember, 1987 to enable the court determine the position of the ac- count no.631 as at the expiry date of the N50,000 O/D in Septem- e ber, 1978. The plaintiff however produced its letter of demand to the defendant relevant statement of account.” This, the plaintiff was unable to do. The plaintiff com- pounded the situation by the evidence that it changed the f number of the account from which the plaintiff drew the loan of N50,000 from 631 to 6010001913 without informing the defendant. The result was that the defendant kept paying money into the old account which payment were not re- g flected in the new account. The lower court was therefore right to come to the conclusion it did. The appellant, relying on res judicata argued that once judgment had been given against the defendant for the h N50,000 admitted, it was no longer open to the court in the final judgment to set aside the judgment. This was a claim between a bank and its customer. The success of the claim made by the plaintiff depended on the accuracy of the account i kept between the parties. The case of the plaintiff was based on a running accounting practice meaning that the amount claimed as outstanding against the defendant could only be arrived by deducting thereof the amount that had been paid. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Oguntade JCA United Bank for Africa Plc v. Coker Gbadebo 463 a In this case, the defendant had made a counter-claim based on the fact that he had paid more money than it owed. Nec- essarily therefore in order to determine the merits of the counter-claim the lower court needed to determine:– b (1) How much was owed by the defendant to the plain- tiff. (2) How much was paid. c (3) Whether there was indeed an excess payment. This being a bank account running sequentially the amount paid by a customer would have an impact on the state of the account since it was upon the balance outstanding at a given d point that interest would be calculated. If the lower court was not to look again into how much had been paid, how was it to determine if indeed the defendant had overpaid by N91,213. for which he made a counter-claim. e For a party to rely on the previous judgment of a court as creating estoppel per rem judicatam, the judgment relied upon must have finally determined the issue in dispute be- f tween the parties. It is my view that the lower court was right to have determined as it did that the evidence before it showed that the amount which was the subject-matter of the interlocutory judgment had indeed been fully paid. g As to whether or not the defendant had fully repaid the loan, what the lower court needed to do was relate the tellers tendered as exhibits D1 to D14 to the account operated by the defendant with the plaintiff and with reference to the h dates of payment. The lower court did this and came to the right conclusion. Finally is the complaint that the lower court should not have made an order for the immediate release of exhibit 45 i to the defendant since the plaintiff had a right of appeal on the judgment. Order 33 Rule 21(1) and (2) of the High Court of Lagos State (Civil Procedure) Rules, 1994 provides:– “21(1) An exhibit shall not be released, after the trial, to the j party who has put it in unless the period during which

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notice of appeal to the Court of Appeal may be given a has elapsed without such notice having been given, and then only if the Judge who presided over the trial (or in his absence, another Judge) grants leave to release which exhibit on being satisfied:– b (a) that there will be no appeal, (b) that the exhibit will be kept duly marked and la- belled and will be produced, if required at the hear- ing of an appeal in the Court of Appeal if any such appeal is lodged, or c (c) that the release of the exhibit will not in any way prejudice any other party. (2) After a notice of appeal to the Court of Appeal has been filed, an exhibit produced at the trial shall not be re- d leased by the High Court unless leave to release such exhibit is granted by the Court of Appeal.” The provisions of the above rule did not prevent the lower court from making in its judgment whatever order it thought e the justice of the case demanded. It was for the court clerk to pay heed to the applicability of the above rule to the facts of the case and not release the exhibit until the period for filling an appeal has expired. The trial Judge could of course in its f judgment specifically make the order that the exhibit be not released until after three months but since in any case he is still to give an administrative directive in chambers as to the release of the exhibit, that he did not state so in his judgment would not have any consequence. g In the final conclusion, this appeal has no merits, It is dis- missed with N6,500 costs in favour of the defen- dant/respondent. h GALADIMA JCA: I have had the privilege of reading in draft the lead judgment just delivered by my learned brother Oguntade, JCA. The facts of this case have been properly and accurately i detailed in the lead judgment and no useful purpose will be served in repeating them, I adopt those facts. I share the same view that the lower court rightly decided that the evi- dence before it showed that the account which was the sub- ject matter of interlocutory judgment had indeed been fully j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Galadima JCA United Bank for Africa Plc v. Coker Gbadebo 465 a paid. The learned trial Judge did this by carefully relating the payment tellers tendered as exhibits D1 to D14 to the ac- count operated by the respondent with the appellant. He also made references to the dates of payment. The lower court b did a thorough review of these exhibits. I also agree that this appeal lacks merit. I too dismiss it with N6,500 costs in fa- vour of the respondent. ADEREMI JCA: I agree with my learned brother, Oguntade, c JCA whose reasons for judgment I have had the privilege of a preview that the appeal is lacking in merit. The facts of this case as reviewed in the lead judgment as evidenced by the tellers, exhibits D1 to D14 show that the defen- d dant/respondent had fully repaid his outstanding debt to the appellant. Justice is much more than a game of hide and seek. To hold otherwise than as the lower court had held would be tantamount to injustice. I would also dismiss the e appeal while I abide by the order as to cost contained in the lead judgment. Appeal dismissed.

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a Chief Francis Okwuchukwu Nzekwesi v Federal Republic of Nigeria b COURT OF APPEAL, KADUNA DIVISION SALAMI, ADAMU, UMOREN JJCA Date of Judgment: 10 DECEMBER, 2002 Suit No.: CA/K/229/99

Banking – Interest – Right to charge by bank c Dishonoured Cheques Offences – Imposition of fine for of- fence – Improper Facts d This is an appeal by the second accused against the judg- ment of Ope Agbe, J, sitting as Chairman of Failed Banks (Recovery of Debts) and Financial Malpractice in Banks Tribunal in Lagos. The learned chairman of the tribunal, af- e ter finding appellant guilty and convicting him ordered that “all property deposited by the accused to be forfeited by the Federal Government to cover the amount still pending”. In a remarkably lenient sentence passed by the tribunal, the sec- ond accused, who had been on bail throughout the period of f trial, was sentenced to two years imprisonment or N100,000 fine in lieu on the count of issuing dud cheques. Both sen- tences were to run concurrently and the appellant thereby completely avoided restrain on his liberty by immediately g opting for payment of the fine. The appellant is apparently satisfied with both the convic- tion as well as sentence passed on him and has not chal- lenged them on appeal. He is, however, dissatisfied with the h finding of the tribunal to the effect that he paid only N58,022,757.40 and forfeiture order and has accordingly appealed against the finding and the consequential order of forfeiture. The part of the decision he is not happy with and i is complaining about is the holding of the tribunal that the sum of money so far recovered from the appellant by Nige- ria Arab Bank Limited is N58,022,757.40 out of a principal sum of N91,948,000 leaving a balance of principal and ac- cumulated interest totalling N119,749,138.10 and that the j

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Chief Francis Okwuchukwu Nzekwesi v. Federal Rep of Nigeria 467 a property deposited by the appellant with the Nigeria Arab Bank be forfeited by the Federal Government of Nigeria to recover the outstanding balance. b Held – 1. By a universal custom of banking, a banker has the right to charge interest at a reasonable rate on all overdrafts. 2. The Dishonoured Cheques (Offences) Act Cap 102 c Laws of the Federation of Nigeria, 1990 section 1(b)(1) thereof – does not permit, allow or provide for an option of fine, it was wrong for the learned chairman of the trial tribunal to give the appellant such an option in the sen- d tence as contained in his judgment. Appeal dismissed.

Cases referred to in the judgment e Nigerian Akpan v Otong (1996) 10 NWLR (Part 476) 108 Chukwu v Nitel (1996) 2 NWLR (Part 430) 290 f Ebba v Ogodo (1984) 1 SCNLR 372 Nneji v Chukwu (1996) 10 NWLR (Part 478) 265 Okafor v Idigo (1984) 6 SC 1 Otuo v Nteogwuile (1996) 4 NWLR (Part 440) 56 g Foreign Bower v Turner (1863) L.J. Ch. 54 Seldon v Davidson (1968) 1 WLR 1083 h Younell v Hibernian (1918) AC 372 Nigerian statute referred to in the judgment Dishonoured Cheques Offences Act Cap 102 Laws of the i Federation of Nigeria, 1990, section 1(b)(i) Counsel For the appellant: Ben O. Nwaogu, Esq, j For the respondent: S.E. Elema

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Judgment a SALAMI JCA: (Delivering the lead judgment) This is an ap- peal by the second accused against the judgment of Ope Agbe, J, sitting as Chairman of Failed Banks (Recovery of b Debts) and Financial Malpractice in Banks Tribunal in La- gos. The learned chairman of the tribunal, after finding ap- pellant guilty and convicting him ordered that “all property deposited by the accused to be forfeited by the Federal Gov- ernment to cover the amount still pending”. In a remarkably c lenient sentence passed by the tribunal, the second accused, who had been on bail throughout the period of trial, was sen- tenced to 2 years’ imprisonment or N100,000 fine in lieu on the count of issuing dud cheques. Both sentences were to run d concurrently and the appellant thereby completely avoided restrain on his liberty by immediately opting for payment of the fine. The appellant is apparently satisfied with both the convic- e tion as well as sentence passed on him and has not chal- lenged them on appeal. He is, however, dissatisfied with the finding of the tribunal to the effect that he paid only N58,022,757.40 and forfeiture order and has accordingly f appealed against the finding and the consequential order of forfeiture. The part of the decision he is not happy with and is complaining about is the holding of the tribunal that the sum of money so far recovered from the appellant by Nige- g ria Arab Bank Limited is N58,022,757.40 out of a principal sum of N91,948,000 leaving a balance of principal and ac- cumulated interest totalling N119,749,138.10 and that the property deposited by the appellant with the Nigeria Arab Bank be forfeited by the Federal Government of Nigeria to h recover the outstanding balance. The second accused filed within time a notice of appeal containing two grounds of appeal on 10 September, 1998. With the leave of the Special Appeal Tribunal, an amended i notice of appeal, with three grounds of appeal, from where appellant formulated the following two issues, was filed:– (i) Having regard to the circumstance of this case was the lower tribunal right to find that the appellant j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Salami JCA Chief Francis Okwuchukwu Nzekwesi v. Federal Rep of Nigeria 469 a only paid N58,022,757.40 and is still indebted to the tune of N119,749,138.10 to Nigeria Arab Bank Limited? b (ii) Can the order of forfeiture be justified in the cir- cumstance of this case? The respondent in its brief also framed these two issues:– “3.1 Whether the appellant had actually paid the bank much more than the sum of N58,022,759.40 to NAB Limited as c alleged. 3.2 Whether the order of forfeiture against the appellant’s mortgaged property is supported by law and the facts.” The two formulations respectfully are identical and Issue 2 d thereof is merely a concomitant of the first issue. The out- come or answer to that issue is contingent upon the answer to the first one. In view of the opinion I have formed of the formulations, it is proposed to consider in the first instance e appellant’s first issue. At the hearing of the appeal, learned Counsel for appellant was not in court hence the appeal was deemed argued on the appellant’s brief filed on 24 April, 1999 before the Special f Appeal Tribunal by virtue of Order 6 Rule 9(5) of the Court of Appeal Rules Cap 62 of the Laws of the Federation of Nigeria, 1990. The respondent’s brief filed at the Special Appeal Tribunal on 2 May, 1999 and refiled on 8 August, g 2001 this Court was adopted by learned Counsel for respon- dent, Mr Elema. He urged upon us, without further elabora- tion, to dismiss the appeal for want of merit. The appeal turns mainly on the state of the account of h Franchal Nigeria Limited with the Nigeria Arab Bank Lim- ited, Onitsha branch. And for a better appreciation of the ap- peal it is apt, at this stage, to succinctly state the facts of the case. i The appellant is the chairman and managing director of two companies, namely Ocnogit International Limited and Franchal Nigeria Limited. Ocnogit International Limited maintained an account at African Continental Bank Limited, Ajaokuta and Franchal Nigeria Limited has an account j domiciled at Onitsha branch of Nigeria-Arab Bank Limited.

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The appellant is the sole signatory to both accounts. The ap- a pellant caused two cheques H/4373120 dated 7 December, 1991 and H/4373121 dated 7 December, 1991 drawn on the account of Ocnogit International Limited respectively for N42,715,000 and N49,233,000 to be deposited into the ac- b count of Franchal Nigeria Limited at Nigeria Arab Bank Limited, Onitsha branch. Before the two cheques were cleared indeed, within three days of the two cheques being paid in, the appellant obtained value for them. The cheques c drawn against the uncleared effects were honoured by one Sabianus Asonye Onuoha, the branch Manager of the Nige- ria Arab Bank Limited, Onitsha, at the material time. The appellant drew 121 cheques which were tendered and d admitted as exhibits B to B120 with a total value of N109,653,737. This was in excess of the nominal values of both cheques which were placed at N91,948,000. The two cheques were processed for clearing by the receiving bank e but each cheque was presented unsuccessfully twice for payment. Exhibit A was presented on 11th and 24 Decem- ber, 1991 while exhibit A1 was presented on 16th and 24th December, 1991 as borne out by the rubber stamp impres- sions of the African Continental Bank Limited placed on f them on the respective dates. African Continental Bank Limited returned the two cheques, on first presentation, for lack of sufficient funds g and endorsed them “uncleared effects, represent”. On second presentation they were equally returned, though for a differ- ent reason which was payment stopped. In other words the appellant after receiving value for the cheques stopped them. The details were brought to the attention of the appellant h who was advised to rectify the position. Meanwhile, the appellant and the first accused, Sabianus Asonye Onuoha were arraigned before the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks i Tribunal Zone 2, Lagos. In the appellant’s brief, it was submitted that the tribunal wrongly held that the appellant only paid N58,022,757.40 and is still indebted to the tune of N119,749,138.10 to the j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Salami JCA Chief Francis Okwuchukwu Nzekwesi v. Federal Rep of Nigeria 471 a Nigeria-Arab Bank Limited. It is contended in the brief that the finding did not take cognisance of the contents of exhib- its E and F. Counsel then itemised the transactions between the appellant’s company, Franchal Nigeria Limited and the b Nigeria-Arab Bank Limited. Learned Counsel contended further that all the transactions leading to the trial took place only in account no. 30162 and if the entries in it had been taken into account it would have been manifestly clear that c the appellant paid in at least N99,999,737 and should have had a credit balance of N8,051,737. Learned Counsel then read from relevant pages of exhibit F which are pages 43/31, 45/33 and 46/34 as follows:– d “From exhibit F The undisputed payments from page 43/31 of exhibit F = N45,520,000 The undisputed payments from page 45/33 of N e exhibit F = 1,451,365 The undisputed payments from page 46/34 of exhibit F = N12,028,372 Undisputed Total Exhibit F = N58,999,737 f From exhibit E Undisputed acknowledged and uncredited pay- ment at Page E viii (20.7 + 13.3) + 7,000,000 from Ekene Dili Chukwu ...... = N41,000,000 g Grand total of undisputed, acknowledged and uncredited payments in exhibits E and F = N99,999,737 Less value of exhibit A–A1 = N91,948,000 Amount due appellant = N8,051,737.” h There is no substance in the submissions of the learned Counsel for appellant in the appellants brief. In my respect- ful view, the submissions are myopic as it failed to take sev- eral factors into consideration. It is limited or confined to the i value of the two cheques, exhibits, A and A1, for which the appellant’s company Franchal Nigeria Limited, received a total sum of N91,948,000 from Nigeria Arab Bank Limited without giving consideration because both cheques he paid in were eventually stopped. The submission is unmindful of j the fact that before the company paid in the two cheques the

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Salami JCA 472 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) account of Franchal Nigeria Limited was already in debt of a about N4,500,000. It equally ignored, the fact that when ap- pellant went on withdrawing by issuing exhibits B to B120 he did not limit his withdrawals to the nominal value of the two cheques he put into the account rather he overshot the b values of both cheques, exhibits A and Al by N7,705,737. Learned Counsel’s submission equally lost sight of payment of interest. By a universal custom of banking, a banker has the right to charge interest at a reasonable rate on all over- c drafts – Bower v Turner (1863) L.J. Ch. 54. And the practice of bankers debiting interest on overdrawn account was di- lated upon in Younell v Hibernian (1918) A.C. 372 where Lord Atkinson at Page 385 of the report said:– d “The bank, by taking account with those half yearly rest, secured for itself the benefit of a compound interest. This is a usual and perfectly legitimate mode of dealing between banker and cus- tomer.” e In the absence of those material facts, the submission of the learned Counsel is predicated upon faulty premises. The submission flies in the face of the testimony of the prosecu- tion first witness who testified thus at page 10:– f “I saw that the account was carrying a debit balance. The debit balance was about N4.5 million. Ordinarily that did not easily mean much but when I looked up on the card I saw that there were two high or big value cheques dated 2 December, 1991 for N42,715,000. The second was dated 7 December, 1991 the value g was N49,233,000. The two big value cheques were ACB Ajaokuta branch cheques. They were deposited into account of Franchal Ni- geria Limited and drawn on account of Ocnogit International Ni- geria.” (Italics mine.) The witness went further on to state at page 11 that:– h “In this case our Onitsha Branch gave value to the cheques before the processes of clearing were concluded. The account at Onitsha was credited and value given and when I reversed the two cheques and added the N4.5 million debit everything added up to about i N96 million debit balance. The customer had already taken the money. Debit balance came about by the customer, he draw cheques . . . Between that 2 December, 1991 and 13 December, 1991 about a hundred cheques were issued out amounting to about One j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Salami JCA Chief Francis Okwuchukwu Nzekwesi v. Federal Rep of Nigeria 473 a Hundred Million Naira (N100,000,000). He issued about a hun- dred and twenty one cheques amounting to about N100 million.” (Italics mine.) If the appellant, the sole signatory, drew cheques of over b N100,000,000 in anticipation of clearing two cheques carry- ing a joint value of N91,948,000, learned Counsel submis- sion, to be candid, must take into account the need to repay the extra withdrawal as well as the earlier debit balance of c N4.5 million in addition to the value of the two cheques that were dishonoured. The payment of money prima facie im- ported a duty to repay it and the onus is on the appellant to prove or establish that the N4.5 million and the N7,705,737 d amounting to N12,205,737 were not repayable (see Seldon v Davidson (1968) 1 WLR 1083). Learned Counsel for appel- lant cannot be satisfied with himself, assuming that his cal- culations were right, without so deciding, without showing that the extra N12,205,737 are not refundable. If they are e repayable, as there is no evidence to the contrary, it does not lie in the mouth of the learned Counsel for appellant that the account in dispute carried at anytime, surplus or credit bal- ance of N8,051,737. The appellant has not denied that the f account had an opening debit balance of N4.5 million. It is equally not denied that the withdrawals made pursuance of depositing exhibits A and A1 were more than N91,948,000 which was the combined value of both cheques. The appel- g lant also admitted that five of the seven cheques he paid in were dishonoured and only two with a total value of N34,000,000 were honoured. It thus follows that learned Counsel’s submission set out above is baseless. h I agree with the submission of the learned Counsel for re- spondent that page 16 of exhibit D; pages (viii) and (ix) of exhibit F and pages 31, 32 and 33 of exhibit F clearly or amply demonstrated how appellant’s payments alter two N i cheques, exhibits A and A1, amounting to 91,948,000, for which value had been given and received, were returned un- paid for lack of sufficient fund on the part of the drawer. For clarity or convenience, exhibit D is the investigation report, exhibit E is the statement of account while exhibit F is the j ledger of the account. It should be noted that the transaction

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Salami JCA 474 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) that led to the appellant’s prosecution took place in Decem- a ber, 1991. Nigeria Arab Bank Limited, to avoid drawing the flak of the Central Bank, the regulatory body, was eager to recover the whole amount to balance the account of the ap- pellant’s company, resident with it, before the 31 December, b 1991. As a result of the pressure mounted on him, appellant paid into the said account seven cheques on 30th and 31 De- cember, 1991 which altogether had a value of N125,225,000 Nigeria Arab Bank Limited, in accordance with banking c practice, duly credited the account of Franchal Nigeria Lim- ited with the cheques on 31 December, 1991. An exercise which enabled the bank to balance the account for that end of year and was saved the agony of the Central Bank’s sanc- d tion. But only two of the cheques were eventually honoured, the remaining five being dud were returned unpaid. The bank, therefore reversed the entries in its books or the credit al- e ready given by reversing the various values of the returned cheques early in January, 1992. Pages 32 and 33 of exhibit F are pertinent. In this connection, first prosecution witness testified under cross-examination thus:– f “These are the cheques the customer lodged in his effort to settle the overdrawn position on the account. They are seven in number amounting to N125,225,000. out of which five of them were re- turned unpaid.” The appellant, in this regard, lent support to the prosecution g by confirming that five of the cheques were returned unpaid while only two of them were honoured. He stated thus:– “There are five cheques. I see exhibit D page 16. PWl stated that I paid in seven cheques. Cheques in exhibit E(vi) which agree with h exhibit D page 16 N16 million, N10.8 million, N19.4 million, N28.025 million, N17 million those are five cheques reversed. Two lodgements are not in exhibit E(vi) N20.7 million and N13.3 million total N34 million.” (Italics mine.) i The two cheques which were eventually cleared had a total value N34,000,000. This sum of money was added to N2,000,000 another payment made by the appellant and N7,000,000 first recovery from Ekene Dili Chukwu to make a total of N43,000,000 as shown at page (viii) of j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Salami JCA Chief Francis Okwuchukwu Nzekwesi v. Federal Rep of Nigeria 475 a exhibit F – Franchal Nigeria Limited statement of account with Nigeria Arab Bank Limited. At page (ix) of the same exhibit E, a statement of account, the sum of N43,000,000 was added to another amelioration of N10,000,000 from Ek- b ene Dili Chukwu and the proceeds of the sale of the appel- lant’s seized vehicles of N1,525,000 to arrive at a total re- payment of N58,022,757 along with some other sundry re- funds. These are clearly itemised at page (ix) of exhibit E. c The learned Chairman of the Tribunal accepted this calcu- lation in his judgment when he said:– “I agree with PW2 that the entries on exhibit F pages 43 and 44 contain some manipulations at a time when the first accused was d the branch Manager. At page 43, there is a debit entry of N10,168,06 1 there was credit entry of N34 million on the same 31 December, 1991. This same sum was repeated at page 44 which was definitely a mistake or deliberate. The balance carried forward at page 44 was N95,909,280.46 debit, e this additional N34 million should not have been added. I agree with PW2 that the figure from N34 million downwards at page 44 should be ignored and with the returned cheques exhibits A and A(1) for N91,948,000 added to that figure the total debit should be N f 190 million not credit. PW2 also stated that all the cheques which added to N129,780,676.52 which accused claim to be credit were returned unpaid. These were clear from exhibit D that the cheques were not confirmed.” Learned trial Judge went further to hold as follows:– g “I have held that from the surrounding circumstances the said ac- cused had no funds or insufficient funds at ACB Ajaokuta at the time the cheques were lodged in. In the case of Owena Bank Nige- ria Limited v Akintunji (1992) 2 NWLR (Part 359) 347, 356 F–A h the Court of Appeal held that ledger cards or statements of account are only method of proof and not a defence. in that regard exhibit F ledger cards and exhibit E–E(i)–(x) Statement of account of Franchal Nigeria Limited show a total amount of N119,749,138.10 debit as at 27/5/97. See also section 38 of the i Evidence Act Cap 112 Laws of the Federation of Nigeria, 1990. N58,022,757.40 recoveries made were taken into consideration in arriving at the figure of N119,748 debit. All the payments alleg- edly paid by the accused have been reflected on the statement of account including proceeds for the vehicles see exhibits E (ix).” j (Italising mine.)

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The finding of the learned trial Chairman is unassailable. It a is supported by even appellant’s evidence or admission on oath when he stated thus:– “There were some reversal on exhibit F page 33. On 7 January, b 1992 N10,800,000. On 9 January, 1992 N17 million only. On 13 January, 1992 N16 million only; On 14 January, 1992 N28,025,000 and on 20 January, 1992 N19,400,000. Total of re- versed account is N91,225,000 only. The reversed cheque were not returned to me up to date. If N91,225,000 is removed from c what I paid the balance will be N58,722,745.” (Italicing mine.) There is no better evidence than one that precedes from the mouth of the accused in the instant case the appellant. The submission of the learned Counsel for appellant that he d ought to have been credited with N99,999,737 therefore lacks merit. It is not supported by evidence of his client. The submission is baseless, I agree with the submission of the learned Counsel for respondent that the submission of the learned Counsel for appellant that the appellant be credited e with the proceeds of the five cheques which appellant admit- ted were returned unpaid and were consequently reversed as not only most curious but also preposterous. It seems to me, in the circumstance, that learned Counsel for appellant is on f his own. I disagree with the learned Counsel for appellant that the value of the vehicles seized and kept with the police had not been credited to the accused, appellant herein. The value of g the vehicles seized by the police was credited to the account of Franchal Nigeria Limited as per its statement of account, exhibit E at page (ix) thereof: the sum of N1,525,000 being the proceeds of the sale of the appellant’s vehicles seized by h the police is entered in exhibit E at p.(ix). There is evidence adduced by the fifth prosecution witness that the vehicles which were scraps, were in very poor shapes and could not have attracted much more than they were disposed off. There i was no evidence produced to the contrary other than assertion that someone proposed or offered to buy the vehicles for N16,404,781 and that buyer came with a draft for N12 mil- lion with a request to pay the difference later but the hank re- fused. However, when asked to name the anonymous person j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Salami JCA Chief Francis Okwuchukwu Nzekwesi v. Federal Rep of Nigeria 477 a he retorted that he did not know the name of the buyer. There is no explanation proffered for not accepting the offer made by Chief Okafor neither was Chief Vincent Okafor himself nor any other witness called to establish that the seizure was b sold at a give away price. The burden of proving that the ve- hicles were grossly undervalued laid on the appellant, which burden of proof was not discharged. It is trite that he who as- serts must prove (see Anya v African Newspaper of Nigeria c Ltd (1992) 6 NWLR (Part 247) 319; Solomon v Mogaji (1982) 11 SC 1, 13; Okubule v Oyagbola (1990) 4 NWLR (Part 147) 723, 736 and Union Bank v Ajagu (1990) 1 NWLR (Part 126) 328, 342). In the absence of such proof, the appel- N d lant would not be credited with the 16,000,000,00 claimed in the appellant’s brief. The appellant’s contention in his brief of argument, that he was entitled to the value of 1050 pieces of praying mats val- e ued at N13,000 a piece, amounting to N13,650,000, is not made out. The assertion is not substantiated because he did not produce an iota of evidence proving that Nigeria Arab Bank Limited collected the mats from him or his agents. He alleged in this regard that the proof of collection of the pray- f ing mats was with one Alhaji Labaran who was not in town then. The appellant promised the tribunal to collect the chit from Alhaji Labaran when he returned to town. He never did not to talk of producing the same in evidence. It is also per- g tinent to observe that the said Alhaji Laharan was not called to testify to the collection of the mats by Nigeria-Arab Bank Limited. In the absence of evidence implicating the bank it would not be liable for the value of the said mats which ap- h pellant’s Counsel wanted credited to him. I agree with the learned Counsel for appellant that where a lower court fails to evaluate the evidence before it properly, the Appellate Court is at liberty to do so, if it does not in- i volve ascription of probative value to the evidence adduced. See Chukwu v Nitel (1996) 2 NWLR (Part 430,) 290; Nneji v Chukwu (1996) 10 NWLR (Part 478) 265, 274–275; Otuo v Nteogwuile (1996) 4 NWLR (Part 440,) 56, 72–73 and Ak- j pan v Otong (1996) 10 NWLR (Part 476) 108, 124 cited in

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Salami JCA 478 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) the appellant’s brief of argument. It is equally settled, in a a long line of cases, that, where the trial court makes a proper evaluation of’ the evidence adduced before it, as, in the in- stant appeal, appeal court will not lightly disturb such a find- ing of fact unless it is perverse or not supported by evidence b Okafor v Idigo (1984) 6 SC 1, 36 and Ebba v Ogodo (1984) 1 SCNLR 372. The appellant has not demonstrate that the tribunal’s finding is either perverse or not supported by evi- dence or sound. c In the circumstance, the answer to appellants’ issue one is positive and the grounds of appeal related thereto fail and are dismissed. In view of the answer given to the first issue, it seems to me no longer necessary to answer the remaining d issue. It will constitute an exercise in futility to further delve into the remaining issue which is impliedly answered. The appeal, therefore, fails and it is dismissed. In parenthesis, the lamentation of the learned Counsel for e respondent over the extremely lenient punishment imposed on the appellant is justified. The sentence which learned trial chairman of the tribunal imposed on the appellant reads:– “second accused is sentenced to 2 years imprisonment or N100,000 on Count 1 and N100,000 fine or 2 years imprisonment f in lieu of fine in Count 3. Sentence and fine to run concurrently. Sentence to take effect from today if fine cannot be paid.” (Italics mine.) The sentences are not only most outstandingly lenient but g also patronising. It is ridiculous that a person who, after re- funding N58,022,757 to the bank defrauded still has more than N119,749,138.10 to refund could be sentenced to such paltry terms of imprisonment or fine. The sentence does not h serve as a deferent at all rather it does encourage financial crime which was so prevalent at the material time and even now to warrant the government establishing tribunal spe- cially to combat the menace of the crime. The court to assist the government in stemming the crime ought to visit its i commission with very stern measures if they would not be found wanting or accused of failing in their duty. What makes the sentences, particularly the sentence on Count 3, the more worrisome is that the enactment, under j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Salami JCA Chief Francis Okwuchukwu Nzekwesi v. Federal Rep of Nigeria 479 a which the appellant was charged and convicted, does not provide for option of fine. The appellant was charged for ob- taining credit for himself by means of cheques that when presented for payment within three months of the date of the b cheques were dishonoured on the ground of no funds or in- sufficient funds were standing to the credit of the appellant in the bank on which the cheques were drawn contrary to and punishable under section 1(b)(i) of the Dishonoured c Cheques (Offences) Act Cap 102 Laws of the Federation of Nigeria, 1990. Section 1(b)(i) which provides for the pun- ishment for the offence reads as follows:– (i) in the case of an individual be sentenced to impris- d onment for two years, without option of a fine, and (Italicising mine.) I am consequently at a loss as to the source of the power of the tribunal to order option of fine in this regard. Learned e Counsel for respondent should not have restricted himself to a mere moral adjuration. He should have gone further to take a more positive step by filing a cross appeal against the op- tion of fine given in lieu of imprisonment. The option of fine f given to the appellant was clearly illegal and consequently a nullity. ADAMU JCA: I have had the privilege of reading, in draft the leading Judgment of my learned brother Salami JCA in g this appeal. The two issues formulated in the appeal were well thrashed and duly resolved in the said Judgment. I am therefore in full agreement with the reasons given and the conclusion reached in the leading Judgment that the appeal h lacks merit and should be dismissed. It is accordingly hereby also dismissed by me. I also agree that since the law under which the appellant was charged and convicted The Dishon- oured Cheques (Offences) Act Cap 102 Laws of the Federa- i tion of Nigeria, 1990 section 1(b)(1) thereof – does not per- mit, allow or provide for an option of fine, it was wrong for the learned chairman of the trial tribunal to give the appel- lant such an option in the sentence as contained in his judg- ment. Consequently, I also hereby hold that the option of j fine was illegal and therefore null and void. I affirm the

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Adamu JCA 480 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) sentences of imprisonment imposed on the appellant by the a tribunal. UMOREN JCA: I have read in draft the judgment of my learned brother Isa Ayo Salami, JCA just delivered. I en- b tirely agree with his reasoning and conclusion that the option of fine given to the appellant was clearly illegal, null and void and of no effect whatsoever. Appeal dismissed.

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All States Trust Bank v. Godwin U. Nsofor 481 a All States Trust Bank v Godwin U. Nsofor b COURT OF APPEAL, ENUGU DIVISION PATS-ACHOLONU, FABIYI, OGUNBIYI JJCA Date of Judgment: 12 DECEMBER, 2002 Suit No.: CA/E/3M/2002 c Mortgage – Power of sale – Amount owed in dispute – Foreclosure not affected because amount owed under the mortgage agreement in dispute – Principles governing Mortgage – Power of sale – Exercise of – For mortgagee’s d benefit Mortgage – Power of sale – When mortgagee would be re- strained e Facts The respondent who was a director of Oganiru Community Bank had guaranteed the loan of N10,000,000 (Ten Million Naira only) facility given by the appellant to the Community f Bank by freely and voluntarily using his house situate at No. 19, Lafiage Street, Fegge Onitsha as a collateral for the loan. In the course of time, the amount appeared to have gone up due to interest rate and the appellant wrote incessantly to the mortgagor the respondent for the liquidation or amortisation g of the loan. Various correspondence were exchanged be- tween the parties and in some of these letters the Commu- nity Bank wrote and asked the appellant to exercise patience as its banking business appeared to be in disarray and there h was a promise that the loan facility would be amortise in the course of time after a proper re-organisation of their Bank. For sometime nothing seemed to be happening by way of making substantial reduction of the loan. It would seem that i the appellant Bank must have run out of patience and threat- ened to sell the mortgaged property. This threat impelled the respondent to institute an action in the court against the ap- pellant and above all claiming that he was not in the least liable to the debt in the sum of N1,3518,317.59 claimed by j the appellant, that an account be taken to determine how

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482 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) much his company was really owing the appellant. He a equally asked for an injunctive order of restraint from the threatened sale of his property. He followed the suit by filing a motion ex parte which was granted, and another motion on notice – the ruling of the learned trial Judge containing the b order of restraint against the appellant from selling the re- spondent’s property. Irked and unhappy by the turn of such events as it believed that an attempt was being made to deny it of the immediate c realisation of the money loaned by way of sale, the appellant appealed to this Court. The sole issue subscribed by both parties is whether the learned trial Judge was right in grant- ing the interlocutory injunction prayed for restraining the d appellants from selling the respondent’s property pending the determination of the suit. Held – e 1. The mortgagee’s power of sale or foreclosure cannot be affected merely because the amount under the mortgage agreement is in dispute. 2. A mortgagee is not a trustee of a power of sale for the f mortgagor. It is a power given to him for his own bene- fits enabling him to protect the mortgage debt. 3. The court will not restrain a mortgagee from selling even if there is dispute as to the actual amount due as herein. g 4. On a proceeding in respect of a sale of mortgaged prop- erty where either the amount is disputed or an action re- demption is commenced, the mortgagee would be re- strained if the mortgagor pays the amount claimed by the h mortgagee in court. Nothing short of payment in full of the principal money with the interest due thereon could have restrained the exercise of right of sale. Appeal allowed. i Cases referred to in the judgment

Nigerian Akapo v Hakeem-Habeeb (1992) 6 NWLR (Part 247) 266 j

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All States Trust Bank v. Godwin U. Nsofor 483 a Missini v Balogun (1968) 1 All NLR 318 Nigeria Housing Dev Society Ltd v Mumuni (1979) NSCC (Vol 11) 65 b Ojukwu v Governor of Lagos State (1986) 3 NWLR (Part 26) 39 Okonkwo v CCB Nigeria Plc (1997) 6 NWLR (Part 507) 48 Okwelune v Anolief (1996) 1 NWLR (Part 425) 468 c Onyesoh v Nnebedum (1992) 3 NWLR (Part 229) 315 Oye v Gov of Oyo State (1993) 7 NWLR (Part 306) 437 Sabbagh v Bank of West Africa (1962) ANLR (Part 2) 1153 d Union Bank of Nigeria Ltd v Ozigi (1991) 1 NWLR (Part 176) 676 Foreign Wallingford v Mutual Society 5 AC 685 e Warner v Jacob (1882) 2 Ch.D. 220 Counsel For the appellant: Arthur Obi Okafor f For the respondent: G.E. Ezeuko (SAN) Judgment PATS-ACHOLONU JCA: (Delivering the lead judgment) g This is indeed a curious case from all the facts that assail it. The respondent who is a director of Oganiru Community Bank has guaranteed the loan of N10,000,000 (Ten Million Naira only) facility given by the appellants to the Commu- h nity Bank by freely and voluntarily using his house situate at No. 19, Lafiage Street, Fegge Onitsha as a collateral for the loan. In the course of time, the amount appeared to have gone up due to interest rate and the appellant wrote inces- i santly to the mortgagor, the respondent, for the liquidation or amortisation of the loan. Various correspondence were exchanged between the parties and in some of these letters the Community Bank wrote and asked the appellant to exer- cise patience as its banking business appeared to be in disar- j ray and there was a promise that the loan facility would be

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ENUGU DIVISION) Pats-Acholonu JCA 484 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) amortise in the course of time after a proper re-organisation a of their Bank. For sometime nothing seemed to be happen- ing by way of making substantial reduction of the loan. It would seem that the appellant Bank must have run out of patience and threatened to sell the mortgaged property. This b threat impelled the respondent to institute an action in the court against the appellant and above all claiming that he is not in the least liable to the debt in the sum of N13,518,317.59 claimed by the appellant, that an account be c taken to determine how much his company was really owing the appellant. He equally asked for an injunctive order of restraint from the threatened sale of his property. He fol- lowed the suit by filing a motion ex parte which was granted d and another motion on notice – the ruling of the learned trial Judge containing the order of restraint against the appellant from selling the respondent’s property. Irked and unhappy by the turn of such events as it believed e that an attempt was being made to deny it of the immediate realisation of the money loaned by way of sale, the appellant appealed to this Court. The sole issue subscribed by both parties is whether the learned trial Judge was right in grant- ing the interlocutory injunction prayed for restraining the f appellants from selling the respondent’s property pending the determination of the suit. It would appear that the issue is not whether or not the re- spondent or for that matter the Oganiru Community Bank is g owing the appellant but by how much. It is important to state the issue behind the call for an order of injunction i.e. the quantum of debt. Should the order of injunction have been made which forestalled the mortgagee’s exercise of its pow- h ers of sale merely because the mortgagor disputes the exact amount owed. The object of granting an interlocutory in- junction is to endeavour to preserve the destruction of the subject matter in controversy. i The argument of the appellant is that the respondent is not contending that he owes no money to the appellant but the sum amount is not what the appellant says it is. It contended that an assertion by the respondent that the true amount j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ENUGU DIVISION) Pats-Acholonu JCA All States Trust Bank v. Godwin U. Nsofor 485 a owed be determined should not be a ground for granting an order of injunction. It wondered whether this in itself consti- tutes a substantial issue to be tried as to warrant an order of injunction. The appellants then referred the court to Onyesoh b v Nnebedum (1992) 3 NWLR (Part 229) page 315 at 322 to state that the current law is that it is the strength of the appli- cant’s case that should readily affect the mind of the court to consider positively the grant of the order of injunction. It c contended that the court below failed to give a careful con- sideration to the interests competing interest of the two par- ties before making the order of injunction. The respondent in his brief submitted that at no time did d the appellant try to understand fully the poignant issue at stake which is the respondents legal right and which consid- eration must have so affected the mind of the court below to make the order of interlocutory injunction. Now it is not the e business of any court seized with this sort of matter to ven- ture into the core of the case and unwittingly determine the casus beili summarily. The court below held as follows:– “In the present case all the Court is being asked to do is to suspend the sale and if at the determination of the substantive suit the court f finds that the claims of the plaintiff are frivolous as the defendant thinks the defendant will go ahead and sell the property. It is my view that incalculable harm will be done if the respondent be al- lowed to sell the mortgaged property at this stage and in the end the g plaintiff gets judgment in his favour. If it is true that the defen- dant/respondent has been charging excessive interest and has not credited some deposits or lodgments made by the plaintiff/applicant as exhibit A suggests it will be in the interest of justice to rectify the errors (if they exist) before disposing of the mortgaged property. h Even if exhibit A is an after thought and made for the purpose of this application it will be better for the court to so find before the mortgaged property can be disposed of.” In other words the learned trial Judge can be understood to i be saying that there is an important subject matter of sub- stance which has to be accorded some form of interim pres- ervation order without which a great amount of damage or spoliation might occur. What sort of interest should the ap- plicant of such an equitable remedy have, it must be a j weighty legal interest that readily affects the mind of the

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ENUGU DIVISION) Pats-Acholonu JCA 486 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) court of the necessity of preserving it for the time being so a that irreparable harm would not have been done by an act which has the characteristics of lack of diligent considera- tion and hast or inadequate synthesisation of the facts in is- sue. The legal right the respondent is seeking to protect is b the mortgaged house which if he fears that once the hammer of the sale falls on it then its irretrievability becomes diffi- cult if not impossible. How do we determine the substantial- ity of the interest sought to be protected by way of injunctive c order Karibi-Whyte, JSC put it in this most lucid and illumi- nating language which is his hallmark of forensic juridical pronouncements in the case of Akapo v Hakeem-Habeeb (1992) 6 NWLR (Part 247) 266 at 291. d “It is fundamental principle for the grant of injunction that the ap- plication will always be granted to support a legal right. See Mont- gomery v Montgomery (1965) page 46. Hence the most important precondition of an applicant is to show that he has a legal right which is threatened and ought to be protected. (See Ojukwu v Gov- e ernor of Lagos State (1986) 3 NWLR (Part 26) 39.) It follows there- fore that the court has no power to grant an injunction where the ap- plicant has not established a recognisable legal right. (See Couviet v Union of Post Office Workers (1977) 3 All ER 70.)” f In the opinion of the learned trial Judge there exists a sub- stantial interest to be protected if the amount of it unpaid is not finally determined by the court. The learned Counsel for the appellant submitted that the court below did not consider g in the least the interest of the appellants. From the decided authorities, there are two elements to be considered before the court may accede to such a prayer. (1) It is to support a legal right which is immediately being threatened id est, where there is a serious apprehension of the subject matter h of its destruction. The facts so averred by the applicant must preponderate so heavily by their nature and, quality that it would have been regarded as abnegation of the tribunal of justice responsibility not to grant an order of injunction. (2) i There must be substantial issue to be tried in the main suit. The learned Counsel for the appellants has lampooned the court below for not considering in the least such cases as As- sad Sabbagh v The Bank of West Africa (1962) All NLR j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ENUGU DIVISION) Pats-Acholonu JCA All States Trust Bank v. Godwin U. Nsofor 487 a (Part 2) 1153 at 1155 and also Okonkwo v C.C.B. (Nigeria) Plc (1997) 6 NWLR (Part 507) page 48 at 71 73. In the case of Assad Sabbagh v The Bank of West Africa (supra) the ap- pellant had a deed of mortgage on his property or an amount b of £3,000 (Three thousand pounds) by a regular monthly in- stalment. Between 1961 and 1967 the instalmental payments were made regularly. However, between 1967 and 1968 his business became bad and he defaulted in paying the amount c owed by five months. As a result of this the first defendant decided to enforce the covenant on the mortgage deed by way of sale within the provisions of the Conveyancing and Law of Property Act, 1881. The appellant in that case realis- d ing that the amount of money was unpaid hurriedly went and paid the outstanding sum on the 26 April, 1968 which sum included the month of May, 1968. This hurried payment not withstanding the property was sold on the 29 April, 1968. Whereupon he instituted an action against the defendant. e The court below faulted the sale and set it aside. The appel- lant appealed to the Supreme Court. In its judgment and re- lying and buttressing its opinion on judgment on section 21(2) of the Conveyancing and Law of Property Act, 1881 f the Supreme Court stated as follows:– “The Mortgagee’s Power of sale or foreclosure cannot be affected merely because the amount under the Mortgage agreement is in dispute.” g Also in Nigerian Housing Development Society Ltd and an- other v Yaya Mumuni Volume II (1977) NSCC at page 66, the Supreme Court said:– “That the judgment must be set aside on the ground that the plain- h tiff having breached his covenant to repay the mortgage debt by regular instalments was not entitled to succeed as the first defen- dant was entitled to exercise his power of sale under the Convey- ancing and Law of Property Act 1881 the debt having been deemed to have become due and payable in 1962 and nothing i short of the payment in full of the principal money with interest could have restrained the first defendant from selling the prop- erty.” I might have to add that the mortgagee is always a lender j who wants to enjoy the benefits of his business transactions

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ENUGU DIVISION) Pats-Acholonu JCA 488 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) with the mortgagor. He is there to protect his own interest. a Thus in M.J. Ekaeteh v Nigerian Housing Development and another (1973) 6 SC 183 the court held that a mortgagee is not a trustee of a power of sale for the mortgagor. It is a b power given to him for his own benefits enabling him to protect the mortgagee debt. (See Farrar v Farras 40 Ch.D. 395 at 411 and also Union Bank of Nigeria Ltd v Ozigi (1991) 1 NWLR (Part 176) 676 at 697 and Warner v Jacob c (1882) 2 Ch.D. P.220.) There are certain facts in this case that need to be empha- sised for the purpose of enabling the court to make an ana- lytical appraisal that the case before it. I would first repro- d duce a letter from the appellant written to the Board of Di- rectors of Oganiru Community Bank dated 8 March, 2000:– “March 8, 2000. e The Board of Directors Oganiru Community Bank Ltd No. 50 Uga Street Fegge, Onitsha f Anambra State Attention: SIR Peter C. Ukpaka Dear Sir, g Re: Your Overdraft Loan facility of N10,000,000 (Ten Million Naira only). We write in respect of the above subject matter. h We regretfully wish to observe the rather inactive state of your ac- count with us, owing to the non-servicing of both the principal and interest accrued thereon in respect of the N10,000,000 (Ten Mil- lion Naira only) Loan Facility granted to you by ourselves. The balance in your said account, currently stands at the sum of i N11,914,107.69 Dr. We therefore request that you immediately commence the lodge- ment of a minimum sum of N250,000 (Two Hundred and Fifty Thousand Naira only) weekly commencing from the date of this letter without fail. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ENUGU DIVISION) Pats-Acholonu JCA All States Trust Bank v. Godwin U. Nsofor 489 a Please be informed that where you fail or neglect to comply with our requirements, we would be compelled to call in the said loan facility and also take appropriate measures to realise all amounts due to us from your goodselves. b We count on your co-operation in this regard. Yours faithfully, For: All States Trust Bank Plc Sgd. Sgd. c Martins Odoemelem Cyprian Onyejizu Head, Customers services Branch Manager” On the 25 April, 2000. The Community Bank wrote a reply letter to the appellant as follows:– d “OCB/ATB/016/2000 25 April, 2000 The Manager All States Trust Bank PLC e 33/35 Uga Street Fegge, Oriitsha. Dear sir, N f Our Overdraft Account of 10 Million Kindly refer to your letter to us dated March 8, 2000 and our reply dated 7 April, 2000 with Reference OCB/ATB/013/2000 on the above subject matter. We must first immensely thank you for your wonderful patience g with us and your good sense of understanding throughout our trial period. Please be well assured that our problem is all over. We have successfully re-organised and put in place a strong mat team to return the Bank to its past glory and swing higher. Furthermore, we have also engaged the services of a seasoned h Consultant in Community banking in the person of Mr Anthony Nkaneme to help move the bank forward. To liquidate the said overdraft and the interest thereof we humbly request for your acceptance of the following proposals of ours:– i (1) A weekly lodgment of a minimum of N100,000 (One Hun- dred Thousand Naira only) effective from 15 May, 2000 for the three months. Thereafter, increasing the volume of the lodgments more substantially. (2) Suspension of interest charges and fees on the said account j for the time being to make our efforts meaningful.

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The above considerations will enable us improve our business op- a erations with you. In no distant time, we strongly assure you that our account will make you smile with us once again. We thank you for your kind co-operation and understanding. With best regards. b Sgd. Sgd. Chief Sir P.C. Ukpaka Prince Chinedu Nsoffor (Chairman) (Vice Chairman).” It is evidenced from the letter dated 25 April, 2000 that a c promise of weekly lodgment of N100,000 effective from the 15 May, 2000, and emphasising that every three months thereafter they would increase the amount of lodgments more substantially was made, however they pleaded for the d suspension of the interest charges and fees. In another letter in 2000, Oganiru Community Bank, addressed a letter to the appellant company thus:– “The Area Manager (East Two) 31 July, 2000. e All States Trust Bank Plc Area Office Okpara Avenue Enugu. f Through:– The Manager, All States Trust Bank Plc Uga Street Branch Onitsha. g Sir, Application for reduction of interest rate from present 28% Down to 18%. (Current Account No. 2551000010) We wish to request that you assist us in our bid to extricate our- h selves from our present state of poor performance by granting spe- cial help of reducing our interest rate from 28% down to 18% P.A. The request has become necessary given that we are, for now, un- able to pay in bulk sum to bring down our facility within approved limit. And in the meantime the much we are paying in will con- i tinue to go into servicing of interest charges alone if the reduction is not approved. This special concession will last for only about six months, by which time it is expected that we would have reduced our Over- draft Account below N10 Million. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ENUGU DIVISION) Pats-Acholonu JCA All States Trust Bank v. Godwin U. Nsofor 491 a It is our sincere belief that you too would like to see us through in this our earnest effort to overcome our present predicament. Thanks in anticipation of a favourable response. Yours truly, b For: Oganiru Community Bank. Sgd. Sgd. A.G. Manager Chairman Board of Directors.” c In that letter they pleaded for special concession for those months by which they had to reduce the overdraft below N10 Million. On the same date, they surprisingly wrote an- other letter to the appellant and started questioning the amount owed. From the documents, exchanged between the d parties earlier, at no time did the respondent and the Com- munity Bank question the amount owed, until the second let- ter of 31 December, 2000 at which time these letters actu- ated the appellant to determine to sell. e An injunction being an equitable relief is given at the dis- cretion of the court. This proposition of the law connotes that the court would give a careful consideration of the mat- ter by way of holistic approach and subject the averments of f both parties to merciless scrutiny. The fear of the respondent was that his property might be sold if the order of interlocu- tory injunction was not made. In considering the competing interests by those parties, I dare say it is essential and expe- g dient that the court should fairly weigh the facts agitated and canvassed by both parties to determine whether to grant the injunction or not. He is fighting against a threatened injury, but I do not believe that the respondent has come with clean h hands. I say this because this injunction would cause far more harm to the appellant than to the respondent. The Bank of which he guaranteed the loan facility defaulted on numer- ous occasions. This default forced the bank to exercise its right of sale under a mortgage deed. There has been no evi- i dence to be gleaned from the affidavit of the respondent that a fraud is contemplated in the proposed sale or there is something sinister which may vitiate the sale. To raise the issue of quantum of amount owed at this later j stage is unconscionable and down right petty.

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I am of the view in this case that infact the situation was a reached where the appellant was left with no alternative than to exercise its right of sale. In the circumstances, it seems to me that the lower court did not exercise its discretion judi- cially and judiciously and methodically and seriously con- b sider also the right of the appellants. I am not enamoured by emotionally laden averments that the property is the residen- tial house of the respondent. So what. The order of injunction made restraining the appellant c therefore is obviously wrong. To resort to reconciling the amount owed by the respondent first by obtaining an order of injunction, fanciful though it may appear, ought not there- fore to have impelled the court to make the order. d In the circumstances, the appeal is allowed, and I hereby set aside the ruling of the court below. I do not intend to add more burden on the respondent’s debt, therefore each party should bear its own costs. e FABIYI JCA: I had a preview of the judgment just handed out by my learned brother Pats-Acholonu, JCA. I agree with his reasons leading to the conclusion that the appeal has merit and should be allowed. f I wish to stress the point that an applicant for an order of interlocutory injunction must show constituency in his deal- ings. He cannot be heard to equivocate. Indeed, he should not blow hot and cold at the same time. This sort of attitude g does not portray any measure of seriousness. It cannot posi- tive activate a Court’s discretion in favour of such an appli- cant. In paragraph 5 of the main affidavit in support of the appli- h cation, the deponent maintained that the borrower has paid various sums of money to the appellant in “substantial reduc- tion of the loan”. Thereafter, exhibit A to the further affidavit was put in to show that the borrower was no longer owing. i This stance appears rather curious. The above is not the end of the scenario. The Bank guaranteed by the respondent at a point, urged the appellant to give it time to reduce the over- draft below N10 million. On the same date, it wrote another letter questioning the amount owed. In my considered view, j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ENUGU DIVISION) Fabiyi JCA All States Trust Bank v. Godwin U. Nsofor 493 a all the above should have weighed against the grant of an or- der of interlocutory injunction in favour of the respondent. It is clear that the court will not restrain a mortgagee from b selling even if there is dispute as to the actual amount due as herein. The point is clearly enunciated in Halsbury’s Laws of England (4ed) paragraph 725 at page 361. See also Nigeria Housing Development Society Ltd v Yaya Mumuni (1977) NSCC (Vol. 11) 65 at 73 and Assad Sabbagh v Bank of West c Africa and Okonkwo v CCB Nigeria Plc both cited in the lead judgment. It appears the learned trial Judge failed to follow these authorities. With due respect, such a poise was not right. d It appears that fraud was raised by the respondent’s Coun- sel in the brief of argument. Fraud must be specially pleaded. Not only that; particulars of same must be given. It cannot emerge from the blues unknown. (See Wallingford v e Mutual Society 5 A.C. 685.) I feel that the point relating to fraud was canvassed in re- spondent’s brief to no avail. f Both on the facts and law, the respondent failed to make a good case to warrant the order of interlocutory injunction that was wrongly dished out to him. For the above reasons and of course the fuller ones contained in the lead judgment, I, too hereby allow the appeal. I endorse all the consequen- g tial orders including the rationale relating to costs as con- tained in the lead judgment. OGUNBIYI JCA: The facts in the case and admitted by both parties have been spelt out in the lead judgment by my h learned brother, Hon. Justice I.C. Pats-Acholonu. The only issue formulated by both parties on their briefs of arguments is one to wit:– i Whether the trial Judge was right in granting the interlocutory in- junctions prayed for in favour of the respondent and thereby re- straining the appellants from exercising their power to sell the re- spondent’s house which is a mortgaged property. On one hand the appellant in both his main and the reply j briefs of arguments in summary emphasised that a

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ENUGU DIVISION) Ogunbiyi JCA 494 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) mortgagee cannot be restrained from exercising his right to a sell on the ground that the amount due is in dispute. The learned appellant Counsel in a nutshell re-iterated the lack of cogent reason depriving them of their power and right to b sell. On the other hand, the respondent claim by relying on the decided authorities, the principles on which the grant of in- terlocutory injunction is based and which the applicant c needed to prove in order to succeed. In other words he must show:– (1) The existence of a legal right. d (2) The balance of convenience is in his favour; and (3) The justification in maintaining the status quo. On the application of the said principles, the learned respon- dent’s Counsel applauded the decision of the lower court on e proper exercise of discretion in granting the injunction ap- pealed against. In other words that it was the said principles that must have been the paramount deciding factor in the mind of the trial Judge. The Counsel therefore, urged the f court to dismiss the appeal and affirm the order of injunction subsisting. The decision in the cases of: (1) Akapo v Hakeem Habeeb (1992) 6 NWLR (Part 247) 266 at 291 paragraphs D–E. (2) g Jacob Babasola Oye v Gov of Oyo State (1993) 7 NWLR (Part 306) 437 are among the leading authorities guiding the exercise of discretion in the granting of an interlocutory in- junction. The three main principles necessary are re-stated h therein by the learned Law Lords of the Supreme Court as rightly submitted and argued by the respondent’s Counsel. In the appellant’s brief of arguments he re-stated the re- spondent’s reason for demanding the suspension of the sale of i the mortgaged property. The reason given which disputes the correct amount of debt owed the appellant by the borrower. With reference to the record of appeal before us, the subject matter of claim giving rise to the substantive suit is the need j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ENUGU DIVISION) Ogunbiyi JCA All States Trust Bank v. Godwin U. Nsofor 495 a to determine the actual amount of debt owed by the borrower. The matter before us however, is whether or not the exercise of discretion by the lower court was proper in the circum- stance, it follows in my opinion that the submission by the b respondent’s Counsel in urging the court to avoid “all contro- versial issue of fact” at this stage so as not to determine the same issue at the substantive trial does not therefore hold. Needless to say that the authorities cited by Counsel in that c behalf do not hold relevant and apply. Certainly, there is an issue to be tried in respect of the substantive suit, nonetheless that has no bearing to the matter at hand. As rightly stated by my learned brother in the lead judg- d ment, the order sought for, is an equitable relief. The author- ity of Okwelune v Anolief (1996) 1 NWLR (Part 425) 468 at 483 is well adjudicated upon on this point where the court of Appeal had this to say in respect of the duty on a party seek- e ing discretionary relief:– “A person who goes to the temple of equity must do so or be seen to do so with clean hands, otherwise the very same mercy he seeks must be refused by the entrustment of impurity by which it is sought. In other words, where the conduct of a suppliant for dis- f cretionary relief is not transparently clean or is not altogether free from mischief, indolence, or equivocation, the indulgence sought must be refused.” It is not in dispute that the loan in question was guaranteed g by the respondent whereupon he mortgaged his property situate at Fegge, Onitsha and particularly known as No. 19 Lafiaji Street, Fegge, Onitsha to guarantee repayment. From the various correspondence between parties and in particular h that of the Oganiru Community Bank to the appellant, it is not in doubt that the said loan advanced was still owing and thus the reason for the instant plea for consideration. The appellant’s right or power to sell the mortgage prop- i erty is not challenged by the respondent for the purpose of exercising their legal right of sale. Rather and prima facie from the respondent’s main claim, the intention of the appli- cation was to maintain status quo for the purpose of deter- mining the actual amount owed. This to my mind poses a j different challenge which cannot operate at hand to preclude

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ENUGU DIVISION) Ogunbiyi JCA 496 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) the already due legal right of the appellant arising from the a failure to satisfy the debt owed. The competing legal rights envisaged in the Supreme Court’s authority of Akapo v Hakeem-Habeeb (supra) does not apply or avail the respon- dent but rather in favour of the appellant. b Furthermore, on the issue of threatened legal rights and that need protection, the mere fact of the respondent having mortgaged his property with his consent without evidence of c duress or undue influence, he is presumed to be seized of all the likely circumstances that might arise therefrom. In other words, it is not open to him to either deny or claim igno- rance of the consequences arising from his undertaking. There can be no threat on the respondent’s property that d came to him as a surprise. Further still and on the consideration of the principle of balance of convenience, and in whose favour it should lie, this as rightly submitted by the learned appellant’s Counsel, e requires that the court weighs the benefit of the exercise of its discretion in favour as against. This had been so re-stated emphatically by the Supreme Court in the case of Missini and others v Balogun and another (1968) NSCC Vol. 5 page f 239 at 240 where proper balancing between the paramount. The learned trial Judge in his opinion at page 84 of the re- cord at lines 1–3 held thus:– “It is my view that incalculable harm will be done if the respon- g dent is allowed to sell the mortgage property at this stage and in the end the plaintiff gets judgment in his favour.” With due respect to the learned trial Judge, I hold a different view from his interpretation of balance of convenience to the h parties. This I hold because in view of the undertaking by the respondent in mortgaging both his property and convey- ing his title, temporary though it could have been but only after full settlement, the refusal to sell the property prior to i such redemption of the mortgage would weigh more incon- venience to the appellant whose right of sale has become due. The court below I hold failed to take into consideration the competing rights of the appellant to recover his invest- ment at the expiration of the loan facility. In my view the j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ENUGU DIVISION) Ogunbiyi JCA All States Trust Bank v. Godwin U. Nsofor 497 a grant of interlocutory injunction in favour of the respondent was certainly an error of judgment. The authorities of Missini and others v Balogun and another (supra) and On- yesoh v Nnebedum (1992) 3 NWLR (Part 229) page 315 at b 322 also Ojukwu v Governor of Lagos State (1986) 3 NWLR (Part 26) page 39 are all in point. In the authority, Nigeria Housing Dev Society Ltd v Yaya Mumuni (1979) NSCC Vol. II page 65 at 73 their Lordships c of the Supreme Court held thus on a proceeding in respect of a sale of mortgaged property where either the amount is dis- puted or an action redemption is commenced:– “. . . the mortgagee would be restrained if the mortgagor pays the d amount claimed by the mortgagee in court . . . nothing short of payment in full of the principal money with the interest due thereon could have restrained the . . . exercise of right of sale.” On the submission relating to the need to maintain status e quo claimed by the respondent, it is apparent that the mort- gage property was a security to guarantee repayment; this has not been accomplished by the borrower. As rightly ar- gued by the appellant’s Counsel, the respondent is seeking f for a departure from their initial agreement. The question to pose at this juncture is, can the principle of “maintaining status quo” operate to estop an unpaid mortgagee from the exercise of his power of sale? Having regard to the defini- tion of a mortgage given (supra) the answer to the question g posed in my opinion ought to be in the negative. The re- spondent I hold has lost all his rights with the failure of the mortgagor in complying with the terms of the mortgage. The conclusion reached by the learned trial Judge in that respect h was in error. On the issue of fraud raised by the respondent, same I hold cannot apply to the matter at hand especially where there had been no such speculation deliberated upon at any point in time on the record before the court. There is i also no evidence or threat of such anticipated. Following from the reasons so reached above and consid- ering the circumstance of this appeal, I completely agree with the conclusion reached by my learned brother in allow- j ing the appeal and consequent to which the ruling of the

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ENUGU DIVISION) Ogunbiyi JCA 498 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) learned trial Judge of the High Court, Onitsha is hereby set a aside. I also for the same reason associate myself with the refusal in awarding costs but rather that each party should bear its own costs. b Appeal allowed.

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Diamond Bank Ltd v. Partnership Investment Co Ltd 499 a Diamond Bank Limited v Partnership Investment Company Limited and another b COURT OF APPEAL, LAGOS DIVISION OGUNTADE, GALADIMA, MUHAMMAD JJCA Date of Judgment: 19 DECEMBER, 2002 Suit No.: CA/L/246/2000 c Banking – Banker and customer relationship – Negligence by bank – What plaintiff must plead and prove – Order 17 Rule 5 High Court of Lagos State (Civil Procedure) Rules, 1994 d Practice and procedure – Pleadings – Negligence – How pleaded – How proved – Order 17 Rule 5 High Court of La- gos State (Civil Procedure) Rules, 1994 e Facts The first respondent had an account with the Marina branch of the appellant wherefrom it purchased two Manager’s cheques, otherwise called banks drafts. The one for the sum of Eleven f Million Naira was in favour of Eko Fisheries Limited. The other for the sum of Six Million, Two Hundred and Fifty Thousand Naira was in the name of First Yield Investment Limited. The two drafts were bought on 28 December, 1994. g On 29 December, 1994, the Marina Branch Manager of the appellant was verbally requested on behalf of the first re- spondent not to pay the two cheques without the confirma- tion and clearance from the latter. It is first respondent’s fur- ther case that the Manager requested that the instruction be h reduced to writing which was done on 29 December, 1994. The cheques were negligently paid by the appellant contrary to the first respondent’s written instruction. i The case made by the appellant was that the cheques pur- chased by the first respondent being a certified bank draft was honoured on presentation. The appellant pleaded that the value of the two cheques was on purchase debited against the buyer’s account making the appellant the drawer j of the cheques. The first respondent was therefore not in the

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500 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) position to give further instruction regarding the payment of a the cheques. The second respondent’s case was that it had properly dis- charged its duty as a collecting bank. In a considered judg- b ment dated 12 April, 2000, the court below found against the appellant in favour of the first respondent while the case against the second respondent was dismissed. And thus the instant appeal. Order 17 Rule 5 High Court of Lagos State (Civil Proce- c dure) Rules, 1994 provides:– “5(1) In all cases in which the party pleading relies on any mis- representation, fraud, breach of trust, wilful default, or un- due influence, and in all other cases, in which particulars d may be necessary, particulars (with dates and items if nec- essary) shall be stated in the pleadings.” Held – 1. By the provisions of Order 17 Rule 5 of Lagos State e High Court Rules, a plaintiff in case of negligence must plead particulars of the negligence alleged. The Rule does not disclose a specific format. Where therefore the plaintiff has fully averred to all the facts necessary in f making his case against the defendant the necessity of specifically providing particulars in the claim abates. 2. In cases of negligence, the law requires the following to be established:– g (a) That the appellant owed him duty of care; (b) That the appellant has breached the said duty; and (c) There was damage resulting from the breach of the h duty owed to the claimant. In the instant case the respondent’s pleading were not defective having disclosed sufficient materials regarding his claim against the appellant. Sufficient facts had not i only been pleaded but evidence in proof of same had been led to justify the decision arrived at by the lower court. Appeal dismissed. j

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Diamond Bank Ltd v. Partnership Investment Co Ltd 501 a Cases referred to in the judgment

Nigerian b Abdullahi v Elayo (1993) 1 NWLR (Part 268) 171 Broadline Ent. Ltd v Monetary Maritime Corporation (1995) 9 NWLR (Part 417) 1 c Buraimoh v Esa (1990) 2 NWLR (Part 133) 406 Ekwunife v Wayne (West Africa) Ltd (1989) 5 NWLR (Part 122) 422 d Koya v U.B.A. Ltd (1997) 1 NWLR (Part 481) 251 Nigerian Maritime Services Ltd v Afolabi (1978) 2 SC 79 Omoregbe v Lawani (1980) 3–4 SC 108 e Seaby Jernstoberi M.F. A./S v Olaogun Enterprises Ltd (1994) 14 NWLR (Part 637) 128 Seismograph service Nigeria Ltd v Mark (1993) 7 NWLR f (Part 304) 203 United Bank for Africa v Ibhafidon (1994) 1 NWLR (Part 318) 90 g Nigerian rules of court referred to in the judgment Lagos State High Court (Civil Procedure) Rules, 1994, Or- der 17 Rules 5 and 6 h Counsel For the appellant: Ademola Akinrele, SAN (with him A. Olumide) i For the first respondent: Chief Debo Akande, SAN (with him N. Nwoye) For the second respondent: Banjide Koku (with him Tayo j Oyeleke)

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Judgment a MUHAMMAD JCA: (Delivering the lead judgment) The first respondent in the instant appeal was the plaintiff at the court below. The appellant and the second respondent were the b first and second defendants respectively. For our purpose the parties would be referred to simply as appellant and respon- dents and the trial court, the court below. The first respondent’s claim against the appellant and the c second respondent jointly and severally was for:– “(a) The sum of N6,250,000 (Six Million, Two Hundred and Fifty Thousand Naira) being money had and received by the defendants in negligently cashing the bank draft made out by the first defendant for the plaintiff. d (b) The sum of N11,000,000 (Eleven Million Naira) against the first defendant only being monies negligently paid by it, de- spite the plaintiff’s subsisting countermand and direct in- struction not to pay until confirmation is given by the plain- tiff. e (c) Interest from the 29 September, 1994 at the rate of 21% per annum until date of judgment and at the rate of 6% per an- num until final liquidation. (d) The sum of N2,000,000 (Two Million Naira) being general f damages following from the said negligently paid and cashed cheque by the defendant.” Pleadings were ordered, filed and exchanged. The matter was heard in a full trial. At the end, the court below High g Court of Lagos State, presided over by Rhodes Vivour, J, found the appellant liable to the first respondent in negli- gence. The appellant was ordered to pay the sum of N15,150,000 plus interest at 21% per annum from 28 De- cember, 1994 until the judgment and thereafter at 3% until h the judgment sum was fully paid. Being dissatisfied with the judgment the appellant has appealed on four grounds. The brief facts of the case from which the instant appeal arose are supplied hereunder. i The first respondent had an account with the Marina branch of the appellant wherefrom it purchased two Manag- ers cheques, otherwise called banks drafts. The one for the sum of Eleven Million Naira was in favour of Eko Fisheries j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Muhammad JCA Diamond Bank Ltd v. Partnership Investment Co Ltd 503 a Limited. The other for the sum of Six Million, Two Hundred and Fifty Thousand Naira was in the name of First Yield In- vestment Limited. The two drafts were bought on 28 De- b cember, 1994. On the 29 December, 1994, the Marina Branch Manager of the appellant was verbally requested on behalf of the first respondent not to pay the two cheques without the confirma- c tion and clearance from the latter. It is first respondent’s fur- ther case that the Manager requested that the instruction be reduced to writing which was done on 29 December, 1994. The cheques were negligently paid by the appellant contrary d to the first respondent’s written instruction. The case made by the appellant was that the cheques pur- chased by the first respondent being a certified bank draft is honoured on presentation. The appellant pleaded that the e value of the two cheques was on purchase debited against the buyer’s account making the appellant the drawer of the cheques. The first respondent was therefore not in the posi- tion to give further instruction regarding the payment of the f cheques. The second respondent’s case was that it had properly dis- charged its duty as a collecting bank. In a considered judg- ment dated 12 April, 2000, the court below found against the g appellant in favour of the first respondent while the case against the second respondent was dismissed. And thus the instant appeal. Parties have filed and exchanged briefs. The briefs at the h hearing of the appeal were adopted, without more, as argu- ments for the appeal. All parties are at one in their briefs as to what issue should determine the appeal. The two issues formulated in the appellant’s brief and impliedly adopted by i the two respondents are:– (a) Whether negligence was pleaded or proven in accor- dance with law? (b) Whether interest was pleaded or proven in accor- j dance with law?

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The appellant’s quarrel in the appeal as contained in the two a issues formulated in his brief is that first respondent had been in breach of the fundamental rules of pleadings. As to his first issue, it is argued that first respondent failed b to specifically plead negligence and if he did, the pleadings did not disclose particulars of the negligence for which relief appellant had been held liable. The appellant referred to paragraph 12 of the statement of claim at page 2 of the re- c cord and contends that such a blanket plea was not enough to sustain the claim lodged against it. In buttressing his point, appellant refers to the following (see Koya v United Bank for Africa Ltd (1997) 1 NWLR (Part 481) 251 at 291 and Seismograph Services Nigeria Ltd v Mark (1993) 7 d NWLR (Part 304) at 214). Secondly, not only had first respondent failed to plead neg- ligence, the proof of same was equally lacking. The trial court’s conclusion as to appellant’s liability at pages 99–103 e of the printed record based on the letter written to appellant by first respondent that payment of the bank drafts should not without first respondent’s prior confirmation be effected, was wrong. The lower court, it is contended, created a fur- f ther duty of care on the appellant when there was none in the first place. In the light of the fact that all drafts of the type purchased by the first respondent are paid on sight, first re- spondent was in no position to countermand the cheque and g in so doing, create the added duty of care for which appel- lant was held responsible in negligence. appellant cites the case of United Bank for Africa Ltd v Ibhafidon (1994) 1 NWLR (Part 318) 90 in support of his argument. h Under the second issue, appellant has argued that it was incumbent for first respondent to plead the basis upon which his claim for interest rested and prove his case accordingly. Although the writ of summons taken out against the appel- i lant contained the interest rate that was being claimed in re- spect of the statement of the amount appellant was alleged to have negligently paid, first respondent’s statement of claim does not contain same. There was neither pleading of rate of interest nor proof of it. The appellant has called in aid (see j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Muhammad JCA Diamond Bank Ltd v. Partnership Investment Co Ltd 505 a Saeby Jernstoberi M.F. A/S v Olaogun Enterprises Ltd (1994) 14 NWLR (Part 637) 128 and Ekwunife v Wayne (West Africa) Ltd (1989) 5 NWLR (Part 122) 422.) b The appellant has urged us to allow the appeal. The first respondent has vigorously opposed the appeal. He notes in his brief that a cause of action is constituted by the summons and the statement of claim and that in both negli- c gence has specifically been claimed. The action was fought on the basis of that claim. It is neither the law, appellant fur- ther argues, that a party who claims negligence must particu- larly devote a paragraph to particulars of the negligence nor d does failure to do become fatal to his cause. After all, appel- lant never asked for any further particulars and must now not complain of same. Reference has been made to Order 17 Rule 6 of the Lagos State High Court (Civil Procedure) Rules, 1994 which first respondent submits are in pari mate- e ria with Order 18 Rule 12(1) of the Supreme Court Practice. The first respondent further refers to paragraph 12/12 on page 308 of the 1979 Supreme Court Practice that provides functions of particulars in matters. The first respondent con- f tends that by virtue of paragraphs 14 and 15 of appellant’s statement of defence, on page 13 of the record, and the evi- dence of DW3 on pages 68 lines 22–34, the appellant knew fully the case that he had to meet first respondent had sup- g plied all the necessary materials necessary for sustaining the case against the appellant and if there was any omission it never caused injustice to warrant upturning the decision of the lower Court. The appellant cannot rely on the authorities he cited as they never decided the principle appellant as- h cribed to them. As to the matter of interest, first respondent argues that in- terest had been claimed in the writ of summons and a clear i reference made in the statement of claim to the aspect of the writ whereat the interest was claimed. The statement of claim had equally pleaded the facts upon which the claim for inter- est was rested. On the authority of Ekwenife v Wayne (West Africa) Ltd (supra) first respondent contends that the scenario j had entitled him to the award he received on interest.

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The first respondent argues, after making copious references a to the record of appeal regarding the evidence of the two sides, that the evidence it adduced had persisted unchallenged and uncontroverted. The lower court was right to have relied on such evidence. The first respondent referred to Broad Line b Enterprises Ltd v Monetary Maritime Corporation and an- other (1995) 9 NWLR (Part 417) 1 at 27; Isaac Omoregbe v Daniel Lawani (1980) 3–4 SC 108 at 117 and Nigerian Mari- time Services Ltd v Afolabi (1978) 2 SC 79. c Regarding second respondent’s brief and arguments therein, first respondent urged us to discountenance same because the former had not obtained the leave of this Court to raise issues contained in the brief which issues had not d been raised at the lower court. The second respondent’s argument cannot be considered in view of Order 6 Rule 4(11) of the Court of Appeal Rules. On the whole, first respondent has asked us to uphold the e decision of the trial court and dismiss the appeal. The legality of the second respondent’s brief can be appro- priately considered at this point. We cannot discountenance the second respondent’s brief because he had not obtained f the leave of this Court pursuant to Order 6 Rule 4(11). He needed not to have obtained the leave of this Court pur- suant to Order 6 Rule 4(11) of our Rules to legitimately re- spond to issues raised in the appellant’s brief. The appellant g it is, being the party to introduce those fresh issues that had not been canvassed at the court below, that must and had ob- tained the required leave. If it were otherwise, first respon- dent’s brief and arguments as well, not advanced consequent h upon the leave he argued a respondent should obtain, cannot all be considered by us. The real fault with second respon- dent’s brief is in respect of Order 3 Rule 14(1) of the Court of Appeal Rules which it has breached. The sub-rule states:– i “Order 3 Rule 14(1):– “14(1) A respondent who not having appealed from the deci- sion of the court below, desires to contend on the appeal that the decision of that court should be varied, either in any event or in the event of the appeal being allowed in j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Muhammad JCA Diamond Bank Ltd v. Partnership Investment Co Ltd 507 a whole or in part, must give notice to that effect, specify- ing the grounds of that contention and the precise form of the order which he proposes to ask the court to make, or to make in that event as the case may be.” b From the foregoing, respondent to any appeal before this Court must except with notice to that effect specifying the grounds upon which they choose not to support the judg- ment being appealed against as it is, cannot be heard by this c Court. It follows from this rule that ordinarily the legitimate position of the respondent is that of one who supports the judgment of the lower court and in that position must call for the affirmation of the said judgment as given. Where the re- d spondent supports the judgment but for different reasons from those given by the lower court or does not entirely agree with the decision as reached, for him to he heard, the rule of court has made the issuance of notice to that effect on e the respondent mandatory. In the absence of such a notice, the respondent would not be heard in an appeal. In the in- stant case, second respondent has asked us to allow the ap- peal instead of supporting the decision of the lower court. In f the absence of the mandatory notice required of him by the rules of court, second respondent cannot be so heard. All ar- gument in the second respondent’s brief contending that the decision of the lower court be varied, without notice to that g effect having been given by the second respondent, are in- competent. The arguments which make up the entire brief are accordingly discountenanced. And now to the merits and otherwise of the appeal. h To fully understand the import of the two issues raised in this appeal, it is necessary to refer to the pleadings of par- ticularly the first respondent and the appellant. i The first respondent’s statement of claim is at pages 5–6 of the record and reproduced therefrom are paragraphs 4, 5, 6, 7 and 8:– “4. The plaintiff avers that on the 28 December, 1994 they pur- chased two Manager’s cheques for N11,000,000 (Eleven j Million Naira) and N6,250,000 (Six Million, Two Hundred

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and Fifty Thousand Naira) from the first defendant’s Ma- a rina branch where it is a Customer. 5. The said cheques were purchased in the names of Eko Fish- eries Ltd and First Yield Investment Ltd. The defendants are hereby given notice to produce these cheques at the trial b of this case. 6. The plaintiff further avers that on the 29 December, 1994 before these cheques had gone for clearing, it intimated the first defendant Manager at its Marina branch and other staff c not to transact the said cheques without their confirmation and clearance. 7. The plaintiff’s instruction was communicated to them both orally and by a letter dated the 29 December, 1994 and the plaintiff was assured by the Manager of the necessary d prompt attention. 8. The plaintiff avers that despite these assurances, the first defendant went to transact the cheques without their con- firmation and these were done express without the usual 5 e days processing period.” The first respondents claim against the appellant and second respondent jointly and severally as contained in the writ of summons issued has earlier in this judgment, been repro- f duced. The appellant’s defence as contained in his pleadings para- graphs 4, 5, 6, 10, 14, 15 and 16 of which are the most rele- vant, are hereunder reproduced from page 11–14 of the re- g cord. “4. Further to paragraph 3 above, the first defendant avers that the moment the plaintiff purchased the 2 (two) Managers cheques (certified bank cheques) dated 28 December, 1994 h for N11,000,00000 (Eleven Million Naira) and N6,250,000 (Six Million, Two Hundred and Fifty Thousand Naira) the plaintiff’s account with the first defendant is immediately debited the equivalent sum of the amount on the faces of the said 2 (two) certified bank cheques issued by the first de- i fendant. 5. The first defendant denies paragraphs 6, 7 and 8 of the statement of claim and further avers that by banking prac- tice, the moment the plaintiff issued its own cheques order- ing the first defendant to issue its certified bank cheques, j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Muhammad JCA Diamond Bank Ltd v. Partnership Investment Co Ltd 509 a the first defendant immediately becomes the drawer of the said certified bank cheques for the value stated thereon. 6. In further denial of paragraph 6 of the statement of claim, the first defendant further states that the cover or advising b instrument in respect of the cheques had gone for clearing before the end of business on the same day (28 December, 1994). 10. That first defendant avers that it is not the banking practice c for the first defendant to stop a certified bank cheque be- longing to it once it is issued. 14. The first defendant denies paragraphs 11, 12 and 13 of the statement of claim and avers that there is no negligence on its part or on the part of any of its officers and that if there d is any negligence, it is that of the plaintiff in losing the cheques. 15. The first defendant avers further that if there is any negli- gence at all which is denied, it was occasioned by the plain- e tiff, by the very act of the officers of the plaintiff who de- livered the said cheques to the payees. 16. In further answer to paragraphs 7, 8 and 11 of the statement of claim, the first defendant further avers that its Managers or any of its officers for that matter Never gave any Assur- f ances either orally or in writing to the plaintiff. Rather, it informed the plaintiff that it could not accede to the plain- tiff’s request of confirming from it before any payment is made on the cheque since the plaintiff is neither the drawer g nor the payee.” The principal witness in proof of first respondent’s case was PW1, whose testimony spans pages 23–32 of the record. The portion of his evidence relevant to the case at hand goes h thus:– “I picked my phone and called the first defendant (Mr Felix Okaka) who was Branch Manager. I explained to him that because of the nature of the transaction I would want a reconfirmation be- fore the Manager’s cheques are renegotiated. He advised that I put i it in writing.” Exhibit C emanated from first respondent to the appellant and was received by DW3, the Manager who advised that it be written and who inspite of exhibit C, without the confir- j mation proceeded to pay the cheques.

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DW3 in his testimony at pages 66–69 testified partly a thus:– “The letter asking me not to pay is dated 29 December, 1994, I had not paid out the funds by 29 December, 1994 when the bank re- ceived a letter from the plaintiff that the cheques were missing be- b fore we paid.” The trial Judge has graphically referred to and utilised the testimonies of these vital witnesses in his judgment and after evaluation of the totality of the evidence adduced before him c concluded that appellant was negligent. Now, the appellant has contended and relied on the au- thorities earlier referred to in this judgment that because first respondent’s pleadings had omitted particulars of the negli- d gence levied against him, it was defective and incapable of sustaining the case held made out by the trial court. This contention is not tenable given the state of pleadings e of the first respondent and the evidence rightly led conse- quent upon the pleadings. One has read all the judicial authorities referred to in ap- pellant’s brief on which appellant has relied for his conten- f tion that in a claim for negligence a claimant’s pleadings must specifically contain particulars of the negligence for which the court is asked to hold the defendant liable and omission of such particulars is fatal to the plaintiff’s case. It appears to me that appellant’s Counsel does not fully grasp g the import of the decisions, particularly Seismograph Ser- vices Nigeria Ltd v Mark and Koya v UBA Ltd (supra) first respondent’s Counsel appears more informed on the matter. One readily agrees with the latter that the decisions have not h evolved the principle ascribed to them. It is to be added that if the decisions were of the import appellant Counsel said in their brief they did, by the cardinal rules of stare decisis, be- ing not specifically decisions on the requirements of plead- i ings pursuant to the 1994 Lagos State High Court (Civil Procedure) Rules applicable to the trial court and the instant case, the judicial authorities will not apply. They can only be persuasive. The learned Counsel to first respondent has real- ised this much. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Muhammad JCA Diamond Bank Ltd v. Partnership Investment Co Ltd 511 a Order 17 Rule 5 of Lagos State High Court rules it is that provided for particulars in pleadings at the lower court. Once a claimant has fulfilled the requirements hereunder, his pleadings cannot be said to be defective. The rule reads:– b “5(1) In all cases in which the party pleading relies on any mis- representation, fraud, breach of trust, wilful default, or un- due influence, and in all other cases, in which particulars may be necessary, particulars (with dates and items if nec- c essary) shall be stated in the pleadings.” My understanding of the foregoing clumsily drafted rule of practice is that pleadings must contain particulars. The rule does not disclose a specific format. Where, therefore, the d plaintiff has fully averred to all the facts necessary in mak- ing his case against the defendant, the necessity of specifi- cally providing particulars in the claim abates. In the case at hand where first respondent’s action was in negligence, the e law required that he established, and here see Seismograph Service Ltd v Mark (supra), the following:– a. That the appellant owed him the duty of care. f b. That appellant had breached the said duty; and c. There was damage resulting from the breach of the duty owed to the claimant. Evidence in proof of the above requirement becomes admis- g sible, only if the facts in respect of the requirements have been pleaded. Evidence regarding unpleaded facts are not re- ceivable and if received must be discountenanced by the trial court. (See Abdullahi v Elayo (1993) 1 NWLR (Part 268) 171 h and Buraimoh v Esa (1990) 2 NWLR (Part 133) 406.) It must be concluded that first respondent’s pleadings were not defective having disclosed sufficient materials regarding his claim against the appellant. Sufficient facts had not only i been pleaded but evidence in proof of same had been led to justify the decision arrived at by the lower court. The trial court’s evaluation of the evidence is unimpeachable. It has been shown that appellant owed the first respondent a duty j of care. It has been shown that appellant had breached this

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Muhammad JCA 512 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) duty. Damage as a result of the breach had equally been a proved. The appellant should not have paid the two cheques without the prior confirmation in writing of the first respon- dent. It was appellant itself through DW3 that asked that ex- b hibit C be and was written. The appellant proceeded to pay contrary to the content of exhibit C thereby causing first re- spondent loss of the value of the two cheques less what the police recovered from the dupes. A decision in this light c cannot be tampered with now. The appellant cannot equally complain that the first re- spondent did not plead and prove the issue of interest. By paragraph 18 of its statement of claim, first respondent had d claimed per the writ of summons earlier taken out against the appellant. The writ contains the principal sum and the rate of interest for which recovery the action against appel- lant was commenced. Thus the facts as contained on the writ e had become subsumed in the statement of claim. It was pur- suant to this pleading that PW1 testified at page 26 lines 16– 18 that he was asking the court to find the defendant liable for fraudulently paying the drafts and pay him “interest and f damages as per my summons”. By the decision in Ekwunife v Wayne (supra), first respon- dent is, and the lower Court has stated this much, on a very firm ground. The decision given in his favour cannot be dis- g turbed. The two issues in this appeal are resolved in his fa- vour and the appeal being without merit is dismissed with N5,000 cost against the appellant. h OGUNTADE JCA: I agree. GALADIMA JCA: I have had the privilege of reading in draft leading judgment just delivered by my learned brother Muhammad, JCA. I agree entirely with his reasoning and i conclusion in dismissing the appeal. Two dominant issues formulated by the appellant and adopted by the respondents are that:– (a) Whether negligence was pleaded and proved. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, LAGOS DIVISION) Galadima JCA Diamond Bank Ltd v. Partnership Investment Co Ltd 513 a (b) Whether interest was pleaded and proved in accor- dance with the law. I have carefully perused the first respondent’s statement of b claim, particularly paragraphs 4–8 and appellant’s defence as contained in his pleadings, paragraphs 4, 5, 6, 10, 14, 15 and 16 reproduced in the lead judgment. I have considered the reason for the conclusion reached by c the lower court in its judgment. I have carefully considered the submissions of the learned Counsel for the parties and all the judicial authorities relied upon in the appeal. Under the first issue, I do not think that the first respon- d dent’s pleadings were defective, having sufficiently dis- closed material facts regarding its claim against the appel- lant. Besides, not only had sufficient facts been pleaded, but evidence in proof of same had been led to ground the deci- e sion of the lower court that the appellant breached its duty of care owed the first respondent by paying the two cheques without the prior confirmation put in writing by the first re- spondent. Exhibit C emanated from first respondent to the f appellant and was received by DW3, the Manager who ad- vised that it be written and who in spite of exhibit C without the confirmation of the first respondent proceeded to pay the said cheques thereby causing first respondent loss of the g value of the two cheques. Under the second issue the appellant has argued that the onus is on the first respondent to plead the basis upon which his claim for interest rested for the award of the said interest h by the learned trial Judge. Again, the appellant cannot be heard to complain that the first respondent did not plead and prove the issue of interest. It was in paragraph 18 of the statement of claim that the first respondent claimed, per the i writ of summons the principal sum and the rate of interest for which the appellant had commenced its action to re- cover. PW1 testified that he was urging the court to find the appellant liable for having negligently paid the two drafts: interest and damages as per the writ of summons were also j claimed.

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In the light of this little contribution and for the fuller rea- a sons given in the lead judgment, this appeal ought to be dismissed. I abide by costs assessed as N5,000 against the appellant b Appeal dismissed.

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Nigeria Deposit Insurance Corporation v. Akahall and Sons Co Ltd 515 a Nigeria Deposit Insurance Corporation v Akahall and Sons Co Limited b COURT OF APPEAL, CALABAR DIVISION EKPE, OLAGUNJU, THOMAS JJCA Date of Judgment: 17 FEBRUARY, 2003 Suit No.: CA/C/80/2001 c Banking – “Insured Institution” in section 23D NDIC (Amendment) Decree No. 5 of 1997 and “Insured Banker” in section 46 NDIC (Amendment) Decree No. 5 of 1997 – Dis- tinction thereof – How construed d Company Law – Sections 417 and 425(1) of Companies and Allied Matters Cap 59 Laws of the Federation of Nigeria, 1990 – Purport of – Whether oust the power of the liquida- tor to file action or being sued e Practice and procedure – Action – Commencement thereof – Application for writ of summons and issuance of writ of summons – Distinction thereof Facts f The action was commenced on 7 August, 1998 by applica- tion for a writ of summons as per particulars of claim at- tached thereto and accompanied by a motion ex parte sup- ported by an affidavit asking for leave of the court:– g (a) “To sue the defendant Nigeria Deposit Insurance Corpora- tion (Receiver/Liquidator of Allied Bank of Nigeria Plc) outside jurisdiction of this Court and as liquidators. (Italics mine for emphasis.) h (b) To serve the writ of summons, particulars of claim and all other processes in the suit on the defendant through their principal officers now running the defunct bank and the Merchant Bank of Nigeria Plc both in Calabar; and (c) To place the suit on the ‘Undefended List.’” i On 12 August, 1998, the motion ex parte was heard; all the three reliefs were granted and the case was set down for hearing on 12 October, 1998 on the undefended list. How- ever, on 12 October, 1998, the defendant who appeared by j her Counsel asked for an adjournment because the Counsel

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516 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) had just been briefed and needed time “to go through the a brief and to respond”. By agreement of learned Counsel on both sides the case was adjourned to 16 November, 1998 for mention. In the meantime, on 4 November, 1998, the plain- tiff filed a further and better-affidavit in support of her case b to which she attached 3 additional documents and on 11 No- vember, 1998. The defendant filed a notice of preliminary objection to the action which was argued from 16 Novem- ber, 1998 and concluded on 28 February, 2000. c The gist of the preliminary objection was that the licence of Allied Bank of Nigeria Plc having been revoked by the Central of Bank of Nigeria (“CBN”) as a result of which the process of liquidation of the bank was set in motion and its d control taken over by the Nigeria Deposit Insurance Corpo- ration (“NDIC”), the bank as an insured entity cannot be sued nor can her liquidator, the NDIC, be sued as by opera- tion of section 23D of NDIC (Amendment) Decree No. 5 of e 1997, any suit against either the bank or NDIC as her liqui- dator becomes abated. Objection by learned Counsel for the defendant was over- ruled by the learned trial Judge who held that by operation f of section 417 Companies and Allied Matters Act (“CAMA”), a bank in the process of winding up can be sued with leave of the court which is what the plaintiff did by su- ing “Allied Bank in liquidation by the NDIC”; that corre- g spondingly, subsection 425(1)(a) of the Act vests the liqui- dator with the power to defend any action instituted against the bank. Dissatisfied, the appellant appealed to the Court of Appeal. h Held – 1. The expression “insured institution” used in section 23D of NDIC Act as a technical term to give protection to an i unidentifiable group against the under privileged citi- zenry at large with a view to freezing their legal rights and by implication ousting the jurisdiction of the court is not identical with the expression “insured banker” in section 46 of the same Act. j

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Nigeria Deposit Insurance Corporation v. Akahall and Sons Co Ltd 517 a In the instant case, the appellant having failed to show that Allied Bank Nigeria Plc is an insured institution within the contemplation of section 23D of NDIC Act, she is not entitled to hide under the shadow of an amor- b phous statutory dimera to defeat the equity of an inno- cent party. 2. Section 417 of CAMA is not meant to impose a further restriction on the provision of subsection 425(1)(a) of c the Act which empowers a liquidator to sue or be sued in the name and on behalf of the company. In the instant case; Allied Bank Nigeria Plc, not having d been shown to be an “insured institution” within section 23D of NDIC Act it is not entitled to the protection of- fered by that section to bar the respondent from institut- ing action against her liquidator for any wrong alleged against the bank. Nor is the right of the respondent to in- e stitute action against the liquidator by virtue of section 425(1)(a) of CAMA defeasible by the provision of sec- tion 23D of NDIC Act. 3. There is a distinction between application for a writ of f summons including asking for leave of the court as a condition precedent in initiating an action and issuing an originating writ of summons for commencing an action. The former is the duty of the plaintiff litigant while the g latter is the duty of the court. The culmination of the process when the writ is signed by the person who is authorised to do so is what is meant by a writ being is- sued. The two steps must be kept distinct in considering h whether an action is properly instituted. Appeal allowed.

Cases referred to in the judgment i Nigerian Abbas v Commissioner of Police (1998) 12 NWLR (Part 577) 308 j Adamu v Ikharo (1988) 4 NWLR (Part 89) 474

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Adejumo v Ayantegbe (1989) 3 NWLR (Part 110) 417 a Adigun v Attorney-General of Oyo State (1987) 18 NSCC (Part 1) 346 Agbaka v Amadi (1998) 11 NWLR (Part 572) 16 b Akinbobola v Plison Fisco (Nigeria) Ltd (1991) 1 NWLR (Part 167) 270 Alawode v Semoh (1959) 4 FSC 27 c Atoyebi v Governor, Oyo State (1994) 5 NWLR (Part 344) 290; (1994) 5 SCNJ 62 Attorney-General, Lagos State v Dosunmu (1989) 3 NWLR (Part 111) 552 d Attorney-General, Oyo State v Fairlakes Hotel Ltd (1988) 5 NWLR (Part 92) 1 Aubergine Collections Ltd v Habib Nigeria Bank Ltd (2002) FWLR (Part 128) 1276; (2002) 4 NWLR (Part 757) 338 e Azumi v Pan African Bank Ltd (1996) 8 NWLR (Part 467) 462 Bello v Attorney-General of Oyo State (1986) 17 NSCC (Part 11) 1257 f Ben Thomas Hotel v Sebi Furniture Co Ltd (1989) 5 NWLR (Part 123) 523 Bolaji v Bamgbose (1986) 4 NWLR (Part 37) 632 g CCB (Nigeria) Plc v Mbakwe (2002) FWLR (Part 109) 1678; (2002) 3 NWLR (Part 755) 522 CCB (Nigeria) Plc v Onwuchekwa (2002) 3 NWLR (Part 647) 64 h Chrisdon Industrial Co Ltd v African International Bank Ltd (2002) FWLR (Part 128) 1355; (2002) 8 NWLR (Part 768) 152; (2002) 36 WRN 52 Commissioner for Local Government v Ezemokwe (1991) 3 i NWLR (Part 181) 615 Co-operative and Commerce Bank (Nigeria) Plc v Samed Investment Co Ltd (2000) 4 NWLR (Part 651) 19 Ejifodomi v Okonkwo (1982) 11 SC 74 j

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Nigeria Deposit Insurance Corporation v. Akahall and Sons Co Ltd 519 a Fadare v Attorney-General of Oyo State (1982) 4 SC 1 Fasoro v Beyioku (1988) 2 NWLR (Part 76) 263 Federal Mortgage Bank of Nigeria v NDIC (1999) (Part b 591) 333 Garba v Federal Civil Service Commission (1988) 1 NWLR (Part 71) 449 Honika Sawmill v Hoff (1994) 2 SCNJ 86 c Iyizoba v Olanipekun (1979) 2 F.N.R. 130 Johnson v State (1981) 2 SC 29 Joy v Dom (1999) 9 NWLR (Part 620) 538; (2001) FWLR d (Part 62) 2026 Kalu v State (1998) 12 SCNJ 1 Madukolu v Nkemdilim (1962) 1 All NLR 587 e National Bank of Nigeria Ltd v Shoyoye (1977) 5 SC 181 National University Commission v Oluwo (2001) 3 NWLR (Part 699) 90 Necha v I.N.E.C. (2001) 3 NWLR (Part 699) 74 f Nicholls v General Manager Nigerian Railway (1938) 14 NLR 87 Nigeria Ports Plc v Ntiero (1998) 6 NWLR (Part 555) 640 g Obi v Nkwo Market Community Bank Ltd (2001) 2 NWLR (Part 696) 113 Odubeko v Fowler (1993) 7 NWLR (Part 308) 637 Ojokolobo v Alamu (1987) 7 SCNJ 98 h Okafor v Ibeziako (1965) 1 All NLR 37 Okeke v Attorney-General of Anambra State (1992) 1 NWLR (Part 215) 60 i Okenwa v Military Governor of Imo State (1996) 6 SCNJ 221 Olubusola Stores v Standard Bank Nigeria Ltd (1975) 4 SC 51 j Onuaguluchi v Ndu (2001) 7 NWLR (Part 712) 309

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Onwuchekwa v NDIC (2002) FWLR (Part 101) 1615; (2002) a 5 NWLR (Part 760) 371 Osayande v Osagie (1965) NMLR 205 Oyebamiji v State Civil Service Commission, Oyo State b (1997) 5 NWLR (Part 503) 113 Paico (Press and Books) Ltd v Central Bank of Nigeria (2001) 3 NWLR (Part 700) 347 c Peenok Investment Ltd v Hotel Presidential Ltd (1982) 12 SC 1 Resolution Trust Corporation v FOB Investment and Prop- erty Ltd (2001 ) 6 NWLR (Part 708) 246 d Salami v Chairman L.E.D.B. (1989) 20 NSCC (Part 3) 427; (1989) 5 NWLR (Part 121) 519 Skenconsult (Nigeria) Ltd v Ukey (1981) 1 SC 6 e Ugu v Tabi (1997) 7 NWLR (Part 513) 368; (1997) 7 SCNJ 222 Union Bank of Nigeria Plc v Governor, Anambra State f (2001) 12 NWLR (Part 726) 155

Nigerian statutes referred to in the judgment Banks and Other Financial Institutions Decree No. 25 of g 1991, section 38(3) Companies and Allied Matters Act Cap 59 Laws of the Fed- eration of Nigeria, 1990, sections 417, 425(1)(a) Constitution (Suspension and Modification) Decree No. 107 h of 1993, section 230(l)(d) Constitution of the Federal Republic of Nigeria, 1999, sec- tion 251(1)(d) i Federal High Court (Civil Procedure) Rules Decree No. 23 of 1999, sections 3 and 5 NDIC (Amendment) Decree No. 5 of 1997, sections 15 and 23D j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION)

Nigeria Deposit Insurance Corporation v. Akahall and Sons Co Ltd 521 a Nigerian rules of court referred to in the judgment Federal High Court (Civil Procedure) Rules, 1976, Order 3 Rule 9, Order 23 Rule 4 b Federal High Court (Civil Procedure) Rules Cap 134 Laws of the Federation of Nigeria, 1990, Orders II and III; Order 5(15); Order 24 Rules 2(1), (2) and 3; Order 27 Rules l and 3 c Counsel For the appellant: Mba E. Ukweni, Esq. For the respondent: Samuel J. Ikpo, Esq. d Judgment OLAGUNJU JCA: (Delivering the lead judgment) The ap- peal is from the decision of Nwaogwugwu, J of Calabar Ju- e dicial Division of the Federal High Court rendered on sum- mary trial under the undefended list procedure whereby judgment was entered for the respondent herein who was the provisional liquidator of the Allied Bank of Nigeria Plc with which the plaintiff had the transactions leading to the dis- f pute. The action was commenced on 7 August, 1998 by applica- tion for a writ of summons as per particulars of claim at- tached thereto and accompanied by a motion ex parte sup- g ported by an affidavit asking for leave of the court:– (a) “To sue the defendant Nigeria Deposit Insurance Corpora- tion (Receiver/Liquidator of Allied Bank of Nigeria Plc) outside jurisdiction of this Court and as liquidators (Italics h mine for emphasis); (b) To serve the writ of summons, particulars of claim and all other processes in the suit on the defendant through their principal officers now running the defunct bank and the Merchant Bank of Nigeria Plc both in Calabar; and i (c) To place the suit on the ‘Undefended List’.” On 12 August, 1998, the motion ex parte was heard: all the 3 reliefs were granted and the case was set down for hearing on 12 October, 1998 on the undefended list. However, on 12 j October, 1998, the defendant who appeared by her Counsel

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Olagunju JCA 522 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) asked for an adjournment because the Counsel had just been a briefed and needed time “to go through the brief and to re- spond”. By agreement of learned Counsel on both sides the case was adjourned to 16 November, 1998 for mention. In the meantime, on 4 November, 1998, the plaintiff filed a fur- b ther and better-affidavit in support of her case to which she attached 3 additional documents and on 11 November, 1998 the defendant filed a notice of preliminary objection to the action which was argued from 16 November, 1998 and con- c cluded on 28 February, 2000. The gist of the preliminary objection is that the licence of Allied Bank of Nigeria Plc having been revoked by the Cen- tral of Bank of Nigeria (“CBN”) as a result of which the d process of liquidation of the bank was set in motion and its control taken over by the Nigeria Deposit Insurance Corpora- tion (“NDIC”), the bank as an insured entity cannot be sued nor can her liquidator, the NDIC, be sued as by operation of e section 23D of NDIC (Amendment) Decree No. 5 of 1997, any suit against either the bank or NDIC as her liquidator be- comes abated. In consequence, the plaintiff’s action is in- competent and therefore, the trial court had no jurisdiction to entertain the action. The objection by learned Counsel for the f defendant was overruled by the learned trial Judge who held that by operation of section 417 of Companies and Allied Matters Act (CAMA), a bank in the process of winding up can be sued with leave of the court which is what the plaintiff g did by suing “Allied Bank in liquidation by the NDIC”; that correspondingly, subsection 425(1)(a) of the Act vests the liquidator with the power to defend any action instituted against the bank. Following that conclusion, the learned trial h Judge considered the plaintiff’s action to which no notice of intention to defend was filed as stipulated by the rule of the court and entered judgment for the plaintiff. Dissatisfied with the judgment, the defendant as the appel- i lant filed 3 original and 1 additional grounds of appeal from which she formulated in her brief of argument the following 3 issues:– “1. Whether in view of the proviso to section 230(1)(d) of the Constitution of the Federal Republic of Nigeria (Suspension j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Olagunju JCA Nigeria Deposit Insurance Corporation v. Akahall and Sons Co Ltd 523 a and Modification) Decree No. 107 of 1993 (now section 251(1)(d) of the Constitution of the Federal Republic of Ni- geria, 1999), the learned trial Judge was right to have as- sumed jurisdiction over the subject matter of the suit being b in action arising from a dispute between an individual cus- tomer and its bank in respect of transactions between the individual customer and the bank? 2. Was the learned trial Judge right in coming to the conclu- sion that, in an undefended list procedure, where his juris- c diction is challenged, he could, while determining whether or not he had jurisdiction to entertain the suit, enter judg- ment on the substantive claim without calling on the defen- dant to answer the plaintiff’s allegation of facts? d 3. Whether the suit before the lower court was competent in view of section 23D of Decree No. 5 of 1997 and section 417 of the Companies and Allied Matters Act Cap 59 1990?” e Learned Counsel for the respondent adopted the issues for- mulated by the appellant with what he referred to as “slight modifications” the details of which he did not specify. In any case, I have serious reservations about the first issue formulated by the appellant and original ground of appeal 2 f from which the issue is distilled. The ground of appeal with- out the particulars of error reads:– “The learned trial Judge erred in law when he assumed jurisdiction in a matter that has been clearly excluded from its jurisdiction by g the proviso to section 230(1)(d) of the 1979 Constitution of the Federal Republic of Nigeria (Suspension and Modification) De- cree No. 107 of 1993 preserved as section 251(1)(d) of the 1999 Constitution of the Federal Republic of Nigeria.” h With respect to learned Counsel for the appellant, the com- plaint in original ground of appeal 2, reproduced above, did not arise in any shape or form from the proceedings before the trial court. See, in this regard, pages 48–53 and 55–57 of the record i in which the preliminary objection was raised and canvassed and the deliberation thereon in the court’s ruling on pages 58– 65 thereof. The points canvassed in the parts of the record enumerated above were limited to the effect of section 23D of NDIC Act as amended by Decree No. 5 of 1997. Whereupon j learned Counsel for the appellant argued that the action of the

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Olagunju JCA 524 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) plaintiff/respondent had become abated with the commence- a ment of liquidation of the bank contending further that the NDIC Act having taken away any legal right which the plain- tiff/respondent might have had against the bank the action is incompetent and so is any action against the liquidator of the b bank neither of which can be saved by any leave to institute the action obtained under section 417 of the CAMA. In other words, the defendant/appellant did not raise at the trial the ef- fect on the plaintiff/respondent’s action of subsection 230(1)(d) c of the Constitution of the Federal Republic of Nigeria, 1979, as amended by Constitution (Suspension and Modification) De- cree No. 107 of 1993. Nor is that provision of the Constitution alluded to in the ruling being appealed against. Thus the inclu- d sion of that provision as part of the complaint against the deci- sion of the court below is a bolt from the blue. That being the case, original ground of appeal 2 is a fresh point as raising an extraneous matter which does not arise e from the decision appealed against and, therefore, runs counter to the principle that a ground of appeal from which issue for determination is to be formulated must relate to matters canvassed or decided in the judgment from which the appeal springs (see Odubeko v Fowler (1993) 7 NWLR f (Part 308) 637, 653). Therefore, given the meaning of ground of appeal as any decision, resolution, inference or steps taken by the court, which decision is being challenged, that in the contention of the appellant is wrong (See Ade- g jumo v Ayantegbe (1989) 3 NWLR (Part 110) 417, 430), original ground of appeal 2 which is not an attack of the de- liberation of the court below or any of the matters canvassed before that court is incompetent. As a corollary, issue I dis- h tilled from the incompetent ground of appeal is ipso facto, also ineffectual as an issue formulated from an incompetent ground of appeal. (See Fasoro v Beyioku (1988) 2 NWLR (Part 76) 263 and Agbaka v Amadi (1998) 11 NWLR (Part 572) 16.) i Because of the colouring of jurisdiction with which the framing of the inapposite ground of appeal is coated, I have considered whether issue one can be treated as raising an exceptional point of law which can be allowed to be argued j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Olagunju JCA Nigeria Deposit Insurance Corporation v. Akahall and Sons Co Ltd 525 a on appeal even on a matter that was not canvassed or de- cided at the trial court within the principles enunciated in Attorney-General of Oyo State v Fairlakes Hotel Ltd (1988) 5 NWLR (Part 92) 1, 29, and succinctly restated in Atoyebi v b Governor of Oyo State (1994) 5 NWLR (Part 344) 290, (1994) 5 SCNJ 62, 78. But the condition precedent to being allowed to raise a fresh issue on appeal is that leave of the Appellate Court must first be obtained which for reasons ar- c ticulated in Okenwa v Military Governor of Imo State (1996) 6 SCNJ 221, is not granted as a matter of course. For elabo- ration of the principles on which this Court will allow fresh issue to be raised on appeal, see Ejifodomi v Okonkwo d (1982) 11 SC 74; Adamu v Ikharo (1988) 4 NWLR (Part 89) 474, 491; Honika Sawmill v Hoff (1994) 2 SCNJ 86, 93 and Koya v UBA Nigeria Ltd (1997) 1 SCNJ 1, 22. The appellant which did not obtain leave of this Court be- e fore filing the ill-fitting ground of appeal has failed to satisfy the requisite condition for raising a fresh issue on appeal. Therefore, bristling with surge of afterthoughts, he cannot be allowed to raise a fresh issue camouflaged, as it were as is- sue of jurisdiction. Admittedly, question of law and jurisdic- f tion can be raised for the first time on appeal even at the apex court. But as the apex court cautioned “it is not a free for all procedure”: Joy v Dom (2001) FWLR (Part 62) 2026; (1999) 9 NWLR (Part 620) 538. Expatiating upon the duty g of a party desirous of raising a fresh issue on appeal to seek leave of the court, the Supreme Court, per Belgore, JSC, admonished, at page 547, that:– “. . . to contend that issue of law or the Constitution can be raised h at any time and do nothing more than to raise it in argument is like laying a disrupting ambush for the opponent. This is not the spirit of our practice of adjudication of holding the even balance. Proper application must be made so that the other side will know clearly what he has to meet.” i If it is wrong for a Counsel to raise an issue of law or Con- stitution impromptu on appeal without giving the opponent any notice, it is offensive legally indefensible for a Counsel to introduce by stealth unnoticed by his opponent a fresh is- j sue without leave of the court as it happened in this case. It

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Olagunju JCA 526 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) is a subtle way of overreaching the opponent which the court a in its duty “holding the even balance” cannot wink at. In- deed, the court is duty bound to expose it. It is immaterial that the opposing Counsel is inattentive. In words of Karibi- Whyte, JSC in Bello v Attorney-General of Oyo State (l986) b 17 NSCC (Part 11) 1257, 1284–1285:– “. . . the day the courts allow the inarticulacy or ignorance of Counsel to determine the result of an action before it, that day will herald the unobtrusive genesis of the unwitting enthronement of c injustice aided by the court itself by default.” The introduction of a fresh issue in such a hole-and-corner way is tendentious as calculated to undermine the adversary. In the eyes of the law, it will be a disservice to turn a blind d eye to such a flagrant chicane. In the last analysis, I find that the appellant goofed up by filing a ground of appeal on a point of law that was not raised or canvassed at the court be- low or considered in the ruling being challenged on appeal. e By so doing the appellant has compromised the principle that ground of appeal must be a complaint against the deci- sion being challenged or one of the matters put in issue or canvassed at the trial. (See Adejumo v Ayantegbe (supra) at f 430 and Odubeko v Fowler (supra) at page 653. Against this background, original ground of appeal 2 having been raised in nubibus as totally unrelated to the matter canvassed at the trial or considered in the deliberation of that Court, it is na- ively vacuous and downright incompetent. g It is one bundle of that ill-conceived complaint that flew off at a tangent. Considering issue one intrinsically as the mouthpiece of h that ground of appeal, the incompetence of the ground of appeal crippled the issue as a sounding board of an imagi- nary complaint which existed outside the decision being ap- pealed from. Appraising the issue as “a fresh issue”, it is i mortally defective without leave of the court as its life sup- port medium being the condition precedent for its validity. Consequently, having found original ground of appeal 2 to be singularly incompetent, it is struck out. Similarly, issue one having been distilled from an incompetent ground of j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Olagunju JCA Nigeria Deposit Insurance Corporation v. Akahall and Sons Co Ltd 527 a appeal is also incompetent with no hope of metamorphosing into a fresh issue for lack of judicial approval to be so trans- formed for utilisation. I also strike out issue one. b I must now examine the second and third issues beginning with the third issue which is challenging competence of the plaintiff/respondent’s action. The attack of the competence of the respondent’s action in Issue 3 is based on 2 limbs, firstly, that the action is not maintainable by express provi- c sion of the law which ban the enforcement of any right that might have accrued to the respondent from the wrong by the company for which the appellant is a surrogate. Secondly, that no leave of court was obtained as a condition precedent d before the action was commenced. Argument of learned Counsel for the appellant on the first limb is based on sec- tion 23D of NDIC Act introduced by Decree No. 5 of 1997 which reads:– e “23D(1) As from the commencement of liquidation of an in- sured institution by the corporation and notwithstand- ing anything to the contrary in any law in force, no suit shall be instituted against an insured institution whose control has been assumed for purposes of liquidation f by the corporation. (2) If any such proceeding is instituted in any court or tri- bunal against such insured institution, it shall abate, cease or be discontinued without further assurance g other than this Decree.” It is the contention of the learned Counsel that on the face of the prohibition by that section of instituting an action against a company in Allied Bank of Nigeria Plc’s position whose h affairs are under the control of a liquidator, the respondent’s action cannot be maintained against either the company or the liquidator and that, by implication, the jurisdiction of the court to entertain an action instituted in defiance of the pro- visions of that section is thereby ousted. Thus the main chal- i lenge of the decision of the court below which hovers around that provision of the law is predicated on the follow- ing three premises. Firstly, that the respondent’s action became abated ab ini- j tio by operation of the new section 23D of the NDIC Act

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Olagunju JCA 528 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) that came into force on 10 January, 1997 as the action was a filed 7 August, 1998 after the commencement of liquidation of the Allied Bank of Nigeria Plc which began on 16 Janu- ary, 1998. b Secondly, that since the term “insured institution” as the body covered by the protection given by section 23D is not defined by Amendment Decree No. 5 of 1997, the expres- sion “insured bank” as defined by section 46 of the Act c should be read as synonymous with the expression “insured institution” in the new section 23D of the Act as regards the identity of the bodies or organisations described as “insured institution” in section 23D which the learned Counsel ar- gued are identical by virtue of sections 15 and 24 of NDIC d Act. Section 15 of the Act makes it mandatory for all li- censed banks and defined financial institution to insure “their deposits liabilities” with NDIC while section 24 stipu- lated when an insured bank would be deemed to have been e closed for the purpose of liquidation. The learned Counsel urged this Court to reconsider its decision in Paico (Press and Books) Ltd v Central Bank of Nigeria (2001) 3 NWLR (Part 700) 347, 358–359, which held that in the absence of f the definition of the expression “insured institution” in the amending Decree No. 5 of 1997, that expression cannot be equated to the definition of ‘insured bank’ in section 46 of the NDIC Act on the doctrine of fortissime contra profer- entes, that is to say, a statute which encroaches on the rights g of a subject must be construed narrowly and strictly. The learned Counsel contended that, contrary to the interpreta- tion by this Court in that decision, by virtue of the definition of “insured bank” in section 46 of NDIC Act for the purpose h of protection from liability for the claim by the respondent, Allied Bank of Nigeria Plc comes within the contemplation of section 23D thereof. Thirdly, attacked as erroneous is the finding of the learned i trial Judge that by a combined effect of sections 417 and 425(1)(a) of CAMA read with section 23D of NDIC Act “the Allied bank can be sued as Allied Bank in liquidation by the NDIC”. It is the contention of the learned Counsel j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Olagunju JCA Nigeria Deposit Insurance Corporation v. Akahall and Sons Co Ltd 529 a that the finding did not take into account the rule of mischief in the interpretation of statute which posits the need to ascer- tain what mischief the new section 23D is set out to cure. He submitted that inasmuch as a Receiver, Manager or Liquida- b tor can sue and be sued under subsection 38(3) of the Banks other Financial Institutions Decree No. 25 of 1991, and sub- section 425(1)(a) of Companies and Allied Matters Act, the intendment of the new section 23D “is to ensure the nobody c at all, be it the Receiver, Manager or Liquidator is sued”. He further submitted in elaboration that “by declaring any ac- tion against an insured institution to abate, the Decree in- tended to take away and destroy actions involving the closed d banks, in whatever guise they may be” relying on the import of the word abatement as interpreted by this Court in Oye- bamiji v The State Civil Service Commission, Oyo State (1997) 5 NWLR (Part 503) 113, 120, and on that note he urged this Court to declare respondent’s action as incompe- e tent. The second limb of the argument of Issue 3 is the applica- tion of section 417 of CAMA on which the respondent relied f for instituting action against the liquidator. Learned Counsel for the appellant agitated that while it is true that section 417 allows action to be commenced against a company with leave of the court after “a winding order is made or a provi- sional liquidator is appointed”, the respondent who filed her g action on 7 August, 1998 did not obtain leave of the court as a condition precedent prescribed by that section for institut- ing an action until 12 August, 1998 contending that the im- plication is that no LEAVE was obtained before the action h was instituted as required by section 417 of CAMA. He submitted that the non-compliance with section 417 of CAMA renders the action incompetent, because a condition precedent to the exercise of jurisdiction has not been com- i plied with. (See Nigeria Ports Plc v Ntiero (1998) 6 NWLR (Part 555) 640, 651 paragraphs A–H and Federal Mortgage Bank of Nigeria v NDIC (1999) 2 NWLR (Part 591) 333 at 365 paragraph A. He concluded that as an originating proc- ess cannot be deemed to be issued retrospectively, the writ j of summons issued on 7 August, 1998 before leave to do so

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Olagunju JCA 530 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) was granted on 12 August, 1998 is, ex facie, invalid. On the a second limb of Issue 3 canvassed, he urged this Court to hold that the action before the court below is incompetent and to allow the appeal. b Replying, learned Counsel for the respondent submitted on the first limb of Issue 3 that section 23D of NDIC Act does not prohibit instituting action against the NDIC but against “the insured institution”, i.e. Allied Bank Nigeria Plc, be- c cause the appointment of a liquidator is governed by sec- tions 417 and 425(1)(a) of CAMA. What is required before suing a liquidator is leave of the court, he agitated, expatiat- ing further that a section 23D of NDIC Act does not prohibit suing ND1C; rather, it bars instituting action against the d company which is being liquidated. The learned Counsel drew on the caution in Okeke v Attorney-General of Anam- bra State (1992) 1 NWLR (Part 215) 60, 86 that “Judges should not at the first signal of ouster of jurisdiction in a e statute surrender without scrupulously examining the scope of the statute” and submitted that the words of section 23D of NDIC are so clear that effect should be given to the statu- tory directives without recourse to any further aid founding f for support on Ugu v Tabi (1997) 7 NWLR (Part 513) 368; (1997) 7 SCNJ 222, 229–230. The learned Counsel did not take any stand on the argu- ment about the scope of the expression “insured institution” g in section 23D of NDIC Act, whether it is synonymous with the words “insured bank” in section 46 of the Act as con- tended by learned Counsel for the appellant. He, however submitted that where the words of a statute are reasonably capable of having two meanings, that interpretation or mean- h ing which preserves the jurisdiction of the court should be adopted, relying on Commissioner for Local Government v Ezemokwe (1991) 3 NWLR (Part 181) 615, 640. i On the second limb of Issue 3 that the respondent did not obtain leave of the court before commencing the action, learned Counsel for the respondent replied that a writ of summons is not issued until it is signed by the Registrar or a Judge. He relied on Order 5(15) of the Federal High Court j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Olagunju JCA Nigeria Deposit Insurance Corporation v. Akahall and Sons Co Ltd 531 a (Civil Procedure) Rules and explained the difference be- tween application for a writ of summons with payment of the court fees and issuing a writ of summons which is con- b summated with the Registrar or a Judge signing the writ; ap- plying for a writ of summons by the plaintiff is distinct from issuing the writ which is effectuated upon signing the writ by either the Registrar or a Judge he expatiated. The origi- c nating writ of summons initiating the respondent’s action was duly issued after compliance with the rules of the court he submitted. On that score, he urged this Court to resolve the second limb of Issue 3 in favour of the respondent. d On a sober examination of the points agitated by the learned Counsel on the first limb of Issue 3, the crucial point is the meaning of the expression “insured institution” that holds the answer to the vital question of whether Allied e Bank Nigeria Plc is among the subject of the protection pro- vided by section 23D of NDIC Act. Regrettably, “insured institution” is not defined by NDIC Act or the Amendment Decree No. 5 of 1997, introducing the expression. Because of its importance I have examined the related legislation f whether any can provide a clue to the meaning. Banks and Other Financial Institutions Decree No. 25 of 1991 contains no similar expression or one from which the meaning can be inferred. I have taken a close look at Companies and Allied g Matters Act (“CAMA”) with the closest affinity with the subject matter of NDIC Act. Neither is the denomination “insured institution” defined in section 650 of CAMA cover- ing Part “A” (embracing sections 1 to 649) of the Act nor in h sections 671 and 693 covering Parts “B” and “C” of the Act. There is no definition of the term in 16 separate other sec- tions defining diverse terminologies in CAMA. In none of the definitions can I find anyone that approximate to the meaning of the appellation insured institution. There I must i give up search that is becoming a wild goose chase. That brings me to the submission whether the term “in- sured institution” is identical with “insured bank” in section 46 of NDIC Act. The issue was considered by this Court in j Paico (Press and Books) Ltd v Central Bank of Nigeria

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Olagunju JCA 532 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) supra, in which it was held that in the absence of the defini- a tion of the expression “insured institution” in the amending Decree No. 5 of 1997, the appellation cannot be accepted as identical with the definition of “insured bank” in section 46 of NDIC Act. Learned Counsel for the appellant who urged b this Court to reconsider that decision and insisted that the two expressions are identical advanced no logical or persua- sive argument to back his contention beyond the bold circu- lar reasoning that by virtue of the definition of insured bank c to section 46 of NDIC Act Allied Bank Nigeria Plc comes within the contemplation of the protection offered by section 23D of NDIC Act. That, in my view, is a self-serving argu- ment that sheds no useful light on the inquiry. The decision d in Paico (Press and Books.) Ltd v Central Bank of Nigeria supra, is based on the doctrine of fortissime contra proferet- ess which posits that a statute which takes away the citizen’s right of access to the court must be construed narrowly and strictly, a proposition of law which is supported by the Su- e preme Court’s decisions in Peenok Investment Ltd v Hotel Presidential Ltd (1982) 12 SC 1, 25 and Garba v Civil Ser- vice Commission (1988) 1 NWLR (Part 71) 449, 477–478. f Learned Counsel for the appellant who, incidentally, was a leading Counsel in Paico (Press and Books) Ltd v Central Bank at Nigeria (supra) in which the argument that the “in- sured institution” in section 23D of NDIC Act is identical with the definition of “insured banker” in section 46 of the g same Act was canvassed but rejected, has been unable, after about 2 years from the present appeal, to come up with the authority of any superior court or a superior argument to the contrary than sheer self opinionated expostulation. There- h fore, in the absence of any pronouncement by the Supreme Court to the contrary the decision of this Court in Paico (Press and Books) Ltd v Central Bank of Nigeria (supra) remains ex-cathedra, the statement of the law on the point at i issue. In other words, the expression “insured institution” used in section 23D of NDIC Act as a technical term to give protection to an unidentifiable group against the under privi- leged citizenry at large with a view to freezing their legal rights and by implication ousting the jurisdiction of the court j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Olagunju JCA Nigeria Deposit Insurance Corporation v. Akahall and Sons Co Ltd 533 a is not identical with the expression “insured banker” in sec- tion 46 of the same Act. I am strengthened in this view by the Supreme Court’s stand in Salami v Chairman L.E.D.B. (1989) 20 NSCC (Part 3) 427, 438–439; (1989) 5 NWLR b (Part 123) 539, 557, where the apex court articulated the guidelines about ouster of jurisdiction of court in matters af- fecting the civil right of the citizenry as follows:– “The provisions of a statute depriving a court of its jurisdiction c must be strictly construed as the jurisdiction of superior courts is not taken away except by express words or necessary implication . . . there is not to be presumed without express words, an authority to deprive a State High Court of the jurisdiction it had previously d exercised. Very clear words will be required to oust the jurisdic- tion of the High Court of a state in matters of private rights.” That being the case, I am satisfied on the authority of the de- cision of this Court in Paico (Press and Books) Ltd v Central e Bank of Nigeria (supra) by which I am bound, that the ap- pellant having failed to show that Allied Bank Nigeria Plc is an insured institution within the contemplation of section 23D of NDIC Act, she is not entitled to hide under the shadow of an amorphous “statutory chimera” to defeat the f equity of an innocent party. Consequently, the respondent’s action is not affected by section 23D of NDIC Act and that answers the first limb of Issue 3. The second limb of Issue 3 challenging the competence of g the respondent’s action on the ground that leave of the court that was stipulated as a condition precedent to the com- mencement of the action was granted after the action was filed is one pack of bizarre misconception of the law by h learned Counsel for the appellant who on a very elementary point cannot sieve the wheat from the chaff. As learned Counsel for the respondent argued in his rejoinder, the mis- conception stemmed from failure to appreciate the distinction i between application for a writ of summons including asking for leave of the court where it is a precondition as a basic step in initiating an action, on the one hand, and issuing an originating writ of summons for commencing an action, on the other hand. The former is duty of the plaintiff/litigant j while the latter is the duty of the court. The culmination of the

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Olagunju JCA 534 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) processes when the writ is signed by the person who is a authorised to do so is what is meant by a writ being issued. The two steps must be kept distinct in considering whether an action is properly instituted, that is to say, in conformity with b the law and the rules of the court vested with the jurisdiction to entertain the action which by a combined operation of sec- tion 650 of CAMA and section 230 of the Federal Republic of Nigeria, 1979, is the Federal High Court. c Applying the dichotomy of functions between the respon- dent as the plaintiff and the court to the facts of this case the following picture emerged to mirror whether there was any duty that was left undone by the respondent to justify the d appellant’s indictment. In initiating the action before the Federal High Court the respondent is shown, at page 2 of the record, to have applied on 17 August, 1998 for a writ of summons to be issued against the appellant as the defendant to which she attached particulars of her claim on page 3 of e the record. The respondent also filed a motion ex parte on the same date for leave (a) to sue the defendant (i) outside jurisdiction of the court and (ii) as liquidators, (b) for the writ of summons to be placed on the undefended list and (c) f for the originating writ and other court processes in the ac- tion to be served on the defendant at a given address. En- dorsements on pages 3 and 5 of the record show that the re- spondent paid the fees for the application (for a writ) and for g the leave necessary as a precondition for filing the action. These are the first steps necessary to be taken by a plaintiff as stipulated by the provisions of Orders II and III of the Federal High Court (Civil Procedure) Rules Cap 134 of the h Laws of the Federation of Nigeria, 1990, that were in force on 7 August, 1998 when the respondent filed her application for a writ of summons and a motion for the suit to be placed on the undefended list. After the respondent had performed the duty that was expected of her as a plaintiff, the learned i trial Judge on 12 August, 1998 (see page the record) granted all the three reliefs sought expressly directing that:– “this suit shall be placed under the undefended list and is hereby marked Undefended List . . .” j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Olagunju JCA Nigeria Deposit Insurance Corporation v. Akahall and Sons Co Ltd 535 a As regards the duty imposed upon a plaintiff to be dis- charged before writ of summons is issued, there the buck must stop; it must stop at the Registry of the Federal High Court which received the respondent’s applications for a b writ of summons and its placement on the undefended list on 7 August, 1998 on both of which are endorsed payment of the appropriate court fees but who tarried a little until 12 August, 1998 before getting the necessary consent required c by section 417 of CAMA to institute the action against the appellant as the liquidator of Allied Bank Nigeria Plc. That being complaint of the appellant that the writ of summons was issued before the necessary consent was obtained, I do d not think that learned Counsel for the appellant is making any strong point. For one thing, the general principle which flows from Rule 1 of Order II of the Federal High Court (Civil Procedure) e Rules is that an action is commenced by a writ of summons “signed by a Judge or other officer empowered to sign sum- monses”. For another, there is no evidence by the appellant that the writ of summons originating the action had been f signed by the Registrar or the Judge before whom the appli- cation for a writ of summons was pending granted leave for the action to be brought against the appellant. I searched in vain from the record for a copy of the originating writ of summons from which any irregularity in the issuance of the g writ can be verified. Indeed, ‘Settlement of Record of Ap- peal” on pages 72–73 of the record shows that the “signed writ of summons” is not one of the documents agreed by the Counsel to be produced as part of the record of the appeal. h But that is just by way of amplification to show that inspite of fuss and fury, learned Counsel for the appellant is a starry-eyed tyro with no grasp of the point he is contending. Doubt about whether a writ of summons was in fact issued i not being an issue in this appeal the presumption omnia praesumuntur rite et solemniter esse acta enshrined in sec- tion 150(1) of the Evidence Act is here appropriate: See Osayande v Osagie (l965) NMLR 205, 208; Adigun v Attor- ney-General of Oyo State (1987) 18 NSCC (Part 1) 346, 383 j and Kalu v The State (1998) 12 SCNJ 1, 65–66. Therefore, I

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Olagunju JCA 536 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) presume that the writ of summons originating the action at a the court below was rightly and regularly issued and that formal requisites for its validity were complied with. With that, the contention by learned Counsel that the writ of b summons initiating the respondent’s action was not properly issued falls flat and with it the argument of learned Counsel for the appellant on the second limb of Issue 3 has fallen apart at the seams. c That will be sufficient to resolve Issue 3 against appellant. But before I close that issue, I consider it necessary to make a brief observation on the attack by learned Counsel for the appellant of the finding of the learned trial Judge on the d scope of the right created by sections 417 and 425(l)(a) of CAMA argued as part of Issue 3. Learned Counsel for the appellant contended that if the learned trial Judge had ad- verted his mind to the rule of mischief in the principles of interpretation of statutes, he would have come to the ines- e capable conclusion that the object of section 23D of NDIC Act is to take away the right of action against not only a company which is being wound up, but more significantly against the liquidator of such company. The legal proposi- f tion is belied by the trend of judicial authorities on the point. Sections 417 and 425(1)(a) of CAMA were considered by the Supreme Court in Onwuchekwa v NDIC (2002) FWLR (Part 101) 1615, (2002) 5 NWLR (Part 760) 371, 393, in g which that court rejected the argument that the action insti- tuted against the respondent which was the liquidator of the bank that was indebted to the appellant was by operation of section 417 of CAMA a nullity as that section bars any ac- h tion being instituted against a company on which a winding up order has been made or over the affairs of which a provi- sional liquidator has been appointed. The court held that what the section bars is proceeding against the company i which is being wound up but it does not prohibit proceeding with action against another person with leave of the court. But more significantly the court further held that section 417 is not meant to impose a further restriction on the provision of subsection 425(1)(a) of the Act which empowers a j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Olagunju JCA Nigeria Deposit Insurance Corporation v. Akahall and Sons Co Ltd 537 a liquidator to sue or be sued in the name and on behalf of the company with the prior sanction of “the court or of the committee of inspection”. b The decision in Onwuchekwa v NDIC (supra) lends sup- port to the earlier decisions of this Court in CCB (Nigeria) Plc v Onwuchekwa (2002) 3 NWLR (Part 647) 64 and CCB (Nigeria) Plc v Mbakwe (2002) FWLR (Part 109) 1678, c (2002) 3 NWLR (Part 755) 522. The observation of this Court in the two decisions in which section 417 of CAMA was examined along with subsections 454(1) and (2) thereof is complementary of the view of the Supreme Court on the d matter. In the earlier case, in a flowery metaphor, the court, per Muhammad, JCA, at pages 73–74, said:– “. . . by virtue of section 454(1) and (2) a company dies on its dis- solution. The revocation of the licence of that company where it is e a bank, and the further order of court winding same up may indi- cate the acute disposition, and extreme position of ineffectiveness of the company but not so the fact of its ‘death’. The liquidator who may be likened to an undertaker, by virtue of the company’s total ill-disposition goes into preparation for the ‘burial’ of the f company but the actual ‘burial’ of the company takes place on its ‘death’ at its dissolution.” I find that analogy apt and I agree with the conclusion that the provision of section 417 of CAMA does not detract from g the power vested in the liquidator, the appellant herein, by subsection 425(l)(a) of CAMA to sue “in the name and on behalf of the company” and, conversely, the obligation un- der the self same provision to defend any action instituted against the company in like manner. Any argument to the h contrary is untenable as it is tantamount to taking the bane and spurning the antidote. It is neither fair nor equitable. Finally, on an overview of the argument canvassed in the i second limb of Issue 3, in particular, about the originating writ of summons being rendered incompetent because leave of the trial court was not obtained until after the writ was is- sued, the resentment of Graham Paul, J in Nicholls v The General Manager, Nigerian Railway (1938) 14 NLR 87, j over a comparable raw deal is reverberating with resonance

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Olagunju JCA 538 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) after over six decades. The learned jurist lamented at page a 93 that:– “. . . it would be not only doing a gross injustice but would also be a somewhat crude violence to common sense, and to the English Language, to say to a prospective plaintiff: ‘If you wish to com- b mence an action, the law specifies exactly what you must do. You have done exactly what the law specified you must do to com- mence your action. The law does not permit you to do anything further. In so far as it is legally possible for you to commence an c action you have done so. But all the same in the eyes of the law you have not yet commenced your action.” That was a case that pricked the equitable conscience of the court when objection was raised to the competence of an originating writ of summons that was not issued until after d the expiry of the statutory time limit for commencing an ac- tion owing to the absence on assize circuit of the Judge who was to sign the writ. Thus the issue came to the fore whether it was fair to shut out from the seat of justice the plaintiffs e who had applied for a writ of summons and paid the neces- sary fees within the prescribed time for bringing an action. The court came to the conclusion that it would be uncon- scionable to punish a litigant for the sin of the court and its f staff. In Alawode v Semoh (1959) 4 FSC 27 the Supreme Court was non-plussed by a similar incident when the plain- tiffs’ claims under the Fatal Accidents Act, 1846 was dis- missed by the trial court as statute-barred because of failure of a Judge to sign the writ of summons until after the statu- g tory time limit for commencing the action even though the plaintiffs had filed the application for a writ of summons with the court fees duly paid before the stipulated time to begin an action ran out. On appeal to the Supreme Court, the h contention that the plaintiffs’ action was statute-barred be- cause the originating writ of summons was not issued within the time limit was rejected. Taking a clue from Nicholls’ case (supra) the court, per Ademola, FCJ, exhorted, at page i 30 that:– “Whatever delay is occasioned before the issue of the writ is a matter not within the power of the plaintiff to control but merely a domestic affair of the court for which the plaintiff cannot be penal- ised. It certainly would be a matter of grave injustice to plaintiff j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Olagunju JCA Nigeria Deposit Insurance Corporation v. Akahall and Sons Co Ltd 539 a who delivers his application for a writ and pays the necessary fees if he is deemed not (to) have commenced an action merely, be- cause for some reason, it was not possible for the court or the Judge to sign the writ for a fortnight or so after the application.” b From the foregoing, it is clear that the courts in this country have drawn a line between the error of the litigant and the errors of the courts and their staff and have maintained the policy that, at any rate, as regards the process of initiating an c action, the litigant would not be punished for the sin of court and its officials. This policy is further exemplified by Iy- izoba v Olanipekun (1979) 2 F.N.R. 130, 132–133. However that may be, from the analysis of the law as ap- d plied to the facts of the case on appeal Allied Bank Nigeria Plc not having been shown to be an “insured institution” within section 23D of NDIC Act it is not entitled to the pro- tection offered by that section to bar the respondent from in- e stituting action against her liquidator for any wrong alleged against the bank. Nor is the right of the respondent to institute action against the liquidator by virtue of section 425(1)(a) of CAMA defeasible by the provision of section 23D of NDIC Act. That settles the controversy raised in the first limb of Is- f sue 3 against the appellant. Learned Counsel for the appellant is groping in the dark about the second limb of Issue 3 with no evidence to contradict the common ground that there was an originating writ of summons that was issued after leave of g the court was obtained. Failure to come to grip with the dif- ference between application for a writ of summons and issu- ance of a writ of summons and the party which carries the can for issuing the writ irregularly is one major source of miscon- h ception that reduced the argument of the learned Counsel to a barren inanity that smothered the second limb of Issue 3. The two limbs of Issue 3 having failed on the ground of a gross misconception of the law on the material points, I resolve Is- sue 3 against the appellant and I find as a matter of law that i the respondent’s action is competent The main contention in Issue 2 from which two other re- lated issues stemmed is whether after the ruling against the defendant on a preliminary objection in an action on a sum- j mary procedure of the undefended list, it is proper for the

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Olagunju JCA 540 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) trial court to enter judgment for the plaintiff on the ground a that the defendant did not file notice of intention to defend the action. The offshoot of the main issue are (a) whether the learned trial Judge can apply new rule of court that came into force while the action was pending and (b) whether the b doctrine of demurrer which was part of the rules of court that was in existence when the action was filed but abolished by the new rules of court can avail the defendant who raised a Preliminary objection without filing “Notice of Intention c to Defend” the action. I will begin with the subsidiary issue of whether it was open to the trial court to apply the new Civil Procedure Rules of the Federal High Court that came into force on 16 d July, 1999 to an action which was filed on 7 August, 1998. Learned Counsel for the appellant argued that the law appli- cable to the action before the court below is the law in force at the time when the cause of action arose citing in support e of that proposition of the law the decision of this Court in Necha v INEC (2001) 3 NWLR (Part 699) 74. Against this, learned Counsel for the respondent emphasised the distinction between the procedural and substantive aspects of the law applicable to an action contending that as the f Civil Procedure Rules of the Federal High Court regulate the procedural aspect of an action “the procedural law existing at the time of hearing of a case whether at the trial or on ap- peal applies to the prosecution and defence of the case”. It is g immaterial, he argued, “whether the procedural law comes into force before or after an appeal is filed”. The short answer to that debate is that, as learned Counsel for the respondent argued, in relation to the law applicable to h an action a line is drawn between enactment dealing with substantive and procedural matters for which see Ojokolobo v Alamu (1987) 7 SCNJ 98, 117, for the definition of the two concepts. It follows also that by and large procedural matters i are governed by the rules of court. But unless an enactment is expressly stated to have a retrospective effect, the general principle is that a law takes effect from the date it is made or when it is made or when it is expressed to take effect: See Okafor v Ibeziako (1965) 1 All NLR 37 and Johnson v The j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Olagunju JCA Nigeria Deposit Insurance Corporation v. Akahall and Sons Co Ltd 541 a State (1981) 2 SC 29 Federal High Court (Civil Procedure) Rules Decree No. 23 of 1999, having expressly stated in sec- tions 3 and 5 to have come into force on 16th July, 1999, the b respondent’s action filed on 7 August, 1998 when Federal High Court (Civil Procedure) Rules Cap 134 of the Laws of the Federation of Nigeria, 1990, was in force cannot be su- perseded midstream by the 1999 Rules. Therefore, it is erro- c neous for the learned trial Judge to have applied the new Civil Procedure Rules thus giving the rule a retrospective application. The second subsidiary issue raised touching upon the plea d of demurrer is taken up with the wider question of whether as held by the learned trial Judge, the appellant ought to have filed “Notice of Intention to Defend” (the action) and raise later any preliminary objection in her statement of de- fence. In the concluding part of his argument on Issue 2 (see e page 11 of the appellant’s brief of argument) learned Coun- sel for the appellant picked upon the judgment of the learned trial Judge which he contended is in violation of Rule 3 of Order XXVII of Federal High Court (Civil Procedure) Rules f Cap 134 of Laws of the Federation of Nigeria, 1990, on the plea of demurrer that gives the court the option to “either dismiss the suit or to order the defendant to answer the plaintiff’s allegations of fact”; but it does not empower the g court to give judgment against the defendant. Learned Coun- sel for the respondent did not reply to that point. In any case, the question appears to be far-fetched and on off chance that the court might consider the argument ranged h against the court’s finding that the appellant did not file no- tice of intention to defend. Notice of preliminary objection by the appellant (on page 48 of the record) did not specify the provision of the rules of court under which the objection i was raised. But the objection could not have been raised as a demurrer as Rule 1 of Order XXVII providing for the plea of demurrer enjoins that the objection shall be “by a motion that the suit be dismissed without any answer upon question of fact being required from him”, i.e. the defendant, the ap- j pellant herein. Indeed, the objection raised at the trial is that

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Olagunju JCA 542 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) the court lacked jurisdiction to entertain the plaintiff’s suit a which was canvassed against the background of section 23D of NDIC Act. It is a far cry from demurrer which is an invi- tation to the court to dismiss the suit on the ground of law for which (see Fadare v Attorney-General of Oyo State b (1982) 4 SC 1 and Bolaji v Bamgbose (1986) 4 NWLR (Part 37) 632). Not having been raised or canvassed at the court below, the question of demurrer is a fresh issue sneaked through the appellant’s brief of argument without rhyme or c reason. Having sought no leave of the court before raising the question, it is totally uncalled for and I disregard it. The main point canvassed in Issue 2, viz whether it was proper for the learned trial Judge to have entered judgment d for the respondent after ruling against the appellant without affording her the opportunity to state her defence to the ac- tion, stemmed from the opinion of the trial Judge (on page 66 of the record) to the following effect:– e “The proper course the defendants would have followed would have been to first file their intention to defend, then when they are let in to defend the suit on its merit they will then file their plead- ings and raise their preliminary point of law by pleadings under Order 24 Rules 2(1) and (2) and Rule 3 of the Federal High Court f Civil Procedure Rules . . .” “It follows therefore that the defendant having failed or neglected to file a notice of intention to defend as required by the rules, the plaintiff shall be entitled to judgment under Order 23 Rule 4 of the g Rules of this Court . . .” The attack of the view of the learned trial Judge by learned Counsel for the appellant is focused on the fundamental na- ture of the issue of jurisdiction which can be raised at any h stage of the proceedings and which he argued does not re- quire the filing of pleading before it can be raised; nor is it necessary in case of summary proceedings of the unde- fended list to file a notice of intention to defend before rais- i ing a preliminary objection challenging the jurisdiction of the court. The learned Counsel ran through a labyrinth of judicial authorities to underscore the fundamental nature of jurisdiction as one issue which must be raised at the thresh- old of an action. They include Akinbobola v Plisson Fisco j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Olagunju JCA Nigeria Deposit Insurance Corporation v. Akahall and Sons Co Ltd 543 a (Nigeria) Ltd (1991) 1 NWLR (Part 167) 270, 273; Abbas v Commissioner of Police (1998) 12 NWLR (Part 577) 308; 316; National University Commission v Oluwo (2001) 3 b NWLR (Part 699) 90, 102 and Resolution Trust Corporation v F.O.B. Investment and Property Ltd (2001) 6 NWLR (Part 708) 246, 261–262. He submitted that contrary to the opin- ion of the learned trial Judge, it was not necessary for the c appellant to file notice of intention to defend the respon- dent’s action before raising objection to its competence. If it was not necessary to file notice of intention to defend the action before raising a preliminary objection to the action, d he agitated, it was premature for the learned trial Judge to enter judgment immediately after overruling the appellant’s objection without allowing her to raise her defence. He urged that this issue be resolved in appellant’s favour and to allow the appeal in consequence. e The reply by learned Counsel for the respondent is along the line of the reasoning of the learned trial Judge for enter- ing judgment for respondent which the learned Counsel adopted lock, stock and barrel. He contended that it was f wrong for the appellant to refuse to file a notice of intention to defend in the supporting affidavit of which the appellant would have incorporated the preliminary objection. In but- tress of the respondent case he craved in aid the Supreme g Court’s decision in Ben Thomas Hotel v Sebi Furniture Co Ltd (1989) 5 NWLR (Part 123) 523, 529, stressing thought- lessly the expression “return date” as the date a case is set down for hearing when in the absence of any notice of inten- h tion to defend filed by the defendant the plaintiff is entitled to judgment as of right. He rambled over the details of the impregnable case set up by the respondent which is abso- lutely water tight against which the appellant could not have mustered up a defence. He finally urged the court to dis- i countenance this Issue 2 as canvassed by the appellant and resolve it in favour of the plaintiff/respondent. The whole argument of the learned Counsel is narrowed down to whether the respondent is entitled to judgment un- j der the summary procedure of the undefended list as

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Olagunju JCA 544 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) stipulated by Rules 9–14 of Order III of the Federal High a Court (Civil Procedure) Rules Cap 134 of the Laws of the Federation of Nigeria, 1990, which is the law in force when the action was commenced on 7 August, 1998. On the ques- tion of whether filing notice of intention to defend is a sine b qua non to raising a preliminary objection to challenge the competence of the respondent’s action at the trial court, there is a consensus by authorities cited and examined that the issue of jurisdiction is a threshold matter that should be c raised and disposed of at the earliest opportunity to prevent avoidable drudgery of hearing a case when the court has no jurisdiction to do so as the authority which a court must pos- sess before it can embark on any judicial function. (See d Madukolu v Nkemdilim (1962) 1 All NLR 587, 594; Na- tional Bank of Nigeria Ltd v Shoyoye (1977) 5 SC 181, 190– 191; Skenconsult (Nigeria) Ltd v Ukey (1981) 1 SC 6; Attor- ney-General of Lagos State v Dosunmu (1989) 3 NWLR (Part 111) 553 and Onuaguluchi v Ndu (2001) 7 NWLR e (Part 712) 309.) On this point, learned Counsel for the re- spondent is on a sticky wicket as it is not imperative that a notice of intention to defend should be filed before raising a preliminary objection on jurisdiction of the court. f I cannot comprehend the proposition of law by the learned trial Judge about the sequence of steps necessary to raise a preliminary objection under the summary proceedings of the undefended list. In a juridical abracadabra evinced by his g Lordship’s hypothesis that a defendant must first file a no- tice of intention to defend and raise his preliminary objec- tion in the statement of defence “when he is let in to defend the suit on merit” he fails to advise the defendant on what h would be the fate of her preliminary objection where she is not let in to defend the action. Would she be allowed to raise the preliminary objection after judgment would have been entered against her which is the implication of refusal to be i let in to defend the action? There is the rub! The weird cir- cular reasoning marks out the learned trial Judge as belong- ing to the genre of “jurists of exceptional vision” who have not cut their teeth on the undefended list legal gynmastics which are punctuated with twists and bends. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Olagunju JCA Nigeria Deposit Insurance Corporation v. Akahall and Sons Co Ltd 545 a However that may be, the judgment under review is rid- dled with bizarre errors. To begin with, the action was begun under Order 3 Rule 9 of the Federal High Court (Civil Pro- cedure) Rules, 1979, but concluded under Order 23 Rule 4 b to which Rule 3(1) is germane of 1999 revised edition of the rules of that court. Furthermore, the suit was set down for hearing on 12 October, 1998 but adjourned on that day to 16 November, 1998 for mention and was never again adjourned c for hearing down to 9 May, 2000 when judgment was deliv- ered. Yet learned Counsel for the respondent is avid at dramatising the expression “return date” as “hearing date” in an artful bid to graft the rickety proceedings on the well laid d principles in Ben Thomas Hotel Ltd v Sebi Furniture Co Ltd (supra). Again, if, as I have held as a matter of law, it is not mandatory to file notice of intention to defend before raising a preliminary objection on the ground of law, it may be wondered what opportunity was given or available to the e appellant when upon ruling against her on a preliminary ob- jection, the learned trial Judge proceeded to give against her summary judgment with the opportunity wide open to the Judge through Rule 12 of Order III of the material rules of f the court to dispense the indulgence of allowing the appel- lant to disclose whether there could be a defence to the re- spondent’s action that can tilt the case to be transferred to the general cause list for a deliberation on the merits. g On the Policy that should guide the courts in deliberating over action on the summary procedure of the undefended list, the Supreme Court has eloquently enunciated what should be the correct approach in Olubusola Stores v Standard Bank h Nigeria Ltd (1975) 4 SC 51, where the court, per Coker, JSC declared that:– “The provisions dealing with actions on the undefended list are apparently technical and we think that they are purposely created i in that way in order to ensure that by asking the plaintiff to comply strictly with those rules injustice is being avoided to a defendant whose freedom to defend the case has been rather restricted. The provisions of the rules are designed as they are in order to ensure the safeguards which must necessarily be available to a defendant j if the rules are followed strictly.”

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(See also Aubergine Collections Ltd v Habib Nigeria Bank a Ltd (2002) FWLR (Part 128) 1276, (2002) 4 NWLR (Part 757) 338, 352 353.) Enough has been written in recent times on the summary proceedings of the undefended list to spare any repetition of the susceptibilities of this attractive prompt b method of litigation which, if properly applied, is of incalcu- lable worth. Mention may be made of a few decisions that give a bird’s eye view of the mechanics of the procedure and a panorama of the underlying problems. They are Dan c Azumi v Pan African Bank Ltd (1996) 8 NWLR (Part 467) 462; Co-operative and Commerce Bank Ltd Plc v Samed In- vestment Co Ltd (2000) 4 NWLR (Part 651) 19; Obi v Nkwo Market Community Bank Ltd (2001) 2 NWLR (Part 696) d 113; Union Bank of Nigeria Plc v Governor of Anambra State (2001) 12 NWLR (Part 726) 155 and Chrisdon Indus- trial Co Ltd v African International Bank Ltd (2002) FWLR (Part 128) 1355, (2002) 8 NWLR (Part 768) 152; (2002) 36 WRN 52. e In the final analysis, I find the action before the trial court to be competent notwithstanding the dogged persuasion of learned Counsel for the appellant to the contrary. But in f view of the widespread defects that pervade the trial imping- ing upon the constitutional right of fair hearing of the appel- lant and verging imperceptibly on a miscarriage of justice, albeit unwittingly, that decision cannot be allowed to stand. g Accordingly, I set aside the judgment of Nwaogwugwu, J, of the Calabar Division of the Federal High Court delivered on 9 May, 2000. It is hereby ordered that the suit shall be re- tried by another Judge of the same judicial division other h than Nwaogwugwu, J, I make no order as to costs. Appeal partially succeeds. EKPE JCA: I had the privilege of reading in advance the judgment just delivered by my learned brother, Olagunju, i JCA, and I entirely agree with his reasoning and conclusion that the action before the trial court was competent. How- ever, because of the widespread defects that characterised the trial leading to the infringement of the appellant’s right of fair hearing as epitomised in the leading judgment, I also j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Ekpe JCA Nigeria Deposit Insurance Corporation v. Akahall and Sons Co Ltd 547 a allow the appeal. I abide by the consequential order made in the leading judgment. THOMAS JCA: I have had the advantage of a preview of the b judgment just delivered by my learned brother, Olagunju, JCA. I fully agree with the reasons advanced by my learned brother that the appeal succeeds partially. The learned trial Judge did not allow the defendant/appellant the opportunity to answer the plaintiff/respondent’s allegation of facts. By c this refusal the defendant/appellant’s constitutional right to fair hearing was infringed. I abide by the consequential or- der that the suit shall be retried by another Judge of the same judicial division other than Nwaogwugwu, J. I also make no d order as to costs. Appeal allowed.

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a Union Bank of Nigeria Plc v Obong Amaete Ntuk COURT OF APPEAL, CALABAR DIVISION EKPE, OLAGUNJU, THOMAS JJCA b Date of Judgment: 17 FEBRUARY, 2003 Suit No.: CA/C/107/2001

Banking – Banker and customer relationship – Letter by a bank to a third party to ascertain actual mandate – Whether c breach of duty of confidentiality – Duty of Banker to protect its customer funds – Exercise thereof Banking – Person given a mandate to operate an account by a body of persons – Body of persons dissolved – Whether the d person can still continue to operate the account Banking – Signatory to an account – Authority to operate account on behalf of others – Whether mandate thereof enti- tles signatory to commence action in his personal capacity e Practice and procedure – Action by an unincorporated as- sociation – How commenced – Duty on party to indicate the capacity in which he sues Facts f The plaintiff now respondent, claimed against the defendant now appellant as per the writ of summons as follows:– “1. A declaration of this Honourable Court that:– g (a) the plaintiff by virtue of the mandate authorising the operation of both the current account and savings ac- count no. 01/437 with the defendant bank in Ikot Abasi and his office as the National Conference of Local Government Chairmen and sole signatory to the ac- h count of the Conference, entitled on behalf of the Na- tional Conference of Local Government Chairmen, to withdraw from the account of the conference generally and particularly in discharge of the obligations of the conference which accrued prior to November, 1993; i and (b) the defendant acted wrongfully and in breach of the mandate authorising the accounts when it refused to honour and pay on the plaintiff’s demand made upon Account No. 01/437 and acted in breach of its duty of j

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Union Bank of Nigeria Plc v. Obong Amaete Ntuk 549 a confidence to its customer when the defendant wrote and informed a third party (the Chairman, Ikot Abasi Local Government) of the existence of the Accounts of the National Conference of Local Government Chair- b men. 2. An order of this Court compelling the defendant to honour and pay on withdrawal vouchers drawn by the plaintiff on Account No. 01/437 as the sole signatory thereto and pay damages in the sum of N500,000 (Five Hundred Thousand c Naira only) for breaching its duty, the mandate and confi- dence of the customer upon whom it imposed avoidable hardship.” The learned trial Judge granted all the reliefs of the respon- d dent as claimed. Being dissatisfied, the appellant appealed to the Court of Appeal on grounds, inter alia, that the trial Judge erred when it held that the respondent had the authority to com- e mence the suit in his name and that the appellant was bound to honour the withdrawal to the respondent. The appellant also contended the trial court’s decision that it acted wrong- fully when it (appellant) wrote to the respondent successor- f in-title, and awarded excessive damages of N500,000 when in fact what the respondent had its account was about N130,000. Held – g 1. Banks have the mandatory duty to protect the funds of its customers. Therefore, the appellant bank did not breach its mandate of confidentiality to the respondent when it wrote to the new Chairman of Ikot Abasi Local h Government Council. 2. A mandate to sign for and operate bank account on be- half of others is not a blanket authority to institute a case i in one’s personal name. 3. An association of persons without certificate of incorpo- ration has no legal status of a juristic person. Consequently, an unincorporated association can only j sue in a representative capacity.

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4. A plaintiff in an action has the duty to indicate the ca- a pacity in which he instituted an action. Failure to prove would make the action incomplete. 5. Where the principal has given his agent a power of at- b torney and the principal died, the power of attorney is automatically revoked. It therefore follows that when the entire Local Govern- ment Councils were dissolved in 1993, membership of c the respondent in the conference also died a natural death because the conference came into existence by vir- tue of members being Chairman of Local Government Councils. d Appeal allowed. Cases referred to in the judgment

Nigerian e Abakaliki L.G.C. v Abakaliki R.M.O. (1990) 6 NWLR (Part 155) 182 Acme Builders v K.S.W.B. (1992) 2 NWLR (Part 590) 288 Adesanoye v Akinwale (1997) 3 NWLR (Part 496) 664 f Adesanya v President of Nigeria (1981) 2 NCLR 358 Adesokan v Adetunji (1994) 5 NWLR (Part 346) 540 Afolabi v Adekunle (1983) 2 SCNLR 141 g Akpabuyo L.G. v Duke (2001) 7 NWLR (Part 713) 557 Chiekweilo v Nwali (1998) 8 NWLR (Part 560) 114 Eboh v Ogbu (1994) 5 NWLR (Part 347) 703 Fawehinmi v N.B.A. (No .2) (1989) 2 NWLR (Part 105) 558 h Isichei v Allagoa (1998) 12 NWLR (Part 577) 196 Momoh v Olotu (1970) 1 All NLR 117 Obot v Akpan (1998) 4 NWLR (Part 546) 409 i Odulaja v Haddad (1973) 11 SC 357 Oloriode v Oyebi (1984) 1 SCNLR 390 Ononuju v Attorney-General of Anambra State (1998) 11 NWLR (Part 573) 304 j

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Union Bank of Nigeria Plc v. Obong Amaete Ntuk 551 a Oredoyin v Arowolo (1989) 4 NWLR (Part 114) 172 Oshinjinrin v Elias (1970) 1 All NLR 153 Osho v Ape (1998) 8 NWLR (Part 562) 492 b Otapo v Sunmonu (1987) 2 NWLR (Part 58) 587 Ozuruoke v Okolie (2000) 1 NWLR (Part 642) 569 RTEA v NURTW (1992) 2 NWLR (Part 224) 381 c Saipem SPA v Tefa (2002) 16 NWLR (Part 793) 410 Shaibu v Bakare (1984) 10 SC 187 Shell B.P. v Jammal Steel (1974) 4 SC 33 d Thomas v Olufosoye (1986) 1 NWLR (Part 18) 669 UBA Plc v Samba Pet. Co Ltd (2002) 16 NWLR (Part 793) 361 Ukatta v Ndinaeze (1997) 4 NWLR (Part 499) 251 e Foreign Chapman v C.F.A.O. 9 W.A.C.A. 18 f Nigerian rules of court referred to in the judgment Court of Appeal Rules, 2002, Order 3 Rules 2(4)

Books referred to in the judgment g Black’s Law Dictionary (5ed) page 1053 Commentaries from the Bench Part 11 by O. Onalaja, page 135 h Counsel For the appellant: Sabena Akpan (Mrs) For the respondent: Goddy A. Umoh, Esq. i Judgment THOMAS JCA: (Delivering the lead judgment) This appeal is from the decision of Okpo, J, in Suit No. HAB/32/97 sit- ting at Ikot Abasi Judicial Division of Akwa Ibom State. The j judgment was delivered on 17 August, 2000.

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The plaintiff now respondent, claimed against the defen- a dant now appellant as per the writ of summons as follows:– “1. A declaration of this Honourable Court that:– (a) the plaintiff by virtue of the mandate authorising the b operation of both the current account and savings ac- count no. 01/437 with the defendant bank in Ikot Abasi and his office as the National Conference of Local Government Chairmen and sole signatory to the ac- count of the Conference, entitled on behalf of the Na- c tional Conference of Local Government Chairmen, to withdraw from the account of the conference generally and particularly in discharge of the obligations of the conference which accrued prior to November, 1993; and d (b) the defendant acted wrongfully and in breach of the mandate authorising the accounts when it refused to honour and pay on the plaintiff’s demand made upon Account No. 01/437 and acted in breach of its duty of e confidence to its customer when the defendant wrote and informed a third party (the Chairman, Ikot Abasi Local Government) of the existence of the Accounts of the National Conference of Local Government Chair- men. f 2. An order of this Court compelling the defendant to honour and pay on withdrawal vouchers drawn by the plaintiff on Account No. 01/437 as the sole signatory thereto and pay damages in the sum of N500,000 (five hundred thousand g naira only) for breaching its duty, the mandate and confi- dence of the customer upon whom it imposed avoidable hardship.” The learned trial Judge granted all the reliefs of the respon- h dent as claimed, see paragraphs 66–69. It is against that judgment that the appellant has appealed and filed by leave of this Court, an amended notice and grounds of appeal that read as follows:– i “1. Ground of Appeal Ground 1:– The learned trial Judge erred in law when he held that ex- hibit A, the mandate given to the respondent/plaintiff on j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Thomas JCA Union Bank of Nigeria Plc v. Obong Amaete Ntuk 553 a record by the National Conference of Local Government Chairmen (hereinafter referred to as ‘Conference’) made the respondent/plaintiff an authorised agent of the conference for the purpose of taking out a suit in respondent/plaintiff’s b name, and prosecuting same in respect of Account No. 01/437; opened in the name of the conference when the re- spondent/plaintiff had ceased to hold position as the Na- tional Treasurer of the Conference. Particulars of Error c 1. The Account No. 01/437 was opened in the appel- lant/defendant’s Bank in the name of the Conference. 2. All the documents in respect of the said account were in the name of the Conference. d 3. The mandate given to the respondent/plaintiff by the Conference was on the basis of the respon- dent/plaintiff’s office or position as a one time Chair- man of Ikot Abasi Local Government and which office or position entitled the respondent/plaintiff to be a e member of the Conference and was appointed its Na- tional Treasurer. 4. The mandate given to the respondent/plaintiff to oper- ate the said Account No. 01/437 with the appel- f lant/defendant was not a power of attorney entitling the respondent/plaintiff to sue and be sued on behalf of Conference. The respondent/plaintiff was simply man- dated to operate the account. 5. The suit was not brought by the respondent/plaintiff g for and on behalf of the Conference but in his personal name. 6. The respondent/plaintiff was/is not the liquidator or trustee of the Conference. 7. There was evidence of respondent/plaintiff no longer h being the National Treasurer of the Conference. 8. The respondent/plaintiff being the sole signatory to Account No. 01/437 was not synonymous with owing the said Account No. 01/437. i Ground 2:– The learned trial Judge erred in law when he held and or- dered that the appellant/defendant was bound to honour the debit advice, exhibit H, issued by the respondent/plaintiff on the ground that there was an obligation by the Confer- j ence to pay Krikko Productions Limited.

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Particulars of Error a 1. The respondent/plaintiff admitted that he became the National Treasurer of the Conference by virtue of his office as the Local Government Chairman of Ikot Abasi Local Government in which he was the Chair- b man as at then and also admitted that the Local Gov- ernment has been dissolved in 1993, and he had since then ceased to hold that office. 2. That the Conference derived its existence and member- c ship from dissolved Local Government Councils and it therefore ceased to exist upon the dissolution of the Local Government Council in 1993. 3. The debit advice claim of the respondent/plaintiff was presented to the appellant/defendant in 1995, two years d after the death of the Conference. 4. The respondent/plaintiff was at all material time of the mandate, a public servant, acting for and on behalf of the Conference which said Conference consisted of Local Government Chairmen. The respondent/ plaintiff e admitted that as a public servant he was bound by the directive of either the Federal, State or Local Govern- ment. 5. The life of the mandate, exhibit A, was not dependent f on the indebtedness of the Conference to anyone. 6. The appellant/defendant had a duty to safeguard the account of its customers by taking note of changes in Government. g Ground 3: The learned trial Judge erred in law when he held that the appellant/defendant had breached its duty and confidence owed its customer in respect of Account No. 01/437 and thereby awarded damages of N500,000 (Five Hundred h Thousand Naira) as claimed by the respondent/plaintiff. Particulars of Error 1. The appellant has not breached any of its duties to the respondent/ plaintiff in respect of Account No. 01/437. i 2. The respondent/plaintiff claimed the sum of N500,000 as damages without identifying whether the said dam- ages was special or general. 3. The money in the said Account No. 01/437 was much less than N500,000. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Thomas JCA Union Bank of Nigeria Plc v. Obong Amaete Ntuk 555 a 4. The respondent/plaintiff admitted that the appel- lant/defendant was prudent in making enquiries about his position from the Local Government Chairman of Ikot Abasi, thereby destroying his claim to breach of b confidentiality by the appellant/defendant. 5. There was no evidence upon which the award of N500,000 entered for the respondent/plaintiff could stand and be justified under the law.” c From the above stated grounds of appeal, the appel- lant/defendant formulated five issues for determination as follows:– “i. Whether exhibit A, the mandate given to the respon- dent/plaintiff by . . . the Conference, made the respon- d dent/plaintiff an authorised agent of the Conference for the purpose of taking out a suit in the name of the plain- tiff/respondent in respect of the Account No. 01/437 when the said account was opened in the name of the Conference? e ii. Can the mandate, exhibit A, be construed as power of attor- ney entitling the respondent to sue for and on behalf of the Conference in his own name? iii. Did evidence adduced by the respondent establish that the Conference was an unregistered body who could not sue or f be sued? iv. Since the respondent became the National Treasurer of the Conference by virtue of his being a Local Government Chairman, could he still retain his treasurership after he ceased to be a Chairman of a Local Government when g all Local Government Councils were dissolved in 1993? v. Whether the appellant had breached the confidence of his customer, the respondent, in respect of the account as found by the trial court; and whether the award of N500,000 dam- ages was assessed in the circumstances and facts of the h case? (Italics are mine.) The respondent also adopted the five issues formulated by the appellant for determination. Learned Counsel for the ap- pellant lumped Issue numbers 1–4 together in his brief of i argument as emanating from his Grounds 1 and 2. The three grounds of appeal and the five issues for deter- mination formulated from them, show how awkward and confusing they have become. I am very much surprised that j the respondent’s Counsel in their respondent’s brief has

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Thomas JCA 556 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) fallen into the same mistake, and there is no objection to this a illegality by way of preliminary objection to the hearing of the appeal. I have observed that the appellant formulated 4 issues for determination from Grounds 1 and 2 of the b grounds of appeal while Issue 1 for determination is from Ground 3. In other words, the appellant fragmented the is- sues for determination. Fragmentation of grounds of appeal leading to prolifera- c tion of issues for determination is not allowed in brief- writing. See Obot v Akpan (1998) 4 NWLR (Part 546) 409; Isichei v Allagoa (1998) 12 NWLR (Part 577) 196; Chiek- weilo v Nwali (1998) 8 NWLR (Part 560) 114; and Ak- d pabuyo Local Government v Duke (2001) FWLR (Part 53) 118, (2001) 7 NWLR (Part 713) 557, 569, per Edozie, JCA, as (he then was) where his Lordship stated thus:– “It is also observed that the respondent formulated his second and e third issue for determination from the appellant’s second ground of appeal. Fragmentation of a ground of appeal leading to prolifera- tion of issues for determination is not permissible in brief writing. The ideal is to formulate an issue as encompassing more than one f ground of appeal. It is not only undesirable but also confusing to split a ground of appeal into more than one issue.” In such fragmentation of grounds of appeal, and the resultant proliferation of issues for determination, an Appellate Court g is liable to strike them out of incompetence or in the alterna- tive, the Appellate Court will be at liberty to formulate an appropriate issue for determination that will meet the justice of the case. (See Order 3 Rule 2(4) of the Court of Appeal Rules, 2002.) This is what I have decided to do in this ap- h peal. The appropriate issue for determination in Grounds 1 and 2 of the appellant’s ground of appeal is thus:– “Whether the respondent had the locus standi to institute the suit in his personal name.” i I believe the above covers the discountenanced Issues 1–4 formulated by the appellant. The last issue for determination formulated by the appellant as number 5 from Ground 3 of the grounds of appeal therefore becomes Issue number 2. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Thomas JCA Union Bank of Nigeria Plc v. Obong Amaete Ntuk 557 a Learned Counsel then summarised the evidence of the re- spondent on record especially found on pages 17–26 of the record of proceedings and contends that it is very clear that Account No. 01/437 belonged to the Conference which in b itself comprised of only Chairmen of Local Government Councils. That the Conference was a voluntary organisation. That there was no evidence as to whether it was an unregis- tered organisation that could not sue or be sued in its own c name. Learned Counsel submitted that failure of the respon- dent to give evidence as to the legal status of the Conference is fatal to his case. That it is only when the legal status of the Conference is established that the respondent could be in a d position to bring the action in either a representative capac- ity or to bring it in the name of the Conference; and he re- ferred to the case of Eboh v Ogbu (1994) 5 NWLR (Part 347) 703 at 708 where it was held thus:– e “. . . it is a vital factor for the plaintiff in an action to state the ca- pacity in which he instituted the action. Failure to so prove would make the action incomplete . . . it is fundamental that a person who instituted an action in court must be competent to do so.” The appellant’s Counsel also referred the court to the case of f Ukatta v Ndinaeze (1997) 4 NWLR (Part 499) 251, 254 to support his contention that the respondent should have filed this case in a representative capacity for himself and on be- half of the other members of the Conference by using ex- g hibit A, that is, the mandate given to him by the Conference to operate the account as sole signatory. In the case of Ukatta v Ndinaeze (supra), it was held at page 254 as fol- lows:– h “If the capacity made out on the writ of summons is not proved at the hearing, the action fails.” Learned Counsel for the appellant further referred to the case of Adesanonye v Akinwale (1997) 3 NWLR (Part 496) i 644, 666, as to the requirement to state in a writ, in what ca- pacity a plaintiff is suing, especially in a representative ca- pacity, and further submitted that exhibit A which is man- date given to the respondent, was an offspring of the Local Government Conference prior to November, 1993, and that j since the Local Government Councils were dissolved in

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November, 1993, the respondent’s position as a member of a the Conference and its treasurer had ceased because, he, the respondent had been removed as the Chairman of Ikot Abasi Local Government Council, under whose auspices he be- came a member and the treasurer. That therefore, the re- b spondent could no longer operate Account No. 01/437 after the apparent death of the Conference in November, 1993. Based on the above submissions, appellant’s Counsel urged the court to allow the appeal on Issues 1 and 2. c In reply, learned Counsel to the respondent in his brief of argument at pages 3, 4 and 5 contended that the appellant had lost sight of the obligation of the respondent under exhibit A, the mandate, and that the respondent had sued the d appellant because he wanted money to pay obligation in- curred before the dissolution of the Local Government in November, 1993, and that by this time, the respondent was duty bound to settle such obligation, and that the fact that e the demand for the withdrawal was made thereafter is imma- terial. That the mandate given to respondent in exhibit A had not been cancelled when he sought to withdraw money from Account No. 01/437 with the appellant’s bank. Learned f Counsel referred to the evidence of both parties. The respondent further submitted that it amounts to be breach of the duty of secrecy which the appellant owed the respondent in disclosing the nature of the respondents Ac- g count No. 01/437 to third parties, namely, the Caretaker Committee Chairman of Ikot Abasi Local Government Council and Akwa Ibom State. The Supreme Court has in a number of cases stated that h once the issue of locus standi of the plaintiff/respondent is raised, it must be considered first before any other issue. Locus standi touches on the competence of the action and jurisdiction of the court. Locus standi is a fundamental issue, i see also Commentaries from the Bench Part II on the topic “Parties to Civil Action” by page 135:– “Where a plaintiff or plaintiffs institute action in a representative capacity, there is the school of thought that the leave of the court is j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Thomas JCA Union Bank of Nigeria Plc v. Obong Amaete Ntuk 559 a required. With respect, I consider the leave superfluous, the duty of such plaintiff is to describe his capacity in the writ and to plead that capacity as a material fact in the statement of claim . . .” In the case at hand, it is not that the respondent sued in rep- b resentative capacity without leave of the court or sued in a representative capacity without consent of his principal the “conference”. The case of the appellant is that the respon- dent sued for himself, while the benefit of the suit is for the c settlement of liabilities of the “Conference”. There is no doubt that he, being, an agent of the Conference by virtue of his being its National Treasurer, should have sued on behalf of himself and other members of the Conference i.e., the Lo- d cal Government Council Chairmen the unregistered associa- tion. He did not state this in the writ, nor was it pleaded in his statement of claim. It is trite law that the issue whether a plaintiff has authority from members of an association to sue e in a representative capacity is a matter to be established by evidence and if it is raised at the trial court, evidence must be adduced to that effect. (See Osho v Ape (1998) 8 NWLR (Part 562) 492 and Ononuju v Attorney-General, Anambra f State (1998) 11 NWLR (Part 573) 304.) In case of Otapo v Sunmonu (1987) 2 NWLR (Part 58) 587, it was held as follows:– g “. . . what is mandatory is not the leave to sue in a representative capacity but that the representative capacity shall be expressed on the writ.” (Italics is mine.) Where a case is presented not in a representative capacity as h in the case at hand but for the benefit of a dead principal like the dissolved “Conference”, and also for the benefit of a third party, creditors of the “Conference”, the suit will be defeated as the plaintiff has no locus standi to sue (see the case of Afolabi v Adekunle (1983) 2 SCNLR 141). i In the case at hand, the respondent in the court below in his evidence admitted, that the “Conference” of which he was her treasurer was a voluntary association and was also not registered. It therefore follows that it could sue only by a j representative action. That is, the only available procedure.

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(See Gani Fawehinmi v NBA (No. 2) (1989) 2 NWLR (Part a 105) 558 holden 20 and 21.) This is the position of the law as an association of persons without Certificate of Incorpo- ration has no legal status of a juristic person. (See the case of Abakaliki Local Government Council v Abakaliki R.M.O. b (1990) 6 NWLR (Part 155) 192.) From the above stated position of the law regarding the ca- pacity to sue, it is now clear that the respondent who was the plaintiff in the Court below has no locus standi to sue the c appellant who was the defendant. Locus standi is the competence of the plaintiff to institute an action in court. Without it, the trial court itself cannot be clothed with jurisdiction to hear or entertain the case. In d Eboh v Ogbu (1994) 5 NWLR (Part 347) 703 at 715, it was held that:– “It is a vital factor for the plaintiff in an action, to state the capacity in which he institutes the action. Failure to so prove, would make e the action incomplete. This is because it is fundamental that a per- son who institutes an action in court must be competent to do so.” It must be established on the face of the writ in what capacity the plaintiff is suing. Likewise, a defendant in a suit must f state the capacity in which he is defending. In other words, the defendants are defending the suit. If a plaintiff in a suit is suing for the benefit of himself and others having a common interest with him, he ought to come in a representative capac- g ity. (See Ukatta v Ndinaeze (1987) 4 NWLR (Part 499) 251, 275 and Shaibu v Bakare (l984) 10 SC 187, 230.) In the case at hand, the respondent in his evidence in the court below asserted that the Conference was owing Krikko h Productions Ltd, the sum of N130,000 and that he sued the appellant bank to offset the debt. But curiously, the respon- dent did not join the aforesaid Krikko Productions Ltd as a necessary party nor was it on the face of the writ indicated that he was suing in a representative capacity for the incor- i porated company. In any suit in which the capacity or authority of the plain- tiff is challenged, the trial court ought to as of necessity re- solve the issue before proceeding to hear the case. This is so j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Thomas JCA Union Bank of Nigeria Plc v. Obong Amaete Ntuk 561 a as it is the capacity to sue that gives jurisdiction to the trial court to hear the plaintiff’s complaint. If the plaintiff has no capacity, his case fails there and then. No court of law can give a false or wrong plaintiff a capacity that he has not got. b (See Ukatta v Ndinaeze (supra) at page 275 paragraphs C and D, Chapman v CFAO (1943) 9 W.A.C.A. 181.) It is therefore very clear that it was wrong for the respon- c dent to have instituted the suit in his personal name as if the benefit was for himself alone, whereas in his evidence, he stated that it was to satisfy the Conference’s resolution passed in 1993. It was equally an error on the part of the d court below not to have resolved first, the issue of capacity or locus standi raised by the appellant before proceeding to proper trial since in the pleadings of the parties, issues were joined on it. See paragraph 14 of the appellant’s brief at e page 13 of the record of proceedings where it was pleaded as follows:– “14. The defendant deny (sic) paragraph 17 of the plaintiff’s statement of claim and say that the plaintiff cannot com- plain of embarrassment to the plaintiff’s person as the f plaintiff never transacted with the defendant (Bank) in the plaintiff’s personal capacity.” (Italics is mine.) See also the evidence of the respondent under cross- examination on page 25 lines 24–27, lines 33–36, all admit- g ting that he was acting on behalf of the conference, yet he sued in his own personal name. The entire gamut of the ad- dress of learned Counsel for the appellant from page 35 lines 22–34, page 36, lines 1–34, page 37 lines 1–20, page 38, h lines 8–24 of the record of proceedings is a direct challenge to the capacity of the respondent to institute the suit in his personal name, rather than to have come in a representative capacity for himself and on behalf of the other members of i the unregistered conference. Yet, the learned trial Judge in his judgment at page 67 lines 31–35 has this to say:– “In the instant case the mandate, exhibit A made the present plain- tiff sole signatory to the account of the unregistered National Con- ference, the power to sue in his personal capacity. Exhibit A made j the plaintiff an authorised agent of the conference.”

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With due respect to the learned trial Judge, he was stretching a exhibit A too much into the realm of absurdity. A mandate to sign for and operate bank account on behalf of others is not a blanket authority to institute a case in one’s personal name. If it were so, all government treasurers, bank Manag- b ers, accountants of companies, etc. would all commence ac- tions in courts in their personal names and not in the names of their corporations or institutions. The mandate, exhibit A, given to the respondent was very clear and not ambiguous. It c provides as follows:– “RESOLUTION At the First National Conference of the First Executive Chairmen of Local Governments in Nigeria held in Hill Station Hotel, Jos, d Plateau State from 8th 10 September, 1999, it was resolved that:– 1. . . . 2. . . . 3. . . . e 4. . . . 5. That for the purpose of facilitating financial transaction the Protem National Treasurer be the sole signatory to the ac- count to be opened in Union Bank Plc, Ikot Abasi, . . . Ikot f Abasi Local Government, Akwa Ibom State.” (Italics is mine.) Therefore, if anything had hindered the respondent from fa- cilitating financial transaction of the account, I am of the g view that ordinary common sense would have dictated to the respondent to first seek express mandate of the Conference to sue on its behalf, the person that prevented him from fa- cilitating the financial transaction. This he failed to seek, and h thus had exceeded his mandate. But failure of the respondent to seek express authority to sue on behalf of his principal, the Conference, did not only end there. It is in evidence before the trial court that the fa- i cilitator of the mandate – exhibit A, that is the “Conference” was no more in existence. It was dissolved in 1993. This much, the respondent admitted. The position of the law is that where the principal has given his agent a power of at- torney and the principal later dies, the power of attorney is j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Thomas JCA Union Bank of Nigeria Plc v. Obong Amaete Ntuk 563 a automatically revoked. Black’s Law Dictionary (5ed) at page 1053 defines power of attorney as follows:– “An instrument authorising another to act as ones agent or attor- ney. The agent is attorney in fact and his power is revoked on the b death of the principal by operation of law . . .” It therefore follows that when the entire Local Government Councils were dissolved in 1993, membership of the re- spondent in the Conference also died a natural death because c the Conference came into existence by virtue of its members being Local Government Chairmen. From the foregoing findings above, I am of the view that Issue numbers 1, 2, 3 and 4 formulated by the appellant on d Grounds 1 and 2 of the grounds of appeal are resolved in fa- vour of the appellant bank as follows:– 1. Exhibit A, the mandate given to the respondent by the Con- ference did not and could not authorise the respondent to e take out a suit in his own personal name in respect of the Account No. 01/437. 2. The mandate, exhibit A given by the conference to the re- spondent was not a power of attorney entitling him to sue for and on behalf of the Conference in his own name. The f mandate was clear and unambiguous – it was a limited pur- pose of facilitating financial transactions. Even if the mandate, exhibit A, is construed as a power of attorney to sue in his own personal name, the power – thus the mandate, was revoked by the death of the principal dis- g solution of the Local Government Council in 1993. 3. The legal status of the Conference was not established by the evidence adduced by the respondent. He had not legal capacity to institute the action in his own name. The re- h spondent should have sued in a representative capacity for himself and other members of the Conference. This he woe- fully failed to do, and thus he had no locus standi. 4. The respondent’s mandate died by operation of law when the Local Government Councils were dissolved in Novem- i ber, 1993. I therefore, allow the appeal on Grounds 1 and 2 of the grounds of appeal. As regards Issue 2 to the effect that the appellant had j breached the confidence of his customer the respondent, for

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Thomas JCA 564 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) which lower court awarded general damages of N500,000. I a am of the view that the award cannot stand because of the following. I have held above that the respondent had no locus standi b to sue in his own name. He should have come by way of a representative action. Since he had no locus standi, his ac- tion failed at the court below and I so hold. See Ukatta v Ndinaeze (supra) page 251 since the action has failed, it fol- c lows that, there was nothing on which to hinge the claim for general damages, on which the trial court, awarded general damages of N500,000 and I so hold. But be that as it may, even if the allegation of breach of d confidence by the appellant against the respondent had been established, there was no evidence on record to justify the award of such stupendous amount, especially when com- pared to the amount standing to the credit of the Conference e at the material time, which was a mere N130,000, yet the trial court awarded almost four times the amount as general damages. Trial courts are to be guided in awards of general or spe- f cial damages as laid down in numerous cases (see UBA Plc v Samba Pet. Co Ltd (2003) FWLR (Part 137) 1199, (2002) 16 NWLR (Part 793) 369, 401–402; Odulaja v Haddad (1973) 11 SC 357; Oshinjinrin v Elias (1970) 1 All NLR g 153 and Shell B.P. v Jammal S.S. Ltd (1974) 4 SC 33 and Saipem SPA v Tefa (2002) 6 NWLR (Part 793) 410, 435). In the case at hand, the trial court proceeded on a wrong notion that the respondent had locus standi by instituting the h suit in his own personal name and thus wrongly considered the evidence of the respondent that he was unlawfully de- nied withdrawal of the money from account no. 01/437 to which he was a sole signatory. That because the respondent i had been made to repeat going to the appellant on many oc- casions and was denied the money he wanted to withdraw, he thereby had suffered loss, for which the learned trial Judge awarded general damages of N500,000 which was the exact amount claimed as general damages by the respondent. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Thomas JCA Union Bank of Nigeria Plc v. Obong Amaete Ntuk 565 a The other angle on which the trial court awarded general damages to the respondent is on its wrong finding that the appellant had breached his duty of confidence owed the re- spondent by telling a third party of the existence of the ac- b count no. 01/437. The pertinent question to ask is, was the appellant justified in communicating the existence of the account to a third party? The appellant in her evidence before the trial court at c page 27 lines 10–27, page 28 lines 29–31 testified as fol- lows:– “. . . When the plaintiff vacated his position as Local Governments Chairman by virtue of the dissolution of Local Governments by d the Federal Government, he ceased to be a Treasurer of that con- ference. He was holding that position by virtue of his being a Lo- cal Government Chairman. Before the dissolution of Local Gov- ernment, the plaintiff had always drawn cheques on that account and we honoured it. We dishonoured his debit of 24 April, 1995 – e exhibit H. We asked him to liased (sic) with the new executive of the conference to come up with a change of mandate. He did not do so because when there is a change of executive, we expect the new executive to furnish us with information on who is the next signatory to the account. f We wrote a letter exhibit F to the Ikot Abasi Local Government. That letter was an in house call for information to guide us know the new customer. . . . It is normal for a bank to write to third party when the bank is g in doubt.” From the foregoing, it is clear that the appellant bank was justified in writing a letter to the new chairman of Ikot Abasi Local Government in order to guide her and clarify her h doubts as to who would operate the Account No. 01/437 since the appellant knew that the respondent was no more the Chairman of Ikot Abasi Local Government. Infact, I am of the view that the appellant bank was protecting the Ac- i count No. 01/437 by ascertaining the next proper signatory to manage the account. Banks have the mandatory duty to protect the funds of its customers. Therefore, the appellant bank did not breach its mandate of confidentiality to the re- spondent when it wrote to the new Chairman of Ikot Abasi j Local Government Council.

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I declare that the award of general damages of N500,000 a on an alleged breach of confidence was based on a wrong finding by the trial court, and moreover, the award was out- rageous, extravagant, unreasonable and unconscionable in b comparison with the greatest possible loss that would have flowed from the alleged breach assuming that there was such a breach of confidence. An Appellate Court has the duty to overturn the award of c general or special damages that is manifestly unwarranted, excessive, extravagant and unreasonable. See ACME Build- ers Ltd v KSWB (1999) 2 NWLR (Part 590) 288 where it was held as follows:– d “Where a trial court in assessing general damages proceeds upon a wrong principle of law or on no principle of law and makes an award which is manifestly unwarranted, excessive, extravagant, unreasonable and unconscionable in comparison with the greatest loss that would possibly flow from the said breach of contract and e without stating whether the amount awarded is loss of business or loss of profit or anticipated profits and the measure or basis of its assessment, an Appellate Court will not allow such an award to stand.” f (See also Ozuruoke v Okolie (2000) 1 NWLR (Part 642) 579–580.) In assessing general damages, the court should consider the greatest loss that would naturally flow from the act com- g plained of. In regard to Issue 2 formulated in the parties briefs of ar- gument, I find that the award of general damages of N500,000 was not supported by credible evidence and was h infact, manifestly outrageous and unconscionable and is hereby set aside.

In the final analysis, the appeal is allowed. The suit of the i respondent in the court below should have been dismissed as he had no locus standi to sue in his own personal name, his mandate from the Conference having been extinguished or revoked by the death of his principal through dissolution of the Local Government Council in 1993. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Thomas JCA Union Bank of Nigeria Plc v. Obong Amaete Ntuk 567 a The appellant is awarded costs as against the respondent assessed and fixed at N4,000. EKPE JCA: I had the advantage of reading in advance the b draft of the judgment just delivered by my learned brother Thomas, JCA. I completely agree with his reasoning and conclusion for allowing the appeal. From the facts of the case, which for the most part are un- c disputed, as ably articulated in the leading judgment and the law as postulated therein, I see no valid reason to sustain the judgment of the court below. The respondent having been given a mandate (exhibit A) d by the National Conference of Local Government Chairmen to operate its bank account with the appellant bank, un- doubtedly became the agent of the National Conference of Local Government Chairmen, his principal, for the operation of the said bank account. It was in evidence at the court be- e low and in accordance with the respondent’s statement of claim that the said National Conference of Local Govern- ment Chairmen was dissolved in 1993. In 1995, almost two years after the said dissolution, by virtue of the said man- f date, the respondent went to the appellant bank to withdraw money from the said Conference’s bank account to enable him settle the debt owed by the Conference to Krikko Pro- ductions Limited. There, the appellant-bank refused to hon- g our the demand of the respondent, which refusal gave rise to this action by the respondent. At page 3 of the respondent’s brief of argument, the re- spondent has submitted that it was in evidence that the said h mandate, at the time the plaintiff (respondent) sought to withdraw the money, had not been cancelled by the donor. This submission appears to me to overlook the legal princi- ple that the mandate of an agent is revoked on the death of i the principal by operation of law. In the instant case, the said mandate was automatically revoked by operation of law upon the dissolution of the said National Conference Local Government Chairmen, the respondent’s principal. It did not require any overt act of cancellation of the mandate by any- j body or authority before it was revoked by operation of law,

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Ekpe JCA 568 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) upon the dissolution of the said Conference, which in legal a parlance amounted to its death. In my view therefore, the mandate having thus been re- voked, the respondent lacked the authority and competence b to operate the bank account of his “deceased” principal, the National Conference of Local Government Chairmen. The appellant was therefore right in law to refuse the respon- dent’s demand to operate the said bank account. Conse- quently therefore, the action of the respondent must fail as c he had no capacity and competence to bring the action against the appellant. For the above views and the wider or detailed views of my learned brother, Thomas, JCA in the leading judgment, I do d hereby allow the appeal I abide by the consequential order as to costs. OLAGUNJU JCA: Following the streamlining of the issue e for determination formulated by the appellant and adopted by the respondent that tended toward fragmentation of grounds of appeal with a view to coming up with issues in excess of the grounds of appeal, the lead judgment is quite right that the central issue calling for resolution is whether f the respondent as the plaintiff at the court below had locus standi to institute the action on appeal. If that issue is re- solved in the negative against respondent, any inquiry about whether there is a breach of confidence by the appellant g leading to an award against her of damages which is the sub- ject of the second issue becomes, in law, otiose. Against this background, in this appeal, the capacity of the respondent to institute the action at the court below was chal- h lenged by the appellant. It is common ground that an unregis- tered association called the National Conference of Local Chairmen, to be contracted in this judgment as “the Confer- ence” maintained a Savings Account Number 01/437 with the i appellant, a banker, and by the mandate authorising the op- eration of the account, the respondent who was the Treasurer of the Conference was appointed the sole signatory to the ac- count. It is also common ground that in November, 1993, the Local Government Council in the country over which the j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Olagunju JCA Union Bank of Nigeria Plc v. Obong Amaete Ntuk 569 a members of the Conference were chairmen were dissolved, which implies the demise of the Conference as an association of the heads of councils that have been dissolved. b It is also a fact that on 3 July, 1997, the respondent as the plaintiff in his personal capacity took out a writ against the appellant seeking a redress for the appellant’s refusal “to honour and pay on the plaintiff’s demand made upon Account No. 01/437” being maintained in the name of the defunct c Conference. At the end of the trial, the plaintiff/respondent reliefs were granted as per page 69 of the record. The issue of the capacity in which the respondent could d have operated to draw on the account of the Conference was discussed at length in the leading judgment. I share the view about the option open on a claimant of the fund of the de- funct conference as discussed in the leading judgment against the background of the judicial authorities on the mat- e ter. The benefits of the action by the respondent being for settlement of liabilities that has been incurred before the demise of the conference, it was open to him to sue in a rep- resentative capacity acting on behalf of other member of the f Conference and, if necessary, join the Conference’s creditors as plaintiff. But what the respondent could not do in law is to sue as he did the appellant for refusing him to draw in his personal capacity on the account standing in the name of an- g other entity albeit defunct, flaunting the mandate that en- abled him to operate the account ex officio when he no longer hold the office of Chairman of the Ikot Abosi Local Government as the qualifying condition for being the Treas- urer of the non-existent conference. h The substratum of the Conference which are the Local Government Councils having been dissolved, the chairman- ship of a council as the membership of the Conference and i the office of the Treasurer which is incidental thereto, col- lapsed with the organisation. Like the demise of an ordinary mortal, any benefit from the estate of the Conference cannot be founded on what authority the claimant was exercising during the life time of the defunct entity that vested him with j the power nor does such authority constitute the ex-office

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Olagunju JCA 570 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) holder as the administrator of the estate of the defunct Con- a ference. That leads to the questions of the locus standi of the re- spondent, that is to say, the respondent’s standing to sue the b appellant, the Conference’s bankers. That standing must be based on violation of the respondent’s civil right as can- vassed in Adesanya v President of the Federal Republic of Nigeria (1981) 2 NCLR 358, 393 and Oloriode v Oyebi c (1984) 5 SC 1, 28 and Thomas v Olufosoye (1986) 17 NSCC (Part 111) 323, 331 and 339. From the facts of the transactions between the parties as in the above review, the only right being exhibited by the re- d spondent which the appellant is alleged to have violated is that the bank refused to allow the respondent withdraw money from the Conference’s account when in the life time of the Conference, the respondent was the sole accredited agent of the Conference empowered to operate its account. e The short answer to that claim is that the respondent must be living in his cocoon of the past rosy days when he was the Chairman of Ikot Abasi Local Government and the Treas- urer of the Conference. But the dissolution of the Local f Government Councils that led to the demise of the Confer- ence and the disappearance of the office of the Treasurer of the Conference has also wiped out any nexus between the respondent and the Conference’s money in Savings Account g No. 01/437. Any claim to the money in that account is a day dream; a flight of fancy. That being the case, any outrage about refusal to allow the respondent to draw from that ac- count is misplaced. h Therefore, without any shadow of right to the Confer- ence’s money in Savings Account No. 01/437, there can be no wrong committed by the appellant who has the duty to watch over the money in her custody and to ward off any i attempt to meddle with such money, however subtle. There- fore, there being no right vested in the respondent over the money in the Conference’s account with the appellant, there can be no wrong committed against the respondent by refus- ing to honour the demand made on that account. At best, it j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Olagunju JCA Union Bank of Nigeria Plc v. Obong Amaete Ntuk 571 a may be a case of dammum absque injuria, i.e. loss or hurt without injury in the legal sense or wrong done but from which no loss or damage results. Coming to think of who inflicted the injury, it cannot be the bank; rather, it must be b those who separated the respondent from the exalted office of the Treasurer of the Conference and put a wedge between him and Account No. 01/437. c In any case, I come to the conclusion considered to be in- escapable that on the facts of this case, the respondent as the plaintiff at the court below having failed to establish the link between him and the Conference Account No. 01/437 to which he laid claim has failed to establish any legal wrong d done to him by the appellant in connection with the account. He has, therefore, no locus standi to institute the action in the first place. The relationship between locus standi and the jurisdiction e of the court which is invited to entertain an action was ex- amined by the Supreme Court in Momoh v Olotu (1970) 1 All NLR 117; Oredoyin v Arowolo (1989) 20 NSCC (Part 3) 64, 72 and Thomas v Olufosoye (supra) at page 333 and 339. f On the face of the exposition, the principle emerged that if a party lacks the capacity to institute an action, there can be no jurisdiction on the part of the court to entertain the action as the court is not vested with jurisdiction to hear an action in g which the parties are at issue. Consequently, having found that the respondent as the plaintiff at the trial court had no locus standi to institute the action against the appellant as the defendant, it follows that the court below had no juris- diction to entertain the action which ought to have been h struck out as incompetent. On that score, I will, as done by my learned brother, Thomas, JCA, resolve the main issue in the appeal against the respondent. i On my part, that will be enough to dispose of the appeal. Having found the plaintiff/respondent’s action at the court below to be incompetent the question of the correctness of award of damages canvassed in issue that impinges on the merit of the case becomes superfluous going by the prece- j dent of the decisions in Oloriode v Oyebi (supra) at pages 17

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, CALABAR DIVISION) Olagunju JCA 572 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) and 30–32; Road Transport Employers Association of Nige- a ria v National Union Road Transport Workers (1992) 2 NWLR (Part 224) 381, 391; and Adesokan v Adetunji (1994) 6 SCNJ 123, 145. b Therefore, for the foregoing reasons and for the fuller rea- sons given in the leading judgment, the appeal succeeds and it is allowed. The plaintiff/respondent’s action is incompe- tent. In consequence, the judgment of Okpo, J, of Akwa Ibom’s State High Court delivered on 17 August, 2000 is set c aside. In its place, it is hereby ordered that the plain- tiff/respondent’s claim should be struck out. I abide by the order for cost made in the leading judgment. Appeal allowed. d

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Vony Maritime SA v. Green View Shipping Lines Ltd 573 a Vony Maritime SA and another v Green View Shipping Lines Limited and another b FEDERAL HIGH COURT, LAGOS DIVISION UKEJE CJ Date of Judgment: 21 MARCH, 2003 Suit No.: FHC/L/CS/462/97 c Banking – Interest rates – Fluctuating interest rates – How proved Evidence – Admissibility – Document showing fluctuating rate of interest – How proved d Facts The plaintiffs sought to tender through PW3, Olubunmi Gbigbi, an employee of WEMA Bank Plc, in its commercial and retail Banking Group Department, charged with credit e proposals and interest rates, a document showing the fluctu- ating nature of interest. Witness further testified that interest rates are never steady but fluctuate nearly every minute. That in 1997, deposit in- f terest rate would range between 13% and 14%, while lend- ing rate would range between 27% and 29% p.a. Therefore, plaintiff’s Counsel Okupe, sought to tender a document in support of the fluctuating nature of interest. g Held – By section 15 of the Banking Act, the rate of interest charged on advances, loans or credit facilities paid on de- h posit by any licensed Bank is to be linked to the minimum and maximum rules of interest when so approved are to be the same for all licensed Banks. Per curiam i “The document now sought to be tendered emanates from WEMA Bank Plc and Treasury Department and describes itself as:– ‘Deposit Mobilisation Rates Guide for the month of May, 2002.’ At page 2, the document talks of:– j ‘Interest Trends (Average).’

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In the light of all the statutory and documentary evidence before a the Court, coupled with the pleading at Paragraph 17 (a) and (b) of the statement of claim, I find that the document sought to be ten- dered is relevant to the plaintiff’s case, relates to facts pleaded in paragraph 17(b) of the statement of claim and is supported by the b Court of Appeal’s decision.” Document admitted.

Case referred to in the judgment c Nigerian Kwajaffa v BON Ltd (1999) 1 NWLR (Part 587) 423 d Counsel For the plaintiff/applicant: A.A. Okupe (with T.O. Lambo) For the first defendant: M.A. Apampa For the second defendant: Nelson Otaji e

Judgment UKEJE CJ: This Ruling flows from proceedings on 19 March, 2002, when the plaintiff/applicant sought to tender f through PW3, Olubunmi Gbigbi, an employee of WEMA Bank Plc, in its Commercial and Retail Banking Group De- partment, charged with Credit Proposals and interest rates. Witness further testified that interest rates were never g steady but fluctuated nearly every minute. That in 1997, de- posit interest rate would range between 13% and 14%, while lending rate would range between 27% and 29% p.a. Thereafter, plaintiff’s Counsel Okupe, sought to tender a h document in support of the fluctuating nature of interest. The plaintiff’s Counsel countered by stating that the document is pleaded in paragraph 17(b) of the statement of claim. i The simple and single issue that arises in this ruling is to determine whether the said document sought to be tendered by the plaintiff in support of its claim for interest is admissi- ble in this trial. j

[2002 – 2004] 11 N.B.L.R. (PART I) (FEDERAL HIGH COURT, LAGOS DIVISION) Ukeje CJ Vony Maritime SA v. Green View Shipping Lines Ltd 575 a It is trite that evidence in support of a fact not pleaded goes to no issue. It is equally true that any pleading not supported by evidence is deemed to have been abandoned. b What then is the status of the document now sought to be tendered. The subject matter of this ruling or put differently, was that document pleaded by the plaintiff? The plaintiff re- fers to paragraph 17(b) of the statement of claim. c Now, by paragraph 17 of the statement of claim, the plain- tiff claims as follows:– (a) “US Dollars $52,850 as special damages (b) Interest under and by virtue of section 2(3)(u) of the Admi- ralty Jurisdiction Decree, 1991 (1991 No. 59) on the said d sum of US $52,850 or on any sum found due and payable by the defendants or any of them from 7 March, 1997 until judgment at such fluctuating rate or rates as determined by ruling money market conditions which, as at 7 March, 1997 e stood at 21% per annum. (c) Interest at 4% per annum on the said sum of US $52,850 or any sum found due and payable by the defendants or any of them from date of judgment until same shall be completely liquidated by the defendants or any of them.” f In the case of Kwajaffa v BON Ltd (1999) 1 NWLR (Part 587) 423 the Court of Appeal held that:– “By section 15 of the Banking Act, the rate of interest charged on advances, loans or credit facilities paid on deposit by any licensed g Bank is to be linked to the minimum and maximum rules of inter- est when so approved are to be the same for all licensed Banks.” The document now sought to be tendered emanates from WEMA Bank Plc and Treasury Department and describes h itself as:– “Deposit Mobilisation Rates Guide for the month of May, 2002.” At page 2, the document talks of:– “Interest Trends (Average).” i In the light of all the statutory and documentary evidence before the Court, coupled with the pleading at Paragraph 17(a) and (b) of the statement of claim, I find that the docu- ment sought to be tendered is relevant to the plaintiff’s case, j relates to facts pleaded in paragraph 17(b) of the statement

[2002 – 2004] 11 N.B.L.R. (PART I) (FEDERAL HIGH COURT, LAGOS DIVISION) Ukeje CJ 576 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) of claim and is supported by the Court of Appeal decision in a Kwajaffa v BON Ltd (supra). I therefore, rule that the document eminently qualifies to be admitted in evidence. b And I shall admit same.

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Savannah Bank of Nigeria v. Nigeria Deposit Insurance Corp 577 a Savannah Bank of Nigeria v Nigeria Deposit Insurance Corporation and another b COURT OF APPEAL, ABUJA DIVISION OGUNTADE, BUKLACHUWA, ODUYEMI JJCA Date of Judgment: 25 MARCH, 2003 Suit No.: CA/A/95M/2002 c Banking – Bank in liquidation – Depositors funds – Duty of court to preserve Banking – Banking licence – Revocation of – Power of Cen- tral Bank of Nigeria to so do – How exercised – Circum- d stances under which it can act, section 12 Banks and Other Financial Institution Act considered Banking – Banking licence – Revocation thereof – Effect on e bank Practice and Procedure – Res – Preservation thereof – Duty of court thereto Facts f The second respondent by a government notice no. 27 pub- lished in the Federa1 Government of Nigeria Official Ga- zette No. 16 Volume 89 of 15 February, 2002 revoked the banking licence of Savannah Bank Nigeria Plc (now “the g applicant”) pursuant to section 12 of the Banks and Other Financial Institutions Act, 1991 (hereinafter abbreviated as “BOFIA”). Dissatisfied with the revocation, the applicant commenced h a suit at the Federal High Court, Abuja. On 19 February, 2002, the applicant filed an application wherein it sought amongst other orders that a mandatory injunction be issued by the lower court “directing the defendants/respondents to i unseal the plaintiffs/applicants premises throughout Nigeria and to revert to the status quo ante bellum pending the hear- ing and the determination of the suit”. The respondents resisted the application by each filing a j counter affidavit.

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The trial Judge granted the Orders sought by the appellant. a Being dissatisfied the respondents filed a Notice of Appeal at the Court of Appeal, seeking the Court of Appeal to set aside the order made by the trial court. The Court of Appeal b set aside the order of injunction against the respondent. The appellant then appealed to the Supreme Court and then brought an application at the lower court praying for an or- der for stay of further sealing up of its premises, etc. c Held – 1. The court has a duty to ensure that the money or other assets of the depositors in the hands of a liquidated bank d are not placed at risk or jeopardy. 2. The Central Bank of Nigeria has the power to revoke any banking licence by virtue of section 12 of BOFIA where the bank:– e (a) “Ceases to carry on in Nigeria the type of banking business for which the licence was issued for any continuous period of 6 months or for any period ag- gregating 6 months during a continuous period of 12 f months; (b) goes into liquidation or is wound up or dissolved; (c) fails to fulfil or comply with any condition subject g to which the licence was granted; (d) has insufficient assets to meet its liabilities; (e) fails to comply with any obligation imposed upon it by or under this Decree or the Central Bank of Nige- h ria Decree, 1991”. The power to make such decision is vested in the Gover- nor of CBN who have access to technical details and in- i formation to be able to make such decision. Once this power has been exercised and until a definite findings has been made that the order was improperly or invalidly made all court must respect and have regard for its ef- fect. j

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Savannah Bank of Nigeria v. Nigeria Deposit Insurance Corp 579 a 3. A bank whose banking licence has been revoked or withdrawn cannot conduct any banking business even if the premises are unsealed. b 4. The primary duty of all courts having the custody of property the subject matter of litigation is to preserve the RES for delivery to the persons who ultimately establish their title. In the instant case, the discretionary power of the court to preserve ought not to be exercised to cancel c or neutralise the revocation already made. Application dismissed.

Cases referred to in the judgment d Nigerian CBN v Ahmed (2001) 11 NWLR (Part 724) 369 Ezegbu v FATB (1992) 7 NWLR (Part 251) 89 e Gomwalk v Okwuosa (1996) 3 NWLR (Part 439) 681 Kigo (Nigeria) Ltd v Holman Bros. (Nigeria) Ltd (1980) 5–7 SC 60 f Odedeyi v Odedeyi (2000) 3 NWLR (Part 650) 655

Nigerian statute referred to in the judgment Banks and Other Financial Institutions Decree No. 25 of g 1991 (as amended) by Decree No. 38 of 1998, section 12

Nigerian rules of court referred to in the judgment Court of Appeal Rules, 2000, Order 1 Rule 7 h Counsel For the applicant: J.K. Gadzama, SAN (with him R.O. Yusuf, Esq., I.B. Asuquo, Esq., T.N. Ndifon, Esq. and N. Walhana) i For the first respondent: Dr Kanyin Ajayi, SAN (with him R. Tarfa, SAN; P. Tarfa (Miss) and V. Iwuoha (Mrs) For the second respondent: Adetunji Oyeyipo, Esq. (with him O.O. Bello (Miss); J.O. Adesina (Mrs); O.A. Falade, j Esq. and B. Omotosho (Miss)

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Judgment a OGUNTADE JCA: (Delivering the lead judgment) The sec- ond respondent by a government notice no. 27 published in the Federa1 Government of Nigeria Official Gazette No. 16 b Volume 89 of 15 February, 2002 revoked the banking li- cence of Savannah Bank Nigeria Plc (now “the applicant”) pursuant to section 12 of the Banks and Other Financial In- stitutions Act, 1991 (hereinafter abbreviated as “BOFIA”). c Dissatisfied with the revocation, the applicant commenced a suit at the Federal High Court, Abuja claiming the follow- ing reliefs:– “(a) A declaration that the defendants are not entitled to seal or d take over or attempt to seal or in anyway whatsoever inter- fere with the management or control or the running of the plaintiff bank contrary to the clear and specific provisions of the Banks and Other Financial Institutions Act, 1991. e (b) A declaration that the defendants are not entitled to revoke or suspend the banking licence of the plaintiff or in any manner whatsoever prevent the plaintiff from its normal banking business. (c) An injunction restraining the defendants by themselves, f their agents or servants from sealing or taking over or threatening to seal or take over the management or control of the plaintiff bank or in any manner whatsoever interfer- ing with the management and running of the plaintiff bank. g (d) An injunction restraining the defendants by themselves, their agents or servants from revoking or suspending the banking licence of the plaintiff bank. (e) An injunction restraining the defendants by themselves, h their agents or servants from taking any step to wind-up the business of the plaintiff, including appointing any liquidator or Receiver for the plaintiff or applying for the purchase or acquisition of the plaintiff. (f) An injunction restraining the defendants by themselves, i their agents, or servants from using members of the Nigeria Police force or any force or group of persons whatsoever or self help to seal the plaintiff bank or prevent the plaintiff from doing its normal business or interfering with its opera- tion.” j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ABUJA DIVISION) Oguntade JCA Savannah Bank of Nigeria v. Nigeria Deposit Insurance Corp 581 a On 19 February, 2002, the applicant filed an application wherein it sought amongst other orders that a mandatory in- junction be issued by the lower court “directing the defen- dants/respondents to unseal the plaintiffs/applicants prem- b ises throughout Nigeria and to revert to the status quo ante bellum pending the hearing and the determination of the suit”. The respondents resisted the application by each filing a c counter affidavit. Okeke, J heard arguments on the applica- tion. On 4 March, 2002, he in his ruling made the following orders in words:– “3. An order of mandatory injunction is issued directing defen- d dants/respondents to unseal forthwith the plaintiffs/ applicants premises throughout Nigeria and revert the status quo ante bellum by the first defendant/respondent restoring forthwith the plaintiff/applicant banking licence pending the e hearing and determination of the suit. 4. The plaintiff is to give an undertaking as to damages should it turn out that this order ought not to have been made.” The respondents were dissatisfied with the ruling of the f lower court. They brought appeals against it before this Court. On 18 July, 2002, this Court in its judgment allowed the appeal. We set aside the order of mandatory injunction issued by the lower court. We also directed that the suit be re-assigned to another Judge of the Federal High Court. g The applicant was dissatisfied with the judgment of this Court. It has filed an appeal before the Supreme Court. The grounds of appeal without their particulars read:– h “(1) Ground One – Error in law The learned Justices of the Court of Appeal erred in law when they held that the order made by the trial Judge restor- ing forthwith the appellant’s banking licence pending the hearing and determination of the suit was an order made i without jurisdiction in that it was not asked for by the ap- pellant, an error contrary to law. (2) Ground Two – Error in law The learned Justices of the Court of Appeal erred in law by j holding that the order of mandatory injunction to restore the

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banking licence of the appellant bank has prejudiced that a substantive suit, an error which has occasioned a miscar- riage of justice. (3) Ground Three – Error in law The learned Justices of the Court of Appeal erred in law by b holding that the ruling of the Abuja Federal High Court has the effect of nullifying the ex parte order of winding up of the appellant by the Lagos Federal High Court, an error contrary to the law. c (4) Ground Four – Error in law The learned Justice of the Court of Appeal erred in law when alternate Justices in three and fives heard the matter.” Following its appeal to the Supreme Court, the applicant on d 8 July, 2002 brought this application before this Court pray- ing for the following:– “1. An order for stay of further sealing up of the premises of the appellant/applicant throughout Nigeria and continued wind- ing up or liquidation of the appellant/applicant by the re- e spondents by themselves, their servants, agents or privies pending the determination of the appeal filed in this matter in the Supreme Court of Nigeria. 2. An order of injunction pending appeal restraining the re- f spondents by themselves, their agents, servants or privies from taking any or further steps towards sealing up of the premises of the appellant/applicant throughout Nigeria, or liquidation or winding up the appellant/applicant pending the determination of the appeal filed in this matter in the g Supreme Court of Nigeria. And for such further order or orders as the court may deem fit and expedient to make in the circumstances.” The applicant filed in support of the application a 32 para- h graph affidavit to which were annexed several documents as exhibits. In reaction, the second respondent on 18 Septem- ber, 2002 filed through one Mr Mohammed Tanko Ahmed, a Deputy Manager, a 25 paragraph counter-affidavit. Again on 19 September, 2002, the second respondent through Mr i Simeon Onekutu, an Assistant Director (Legal) filed a 17 paragraph counter-affidavit. The applicant on 2 October, 2002 filed a 16-paragraph fur- ther affidavit. Finally on 17 January, 2003, the first j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ABUJA DIVISION) Oguntade JCA Savannah Bank of Nigeria v. Nigeria Deposit Insurance Corp 583 a respondent through a Counsel in the chambers of its Counsel filed a further counter-affidavit. On 20 January, 2003, we heard arguments on the applica- b tion. Mr R.O. Yusuf who was led by Mr J.K. Gadzama, SAN for the applicant argued the application in the terms of the motion papers filed. He relied on the affidavits in support of the application. He then submitted that this Court had a duty c to grant a stay of execution so that the judgment on appeal by the Supreme Court would not be rendered nugatory. Counsel relied on Odedeyi v Odedeyi (2000) 3 NWLR (Part 650) 655 at 657/660 and CBN v Ahmed and others (2001) 11 d NWLR (Part 724) 369 at 395. Dr Kanyin Ajayi, SAN for the first respondent relied on counter affidavits filed by the first respondent on 18 July, 2002 and 17 January, 2003 in his opposition to the applica- e tion. He submitted that in order to be entitled to an order of stay of execution an applicant must show the following:– (a) A competent notice of appeal; f (b) The notice of appeal must raise substantial point of law. Counsel then referred to paragraph 13 of the counter affida- vit on 18 September, 2002. He submitted that it was hu- g manly impossible for anyone to have typed, photocopied and filed a notice of appeal on 18 July, 2002 against the judg- ment of this Court delivered on the same 18 July, 2002 at 4.30 pm. He said that the respondents were served the notice of appeal on 18 July, 2002 before 5 pm. Counsel referred to h Order 1 Rule 7 of the Court of Appeal Rules and urged me to hold that the notice of appeal filed on 18 July, 2002 was not a valid one. i It was further submitted that appeal on exercise of discre- tion often involved a question of mixed law and or fact. He said that the applicant had neither sought nor obtained leave of the court. He said further that the application was an abuse of the process of court. Counsel referred me to Bank- j ing and Other Financial Institutions Act, 1991 as amended

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ABUJA DIVISION) Oguntade JCA 584 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) by Decree No. 38 of 1998. Counsel finally urged me to re- a fuse the application. Mr Adetunji Oyeyipo for the second respondent associated himself with the submission of the learned Counsel for the b second respondent. He relied on the counter affidavit filed on 19 September, 2002 and submitted that the notice of ap- peal annexed to the application did not state the date the judgment appealed against was delivered. Counsel said, that c the notice of appeal was invalidly filed. Counsel further submitted that winding up proceedings were going on and that to grant the prayer sought would amount to an interfer- ence with the winding up proceedings. Counsel finally relied on Ezegbu v FATB (1992) 7 NWLR (Part 251) 89 at 102. d Mr Yusuf for applicant in his reply said that what applicant prayed for was a suspension of the liquidation process pend- ing the disposal of the appeal before the Supreme Court. He submitted that there was a presumption of regularity and this e would mean that the notice of appeal be taken as regularly filed. He finally said that the proceedings before the Federal High Court, Lagos were not the same as that before this Court. f In this ruling, I must bear in mind that this Court did not make any order in its judgment against the applicant which could be the subject of execution process against it. This ap- plication therefore is to protect the res the subject matter of g the dispute between the parties pending the determination of the appeal to the Supreme Court. What then is that res? Ear- lier on I set out the history of events leading to the filing of this application. The second respondent had revoked the h banking licence of the applicant and in order to effectuate the revocation, had started sealing up the banking premises of the applicant. The first respondent had been appointed the provisional liquidator. The lower court by its ruling granted i a mandatory injunction the effect of which was to put a tem- porary stop to the efforts of first and second respondents to wind up the banking business of the applicant. The judgment of this Court on 18 July, 2002 would appear to have restored the situation as it existed before the lower court on 4 March, j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ABUJA DIVISION) Oguntade JCA Savannah Bank of Nigeria v. Nigeria Deposit Insurance Corp 585 a 2002 made a ruling wherein it granted a mandatory injunc- tion. The application of the applicant stops short of asking this b Court to restore to it its banking licence. Rather the applicant seeks an order for stay of further sealing up of its premises and continued winding up or liquidation of the applicant. If this Court cannot grant an order albeit interlocutory, restor- c ing the banking licence as this was not sought, what then is the benefit to the applicant if in the grant of an order sus- pending the further sealing up of applicant’s premises? It seems to me that the applicant cannot do any business in any case whether or not its premises are sealed or unsealed. I do d not see the practical advantage to the applicant in making an order that the first and second respondents should suspend the further sealing of the applicant’s premises. I bear in mind the fact that the applicant was in business as e a bank and holding the funds of several depositors. I must ensure that the money or other assets of the depositors in the hands of the applicant are not placed at risk or jeopardy. In this connection I bear in mind paragraphs 6–10 of the sec- f ond respondent’s counter affidavit dated 19 September, 2002 which read:– “6. That the applicant is not in a position to pay all its deposi- tors whose only hope of collecting their entire deposits lies g in the liquidation of the applicant. 7. That if the premises of the applicant are unsealed and it cannot meet the demands of depositors there is serious like- lihood of a breakdown of law and order. h 8. That the applicant wants its premises unsealed only to en- able its officers and/or agents cart away the assets of the bank and tamper with its records to the detriment of the in- nocent depositors. i 9. That the capital base of the applicant having completely eroded; its owners have nothing more to lose. 10. That I know as fact that it is in the interest of the depositors of the applicant; the general public; the Nigerian economy and peace and order that the present status quo be allowed j to remain.”

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It is not necessary for the purpose of this ruling that I enter- a tain a discussion of the truth of the above depositions but it seems to me that I ought to bear in mind the necessity to en- sure that the assets base of the applicant is preserved. It is my view that this is best done by not acceding to the order b that the applicant’s premises be unsealed; and this is more so when the applicant whose banking business has been with- drawn cannot conduct any banking licence even if the prem- ises are unsealed. c The applicant also prays that I should restrain the further liquidation of the applicant bank. However, the applicant provided the necessary detailed information as to what acts the respondents are engaged on in the further liquidation of d the applicant which need to be restrained. Is it that the build- ing and assets of the applicant bank are being sold? Is it that legitimate debts owed to the applicant are being forgiven? I do not have specific information as to the present acts of the e respondents to which I must hearken. In Kigo v Holman Bros. (1980) 5–7 SC 60, the Supreme Court per Eso, JSC observed:– “Indeed, from time immemorial, all courts of record be they trial f or appellate possess the power of preservation of the res in their custody, see Andler v Duke (1932) 3 SLR 210 as per Mc Philips, J at page 220 and also The Zamora (1916) 2 AC 77 where Lord Parker of Waddington put the matter thus:– ‘The primary duty of . . . (as indeed of all having the cus- g tody of property the subject matter of litigation) is to pre- serve the res for delivery to the persons who ultimately es- tablish their title.’” I am myself of the same thinking. This Court is not infalli- h ble. We may be held wrong by the Supreme Court. I am anxious that if the Supreme Court holds on appeal that we were wrong in our judgment of 15 July, 2002, a situation should not be created where the applicant bank would have i become an empty shell completely denuded and stripped of its assets. The applicant in paragraphs 19–30 of the affidavit in support of its application deposed:– “19. That the applicant still has the sum of N1.8 billion in re- serve account with the Central Bank of Nigeria. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ABUJA DIVISION) Oguntade JCA Savannah Bank of Nigeria v. Nigeria Deposit Insurance Corp 587 a 20. That the unexpected and unjustifiable action of the respon- dents threw the applicants and its several hundred thousands of customers into great hardship and confusion. 21. That it is in the interest of justice to grant this application in b order to preserve the res, namely the bank, as liquidation will be adverse to the overwhelming interests of the several hundred thousands of customers and depositors, thousands of shareholders, investors, local and foreign, and the work- force who will be thrown into the over saturated labour c market with disastrous consequences on their families. 22. That the interest of the depositors, shareholders, local and foreign, the banking industry, the Nigerian economy and the international community will be adversely affected if this d application is refused. 23. That the unlawful revocation of the licence of a bank that is not distressed is sending wrong signals to potential foreign investors. 24. That if this application is not granted, the applicant’s means e of prosecuting this appeal will be destroyed. 25. That the respondents will lose nothing and will not suffer any hardship if this application is granted. 26. That the respondents are only interested in destroying the bank by liquidating it, and are not concerned about the fate f of the several hundred thousands of customers whose de- posits are tied up in the bank for these gloomy months. 27. That if the respondents are restrained, the applicant is in a position to pay all its customers as it was doing before the g interruption by the respondents. 28. That if this application is not granted, the respondents will continue with the sealing up and winding-up of the appli- cant. 29. That the closure of the applicant for over 3 months now has h imposed intolerable and irreparable damage, which cannot be adequately compensated by monetary damages, and it is in the interest of justice to halt further damage. 30. That the fixed assets of the applicant, including buildings are worth over N20 billion as at date.” i It is clear to me that in order to prevent the adverse situation deposed to by the applicant above, only an order restoring applicant’s licence to continue its banking business can be useful. If a bank cannot arise from the withdrawal of its li- j cence to do business, why should I allow it to open shop? The

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ABUJA DIVISION) Oguntade JCA 588 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) situation of the applicant is no doubt pathetic and sympathy a evoking but since there is no request that I stop any particular act, I cannot grant a blanket order suspending further liquida- tion. To do so will compound the problems of the appellant and cause untold hardship to depositors. It is only in the b course of liquidation that the depositors can get back some of their money. Assets in the form of equipment, buildings and furniture will deteriorate with time if not realised. It seems that the best approach for the applicant is to approach the Su- c preme Court for accelerated hearing of the appeal. Section 12 of Banks and Other Financial Institutions Act, 1991 under which the banking licence of the applicant bank was revoked provides:– d “12. The Governor may, with the approval of the President by notice published in the Gazette revoke any licence granted under this Decree if a bank:– (a) ceases to carry on in Nigeria the type of banking busi- e ness for which the licence was issued for any continu- ous period of 6 months or for any period aggregating 6 months during a continuous period of 12 months; (b) goes into liquidation or is wound up or dissolved; (c) fails to fulfil or comply with any condition subject to f which the licence was granted; (d) has insufficient assets to meet its liabilities; (e) fails to comply with any obligation imposed upon it by or under this Decree or the Central Bank of Nigeria g Decree, 1991.” The power to make a decision on the above matter is vested in the Governor of Central Bank. He obviously must have access to technical details and information to be able to h make such decision. In this Court, I do not have that advan- tage. Indeed the case of the applicant before the lower court was that a basis did not exist for the second respondent to exercise its power of revocation. That is now a matter for the i Supreme Court. But it seems to me that once the power has been exercised and until a definite finding has been made that the order was improperly or invalidly made, all courts must respect and have regard for its effect. The discretionary power of court to preserve the res ought not be exercised to j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ABUJA DIVISION) Oguntade JCA Savannah Bank of Nigeria v. Nigeria Deposit Insurance Corp 589 a cancel or neutralise the revocation already made by the sec- ond respondent. The result is that I must refuse this application. It is ac- b cordingly refused. I make no order as to costs. BULKACHUWA JCA: The power of all courts to grant a stay of further proceedings pending the determination of an ap- peal filed in a case so as to preserve the “res” i.e. the subject c matter of the litigation is discretionary and always depends on the circumstances of each case – Kigo v Holman (1980) 5–7 SC 60 and Gomwalk v Okwuosa (1996) 3 NWLR (Part 439) 681. d I agree with the reasoning and conclusions in the lead rul- ing of my learned brother Oguntade, JCA, that the circum- stances of this case do not warrant the grant of the applica- tion. I hereby refuse it. I make no orders as to costs. e ODUYEMI JCA: I have had the privilege of reading in ad- vance, the ruling just delivered by my learned Lord, Ogun- tade, JCA. The application for a stay of further sealing up of its prem- ises and the continued winding up or liquidation of the ap- f pellant/applicant by the respondent knows that in the ab- sence of a restoration of its banking licence which has been revoked by the second respondent, it cannot carry on with its usual business which is banking. g I am also of the view that to grant the prayers which appli- cant now seeks when applicant cannot carry on the business of banking will be a surer way to a destruction of the “res” in this litigation than to a protection of the res. h For this and the more detailed reasons given by my Lord in the lead ruling which I adopt as mine, I too refuse this appli- cation. I also make no order as to costs. i Appeal dismissed.

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a Kareem Nigeria Limited and another v The Federal Minister of Finance and others b FEDERAL HIGH COURT, ABUJA DIVISION ADAH J Date of Judgment: 31 MARCH, 2003 Suit No.: FHC/ABJ/M/393/2002

Arbitration – Award – Enforcement of – Jurisdiction of Fed- c eral High Court – Order 20 Rule 17 Federal High Court (Civil Procedure) Rules, 2000 Garnishee – Proceedings – Principles applicable d Garnishee – Proceedings against State of the Federation – In Federal High Court – Whether maintainable Garnishee – When consent of Attorney – General to be sought – Section 84 Sheriff and Civil Process Act Cap 407 e Laws of the Federation of Nigeria, 1990 Jurisdiction – Of Court – Federal High Court – Garnishee proceedings against State Government whether court can enforce f Words and Phrases – Garnishee – Definition of Facts g The judgment creditor/applicant was seeking for three reliefs namely:– “1. An Order granting the judgment creditor/applicant leave to enforce the award on arbitration agreement between the judgment creditor and judgment debtor. h 2. Leave to issue order nisi on the Garnishees. 3. An order attaching the sum due to judgment debtors to the tune of N14,204,760 in the hands of the Garnishee for satis- faction of the Arbitration Award costs and interest in the i matter of Arbitration: Between Kareem Nigeria Ltd And Government Attorney-General of Jigawa State.” j

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Kareem Nigeria Ltd v. The Federal Minister of Finance 591 a The application was supported by a 26-paragraph affidavit deposed to by Kenneth O. Anekwe, the General Manager of the applicant. There were four exhibits attached to the affi- davit in support of this application. b This application was seeking principally for leave in two realms. The first leave was for order of Court to enforce the arbitral award between the applicant and the first Judgment debtor. The second leave sought was to enforce that arbitral c award through garnishee proceedings. Mr Mando, the learned Counsel representing the fourth garnishee raised an objection as to the competence of this d action. His objection was that by section 84 of the Sheriffs and Civil Process Act the Attorney-General must be a party. That by section 314 of the Constitution, the money sought to be attached was from the Revenue Fund of the Federation so the Attorney-General must be made a party. He further e raised the issue that the amount was not specified neither was the account identified. That the application was incom- petent. The learned Senior Counsel for the applicant, Mr Okafor in f reply urged the Court to over-rule the objection on the ground that Mr Mando was not representing the Federal Government. Furthermore, he relied on the case of STB Ltd v Contract Resources Nigeria Ltd (2001) 6 NWLR (Part g 708) 115, 118, 124 B–G. He also contended that section 84 of the Sheriff and Civil Process Act was inconsistent with sections 6(6)(b) and 251 of the 1999 Constitution. That the presence or absence of the Federal Attorney-General had h nothing to do with the Fund in the Custody of the fourth and fifth respondents. That the third respondent had indicated that they never kept the money and that the Court should hold that the applicant had satisfied all the requirements. i Order 44 Rule 1(1) thereunder reads:– 1(1) “Where a person (in this order referred to as ‘the judgment creditor’) has obtained a judgment or order for the pay- ment by some other person (in this order referred to as ‘the judgment debtor’) of a sum amounting in value to at least j N100, not being a judgment or order for the payment of

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money into Court, and any other person within the juris- a diction (in this order referred to as ‘the garnishee’) is in- debted to the judgment debtor, the Court may, subject to the provisions of this order and of any enactment, order the garnishee to pay the judgment creditor the amount of b any debt due or accruing due to the judgment debtor from the garnishee, or as much thereof as is sufficient to satisfy that judgment or order and the costs of the garnishee pro- ceedings.” c Held – 1. Under Order 20 Rules 17 of the Federal High Court (Civil Procedure) Rules, 2000, the Court is mandated to enforce an award on an arbitration agreement in the d same manner as a judgment. There is therefore no doubt as to the competence of this Court to enforce an arbitral award. The only consideration is that the Court can en- force it if it relates to matters or parties amenable to the jurisdiction of the Court. e 2. A garnishee is a third party who is indebted to the judg- ment debtor or having custody of his money and who at the instance of the judgment creditor is being called upon to pay the judgment debt from his indebtedness to f the judgment debtor in his account with the third party. 3. At the point of seeking the leave of Court for an order nisi under garnishee proceedings it is incumbent on the g applicant to put before the Court the facts suggestive of the fact that the garnishee so called is either indebted to the judgment debtor or having the custody of his money. 4. Leave is not granted as a matter of course in any situa- h tion. The affidavit of the applicant must therefore be scrutinised to see if genuinely there is the situation in which the respondents can be ordered to pay over the money of the judgment debtor in their custody. Or if the money with them can be attached by the Court to pay the i judgment debt. 5. Garnishee proceeding is one of the ways of executing judgment. It is the procedure whereby the judgment creditor obtains the order of Court to attach any debt j

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Kareem Nigeria Ltd v. The Federal Minister of Finance 593 a owing to the judgment debtor from any person or body within the jurisdiction of the Court to satisfy the judg- ment debt. That process is known as “attachment of b debt”. It is a separate and distinct action between the judgment creditor and the person or body holding in cus- tody the assets of the judgment debtor, although it flows from the Judge that pronounced the debt owing. A suc- c cessful party in his quest to move fast against the assets of the judgment debtor usually makes an application ex parte for an order in that direction. If the application ex parte is adjudged to be meritorious, the judgment will d make an order which is technically known as a “gar- nishee order nisi” attaching the debt due or accruing to the judgment debtor from such person or body who from the moment of making the order is called the garnishee. The order also carries a directive on the garnishee to ap- e pear before the Court. If he does not appear in obedience to the order nisi or does not dispute the liability, the Court may then make the order nisi absolute pursuant to the provisions of section 86 of the Sheriffs and Civil f Process Act Cap 407 Laws of the Federation of Nigeria, 1990. 6. The first, second and third garnishee/respondents not be- g ing shown to be debtors or custodians of the fund of the judgment debtors cannot be compelled under a garnishee proceedings to enable the judgment creditor recover the judgment debt from them. h 7. The consent of the Attorney-General should be sought only if money sought to be attached is a public fund and the fund is in custody or under the control of a public of- ficer. i 8. This Court’s jurisdiction does not stretch to enforcing orders against the State Government in ordinary en- forcement proceedings. j Application struck out

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Cases referred to in the judgment a Nigerian In Re: Diamond Bank Ltd (2002) 17 NWLR (Part 795) 120 b STB Ltd v Contract Resources (Nigeria) Ltd (2001) 6 NWLR (Part 708) 115 Nigerian statute referred to in the judgment Sheriffs and Civil Process Act Cap 407 Laws of the Federa- c tion of Nigeria, 1990, section 84 Nigerian rules of court referred to in the judgment Federal High Court (Civil Procedure) Rules, 2000, Order 44 d Rule 1(1) Counsel For the applicant: Mr Okafor e For the fourth garnishee: Mr Mando Judgment ADAH J: By this application, the judgment credi- f tor/applicant is seeking for three reliefs namely:– “1. An Order granting the judgment creditor/applicant leave to enforce the award on arbitration agreement between the judgment creditor and judgment debtor. g 2. Leave to issue order nisi on the garnishees. 3. An order attaching the sum due to judgment debtors to the tune of N14,204,760 in the hands of the garnishee for satis- faction of the arbitration award costs and interest in the mat- ter of arbitration:– h Between Kareem Nigeria Ltd And Jigawa State Government i Attorney-General of Jigawa State.” The application is supported by a 26-paragraph affidavit de- posed to by Kenneth O. Anekwe, the General Manager of the applicant. There are four exhibits attached to the affida- vit in support of this application. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ABUJA DIVISION) Adah J Kareem Nigeria Ltd v. The Federal Minister of Finance 595 a This application is seeking principally for leave in two realms. The first leave is for order of Court to enforce the arbitral award between the applicant and the first Judgment debtor. The second leave sought is to enforce that arbitral b award through Garnishee Proceedings. I pointed out earlier in this proceedings that the reason why this enforcement was initiated before this Court is because of the first, second and third respondents who are amenable to the jurisdiction of c this Court. I equally pointed out that the leave to enforce sought is linked to the leave to issue order nisi on the Gar- nishees. This was the reason behind the Court ordering that the respondents be put on notice. On the return date the first, d second judgment debtors and the third, fourth and the fifth Garnishees were represented. Mr Mando, the learned Counsel representing the fourth Garnishee raised an objection as to the competence of this e action. His objection is that by section 84 of the Sheriffs and Civil Process Act, the Attorney-General must be a party. That by section 314 of the Constitution, the money sought to be attached is from the Revenue fund of the Federation so the Attorney-General must be made a party. He further f raised the issue that the amount is not specified neither is the account identified. That the application is incompetent. The learned Senior Counsel for the applicant, Mr Okafor in reply urged the Court to overrule the objection on the g ground that Mr Mando is not representing the Federal Gov- ernment. Furthermore he relied on the case of STB Ltd v Contract Resources Nigeria Ltd (2001) 6 NWLR (Part 708) 115, 118, 124 B–G. He also contended that section 84 of the h Sheriff and Civil process Act is inconsistent with sections 6(6)(b) and 251 of the 1999 Constitution. That the presence or absence of the Federal Attorney-General has nothing to do with the Fund in the custody of the fourth and fifth re- i spondents. That the third respondent has indicated that they never kept the money and that the Court should hold that the applicant has satisfied all the requirements. He relied on the cases of In Re: Diamond Bank Ltd (2002) 17 NWLR (Part 795) 120, 134 C–G and UBN Plc v BM Industries Ltd (2001) j 13 NWLR (Part 731) 567, 584 (B–E).

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In this instant case, it is very clear that the first considera- a tion has to do with the issue of enforcement of an arbitral award. Under Order 20 Rules 17 of the Rules of this Court, the Court is mandated to enforce an award on an arbitration b agreement in the same manner as a judgment. There is there- fore no doubt as to the competence of this Court to enforce an arbitral award. The only consideration is that the Court can enforce it if it relates to matters or parties amenable to c the jurisdiction of the Court. In this proceeding, the judg- ment debt, the applicant and the judgment debtors are within the jurisdiction of the State High Court. The only party or parties amenable to the jurisdiction of this Court over this d matter are the first, second and third garnishees/respondents. These respondents are brought in because of the Garnishee proceedings. Garnishee proceedings are authorised by Order 44 of the Rules of this Court. Order 44 Rule 1(1) thereunder e reads:– 1(1) “Where a person (in this order referred to as ‘the judgment creditor’) has obtained a judgment or order for the pay- ment by some other person (in this order referred to as ‘the judgment debtor’) of a sum amounting in value to at least f N100, not being a judgment or order for the payment of money into Court, and any other person within the juris- diction (in this order referred to as ‘the garnishee’) is in- debted to the judgment debtor, the Court may, subject to g the provisions of this order and of any enactment, order the garnishee to pay the judgment creditor the amount of any debt due or accruing due to the judgment debtor from the garnishee, or as much thereof as is sufficient to satisfy that judgment or order and the costs of the garnishee pro- h ceedings.” (Italics mine.) In the case of STB Ltd v Contract Resources (Nigeria) Ltd (supra), the Court of Appeal at ratio 1 defines a garnishee as follows:– i “A garnishee is a third party who is indebted to the judgment debtor or having custody of his money and who at the instance of the judgment creditor is being called upon to pay the judgment debt from his indebtedness to the judgment debtor in his account with the third party. (Page 123 paragraphs. G–H).” j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ABUJA DIVISION) Adah J Kareem Nigeria Ltd v. The Federal Minister of Finance 597 a This case along with the Rules of this Court has defined a garnishee as a third party who is indebted to the judgment debtor or having the custody of his money. At the point of seeking the leave of Court for an order nisi under garnishee b proceedings it is incumbent on the applicant to put before the Court the facts suggestive of the fact that the garnishee so called is either indebted to the judgment debtor or having the custody of his money. Leave is not granted as a matter of c course in any situation. The affidavit of the applicant must therefore be scrutinised to see if genuinely there is the situa- tion in which the respondents can be ordered to pay over the money of the judgment debtor in their custody. Or if the d money with them can be attached by the Court to pay the judgment debt. I shall therefore look into the affidavit now. Paragraphs 3–9 are very material:– “3. That the judgment debtors/respondents are the Jigawa State e Government care of Government House Dutse and the Honourable Attorney-General Chambers Dutse. 4. That the Honourable Minister Federal Ministry of Finance is the Chairman of the Federation Account Allocation Committee by virtue of section 5(1) of the Allocation of f Revenue Federation Account, etc. Cap 16 Laws of the Fed- eration of Nigeria, 1990. The Minister issues Warrant for payment to the Accountant-General of the Federation. 5. That the Accountant General of the Federation is a member g of the Federation Account Allocation Committee. The Ac- countant-General issues a schedule to the Central Bank of Nigeria showing the amount due to all states including the judgment debtor. h 6. That the Federation Account Allocation Committee ensures prompt and full payment of monthly allocation from the Federation Account to the judgment debtor. 7. That the Central Bank of Nigeria disburses the amount due to each state including the judgment debtor directly to the i Commercial Banks where the states maintain account. 8. That the Jigawa State Government maintains account with Bank of the North Limited and First Bank of Nigeria Plc 9. That it is the duty of the Garnishees to disburse monthly j statutory allocation to the Jigawa State Government.”

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From these depositions, the first garnishee/respondent Min- a ister of Finance is said to be the Chairman of the Federation Account Allocation Committee and he is said to be the one issuing warrant for payment to the Accountant-General of the Federation. The second garnishee/respondent is said to b be a member of the Federation Account Allocation Commit- tee. Then the third garnishee respondent is said to disburse the amount due to each state including the judgment debtor to the Commercial Banks where the States, maintain ac- c count. It is very certain here that it is not the Federation ac- count that is requested to be attached. The functions and lo- cations of the first, second and third garnishees/respondents in this case with all respect, can not to my mind be ad- d dressed to turn them into the debtors of the judgment debtor or those in custody of the fund belonging to the judgment debtor. There are no facts in the affidavit to suggest that the first, second and third respondents were either in custody of the money of the judgment debtor or that they are his debt- e ors. The question therefore is whether the Court can grant leave for a garnishee proceedings to be originated against them in the light of this finding. In the case of In Re: Dia- mond Bank Ltd (supra) the Court of Appeal considered the f nature of and procedure for garnishee proceeding as fol- lows:– “Garnishee proceeding is one of the ways of executing judgment. It is the procedure whereby the judgment creditor obtains the order g of Court to attach any debt owing to the judgment debtor from any person or body within the jurisdiction of the Court to satisfy the judgment debt. That process is known as ‘attachment of debt’. It is a separate and distinct action between the judgment creditor and the person or body holding in custody the assets of the judgment h debtor, although it flows from the judgment that pronounced the debt owing. A successful party in his quest to move fast against the assets of the judgment debtor usually makes an application ex- parte for an order in that direction. If the application ex parte is adjudged to be meritorious, the Judge will make an order which is i technically known as a ‘garnishee order nisi’ attaching the debt due or accruing to the judgment debtor from such person or body who from the moment of making the order is called the garnishee. The order also carries a directive on the garnishee to appear before the Court. If he does not appear in obedience to the order nisi or j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, ABUJA DIVISION) Adah J Kareem Nigeria Ltd v. The Federal Minister of Finance 599 a does not dispute the liability, the Court may then make the order nisi absolute pursuant to the provisions of section 86 of the Sher- iffs and Civil Process Act Cap 407 Laws of the Federation of Ni- geria, 1990. (Page 133 paragraphs B–H).” b In the light of the foregoing, I do not believe that the ques- tion I earlier posed should be answered in the affirmative. The first, second and third garnishees/respondents not being shown to be debtors or custodians of the fund of the judg- c ment debtors can not be compelled under a garnishee pro- ceedings to enable the judgment creditor recover the judg- ment debt from them. I hold therefore that this Court can not grant leave to originate garnishee proceedings against the d first, second and third garnishees/respondents in the circum- stance. The learned Counsel for the fourth garnishee/respondent contended that since the Attorney-General was not made a e party or his consent sought this application cannot be enter- tained. I have carefully looked at section 84 of the Sheriff and Civil Process Act and I must say that provision deals directly with a situation where the fund sought to be at- tached is a public fund and the fund is in custody or under f the control of a public officer. The fund sought to be at- tached here is not the consolidated fund of the Federation neither is the Federation Account Allocation Committee sued as a body. If the money sought to be attached is the g fund itself or the Committee in charge of the fund is sued the requirement of the consent of the Attorney-General would have been necessary. The case of the applicant never stretched to that level so there is no need for a consideration h of the issue of consent required under section 84 of the Sher- iff and Civil Process Act. From the foregoing consideration therefore, leave to take garnishee proceedings against the first, second and third i garnishees/respondents is hereby refused. Since the leave against these three respondents amenable to this Court’s ju- risdiction is refused, the parties remained are the fourth and fifth garnishees/respondents. These are Commercial Banks patronised by the judgment debtor. They are within the ju- j risdiction of the Dutse High Court that ordered Arbitration

[2002 – 2004] 11 N.B.L.R. (PART I) (FEDERAL HIGH COURT, ABUJA DIVISION) Adah J 600 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) sought to be enforced. This Court’s jurisdiction does not a stretch to enforcing orders against the state Government in ordinary enforcement proceedings. The leave sought to en- force the arbitral award in this case has therefore been over taken by events. That leave therefore can not be granted by b this Court. I hold therefore that the application of the appli- cant for leave as per the motion papers has failed. It is hereby struck out.

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Trade Bank Plc v. Khaled Barakat Chami 601 a Trade Bank Plc v Khaled Barakat Chami

COURT OF APPEAL, KADUNA DIVISION b SALAMI, ADAMU, UMOREN JJCA Date of Judgment: 14 APRIL, 2003 Suit No.: CA/K/93/2001

Banking – Debt – Proof of – Unchallenged oral evidence – c Whether sufficient proof of debt Banking – Entry in Banker’s book – Computer print-out thereof – Whether admissible – Section 38 Evidence Act considered – Whether qualifies as document made during d pendency of a suit – Section 91(3) Evidence Act Cap 112 Laws of the Federation of Nigeria, 1990 considered Banking – Entry in a Banker’s book – Contents – Admissi- bility thereof – Whether alone sufficient proof of liability of e a debtor – Section 38 Evidence Act Cap 112 Laws of the Federation of Nigeria, 1990 considered Banking – Entry in a Banker’s book – How proved – Section 38 Evidence Act Cap 112 Laws of the Federation of Nigeria, f 1990 considered Banking – Guarantee – Action for recovery of debt under Contract of Guarantee – Principal debtor – Whether a nec- essary party g Banking – “Guarantee” meaning of – Contract of guarantee – Nature of – Liability of guarantor thereunder – Scope of Commercial Law – Business letters – Where not replied by h Receiver – presumption thereof – When can be rebutted Evidence – Documentary evidence – Computer print-out containing information stored in a computer before com- mencement of action – Whether admissible – Whether quali- i fies as document made during pendency of a suit – Section 91(3) Evidence Act Cap 112 Laws of the Federation of Ni- geria, 1990 considered Evidence – Documentary evidence – Documents made dur- j ing pendency of proceedings by interested party –

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Admissibility thereof – Section 91(5) Evidence Act Cap 112 a Laws of the Federation of Nigeria, 1990 considered Guarantee – Meaning of – Nature of – Liability of guarantor – Scope of b Facts The appellant (as plaintiff, sued the respondent (as defen- c dant), at the High Court of Justice, Kano, Kano State on 18 November, 1999 claiming as follows:– “1. The sum of N171,452,649.52k (One Hundred and Seventy- one Million, Four Hundred and Fifty-two Thousand, Six d Hundred and Forty-nine Naira, Fifty-two Kobo), being the debit balance in Messrs Rasha Enterprise Limited’s account with the plaintiff as at 18 November, 1999, which was a re- sult of credit facilities granted to Messrs Rasha Enterprises Limited by the plaintiff at the request of Rasha Enterprises e and on personal guarantee of the defendant. 2. The plaintiff also claim interest at the rate of 30% per an- num from 18 November, 1999, to the date of judgment and thereafter, interest at the court rate of 10% from the date of f judgment until judgment debt is liquidated. 3. The plaintiff further claims the cost of this action.” Pleadings were ordered and exchanged. The plaintiff called three witnesses while the defendant called just one witness. g The crux of the matter from the state of the pleadings was that the respondent (defendant) agreed to stand as the guar- antor of one of the appellants (plaintiff) customers, Rasha Enterprises Ltd in respect of overdraft facilities. The respon- h dents then executed guarantee agreement in favour of the appellant who then allowed Rasha Enterprises Ltd to over- draw its account to the tune of N171,452,649.52k which was not paid back despite repeated demands. As a result of the i failure of Rasha Enterprises Ltd to pay, the appellant caused its solicitors to write to the respondent asking him to honour his pledge under the guarantee agreement, but the respon- dent refused. j

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Trade Bank Plc v. Khaled Barakat Chami 603 a In response, the respondent averred that he never executed any guarantee agreement to be liable for Rasha Enterprises Ltd indebtedness to the appellant. He also denied receiving any letter from the appellant’s solicitors. b During trial, the appellant tendered four documents through its witnesses who testified that Rasha Enterprises Ltd was in- debted to the appellant in the sum of N171,000,000 while the c respondent through its only witness testified that he was not aware that Rasha Enterprises Ltd was indebted to the appel- lant and that he did not even know the respondent as a person though he was the Company’s legal adviser. d In its judgment, the trial court held that the guarantee agreement tendered in evidence was stamped, certified or reg- istered and was not supported by any other evidence except the statement of account which the court held to be a docu- e ment prepared by a person interested during the pendency of the suit, and finally dismissed the appellant suit. Being dissat- isfied, the appellant appealed to the Court of Appeal contend- ing that the trial court made pre-emptive remarks and findings f while still at the stage of reviewing the evidence before even considering the merit of appellant’s case. Held – g 1. A principal debtor is not a necessary party to a suit grounded only on the redemption of the contract of guarantee between the lender and a guarantor where the outstanding loan sum is certain. In the instant case, since the present action against the respondent is found only h on the redemption of the contract of guarantee entered into between the appellant and the respondent and as the debt or loan to Rasha Enterprises Limited has been duly established at the trial court, it will not be proper again i to insist that Rasha Enterprises Limited should be made a party to the case or be joined as a necessary party in the proceedings. 2. By the provision of section 38 of the Evidence Act, en- j tries in books of account regularly kept in the course of

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business are relevant whenever they refer to a matter a into which the court has to inquire, but such statement shall not alone be sufficient evidence to charge any per- son with liability. b In the instant case, in which the statement of account in exhibit 4 is supplemented by the evidence of PWS 1–3 as to the indebtedness of the Rasha Enterprises Limited, the law has been satisfied. c 3. Section 38 of the Evidence Act does not require the pro- duction of books of account in evidence but it makes en- tries in such books relevant for admissibility. In the in- stant case, the statement of account of the third party d was a mere entry in the computer or book of account. Consequently, it is admissible in evidence. 4. Although the law (section 38 Evidence Act) does not talk of “Computer” or Computer print-out, it is not e oblivious to or ignorant of modern business practices and the technological advancement of the modern jet age. Consequently, section 38 of the Evidence Act could be f interpreted to cover entries kept by electronic process such as computers. Accordingly, Computer print-out showing entries of account is therefore admissible. 5. The term “guarantee” has been judicially defined as a g written undertaking made by one person to another to be responsible to that other if a third person fails to perform a certain duty e.g. payment of debt. 6. Although a contract of guarantee is a collateral agree- h ment or a security for the performance of an undertak- ing, the principal or primary obligation however binds only the guarantor in his undertaking towards the credi- tor. Thus, the borrower only becomes relevant for the i purposes of the guarantor’s obligation in order to show the outstanding loan enjoyed by the said borrower and for which the guarantor has secured or stood surety un- der the agreement. In the instant case, the appellant ad- duced uncontradicted oral and documentary evidence of j

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Trade Bank Plc v. Khaled Barakat Chami 605 a the principal loan granted to the third party by the appel- lant and which was guaranteed by the respondent. Con- sequently, the liability of the respondent as the guarantor of the loan became crystallised immediately the third b party was unable to pay its outstanding debt. 7. A guarantor is technically a debtor because where the principal debtor fails to repay a debt, the guarantor will be called upon to pay the loan guaranteed. The guarantor c can, however, be absolved from liability if he can show that principal debtor has paid the loan. 8. A guarantor is bound only to the letter of his engage- ment; that is, the guarantee agreement. He has no further d liability outside the agreement because he normally re- ceives no benefit or consideration. 9. Business letters, unlike social correspondence, deserve to be replied. Consequently, the court would, unless the e circumstance in which a business letter written shows otherwise, infer that the failure to reply a business letter is an admission of the facts stated in the letter. This is because what is not denied is deemed admitted. f 10. It is however settled that it is not in every case that fail- ure to give a reply to letters written on business matters and received by one of the parties to the proceedings would be taken as strong evidence that the party receiv- g ing the letters admitted what was asserted in its contents. The courts are enjoined not to take this as absolute rule, rather, they should consider each case on its own merit and examine the circumstance the letter was written and h decide whether it is a case where an inference of admis- sion could safely be drawn. 11. Uncontradicted oral evidence adduced in proof of a party’s indebtedness is sufficient to ground a claim for i the debt even if documentary evidence, such as a state- ment of account, adduced in proof of the debt is rejected in the case. In the instant case, the trial court erred when it held that there was no evidence to prove the indebted- ness of the third party to the appellant after the expunc- j tion of the statement of account from the evidence

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adduced at the trial. This is because, the appellant also a adduced oral evidence of the third party’s indebtedness which was not contradicted by the respondent. 12. A banker’s statement of account does not fall within the b purview of section 91(3) of the Evidence Act. This is because by the saving provision of section 91(5) of the Evidence Act, an uncertified document or a document prepared by a person interested may be admissible in evidence having regard to the circumstances under c which the statement contained in the document are made. In the instant case, the appellant’s witness who tendered the statement of account clearly stated that he was not the author or producer of the statement of ac- d count but only printed same from the computer where it was stored and brought it to the court. That being the case, the statement of account was admissible in evi- dence. e 13. A document containing statements which had been stored in a computer prior to the commencement of a suit but was printed out during the pendency of the suit is not caught by the provisions of section 91(5) of the f Evidence Act. Consequently, it is admissible in evi- dence. In the instant case, the appellant’s witness testi- fied that the statement of account of the third party had been stored in the computer from which he printed it, be- fore the commencement of the suit. In the circumstance, g the statement of account was admissible in evidence. Appeal allowed.

Cases referred to in the judgment h Nigerian Abiodun v Adehin (1962) 2 SCNLR 305 Acme Builders Ltd v KSWB (1999) 2 NWLR (Part 590) 288 i Adelaja v Fanoiki (1990) 2 NWLR (Part 131) 137 Aderemi v Adedire (1966) NMLR 398 Aduke v Aiyelabola (1942) 8 WACA 43 Agu v Nnadi (2002) 18 NWLR (Part 798) 103 j

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Trade Bank Plc v. Khaled Barakat Chami 607 a Aina v UBA Plc (1997) 4 NWLR (Part 498) 181 Aja v Okoro (1991) 7 NWLR (Part 203) 260 Ajayi v Fisher (1956) 1 SCNLR 279 b Akinola v Olowu (1962) 1 SCNLR 352 Amokomowo v Andu (1985) 1 NWLR (Part 3) 530 Anuforo v Obilor (1997) 11 NWLR (Part 530) 661 c Anyaduba v NRTC Ltd (1992) 5 NWLR (Part 243) 535 Anyeabosi v Ughede (1976) 9–10 SC 179 Are v Adisa (1967) NMLR 304 Aromire v Awoyemi (1972) 2 SC 1 d Asiemo v Amos (1975) 2 SC 57 Atane v Amu (1974) 10 SC 237 Atoyebi v Oyo State (1994) 5 NWLR (Part 344) 290 e Attorney-General of Oyo State v Fairlakes Hotels Ltd (No. 2) (1989) 5 NWLR (Part 121) 255 Bello v Eweka (1981) 1 SC 101 f Braimoh v Abasi (1998) 13 NWLR (Part 581) 167 Cardoso v Executors of Doherty (1938) 4 WACA 78 Chime v Ude (1993) 3 NWLR (Part 279) 78 Ciroma v Ali (1999) 2 NWLR (Part 590) 317 g Dibiamaka v Osakwe (1989) 3 NWLR (Part 152) 107 Duru v Nwosu (1989) 4 NWLR (Part 113) 24 Ebba v Ogodo (1984) 1 SCNLR 372 h Eboni Finance and Securities Ltd v Wale Ojo Tech Services (1996) 7 NWLR (Part 461) 464 Egbe v Alhaji (1990) 1 NWLR (Part 128) 546 Ekerebe v Efeizomor 11 (1993) 7 NWLR (Part 307) 588 i Emaphil Ltd v Odili (1987) 4 NWLR (Part 67) 915 Esso West Africa Inc. v Oyegbola (1969) NMLR 194 Ezeoke v Nwagbo (1988) 1 NWLR (Part 72) 616 j George v Dominion Flour Mills Ltd (1963) 1 All NLR 71

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Green v Green (1987) 3 NWLR (Part 61) 480 a Gurara Security and Finance Ltd v T.I.C. Ltd (1999) 2 NWLR (Part 589) 29 Honika Sawmill (Nigeria) Ltd v Hoff (1994) 2 NWLR (Part b 326) 252 Hydroworks Ltd v Rimi L.G. (2002) 1 NWLR (Part 749) 564 Ibrahim v JSC (1998) 14 NWLR (Part 584) 1 c Igwe v Kalu (1990) 5 NWLR (Part 149) 155 Imana v Robinson (1979) 3–4 SC 1 In Re-Benson (2003) 1 NWLR (Part 802) 570 Ishola v S.G.B. Nigeria Ltd (1997) 2 NWLR (Part 488) 405 d Iwuoha v Okoroike (1996) 2 NWLR (Part 429) 231 Kaiyaoja v Egunla (1974) 2 SC 55 Kate Enterprises Ltd v Daewoo (Nigeria) Ltd (1985) 2 e NWLR (Part 5) 116 Katsina L.A. v Makudawa (1971) 1 NMLR 200 Lawal v UBN (1995) 2 NWLR (Part 378) 407 f Lemonu v Lawson (1977) 2 SC 89 Mark v Eke (1997) 11 NWLR (Part 529) 501 MCC Ltd v Azubuike (1990) 3 NWLR (Part 136) 74 g Metalimpex v A.G. Leventis and Co Ltd (1976) 2 SC 91 Mobil Producing Nigeria Unlimited v L.A.S.E.P.A. (2002) 18 NWLR (Part 798) 1 Mogaji v Odofin (1978) 4 SC 91 h NBC Plc v Borgundu (1999) 2 NWLR (Part 591) 408 NIPC v Thompson Organisation (1969) 1 All NLR 138 NITEL Plc v Rockonoh Prop. Co Ltd (1995) 2 NWLR (Part i 378) 473 Nnajiofor v Ukonu (1986) 4 NWLR (Part 36) 505 Nwabuoku v Ottih (1961) 2 SCNLR 232 Nwankwo v EDCS (2002) 1 NWLR (Part 749) 513 j

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Trade Bank Plc v. Khaled Barakat Chami 609 a Obmiami Bricks and Stone Ltd v ACB Ltd (1992) 3 NWLR (Part 229) 260 Obodo v Ogba (1987) 2 NWLR (Part 54) 1 b Odebunmi v Abdullahi (1997) 2 NWLR (Part 498) 526 Odiase v Agho (1972) 3 SC 71 Oduka v Kasumu (1968) NMLR 28 c Odulaja v Haddad (1973) 11 SC 357 Oduola v Coker (1981) 5 SC 197 Ofomaja v Commissioner for Education (1995) 8 NWLR (Part 411) 69 d Ogundulu v Philips (1973) 1 NMLR 267 Oje v Babalola (1991) 4 NWLR (Part 185) 267 Ojogbue v Nnubia (1972) 1 All NLR (Part 2) 226 e Okafor v Idigo (1984) 1 SCNLR 481 Okaroh v State (1990) 1 NWLR (Part 125) 218 Okeke v Obidife (1965) NMLR 113 f Okobia v Ajanya (1998) 6 NWLR (Part 554) 348 Okoya v Santili (1990) 2 NWLR (Part 131) 172 Okpokpo v Uko (1997) 11 NWLR (Part 527) 94 g Okupe v Ifemebi (1974) 3 SC 97 Oludeinde v Oduwole (1962) WNLR 41 Olujitan v Oshatoba (1992) 5 NWLR (Part 241) 326 Omoregbe v Lawani (1980) 3–4 SC 108 h Onayemi v Okunubi (1965) 1 All NLR 362 Onwuama v Ezeokoli (2002) 5 NWLR (Part 760) 353 Onyekaonwu v Ekwubiri (1966) 1 All NLR 32 i Orizu v Anyaegbunam (1978) 5 SC 21 Osunrinde v Ajamogun (1992) 6 NWLR (Part 246) 156 R. v Essien (1938) 4 WACA 112 j REAN v Aswani Textiles Ltd (1992) 3 NWLR (Part 227) 1

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Salawa Motors House Ltd v Lawal (1999) 9 NWLR (Part a 620) 692 Sanusi v Ameyogun (1992) 4 NWLR (Part 237) 527 Saraki v S.G.B. (1995) 1 NWLR (Part 371) 325 b Saude v Abdullahi (1989) 4 NWLR (Part 116) 387 Shitta Bey v Federal Public Service Commission (1981) 1 SC 40 c Tella v Usman (1997) 12 NWLR (Part 531) 168 Temile v Awani (2001) 12 NWLR (Part 728) 726 Tewogbade and Co v Arasi Akande and Co (1968) NMLR 404 d Tsalibawa v Habiba (1991) 2 NWLR (Part 174) 461 Udoh v Eshiet (1994) 8 NWLR (Part 363) 483 UITHMB v Aluko (1996) 3 NWLR (Part 434) 74 e Whyte v Jack (1996) 2 NWLR (Part 431) 407 Woluchem v Gudi (1981) 5 SC 291

Foreign f Esso Petroleum Co Ltd v Alstonbridge Properties (1975) 3 AER 358 Gaskill v Skene (1850) 14 QB 664 g Moschi v Lep Air Services Ltd (1973) AC 331 Wiedemann v Walpole (1891) 2 QB 534

Nigerian statutes referred to in the judgment h Evidence Act Cap 112 Laws of the Federation of Nigeria, 1990, sections 38, 91(3) and (5), 135, 136, 137 and 227(2) Stamp Duties Act Cap 411 Laws of the Federation of Nige- ria, 1990 i

Nigerian rules of court referred to in the judgment High Court of Kano State (Civil Procedure) Rules, 1988 Or- der 11 Rule 5 j

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Trade Bank Plc v. Khaled Barakat Chami 611 a Books referred to in the judgment Black’s Law Dictionary (6ed), pages 705 and 1189 Chitty on Contract (24ed) Volume 2, pages 4801, 4804, b 4809–4811 Halsbury’s Laws of England (4ed) Volume 20, pages 116, 154, 159, 160 and 163 Rowlatt on Principal and Surety (3ed) page 102 c Judgment ADAMU JCA: (Delivering the lead judgment) The appellant (as plaintiff, sued the respondent (as defendant), at the High d Court of Justice, Kano, Kano State on 18 November, 1999 claiming as follows:– “1. The sum of N171,452,649.52k (One Hundred and Seventy- one Million, Four Hundred and Fifty-two Thousand, Six e Hundred and Forty-nine Naira, Fifty-two Kobo), being the debit balance in Messrs Rasha Enterprise Limited’s account with the plaintiff as at 18 November, 1999, which was a re- sult of credit facilities granted to Messrs Rasha Enterprises Limited by the plaintiff at the request of Rasha Enterprises f and on personal guarantee of the defendant. 2. The plaintiff also claim interest at the rate of 30% per an- num from 18 November, 1999, to the date of judgment and thereafter, interest at the court rate of 10% from the date of judgment until judgment debt is liquidated. g 3. The plaintiff further claims the cost of this action. (see paragraph 15 of the statement of claim at pages 51–52 of the record of proceedings).” The suit was originally filed under the undefended list with h the supporting application and documents attached, but later transferred to the general cause list and the parties were or- dered to exchange pleadings. This order was complied with and the plaintiff filed its statement of claim while the defen- i dant filed his statement of defence. The case was heard by the trial court with the plaintiff (hereinafter called “the ap- pellant”) calling three witnesses while the defendant (here- inafter called “the respondent”), calling one (1) witness. The appellant also tendered four (4) documentary exhibits while j the respondent’s single witness only gave an oral testimony.

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Learned Counsel for the respective parties also submitted a their written addresses. At the end of the trial, and in his judgment delivered on 19 July, 2000, the learned trial Judge (S.B. Adamu, J) dismissed in toto all the claims of the appel- lant as reproduced above. b The appellant was dissatisfied with the judgment or deci- sion of the learned trial Judge dismissing its claim and lodged an appeal against it after securing an order for exten- c sion of time to appeal from this Honourable Court granted on 20 February, 2001. On the same date, the appellant filed its notice and grounds of appeal dated 22 January, 2001, at the trial court registry. The said notice of appeal contains eighteen (18) grounds of appeal. (See pages 115–118 of the d records). From its eighteen (18) grounds of appeal, the ap- pellant formulated the following five issues as calling for determination in the appeal:– e (1) Whether the learned trial Judge was right to have be- lieved and accepted the case of the respondent before venturing to review and ascribe probative value to the evidence adduced by the parties which led to a failure of justice of the appellant and a miscarriage to f justice against it. (2) Whether the learned trial Judge given the facts and circumstance of this case was right to have dismissed the claims of the appellants (sic) when the evidence g led as it were one way. (3) Whether the learned trial Judge was right to have held that the non-joinder of Rasha Enterprises Lim- ited was fatal to the appellant’s case and led to its h dismissal. (4) Whether the learned trial Judge was right to have re- fused to act on exhibits 1 and 4 on the grounds that the former was not registered, not stamped and not i certified and the latter was made during the pend- ency of the matter and by person interested. (5) Whether the learned trial Judge was right to have set up a new case for the respondent by raising suo motu j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Adamu JCA Trade Bank Plc v. Khaled Barakat Chami 613 a new defences for him without affording the appellant opportunity to comment on those new defences and by speculating on crucial matters in the case. b The above reproduced issues are well related or married to the appellant’s eighteen grounds of appeal in paragraphs 3.01 of the appellant’s brief. In the respondent’s brief, the appellant’s five issues as re- c produced above are adopted. In addition, the respondent also framed an additional issue which is said in the brief to be covered by Grounds 1–18 of the appeal. The said additional issue of the respondent is as follows:– “Whether considering the fatality of evidence led by the appellant d at the lower court, the appellant had sufficiently proved their case thereby shifting the onus of proof on the respondent.” (See para- graph 3 at page 2 of the respondent’s brief.) Because of the above additional issue framed by the respon- e dent naturally and expectedly, the appellant in his reply brief filed on 10 March, 2002 challenged and attacked the said additional issue introduced by the respondent. The ground for the appellant’s attack as rightly given or stated in the re- f ply brief, is that the said issue as framed and argued at large in pages 2 15 of the respondent’s brief does not flow from or is not predicated on any of the eighteen grounds of the ap- peal – see Hydroworks Ltd v I.G. (2002) FWLR (Part 110) 1887, (2002) 1 NWLR (Part 749) 564 at 585–586 cited in g the reply brief in support of the appellant’s arguments and attack against the respondent’s additional issue and to disre- gard the arguments canvassed under it in the respondent’s brief. It is a well settled principle of law that where an issue h for determination of the appeal (sic), such an issue whether framed in the appellant’s or respondent’s brief, is treated or regarded as incompetent, which should be struck out by an Appellate Court dealing with the brief containing such an i impotent or incompetent issue with no correlation or nexus with the grounds of appeal (see Okoya v Santili (1990) 2 NWLR (Part 131) 172; Aja v Okoro (1991) 7 NWLR (Part 203) 260 at 273; Adelaja v Fanoiki (1990) 2 NWLR (Part 131) 137; Egbe v Alhaji (1990) 1 NWLR (Part 128) 546; j Mark v Eke (1997) 1 NWLR (Part 529) 501 at 524 and Tella

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Adamu JCA 614 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) v Usman (1997) 12 NWLR (Part 531) 168 at 173). It is un- a der the above principle which I accept, that I will treat the respondent’s single issue as incompetent. I hereby declare it so and strike it out together with the arguments canvassed under it or in its favour and covering pages 4–15 of the re- b spondent’s brief of argument (supra). Thus, I will only con- sider the arguments or submissions in the said respondent’s brief of argument which are made in or on reply to the ap- pellant’s five (5) issues as contained at pages 15–26 of the c said brief. Under Issue 1 of the appellant’s brief, the main thrust of the appellant’s submissions or arguments are against the style or manner adopted by the learned trial Judge in writing d his judgment. Although it is conceded by the learned Senior Counsel for the appellant that there is no stereotype method of writing judgment, it is contended in the brief that a good judgment must demonstrate a very sound understanding of e the facts of the case and a deep understanding of the applica- ble law to the facts. It must also be a dispassionate and even handed treatment of the respective cases of the parties. It fol- lows that a judgment which decided and concludes the points f in controversy before considering the evidence adduced does not qualify as a good judgment. This is moreso if a Judge in his judgment manifestly shows that he has made up his mind before reviewing the evidence or ascribing probative value to such evidence. Some instances are cited in the brief where the g learned trial Judge in his judgment, made some conclusive remarks or findings while still at the stage of reviewing or summarising the evidence adduced by the parties in the in- stant case (see pages 96 and 98; and 103 of the record). It is h submitted that by making such pre-emptive remarks, the learned trial Judge had clearly prejudged the case in favour of the respondent before considering the merit of the appellant’s case. The Supreme Court’s decisions in which the minimum i and acceptable style or standard of a good judgment are cited in the appellant’s brief in support of the above submissions under Issue 1; these are given in the brief as Sanusi v Ameyo- gun (1992) 4 NWLR (Part 237) 527–548; Duru v Nwosu (1989) 4 NWLR (Part 113) 24 and Lawrence v Onyekaonwu j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Adamu JCA Trade Bank Plc v. Khaled Barakat Chami 615 a and others v Ekwubiri and others (1996) 1 All NLR 32 at 35. The brief also reiterates the need for the trial Judge to know and appraise where or on which of the parties to a civil suit the burden of proof lies and whether such burden or onus has b been discharged. It is stated that the learned trial Judge in the present case did not consider that evidential rule or principle on the burden of proof and its discharge by the party on whom it lies. He did not also place the respective cases of the c parties on an imaginary scale and weigh them together to de- termine which outweighs the other in terms of their probative values as recommended in all civil cases requiring proof on balance of probability or by preponderance of evidence (see d Akinola v Olowu (1962) 1 SCNLR 352; A.R. Mogaji and oth- ers v Madam Rabiatu Odofin and others (1978) 4 SC 91 at 93–96; Vincent Bello v Magnus Eweka (1981) 1 SC 101; and Chief Victor Woluchem and others v Chief Simon Gudi and others (1981) 5 SC 291 at 306–307; Chime v Ude (1993) 3 e NWLR (Part 279) 78 at 90; and Tsalibawa v Habiba (1991) 2 NWLR (Part 174) 461 cited in the appellant’s brief in support of the submission). The said brief finally urges this Court to hold that the judgment of the learned trial Judge in which the f case was prejudged against the appellant before a considera- tion of the evidence led by both parties, cannot or should not be allowed to stand and consequently to resolve Issue 1 in fa- vour of the appellant or against the respondent. g In reply to the above submission under Issue 1 of the ap- pellant, the respondent in his brief of argument admits or concedes that there is a breach or departure of or from the rule in Mogaji v Odofin (supra), in that the learned trial h Judge in the instant case and in the initial part of his judg- ment had made some concluding remarks in favour of the respondent while or in the course of his review of the evi- dence adduced by the parties and thereby failed to place the i evidence of both parties on an imaginary scale and weighing them before reaching his conclusion. It is however argued in the said brief, that the trial court (or the trial Judge), is at lib- erty to employ its or his own style in writing judgment so long as his views are a true reflection of the evidence ad- j duced before him by both parties to the dispute Amokomowo

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Adamu JCA 616 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) v Andu (1985) 1 NWLR (Part 3) 530 at 538–539 cited in a support of the proposition. It is submitted that where there is a departure from the mode or style of evaluating evidence in the judgment as recommended in Mogaji v Odofin (supra), such a departure would not affect the said judgment unless it b occasions, a miscarriage of justice. It is pointed out that in the instant case, the appellant did not suffer any miscarriage of justice as a result of the style adopted by the learned trial Judge in his evaluation of evidence since in any case, the c learned Judge subsequently did evaluate the evidence prop- erly as recommended in Mogaji’s case (supra), see page 100 line 8 of the record of proceedings referred to in the brief. It is further pointed out that the appellant in the instant case, d did not lead sufficient evidence to prove its case and to shift the burden of proof on the respondent and to warrant the weighing of the parties’ cases on an imaginary scale. In such a situation where an appellant fails to shift the burden of proof to the respondent, the said respondent is not bound to e lead any evidence in rebuttal since there will be nothing to rebut – (see NITEL Plc v Rocknoh Prop. Co Ltd (1995) 2 NWLR (Part 378) 473; Odogbue and another v Nmibte and 4 others (1972) 1 All NLR (Part 2) 226; Chime v Ude (1993) f 3 NWLR (Part 279) 78 at 90 and Tsalibawa v Habiba (1991) 2 NWLR (Part 174) 467 cited in the respondent’s brief in support of the argument). Finally, the respondent submits that in all the above cases which are distinguishable from the g present case, the appellant therein had shifted the burden of proof on the respondent before the court invoked the princi- ple or rule in Mogaji v Odofin. It is clear from the above submission, that the learned trial h Judge actually made the adversary remarks he is accused of by the appellant at the initial stage of his judgment, or in his evaluation of the evidence adduced by said appellant before considering that of the respondent and has thereby acted in i breach of the rule of Mogaji v Odofin (supra). This has been admitted by the respondent (in his brief) see page 16, second paragraph thereof. Although there is no hard and fast rule or set standard or approach in the style or writing of judgment as rightly conceded by the learned Senior Counsel the appellant j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Adamu JCA Trade Bank Plc v. Khaled Barakat Chami 617 a and every Judge is free to adopt the style or approach peculiar to him, it is however important that at the end of the day, the judgment must contain what a proper judgment ought to con- tain. Thus it is important for the trial Judge in writing his b judgment to discharge that responsibility which will enable what he produced to be properly called “a judgment” which should be a fair impassionate and a just verdict on the cases put up by the two parties to the dispute (see Duru v Nwosu c (1989) 4 NWLR (Part 113) 24; Chiroma v Ali (1999) 2 NWLR (Part 590) 317 at 329; N.B.C. Plc v Burgundu (1999) 2 NWLR (Part 591) 408 at 425 and Sanusi v Amoyegun (su- pra), cited in both briefs). However, despite the above general d rule on the style or approach in writing judgment which gives a trial Judge uninhibited discretion to use his own style, there are some minimum set or recommended standards and stages to be adopted or followed in writing or reaching a fair judg- ment. These include:– e a. It should always start by first considering the evi- dence led by the plaintiff to see whether he has led evidence on all the material issues he needs to prove. f At this stage, there is no question of proof or belief or non-belief of the witness. If the plaintiff has failed to lead evidence or if the evidence led by him is so patently unsatisfactory, then he has not made out g what is usually called a prima facie case in which case the trial court does not need to consider the case of the defendant. b. In the next stage, the court should then evaluate the h evidence. In doing so, it must bear in mind the fol- lowing process:– i. On whom the onus of proof lies; and ii. whether the particular type of evidence called i requires any special approach. c. In the last stage after evaluating the evidence, the trial court will then make its findings which, having regard to the party on whom the onus lies, will de- j termine its ultimate verdict.

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Furthermore, in its task of evaluating evidence, the trial a court is enjoined or required to place the evidence called by either side to the dispute or conflict, on every material issue, on either side of an imaginary scale and weigh them together b and whichever outweighs the other in terms of value, ought to be accepted – (see Sanusi v Amoyegun (supra); Mogaji v Ododin (supra) and Whyte v Jack (1996) 2 NWLR (Part 431) 407 at 442–443). It is also trite that in his judgment, the c trial Judge must show a clear understanding of the facts in the case, the issues involved and the law applicable in the case. He is required to draw the right conclusion and make a correct finding on the evidence before him. He has also to be d fair and even handed in his treatment of the respective cases of the parties. He is thus enjoined not to start by considera- tion of the defendant’s case and its weakness, unless and un- til the plaintiff has led evidence showing prima facie that he e has a right on the issue he claims. Anything or any approach by the trial Judge short of, or contrary to this method or standard will give an unfair advantage to the plaintiff and result in an unfair trial with the implication that the court f was unfair to one of the parties to the case or dispute before it (see Anuforo v Obilor (1997) 11 NWLR (Part 530) 661 at 675; Okpoko v Uko (1997) 11 NWLR (Part 527) 94; Ogun- dulu v Phillips (1973) 1 NMLR 267; Asiemo v Amos (1975) g 2 SC 57 and Ojogbue v Nnubia (1972) 6 SC 227). In the instant case, the learned trial Judge while reviewing the evidence called by the parties made the following adver- sary or damaging remarks:– h 1. Pages 96 of the record while reviewing the testimony of DW1 found that: “DW1 refused to help the plaintiffs to prove their case which they earlier failed, He was not re ex- amined by M.K. Fodile.” i 2. At page 98 of the record, while reviewing the addresses of learned Counsel for the parties, the learned trial Judge stated:– “Even the Guaranty Form which has not been stamped, certified or registered should be given full effect.” j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Adamu JCA Trade Bank Plc v. Khaled Barakat Chami 619 a At page 103 of the record, he held or stated that:– “In fact the plaintiff relied on the ‘Unregistered’, ‘Unstamped’ and ‘Uncertified’ Guarantor’s form exhibit 1, which was not supported by any consideration and computer printout of the statement of ac- b count prepared by an interested party during the pendency of this suit. On the other hand, the defendants called their single witness by confirming all the averments in their statement of defence and re- c fused to help the plaintiff to repair/establish their broken down case.” There is no doubt or dispute that the learned trial Judge made the above remarks at the initial stage of his judgment d and while setting down the case as presented by both parties to the dispute. At most, it was a stage in which the plain- tiff/appellant was required to establish a prima facie case. I am therefore of the humble view that under the principle of e the above cited authorities (particularly Aniforo v Obiofor (supra), it was too early and out of place for the learned trial Judge to make the conclusions or findings of facts on the evidence or on its probative value as he did in his above f quoted remarks. If anything, the adversary remarks made against the appellant’s case at that stage only gives the im- plication that the learned trial Judge was leaning unfairly against the appellant and in favour of the respondent on the g issues involving the testimony of DW1, exhibit (the guar- anty form) and exhibit 4 (the statement of account). The anxiety of apparent bias of the learned trial Judge can easily he seen or inferred from the way he emphasised the “Unreg- h istered”, “Unstamped” and “Uncertified” (which are written in bold and capital letters), which he introduced or inserted into the case suo motu and without inviting the learned Counsel for the respective parties to address him on them in i relation to the guaranty form. It is a well-settled principle of law that the court as an impartial arbiter or umpire, does not make a case for either of the parties before it and in the course of its duty of adjudication, it must avoid doing or j saying anything capable of plunging it into the arena of the

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Adamu JCA 620 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) contest by taking sides with any of the parties before it (see a Igwe v Kalu (1990) 5 NWLR 149) 155 and Iwuoha v Okor- oike (1996) 2 NWLR (Part 429) at 231). It is also a settled principle of law that where a court raises b an issue suo motu as was done by the learned trial Judge in the instant case in relation to non-registration and non- certification of exhibit 1 (i.e. the guaranty form) the parties should be given an opportunity to address the court on the c issue so raised by the court. Thus, a decision or judgment of a court of law should not be founded on any ground or issue in respect of which it has received neither argument from or on behalf of the parties before it nor even raised by or for d such parties or either of them. It has no business whatsoever with any issue not placed before it. Where the court raises an issue in breach of this rule, it has committed a breach against the fundamental right of the parties to fair hearing (see e Shitta-Bay v Federal Public Service Commission (1981) 1 SC 40; Saude v Abdullahi (1989) 4 NWLR (Part 116) 387; Ebba v Ogodo (2000) FWLR (Part 27) 2094, (1984) 1 SCNLR 37; Oje v Babalola (1991) 4 NWLR (Part 185) 267 f and Ibrahim v JSC (1998) 14 NWLR (Part 584) 1 at 46 and 56). It should be noted for instance, that the issues of non- registration, non-stamping and non-certification of exhibit 1, which were emphasised by the learned trial Judge were g pleaded by neither of the parties, and no evidence at all was given on them. The only issue tacitly raised in the address of the learned Counsel for the respondent was that of non- registration under the Land Registration Law (see page 60 of h the record). Under normal circumstance, it was improper for the respondent’s Counsel to raise those issues which are not pleaded and where he does so wrongly in his written address (as in the instant case), such should at best be disregarded by i the learned trial Judge instead of relying or capitalising on them to defeat the appellant’s claim see Katsina L.G.A. v Makudawa (1971) 1 NMLR 100; Morinatu Oduka and oth- ers v Kasumu and another (1968) NMLR 28 at 31; Aderemi j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Adamu JCA Trade Bank Plc v. Khaled Barakat Chami 621 a v Adedire (1966) NMLR 398 and Mobil Producing Nigeria Unlimited v Lagos State Environmental Protection Agency and 3 others (2003) FWLR (Part 137) 1029, (2002) 18 NWLR (Part 798) 1 at 46). b The crucial question which the learned trial Judge should ask himself and resolve at the stage he made the adverse re- marks against the appellant’s case should be, whether the c said appellant has led evidence showing prima facie that he has a right as claimed under the issues. The term “prima fa- cie” is defined in Black’s Law Dictionary (6ed) at page 1189 to mean:– d “At first sight, on the first appearance; on the face of it, so far as it can be judged from the first disclosure, presumably; a fact pre- sumed to be true unless disproved by some evidence to the con- trary . . .” e From the above definition which I adopt, it is clear that the learned trial Judge who was at the initial or preliminary stage of his judgment, should not have made the adversary or conclusive remarks he made which had the effect of pre- empting or predetermining the case before considering its f merit or the issues involved. Thus, it was wrong at that stage to hold (as at page 96 of the record) “DW1 refused to help the plaintiffs to prove their case which they earlier failed”. It was also wrong at that stage to hold that the guarantors form g was unregistered, unstamped and uncertified. Moreover, the plaintiff’s case cannot at that stage be regarded as a “broken down case” before it was considered or reviewed. The prima facie evidence that should have been mentioned at that stage h should include:– 1. The three (3) witnesses who were called by and who testified for the plaintiff/appellant. 2. Exhibit 1, (the guarantee form executed by the re- i spondent) which was tendered and admitted in evi- dence through PW1. 3. Exhibits 2 and 3, which are letters of demand written by or on behalf of plaintiff/appellant to Rasha Enter- j prises Ltd.

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4. Exhibit 4 (the statement of account of Rasha Enter- a prises Ltd as a customer of the appellant). If the learned trial Judge had given due regard to the above listed pieces of evidence on their face-value at that initial b stage and without making any derogatory remarks against them as he did, he would have found that the plain- tiff/appellant had at least, established or led a prima facie evidence in support of its claim. He will then proceed to the c next stage of setting out the evidence adduced by the defen- dant/respondent to counter the prima facie evidence of the appellant. In the final stage, the learned trial Judge should then weigh the two sets of evidence on an imaginary scale as required under the rule or principle of Mogaji v Odofin (su- d pra) and whichever outweighs the other in terms of proba- tive value will be accepted and be the basis of the judgment of the court. It must be recalled that the learned Counsel for the respondent in his brief of argument, has admitted or con- e ceded that the learned trial Judge has acted in breach of the rule or principle in Mogaji v Odofin (supra) when he made the offensive remarks against the appellant’s case (see page 16 of the respondent’s brief). I agree with this concession by f the respondent’s Counsel and hold that the learned trial Judge in the instant case, failed to comply with the rule in Mogaji v Odofin in that while reviewing the evidence ad- duced by the plaintiff/appellant, he reached or arrived at a conclusion on it before he reviewed the evidence adduced by g the defendant/respondent. Also, contrary to the respondent’s submission that the appellant did not suffer any miscarriage of justice from the wrong style or approach in the judgment of the learned trial Judge, it is my humble view that since the h conclusions wrongly reached by the said learned trial Judge formed the basis of his judgment, it cannot be said that a mis- carriage of justice was not occasioned to or against the plain- tiff/appellant. It is trite law that a trial court with (sic) judg- i ment committed an error by wrongful admission or rejection of evidence as in the present case, such error in itself will not lead to the reversal of its judgment or decision unless it can reasonably he held to have affected the decision and that such decision would have been different if the wrongfully admitted j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Adamu JCA Trade Bank Plc v. Khaled Barakat Chami 623 a or if the wrongfully rejected evidence were admitted. Thus wrongful admission or rejection of evidence by the trial court will lead to or result in the reversal of its judgment by an Ap- b pellate Court where it (i.e. the error) has occasioned or re- sulted in a miscarriage of justice (see R. v Essien 5 W.A.C.A. 70; Okaroh v State (1990) 1 NWLR (Part 125) 128; Ezeoke v Nwagbo (1988) 1 NWLR (Part 72) 616; MCC Ltd v Azubuike (1990) 3 NWLR (Part 136) 74; Ajayi v Fisher (1956) SCNLR c 279; and Okobia v Ajanya (1998) 6 NWLR (Part 554) 348). On my above consideration of the appellant’s Issue 1, the said issue and its related ground of appeal (Grounds 1 and 2) must be resolved in favour of the said appellant and against d the respondent. They are hereby so resolved by me. Under Issue 2, it is pointed out in the appellant’s brief that in proof of its case, the appellant called three witnesses (who e were its officials) and tendered four documentary exhibits, exhibit 1, is the guarantee executed by the respondent (see pages 18–21 and 71–74 of the record). Exhibits 2 and 3 are letters of reminder to Rasha Enterprises Limited, while ex- hibit 2 is a letter of demand by the appellant’s solicitors to f the respondent. Exhibit 4 is the statement of account of Rasha Enterprises Limited which shows its indebtedness to the appellant. Thus, it is pointed out in the brief that there is no denial, throughout the case, of the indebtedness of Rasha g Enterprises Limited to the appellant. Apart from the respon- dent’s averment (in the statement of defence), that he is not aware of the indebtedness, the only witness called by the re- spondent, DW1, who was the secretary/legal adviser of h Rasha Enterprises Limited merely restated the respondent’s ignorance of the transaction. The witness i.e. DW1 however did not know the Directors of the Company, nor the date of its incorporation or registration. He even stated at page 91 of the record that he has “never dealt with the subject matter in i this case with anybody”. It is further pointed out in the brief that all the three witnesses called by the appellant were unanimous in the testimony on the following facts:– i. That the respondent was a Director in Rasha Enter- j prises Limited;

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ii. That Rasha Enterprises Limited operated the ac- a count evidenced by exhibit 4; iii. That the respondent executed exhibit 1 in 1996; and iv That the indebtedness of the company to the appel- b lant was about one hundred and seventy one million naira (N171,000,000).

It is the appellant’s submission that from the above facts c arising from the unanimous testimonies of their three wit- nesses, they have led cogent, believable and uncontradicted evidence on all the material parts of its pleading. They are therefore, entitled to trial court’s judgment in their favour. It is further submitted that the onus of proof on the plaintiff in d a civil case is on the preponderance of evidence and it is not static; it shifts from time to time and falls on the party who will fail if no further evidence is adduced on the point – see Mogaji v Odofin (1978) 4 SC 91 cited in support of the e submission. The refusal of the learned Judge to accept and rely on the evidence of the witnesses for the appellant on the ground that they are all employees of the appellant is said in the brief to be not only an erroneous view but an utter disre- f gard to the law as reflected from decided authorities of our superior court see Ishola v SGB Nigeria Ltd (1997) 2 NWLR (Part 488) 405 at 424 (cited in the brief) which the Supreme Court per Iguh, JSC held that a company being a legal or ju- ristic person can only act through human agents and servants g who are competent to give evidence on any transaction en- tered into by the company. (See also Kate Enterprises Ltd v Daewoo (Nigeria) Ltd (1985) 2 NWLR (Part 5) 116 and An- yeabosi v Chief Ugbede (1976) 9–10 SC 179 at 187 also h cited in support of the appellant’s submission.) Reference is also made in the brief to the state of pleadings of the parties in the instant case where issues were joined on the execution or otherwise of the guarantee agreement (exhibit 1) and it is i submitted that the positive evidence given on the issue by PWS 1, 2 and 3 can only be dislodged or contradicted by the respondent himself who in law has or is presumed to have peculiar knowledge of his own signature said to be on the exhibit. However, instead of giving evidence to deny his j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Adamu JCA Trade Bank Plc v. Khaled Barakat Chami 625 a alleged signature on or execution of exhibit 1, he relied on the evidence of DW 1 who did not know anything about the transaction and who also stated that he did not even know the respondent who called him to testify. The situation in the b instant case is likened in the brief to what transpired in Ode- bunmi v Abdullahi (1997) 2 NWLR (Part 459) 526 at 535 (per Belgore, JSC). It is argued by the appellant that since the respondent decided not to give evidence as to his alleged c signature on execution of exhibit 1 (as he pleaded), he should be regarded in law to have abandoned his pleading by not leading evidence on it (see Odebunmi v Abdullahi (supra); Obmiami Bricks and Stone Ltd v ACB Ltd (l992) 3 d NWLR (Part 229) 260 at 293 and Honika Sawmill Nigeria Ltd v Hoff (1994) 2 NWLR (Part 326) 252 at 266 cited in support of the proposition). This Court is also urged in the brief to hold that the evidence led by the appellant through its witnesses and exhibit 1 (on the issue of execution of or e signature on the said exhibit 1) remains uncontroverted and unchallenged and it should, accordingly have been acted upon by the trial court (see Odebunmi v Abdullahi (supra) and Omoregbe v Lawani (1980) 2–4 SC 107 at 117 in the ap- f pellant’s brief on the point). The testimony of DW1 (the only witness called by the respondent) is also criticized in the ap- pellant’s brief. It is pointed out that he was not a witness of truth as he claimed to be the legal adviser/secretary of Rasha g Enterprises Limited but yet he was ignorant on the basic is- sues or affairs of the company. He see the name of the com- pany’s managing director to whom he was said to be report- ing directly. He did not know the date of the incorporation of the company. It is argued in the brief that the trial court h should not have believed DW1 because of the above anoma- lies arising from his testimony. Thus, it was for the trial court to have proceeded and believed the said witness for the appel- lant in its finding at page 104 of the record. It is finally sub- i mitted that where a trial court wrongly believes an unbeliev- able witness as in the case of DW1 in the present case, an Appellate Court seized of the matter should do the right thing by rejecting or disbelieving the said unbelievable witness (see j Dibiamaka v Osakwe (1989) 3 NWLR (Part 152) 107) 101

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Adamu JCA 626 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) and Aina v UBA Plc (1997) 4 NWLR (Part 498) 181 at 189 a cited in the appellant’s brief on the point). This Court is fi- nally urged to resolve Issue 2 in favour of the appellant. In reply to the above submission, the respondent’s brief re- b fers to the appellant’s argument that it was the duty of the respondent to lead evidence to show that he did not execute exhibit 1. It is stated in the respondent’s brief that this re- quirement is contrary to the law of evidence which enjoins c that “he who asserts must prove”. It is contended that apart from his denial of ever executing exhibit 1, the respondent will only be required to lead evidence in denial after the ap- pellant has discharged its burden of proof. It is contended that since the appellant failed to discharge its burden of d proof on the issue of execution of exhibit 1, it was rightly rejected or disregarded by the trial court. The case of Ode- bunmi v Abdullahi (supra), cited in the appellant’s brief, is said to be applicable to the present case and does not support e the appellant’s case because the appellant in that case has led sufficient evidence to discharge his burden of proof and the respondent failed to give evidence in rebuttal of the alle- gation levelled against him. Also the cases of Obmiami v f Brick and Stone Ltd v ACB (supra) and Honika Sawmill Ni- geria Ltd (supra) also cited in the appellant’s brief are said in the respondent’s brief to be inapplicable to the present case for the same reason and their facts and circumstance are distinguishable from those in the present case. On the credi- g bility of DW1, the respondent’s brief submits that he is a witness of truth and very credible because he did not give inconsistent evidence. It is observed in the brief that the mere fact that DW1 as the legal secretary of Rasha Enter- h prises Ltd said that he did not know all the directors of the company and that he has never met the respondent, should not be a ground to classify him as an untruthful witness or to impeach his credibility. It is pointed out in the brief that it is i the appellant’s evidence or the testimonies of its witnesses that was instead, filled with inconsistencies. PW1 (at page 84) gave the indebtedness of the company as N171,000,000 while PW2 (page 87) stated that the indebtedness was N198,000,000. Also PW1 gave the name of the principal j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Adamu JCA Trade Bank Plc v. Khaled Barakat Chami 627 a debtor as Rasha Enterprises U.M.B. instead of Rasha Enter- prises Limited. All the inconsistencies from the evidence of the appellant’s witnesses entitled the learned trial Judge to reject or disregard the appellant’s witnesses as he rightly did b the respondent’s brief so contends. In resolving Issue 2 as per the above submissions in the two briefs, we have to resort to the law of evidence and some decided cases in order to find out on whom the burden c of proof lies and whether it was discharged in accordance with the required standard. By virtue of sections 135 and 136 of the Evidence Act Cap 112 Laws of the Federation of Nigeria, 1990, the burden of proving the existence of any d fact is on the party who asserts it – he who asserts must prove. In a civil case as the instant one, the primary burden is on the plaintiff to establish the facts he relied upon in proof of his claims (sections 135 and 136 of the Evidence e Act (supra). Also, by virtue of section 137 of the Act (su- pra), in civil cases, the burden of first proving the existence or non existence of a fact lies on the party against whom the judgment of the court will be given if no evidence at all or f no further evidence is produced on either side, regard being had to any presumption that may arise on or from the plead- ings. If such a party adduces evidence which is acceptable and which establishes such a fact or facts, then the burden (the evidential burden as it is usually called), shifts on the g party against whom judgment would be given if no more evidence were adduced and so on until all the issues in the pleadings are dealt with. This is what is meant by saying that civil cases are decided on preponderance of evidence (see h Okupe v Ifemembi (1974) 3 SC 97; Atane v Amu (1974) 10 SC 237; Odulaja v Haddad (1973) 11 SC 357 and Braimoh v Abasi (1998) 13 NWLR (Part 581) 167 at 179). In dis- charging the burden placed on him by law, the plaintiff is i required to show at least a prima facie case. It is only when the plaintiff is able to do so that there will he a need to con- sider the defendant’s case. This is said to be a pre-test that the burden is on the plaintiff to prove his case and when the defendant adduces evidence, then the case is or will be de- j cided on balance of probabilities (see Aromire v Awoyemi

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(1972) 2 SC 1; Mogaji v Odofin (supra); Kaiyaoja v Egunla a (1974) 12 SC 55; Onwuama v Ezeokoli (2002) FWLR (Part 100) 1213, (2002) 5 NWLR (Part 760) 353 and Agu v Nnadi (supra)). b In applying the above principle and rule on the burden of proof to the present case, we have to refer to the pleadings of the parties and consider the evidence adduced in proof thereof. The appellant as plaintiff in its statement of claim c (pages 50–52 of the record) averred in paragraphs 8–14 thereof the facts giving rise to the claim. These can be sum- marised as follows:– 8. The defendant agreed to stand as the guarantor for all the d sums to be overdrawn by Rasha Enterprises in the latter’s account with the plaintiff; the said defendant executed a guarantee agreement in favour of the plaintiff in January, 1996. 9. Subsequently, Rasha Enterprises Limited was allowed to e overdraw its account with the plaintiff based on the guaran- tee executed by the defendant. 10. Rasha Enterprises Limited failed to repay the sums it over- drew in its account with the plaintiff. f 11. By 25 October, 1999, Rasha Enterprises Limited had over- drawn its account to the tune of N171,452,649.52k. The statement of account of Rasha Enterprises Limited with the plaintiff is pleaded. g 12. All demands by the plaintiff to Rasha Enterprises to defray its indebtedness to the plaintiff was to no avail. 13. On 20 July, 1999, the plaintiff’s solicitor wrote to the defen- dant asking him to honour his pledge under the guarantee agreement by paying the outstanding balance in the account h of Rasha Enterprises Limited. The said letter is pleaded. 14. The defendant has since then refused or neglected to honour his pledge under the guarantee agreement. i Against the above facts, the relevant part of the defen- dant/respondent’s statement of defence which are more clear, concise and succinct in their wording may be repro- duced hereunder. They are contained in paragraphs 8–10 of the said statement of defence (at page 54 of the record) and j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Adamu JCA Trade Bank Plc v. Khaled Barakat Chami 629 a they read:– “(8) The defendant denies paragraph 9 of the statement of claim and states specifically that he never executed any guarantee agreement to pay the plaintiff on account to Rasha Enter- b prises Limited. (9) The defendant denies all the allegations contained in para- graphs 10, 11 and 12 of the statement of claim and thereby puts the plaintiff to the strictest proof of all the allegations. c (10) The defendant denies ever receiving any letter from plain- tiff’s solicitors and thereby puts the plaintiff to the strict proof of its allegation in paragraph 13 of the statement claims.” From the above pleadings of the parties, it is clear that issues d were joined on the existence and execution of the guarantee agreement by the defendant, the statement of account of Rasha Enterprises Limited to the tune of N171,000,000 said to be guaranteed by the defendant/respondent and the letter e of demand from the plaintiff to Rasha Enterprises to defray the overdraft facility granted to it by the plaintiff/appellant and the letter from the appellant’s solicitors to the defen- dant/respondent asking him to honour his pledge under the f guarantee agreement. In proof of his case, the plaintiff/appellant (hereinafter called “the appellant”), called three witnesses, all of whom were its staff or employees. Exhibits 1–4 were also tendered and admitted through the appellant’s witnesses. All the wit- g nesses are positive in their testimony that the defen- dant/respondent (hereinafter called the “respondent”), exe- cuted the guarantee agreement in exhibit 1. Exhibit 4 is the statement of account of Rasha Enterprises Limited, showing h its indebtedness to the appellant to the tune of N171,000,000. At this stage or juncture, it can be said that the appellant has at least made out a prima facie case on its claim against the respondent that should warrant the trial i court to consider the respondent’s case or defence. In other words, the appellant in the present case having adduced evi- dence to show the existence and execution of the guarantee agreement by the respondent, should be held to have dis- charged its primary burden of proof under sections 135 and j 136 of the Evidence Act (supra), and the burden becomes no

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Adamu JCA 630 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) longer static, but has shifted on the respondent (under sec- a tion 137 (supra)), to show or prove that he did not either voluntarily or otherwise execute or sign the guarantee agreement. Thus, at that state or stage, the respondent has become a party against whom judgment should have been b given if no evidence were adduced by either of the parties. The only evidence adduced by the respondent is the de- fence witness he called as DW1. On perusal of the testimony of this DW1, I found that he said almost nothing in his ex- c amination-in-chief which only covers six (6) lines (see page 91 of the record). He is not aware of almost everything about the guarantee agreement or about the constitution of the management of Rasha Enterprises Limited, in which he d was the company secretary/legal adviser. Although he han- dles all the company’s legal matters, he was not aware of its indebtedness to the Trade Bank (i.e. the appellant) in any amount. His cross-examination (at page 92 of the record) did e not help matters for the respondent. Instead of throwing any light or giving evidence in line with the respondent’s plead- ings, he shows his complete ignorance on the affairs of the company as well as the respondent who he said he did not even know in person. He does not know the managing direc- f tor or other directors of Rasha Enterprises. Can it then be said that the respondent has countered or controverted the evidence adduced by the appellant through his DW1, whose evidence is worthless in terms of probative value. It is cer- g tainly inconceivable for a person who is the company’s sec- retary/legal adviser to be ignorant of the identity or names of its managing director as well as other directors. It is equally moreso, for the witness not to know the identity of the re- h spondent for whom he was giving evidence. It is my humble view that under the circumstance of the present case in which the respondent denied signing or exe- cuting the guarantee agreement, the said respondent is the i only person competent to give evidence on the non- execution of the guarantee agreement or to deny his pur- ported signature on it as per his pleading (as per paragraph 8 of his statement of defence). Instead of giving evidence on his denial, the respondent however chose to rely on DW1 j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Adamu JCA Trade Bank Plc v. Khaled Barakat Chami 631 a who is completely ignorant of the transaction as well as on the affairs of Rasha Enterprises Limited for which he was the secretary/legal adviser. Consequently, since the respon- dent did not adduce evidence to prove his denial of the sig- b nature on the guarantee agreement, he has not rebutted the appellant’s pleadings and evidence on it and he has not dis- charged the burden of proof shifted on him as the person against whom judgment would be given if no further evi- c dence were adduced (in terms with section 137 of the Evi- dence Act. I agree with the learned Senior Counsel for the appellant that the dictum of Belgore, JSC in Odebunmi v Abdullahi (supra) at page 535 of the report), is very relevant d and applicable, in the present case, against the respondent. His Lordship stated as follows:– “The best person to deny all the findings of facts by the trial court in the clear circumstances of this case was the defendant, but he chose not to give evidence. He was perfectly entitled to adopt this e line of defence and the court was equally obliged to make its legal conclusions on the failure of the defendant to testify in person. Un- fortunately, his sole witness, DW1, never saw the accident occur, he only testified that he never knew Mohammed Ibrahim Albasa f as one of the drivers employed by the defendant and he never claimed to know all his drivers either.” The above statement in my humble view, succinctly applies to the present case and rendered the respondent’s denial as g pleaded in his statement of defence as abandoned since no evi- dence on it is led or adduced by the said respondent. The situa- tion in the present case can also be likened to that in Braimoh v Abasi (supra), where the Supreme Court held that where the respondent, as plaintiff, adduced evidence to show that a h document (exhibit 1) was issued to her, the burden has thereby shifted to the appellant as defendant to lead further evidence to show that the document was in fact issued to someone else. Having failed to do so, the appellant cannot complain that the i judgment was entered in favour of the respondent. It is worthy to reproduce the pronouncement of Ogundare, JSC on the mat- ter (at page 1791 of the report) as follows:– “The plaintiff having proved that she purchased the land in dispute j from the LEDB and was given, through her husband, a title

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document registered as No. MO6008 and bearing her full names of a Alhaja Nimola Abiola Abegbe Abasi, the onus in my respectful view, shifted on the first defendant who averred that another woman, other than the plaintiff, bearing the same name as on the title document was, in fact, the original purchaser. He led no iota b of evidence in the discharge of the burden on him. I think the court below is right in holding, on the evidence, that the person men- tioned in exhibit 1 as the purchaser is no other than the plaintiff as was said by Sir Ademola, CJF (as he then was) in Nwabuowku v c Ottih (1961) 1 All NLR 487, 490; (1961) ANLR. 507, 511; (1961) 2 SCNLR. 232, 235:– The evidence of the appellant therefore stands uncontradicted. His evidence giving the term of the transaction between him and the respondent was in term of his writ in the absence of any evidence d of rebuttal, the appellant was entitled to judgment and I am of the view that the learned Judge’s duty was to have entered judgment in his favour at the close of the respondent case.” The principle enunciated in the above pronouncements of e our apex court is germane to the present case in which judgment should have been entered in favour of the appel- lant upon the failure of the respondent to call or give evi- dence to rebut the evidence adduced by the appellant. Thus, the appellant’s uncontradicted evidence should have been f relied upon by the learned trial Judge. For my above consid- erations of Issue 2 of the appellant’s brief, the said issue and its related ground(s) of appeal (Grounds 3, 4, 10 and 18) must be resolved in favour of the appellant and against the g respondent. They are hereby accordingly so resolved by me. Under the third issue of the appellant’s brief, the main complaint is against the finding or conclusion of the learned trial Judge at pages 104–105 of the record to the effect that h the non joinder of Rasha Enterprises limited as a defendant in the suit before the lower court or in the proceedings was fatal to the appellant’s case and led to its dismissal. It is con- tended by the appellant that guarantee contract agreement as i in the instant case, is a separate contract between the creditor and the surety or guarantor and the liability of the said guar- antor is different from that of the third party (i.e. the debtor). It is pointed out that in the instant case, two contracts were created, viz: (a) the contract between Rasha Enterprises j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Adamu JCA Trade Bank Plc v. Khaled Barakat Chami 633 a Limited and the appellant bank for loan/overdraft facility, and (b) the contract between the appellant/bank as creditor and the respondent as surety/guarantor for the loan/overdraft facility, granted to Rasha Enterprises Limited. Reference is b made on this aspect, to Chitty on Contracts (24ed) Volume 2, paragraphs 4104 and 4831. Thus in a contract of guaran- tee, the creditor may proceed against the surety or guarantor without involving or joining the principal debtor who is not c a necessary or a desirable party (see Olujitan v Oshotoba (1992) 5 NWLR (Part 241) 320 at 329; Ekerebe v Ejeizorma 11 (1993) 7 NWLR (Part 307) 588 at 601; Moschi v Lap Air Services Ltd (1973) A.C. 331 at 348; Esso Petroleum Co Ltd d v Alstronbridge Properties (1975) 3 AER 358; Order 11 Rule 5 of Kano State High Court (Civil Procedure) Rules; Oludeinde v Oduwole (1962) WNLR 41; Nwankwo v EDS (2002) 1 NWLR (Part 794) 513 at 534–535; Ayanduba v NRTC Ltd (1992) 5 NWLR (Part 243) 535 at 560; Onayemi e v Okunubi (1965) 1 All NLR 362 and Osurinde v Ajamogun (1992) 6 NWLR (Part 246) 156 at 172 all cited in the brief in support of the appellant’s submission. It is finally pointed out that in view of the abundant authorities on the point, the f finding of the learned trial Judge complained of under the issue cannot be sustained). We are urged to interfere with the said finding and also to resolve the issue in favour of the appellant. g In the respondent’s brief under Issue 3, it is contended that before the guarantor becomes liable for the payment of a debt, the primary liability of the principal debtor and his subsequent default must he established (see Saraki v SGB h (1995) 1 NWLR (Part 371) 326 cited in the brief in support of the proposition). It is stated in the said brief that it was necessary to join Rasha Enterprises Limited as the principal debtor in the present case. Even if it is conceded that the i learned trial Judge was wrong in holding that the non- joinder of Rasha Enterprises Limited was fatal to the appel- lant’s case, the brief submits that that error did not lead to a miscarriage of justice because it was not the sole ground on which the judgment was based (see Atoyebi v The Governor j of Oyo State (1994) 5 NWLR (Part 344) 290 at 311 and

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Nnajifor v Ukonu (1986) 4 NWLR (Part 36) 505 at 522 cited a in support of the respondent’s argument). Finally, this Court is urged in the respondent’s brief to resolve Issue 3 in favour of the said respondent. b On the above submissions from the two briefs under Issue 3, I also have to note the tacit concession or admission of the respondent to the effect that even if the finding of the learned trial Judge is regarded as an error, it was not the sole c ground or reason upon which the judgment of the said learned trial Judge was based, consequently, according to the respondents brief, the said finding did not occasion or lead to a miscarriage of justice against the appellant. It is pertinent to further note or observe in this regard that the re- d spondent did not or has not pointed out the other (valid) rea- sons relied upon by the learned trial Judge to arrive at his judgment in which he dismissed the appellant’s claims or action. In the circumstances, and after due consideration of e the submission in the two briefs, I will not hesitate to accept and agree with the submission in the appellant’s brief (which impress me more) under Issue 3. Although a contract of guarantee is a rare specie of contracts in Nigeria, there are f some indigenous authorities that have been gradually built up under the transaction which is akin to and is usually prac- tised in banking and other commercial enterprises. I begin with, the term “guarantee” has been judicially defined as a written undertaking made by one person to another to be re- g sponsible to that other if a third person fails to perform a certain duty e.g. payment of debt. Thus where the borrower (i.e. the third persons) fails to perform a certain duty e.g. payment of debt. Thus, where the borrower (i.e. the third h person) fails to pay an outstanding debt, the guarantor (or surety as he is sometimes called), becomes liable for the said debt. From the above definition which corresponds with the one also given under the term “Guaranty” in Black’s Law i Dictionary (6ed) page 705, it follows that a guarantor is technically a debtor, because where the principal debtor fails to repay, the guarantor will be called upon to pay the loan so guaranteed. The guarantor can however be absolved from this liability if he can show that the principal debtor had paid j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Adamu JCA Trade Bank Plc v. Khaled Barakat Chami 635 a the loan. A question arises as to the manner a surety (or guarantor) becomes bound. The answer is that he is bound only to the letter of his engagement (i.e. the guarantee agree- ment). He has no further liability outside the agreement be- b cause he normally receives no benefit or consideration (see Gurara Security Finance Ltd v T.I.C. Ltd (1999) 2 NWLR (Part 589) 29 at 47; Salawa Motor House Ltd v Lawal (1999) 9 NWLR (Part 620) 692 at 706 and Nwankwo v c E.D.C.S. (supra) cited by the appellant as an additional au- thority). Rowlatt on Principal and Surety (3ed) page 102 and Chitty on Contract Volume 2 (24ed) – (supra) cited in the appellants brief at paragraph 4801 thereof). d Although a contract of guarantee is a collateral agreement or a security for the performance of another undertaking, the principal or primary obligation however, binds only the guarantor in his undertaking towards the creditor. Thus, the e borrower only becomes relevant for the purposes of the guarantor’s obligation in order to show outstanding loan en- joyed by the said borrower and for which the guarantor has secured or stood as a surety under the agreement. It is perti- f nent to observe that in the present case, the appellant has, through its uncontradicted evidence, proved the principal loan by means of exhibit 1 (executed or signed by the re- spondent) and exhibit 4 (the statement of account) as well as through the testimonies of PWs 1–3. Consequently, the li- g ability of the respondent as the guarantor becomes due and matures immediately Rasha Enterprises becomes unable to pay its outstanding debt. The respondent’s liability is then said to have crystallised (see REAN v Aswani Textiles Ltd h (1992) 3 NWLR (Part 227) 1; Eboni Finance and Securities Ltd v Wale-Ojo Tech. Services (1996) 7 NWLR (Part 461) 464 and Salawa Motors House Ltd v Lawal (supra)). In view of my above considerations on the nature and effect of a i guarantee agreement (or contract), it follows and becomes very clear that since the present action against the respon- dent is found only on the redemption of the contract of guar- antee entered into between the appellant and the respondent and as the debt or loan to Rasha Enterprises Limited has j been duly established at the trial court, it will not be proper

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Adamu JCA 636 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) again to insist that Rasha Enterprises Limited should be a made a party to the case or be joined as a necessary party in the proceedings. It may be a desirable party to be joined at the option of both parties or even the court suo motu but it is certainly not a necessary party in the true sense of the law, b that its presence is essential for the just or proper determina- tion of the appellant’s claims before the court (see Green v Green (2001) FWLR (Part 76) 795, (1987) 3 NWLR (Part 61) 480; In Re-Benson (2003) 1 NWLR (Part 802) 570 at c 585). Since Rasha Enterprises is not a necessary party to be joined in the case, and the learned trial Judge wrongly held or found that its non-joinder was fatal to the appellant’s case, he has committed an error by that finding which should d not be allowed to stand. I therefore agree with the appel- lant’s submission that this is one of the rare instances in which this Court as an Appellate Court can and will interfere with the findings or conclusion of the trial court where it is the basis (or one of the basis) of the decision or judgment of e the trial court and it has consequently, occasioned or led to a miscarriage of justice against the appellant in the instant case. (See Obodo v Ogba (1987) 2 NWLR (Part 54) 1; Oka- for v Idigo III (1954) 1 SCNLR 481 and ACME Builders Ltd f v KSWB (1990) 2 NWLR (Part 590) 288 at 311.) Issue 3 and its related grounds (i.e. Grounds 5, 6 and 13) of the appellant must also be resolved in favour of the appellant and it is hereby so resolved. g Issue 4 of the appellant’s brief is against the holding of the learned trial Judge against exhibits 1 and 4, whereby he re- fused to act on the grounds that they are unregistered, un- stamped or uncertified and in the case of the latter, it was h done or made during the pendency of the case. Under the said issue, the appellant’s main grounds of attack is against the learned trial Judge’s criticism towards or against exhibits 1 and 4 for the reasons stated in his judgment. In the case of i exhibit 1, the criticism is against its non-registration, non- stamping and non-certification whereas in the case of exhibit 4, the ground of its criticism is that it was made during the pendency of the matter and by a person interested (i.e. the j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Adamu JCA Trade Bank Plc v. Khaled Barakat Chami 637 a staff or officer of the appellant bank). The learned Senior Counsel for the appellant has proffered a lengthy submission under the issue covering or running across five (5) pages wherein he cited some authorities ranging from the English b texts of Chitty on Contracts (supra) paragraphs 4809–4811; Halsbury’s Laws of England (4ed) Volume 20 (Paragraphs 116, 154, 159, 160 and 163 as well as some Nigerian cases. I have noted those authorities and in particular the Nigerian c cases cited in the brief which include Union Bank Ltd v Nwaokolo (1995) 6 NWLR (Part 400) 127 at 146; Ishola v SGB Nigeria Ltd (1997) 2 NWLR (Part 488) 405 at 424; Udoh v Eshiet (1994) 8 NWLR (Part 363) 484 at 501; d UITHMB v Aluko (1996) 3 NWLR (Part 434) 74 at 86; La- wani v Omoregbe (supra) and Odebunmi v Abdullahi (su- pra) Imana v Robinson (1979) ANLR (reprint) 1 at 8–9; and the additional authority cited at the hearing of the appeal which is First Bank Nigeria Ltd v Pan Bisbilder (1990) 2 e NWLR (Part 134) 656. In the respondent’s brief, the respondent relies heavily on his submission under his lone issue as contained in pages 7– f 15 of the brief. I have to point out that the said submission has already been struck out for being incompetent as not been properly raised in the appellant’s reply brief. Thus, the provisions of the Stamp Duties Act (Cap 411) Laws of the Federation of Nigeria, 1990, cited in the said respondents g brief and the submissions based on it will be disregarded in so far as they are based on the incompetent issue formulated by the respondent. I have already dealt with the issue involv- ing exhibits 1 and 4 when tackling or treating issue I of the h appellant’s brief which also touched on exhibits 1 and 4 and the same question relating to the non-registration, non- certification and non-stamping of exhibit 1. It only suffices for me to comment on the production or preparation of ex- i hibit 4 (the statement of account) by PW2 who is said in the judgment of the trial court to be a person interested and who prepared it during the pendency of the suit or case. On this, I will simply and readily agree with and accept submission of the learned Counsel for the appellant (in paragraph 7.07) j pages 17–18 of their brief to the effect that exhibit 4, being a

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Adamu JCA 638 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) statement of account does not fall within the purview of sec- a tion 91(3) of the Evidence Act (Cap 112) Laws of the Fed- eration of Nigeria, 1990. This is because of the saving provi- sion in section 91(5), under which an uncertified document or document prepared by a person interested may still be b admissible, having regard to the circumstances under which the statement contained in the document are made or its con- tents produced. In the instant case, it is pertinent to observe that PW2 has clearly stated that he was not the author or c producer of exhibit 4. The contents had been stored in the computer and he only printed it and took it to the court when going to give evidence. Exhibit 4, being a statement of ac- count is also expressly stated to be relevant under section 38 d of the Evidence Act (supra), which provides as follows:– “38. Entries in books of account regularly kept in the course of business are relevant whenever they refer to a matter into which the court has to inquire, but such statement shall not alone be sufficient evidence to charge any person with li- e ability.” In the instant case, in which the statement of account in ex- hibit 4 is supplemented by the evidence of PWS 1–3 as to the indebtedness of the Rasha Enterprises Limited, the law f has been satisfied and since the statement of account was admitted as exhibit by the said trial court, it is not the only evidence regarding the liability of Rasha Enterprises Limited before it. Consequently, in view of my consideration of Is- g sue 4, I will also resolve the said issue and its related grounds (grounds 7, 12 and 17) in favour of the appellant. Issue 5 of the appellant’s brief which is the final issue in this appeal has also in my humble view been tackled or dealt h with in this judgment. The said issue is on the raising suo motu both by the learned trial Judge, of the defences in fa- vour of the respondent as regards the non-stamping, non- registration and non-certification of the exhibit 1. I have i dealt with all those issues under or in my consideration of Issue 1. So also is the issue of non-joinder of Rasha Enter- prises Limited as a defendant in the present suit which I have already resolved when dealing with the nature and le- gal effect of a guarantee agreement under Issue 3 of the j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Adamu JCA Trade Bank Plc v. Khaled Barakat Chami 639 a appellant’s brief. I will not therefore embark on unnecessary repetition on the points I have already dealt with and re- solved as done by the learned Senior Counsel for the appel- lant in their brief. b In the final analysis and in view of my resolution of all the issues in this appeal in favour of the appellant and against the respondent, the appeal has consequently succeeded and it is hereby allowed. The judgment of the trial court, the High c Court of Justice, Kano State, sitting at Kano, delivered on 19 July, 2000 is hereby set aside and in its place, judgment is hereby entered in favour of the plaintiff/appellant against the defendant/respondent as follows:– d 1. The sum of N171,452,649.52k (One Hundred and Seventy- one Million, Four Hundred and Fifty-two Thousand, Six Hundred and Forty-nine Naira, Fifty-two Kobo), being debit balance in Messrs Rasha Enterprises Limited’s ac- count with the plaintiff as at 18 November, 1999, which e was as a result of credit facilities granted to the said Messrs Rasha Enterprises Limited by the plaintiff/appellant at it’s own request and on personal guarantee of the defen- dant/respondent. f 2. Interest at the rate of 30% per annum from 18 November, 1999, to 19 July, 2000 and thereafter, at the rate of 10% un- til the judgment debt is liquidated. I assess the costs of this appeal at N5,000 which I hereby g award in favour of the appellant and against the respondent. SALAMI JCA: I read before now the judgment just delivered by my learned brother, Dalhatu Adamu, JCA with which I am entirely in agreement. I agree with the reasoning con- h tained therein and the conclusion arrived thereat. I propose to make a few observations of mine, purely as a matter of emphasis. There is substance in the submission of the learned Coun- i sel for appellant, in the appellant’s brief, to the effect that the learned trial Judge wrongly expunged exhibit 4, the statement of account of Rasha Enterprises Limited after the same had been put in evidence with the concurrence of both Counsel. The position of the law when no objection is taken j in a civil matter to a documentary evidence produced in

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Salami JCA 640 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) evidence and not objected to is stated in Okeke v Obidife and a Others (1965) NMLR 113, 115 to the effect that in a civil proceedings, formal proof of a document may be waived. (See also Lemomu v Lawson (1977) 2 SC 89, 112.) It is not b with respect to the learned trial Judge who acted under mis- apprehension, his duty to raise objection to documents ten- dered in civil matters, it is for the learned Counsel to take objection. c The learned trial Judge dealt with exhibit 4 and concluded on it in his judgment thus:– “It is also clear the PW2 had told the court that he prepared exhibit 4, put his name and signed on it. He said that he generated exhibit d 4 himself, even though all the transactions had happened before he came to Kano branch. The computer print-out of the statement of account was prepared in the bank when this present case was pending in this Court.” e Learned trial Judge further down in his judgment said:– “Finally on this issue, the document having been prepared during the pendency of this suit by a person interested in the outcome of this suit has rendered the document, exhibit 4, as of no probative value at all. The court so holds and declare that this bit of inad- f missible evidence is not capable of shifting the burden to the de- fendant.” The learned trial Judge respectfully committed faux pas in the extract made from his judgment. The two fallacious g statements are in respect of admissibility or otherwise of ex- hibit 4 and the shifting of the burden of proof on the respon- dent who, incidentally is the defendant in this case. Firstly on the admissibility of exhibit 4, it is clear from the testi- h mony of the second plaintiff’s witness that exhibit 4 is a mere computer print-out which the witness merely made to exist or occur. There is no evidence on record that the com- puter was fed by the witness with the details or particulars of i the account at the time when the case was pending. I am en- couraged in this view by the evidence of the same witness under cross examination that:– “All my information was based on what I saw on the record. The computer print-out was fed in by another person and not myself.” j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Salami JCA Trade Bank Plc v. Khaled Barakat Chami 641 a Exhibit 4 is therefore not caught by the provisions of section 91(3) of the Evidence Act Cap 112 of the Laws of the Fed- eration of Nigeria, 1990, contrary to the finding by the trial Judge. It may be inferred safely that in the absence of any b other evidence to the contrary that what was printed out had been fed into the computer prior to the arrival of the witness at that branch. The position might have been different if the role of the witness had gone beyond merely producing ex- c hibit 4 and had included putting the information or data into the computer at the time he brought out the print. Section 38 of the Evidence Act (supra), puts admissibility of exhibit 4 above board. It provides thus:– d “38. Entries in books of account, regularly kept in the course of business, are relevant whenever they refer to a matter into which the court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with li- ability.” e This section of the Evidence Act (supra) does not require the production of “books of account” but makes entries in such books relevant for admissibility. Exhibit 4 is a mere entry in the computer or book of account. Although the law f does not talk of “computer” and “computer print-out” it is not oblivious to or ignorant of modern business world and the technological advancement of the modern jet age. As far back as 1969, the Supreme Court in the case of Esso West g Africa Inc. v T. Oyegbola (1969) 1 NMLR 194, 198 envis- aged the need to extend the horizon of the section to include or cover computer which was virtually not in existence or at a very rudimentary stage at that time when the court said:– h “The law cannot be and is not ignorant of modern business meth- ods and must not shut its eyes to the mysteries of the computer. In modern times reproduction or inscriptions on ledgers or other document by mechanical process are common place and section 37 cannot therefore only apply to ‘books’ of account . . . so bound i and the pages not easily replaced.” On this authority, the provisions of section 38 covers, in my respectful opinion, also, electronic process such as computer and the computer print-out comprised in exhibit 4 are admis- j sible and have been wrongly rejected by the learned trial

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Judge. They should not have been unilaterally expunged by a the learned trial Judge after they had been properly admitted without objection and I so rule because it was not for him to object. See section 227(2) of the Evidence Act (supra), which deals with wrongful rejection of evidence. b I am also, respectfully, of the view that the finding of the learned trial Judge after expunction of exhibit 4 from record that it was incapable of shifting the burden on the defendant is not only unfortunate and unsound but equally baseless. c There is nothing that could be further from the truth. Apart from exhibit 4, it is on record that first plaintiff witness testi- fied at page 82 of the record as follows:– “The account, Rasha Enterprises is now BAD with over d N171,000,000 in RED. This debt balance started when Rasha Ent. applied for an overdraft facility which was approved by the Branch Manager. They applied for several overdraft facilities.” Under cross-examination, the witness confirmed further that e at the time, a letter Ref. No. KN/04/98/504/RC71930 dated 30 November, 1998, tendered by the defendant that the re- spondent was owing up to N100,000,000. And second plain- tiff witness in his evidence-in-chief confirmed the indebted- ness of the respondent to the appellant as at the date of his f testimony to be N198,000,000. The third plaintiff witness also told the learned trial Judge in his evidence that Rasha Enterprises was owing the plaintiff N171,000,000 as at Oc- tober, 1999, on account no. 1043720283074. He identified g exhibit 4, the computer print-out, as the relevant statement of account. This witness went further to inform the court that neither the debtor nor its guarantor had repaid the debt to the appellant. Such oral evidence had been held capable of h grounding a claim even after the documentary evidence, statement of account, had been rejected in the case Esso West Africa Inc. v T. Oyegbola (supra). Against this, the only defence witness, Binyamin Lawal, i legal practitioner/company secretary; with office at Rasha Enterprises Ltd Kano testified thus:– “I handle all legal matters and documents in connection with Rasha Enterprises. I am not aware that my company is indebted to the Trade Bank in any sum. I do not know the defendant or Khaled j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Salami JCA Trade Bank Plc v. Khaled Barakat Chami 643 a B. Chami as a person. I have never dealt with the subject matter in this case with anybody. My company did not provide any person to serve as guarantor to us.” (Italics mine.) That is the totality of the evidence-in-chief of the only de- b fence witness. He did not fare better under cross examina- tion either. I reproduce hereunder, relevant portion of his cross-examination:– “I do not know who are the Directors of Rasha Enterprises. I only c do legal matters for them. I only report to the Managing Director. I do not know the Christian name of the Managing Director, he lives abroad. Our company operates from No. 8, Lamido Crescent. d Our company’s business is general merchandise. Rasha Enterprises has an account with Trade Bank Plc in Kano. I am not concerned with signing and issuing of cheques. I deal purely with legal documents. I do not know the defendant in this e case.” (Italics mine.) One wonders how this witness came to be known to the Counsel to the defendant who invited him to testify for the defendant whom he does not know in respect of banking fa- f cility his company did not tender or “provide anybody to act as guarantor for them in the plaintiff bank”. Be that as it may, the appellant on the evidence tendered by both parties established a prima facie case. The learned trial Judge ought g not have accepted mere denial of the respondent’s only wit- ness as gospel truth when he clearly demonstrated his com- plete ignorance of what obtains in the accounting section of Rasha Enterprises Ltd. He says he is only involved with le- h gal matters and documents. There was nothing forthcoming from the respondent’s only witness to be placed on the other side of the imaginary scale to tilt the balance to warrant judgment being given in his favour in view of the evidence i viva voce tendered by the appellant’s three witnesses on the issue of indebtedness. As if these were not enough, the respondent himself ten- dered exhibit 3, while cross examining first plaintiff witness. j The letter was demanding for repayment of at least part of

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Salami JCA 644 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) the loan Rasha Enterprises Ltd owed the appellant. It reads a in part as follows:– “(i) There is the need to remind you of your pledge to pay at least N100m in the month of November, 1998. This pledge b was made in the presence of Alhaji Tijani Hashim (Galadima of Kano) and Messrs Akkad which we have communicated to our Board of Director, hence there is the need for you to work hard to ensure that the pledge is re- spected and attained to facilitate of (sic) your request.” c Since it was produced in evidence by the respondent, it shows clearly that it was received by the addressee, the Managing Director of Rasha Limited who failed to reply. Inspite of this exhibit, learned trial Judge still had con- d science and courage to hold that the respondent’s witness denied the guarantee as well as the indebtedness. This is a business correspondence which like exhibit 2, the addressee ought to have replied. It is however settled that it is not in e every case that failure to give a reply to letters written on business matters and received by one of the parties to the proceedings would be taken as strong evidence that the party receiving the letters admitted what was asserted in its con- f tents. The courts are enjoined not to take this as absolute rule, rather, they should consider each case on its own merit and examine the circumstance the letter was written and de- cide whether it is a case where an inference of admission could safely be drawn (see Emaphil Ltd v Odili (1987) 4 g NWLR (Part 67) 915; Wiedemann v Walpole (1891) 2 Q.B. 534 and Gaskill v Skene (1850) 14 Q.B. 664). The respon- dent did not answer the letter and its failure or neglect to an- swer such a letter in the circumstance is tantamount to an h admission of the assertion in it. There is no evidence before the learned trial Judge that the debt referred to in exhibits 2 and 3 had been discharged. Exhibit 2 dated 20 July, 1999, is another letter of demand written by the appellant’s solicitors. i It was also ignored like its fore runner of 30 November, 1998. Exhibits 2 and 3 are not social, but business letters: while correspondence may be ignored, business letters de- serves to be answered. The failure or neglect of the appellant to reply or answer those letters amounts to admission, j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Salami JCA Trade Bank Plc v. Khaled Barakat Chami 645 a because what is asserted in those letters and is not denied is deemed admitted. There is no extenuating circumstance to persuade me to the contrary. b Exhibits 2, 3 and the oral evidence of the appellants with or without exhibit 4, which was wrongly expunged by the learned trial Judge constitute unchallenged, uncontroverted evidence in support of the claim. The evidence was one way and the learned trial Judge ought to have acted upon them c Lawani v Omoregbe (1981) 3–4 SC 108, 177; Odebunmi v Abdullahi (1997) 2 NWLR (Part 498) 526, 535 and Imana v Robinson (1979) All NLR reprint 1, 8–9; (1979) 3 4 SC 1, 9–10 where Supreme Court said d “It is clear to us that once pleadings have been settled, and issues joined, the duty of the court is to proceed to the trial the issue and if one party fails or refuses to submit the issue he has raised in his pleadings for trial by giving or calling evidence in support, the trial Judge must, unless there are other legal reasons dictating to e the contrary, resolve the case against the defendant.” (See also Temile v Awani (2001) FWLR (Part 62) 1937, 1953, (2001) 12 NWLR (Part 728) 726.) f The circumstances that may stay the hand of the Judge from resolving the case against the defendant include where the plaintiff failed to call evidence on material elements of his case, or where the evidence by the plaintiff is so patently or palpably discredited and unreliable that no reasonable tri- g bunal could be expected to act on it (see Aduke v Aiyelabola (1942) 8 W.A.C.A. 43, 45 and Oduola v Coker (1981) 5 SC 197, 230; Ofomajo v Commissioner for Education and oth- ers (1995) 8 NWLR (Part 411) 69. A defendant may equally h be entitled to judgment, without tendering evidence if through the cross-examination of the plaintiff’s witnesses and production of documentary evidence through them de- stroys plaintiff’s case and establishes a prima facie defence. i Lawal v Union Bank of Nigeria (1995) 2 NWLR (Part 378) 407. The respondent herein has not aspired not to talk of achieving any of the conditions of avoiding or thwarting judgment being entered against him. In a civil case, the only manner of arriving at a just determination is, as observed j earlier, by determining, on the proverbial scale, on which

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Salami JCA 646 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) side the weight of evidence tilts. If a defendant elects to call a or proffer no evidence, or fails or neglects to call relevant evidence, the case would be decided on the minimal evi- dence of his opponent or the other party. (See Nwabuoku v b Ottih (1961) All NLR 487 and Attorney-General of Oyo State v Fairlakes Hotels, Limited (No. 2) (1989) 5 NWLR (Part 121) 255.) I agree with the learned Counsel for appellant’s submis- c sion, in the appellant’s brief having regard to the issue joined on the pleadings on the issue of guarantee, exhibit 1, that the only evidence that could dislodge the appellant’s evidence on the execution of the suretyship was that of the d surety himself or some other person who is familiar with his writing or signature. It can certainly not be displaced by the evidence of a person such as the only defence witness who, though, claims to be the company secretary and legal ad- viser, knew next to nothing about the affairs or operation of e the company. In this connection, first plaintiff witness testified as fol- lows:– f “I know that B. Chami is a Director in Rasha Enterprises Ltd. I know that he signed our Guarantee form for credit facility ex- tended to Rasha Enterprises Ltd Rasha Enterprises is our customer operating account . . . The account of Rasha Enterprises is now bad with N171,000,000,00 in RED . . . The Branch Manager was g Mr Akinlaso, who approved the secured debt with 5 bills of sale and personal Guarantee of B. Chami. If I see the guarantee form I can recognise it by the heading of our bank, the names of the par- ties, the signature of B. Chami whom I know his signature.” h I.A. Yusuf look at this Form and tell the court whether it is the Guarantee Form. P.W. Yes this is the Guarantee Form signed by B. Chami. Thereafter it was admitted and marked as exhibit 1. The i second plaintiff’s witness in his own testimony testified thus:– “The defendant guarantee Rasha Enterprises who is a customer of the Trade Bank Plc. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Salami JCA Trade Bank Plc v. Khaled Barakat Chami 647 a Rasha Enterprises were indebted to the Bank and Khaled B. Chami stood as guarantor against the indebtedness by executing a per- sonal Guarantee Form. If I see the document I can recognise it by the names of the Bank, b the defendant and his witness together with the signatures.” (Ital- ics mine.) These two witnesses prima facie, have shown that the de- fendant stood surety for one company, Rasha Enterprises c Ltd and to avoid a finding being made on at least this point against the defendant, he has to adduce credible evidence contending to the contrary. In a civil matter, like the instant one, the burden of proof is on preponderance of evidence, is d never static, shifts, and is always on the party who will fail if no evidence had been adduced on either side. (See Mogaji v Odofin (1978) 4 SC 91.) Further, in respect of particular facts, the burden rests on the party against whom judgment would be given if no evidence at all were produced in re- e spect of those facts. (See Tewogbade and Co v Arasi Akande and Co (1968) NMLR 404; Abiodun and others v Adehin (1962) 1 All NLR 550 and Are v Adisa (1967) NMLR 304 and section 136 of the Evidence Act Cap 112 Laws of the f Federation of Nigeria, 1990.) To avoid judgment being given against the respondent who had totally denied entering into a guarantee agreement with the appellant, he has to come forward on credible evidence show- g ing that the signature on exhibit 1 imputed to him was not his own. He could properly and effectively equally discharge this burden by either giving evidence personally denying the signa- ture ascribed to him or calling as a witness such persons who h are familiar with his signature to adduce evidence showing that the signature was not his. This too, can equally be accom- plished, if Alhaji Isah Bello, in whose presence the guarantee was allegedly signed, testifies denying his watching the defen- i dant signing the agreement and that his own signature as wit- ness was a forgery. He also described himself as the Company Secretary of Rasha Enterprises Limited on exhibit 1. Rather respondent relied on his only defence witness who told per- emptorily, the court, that he did not know him. He therefore j could not be familiar with respondent’s signature.

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Consequently, there is no evidence on record tending to show a that the signature on exhibit 1 is not that of respondent. The evidence of the two plaintiff witnesses is unchallenged and uncontroverted and ought to have been accepted and b acted upon on the issue or point of existence or otherwise of guarantee agreement. When guarantee agreement signed by the respondent was produced by the appellant, the respon- dent who had denied the existence of such document, was c caught napping or with his pants down. The witnesses never intended to say they knew the defendant’s signature and such construction should be avoided or not be placed on their evidence the way respondent’s learned Counsel is at- d tempting to do in the respondents brief. The two witnesses, particularly, third plaintiff’s witness said they could identify the document being relied upon if they saw the names of the parties, witness to the signature and signatures which they e then knew as a result of seeing them on the document in their office. The learned trial Judge, therefore, respectfully goofed when he reasoned thus:– f “It is very clear that DW1 is a legal secretary/adviser of Rasha En- terprises, not for the defendant. He denied all the allegations re- garding guarantee or indebtedness.” I am shocked by the learned trial Judge’s acceptance of mere g denial of first defence witness of existence of a guarantee in the face of exhibit 1 and the evidence of first and third plain- tiff’s witnesses that respondent entered into a guarantee agreement. This witness admitted that he did not know the defendant. He did not pretend to be conversant with his writ- h ing nor signature. In the circumstance, this case has striking similarities with the case of Odebunmi v Abdullahi (1997) 2 NWLR (Part 489) 526, cited in the appellant’s brief. At page 535. Supreme Court per Belgore, JSC said:– i “The best person to deny all the findings of facts by the trial court in the clear circumstances of this was the defendant, but he chose not to give evidence. He was patently entitled to adopt this line of defence and the court was equally obliged to make its legal con- clusions on the failure of the defendant to testify in person. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Salami JCA Trade Bank Plc v. Khaled Barakat Chami 649 a Unfortunately, his sole witness DW1, never saw the accident oc- cur. He only testified that he never knew Mohammed Ibrahim Al- basa as one of the drivers employed by the defendants, and he never claimed to know all his drivers either.” b In the circumstance the evidence of the appellant that Rasha Enterprises Ltd was indebted to the appellant and the re- spondent guaranteed the loan by exhibit 1 remains unshaken and unchallenged. The learned trial Judge in the absence of c any other evidence to the contrary, ought to have accepted the fact of a guarantee given by respondent. There is also merit in the submissions of the learned Coun- sel for the appellant that the respondent, on the issue joined, d did not rely on nor raise any of the grounds set out immedi- ately hereunder on which learned trial Judge strenuously canvassed heavily, respondent’s case in and relied upon in his judgment:– e “It is very clear that this guarantor’s form was not completed in the presence or with the knowledge of legal practitioner. There is not even one kobo stamp on the guarantor’s form. There is no seal or registration stamp on the guarantor’s form. There is no witness before the court or may be anyone in the plaintiff who knows or f saw when the guarantor’s form, exhibit 1, was purportedly signed/ executed. The date was also not clear. The court must hold that the guaran- tor’s form is nothing but a creature concoted by Alhaji Saidu Ak- g inlasho to cover for his misdoings, misuse and mistakes in report of the alleged account of the purported Rasha Enterprises. The real Rasha Enterprises have appeared to deny any connection with ei- ther the debt or the guarantor. The court must hold that no weight could be attached to the guar- h antor’s form because the plaintiff have not discharged the burden of showing that the defendant was the one who wrote his name and signature and signed the form. The court must hold that even though the guarantor’s form was i admitted, it must be entirely disregarded because Mr Akinlasho who originated this document or any other staff of the plaintiff bank could not come to be cross-examined as to the circumstance leading to the alleged signing of the purported agreement.” The respondent’s case on the pleading which was eventually j abandoned at the trial by his failure to call appropriate

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Salami JCA 650 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) witness in support was a total denial of his entering into a a contract of guarantee in the nature of exhibit 1. It is settled by a long line of cases, that courts of trial are advised to limit themselves severely to the issues raised by the parties b in their pleadings. To act otherwise, might well result in de- nial of justice to one or the other of the two contending par- ties. See NIPC v Thompson Organisation and others (1969) 1 All NLR 138, (1969) 1 NMLR 99; George and others v c Dominion Flour Mills Ltd (1963) 1 All NLR 71; Metalimpex v A.G. Leventis and Co Ltd (1976) 2 SC 91 and Odiase v Agho and others (1972) 3 SC 71, 77 where the Supreme Court said:– d “Indeed we would agree in principle with the general proposition enunciated by Lord Wrenbury in Wilson v United Colonies Bank Ltd (1920) A.C. 102 at 143 where he said:– ‘It is certainly a salutary principle that a court of justice e should confine itself to adjudicating upon the questions raised by the party’s litigant to the exclusion of others which they do not advance’.” (Italics mine.)

It was therefore, not competent for the court to frame a case f of its own from the evidence before it and thereafter proceed to give a decision based on its own formulations as against the case of the parties presented to him for adjudication. Learned trial Judge having permitted himself to decide oth- g erwise than pleaded is tantamounts to making a case con- trary to pleadings (see Cardoso v Executor of Doherty 4 W.A.C.A. 28, 50 and Dr Nwafor Orizu v Anyaegbunam (1978) 5 SC 21, 86). h The learned trial Judge, I agree, did many uncomplimentary things, ranging from scrounging for defence through fabrica- tion of evidence, to misrepresentation of averments in plead- ings, to arrive at a predetermined goal which was respect- i fully directed at exonerating the defendant willy nilly. I have already demonstrated his attempts to foist defence for the respondent, the defendant before him. I now go to instances of adapting evidence on behalf of the defendant in his j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, KADUNA DIVISION) Salami JCA Trade Bank Plc v. Khaled Barakat Chami 651 a judgment. At page 95, learned trial Judge alleged in his judgment that third plaintiff’s witness testified thus:– “In fact Rasha Enterprises were already indebted to the bank be- fore Khaled B. Chami stood as a Guarantor against the indebted- b ness by executing a personal Guarantee form.” When the witness did not adduce such evidence. At page 103 of the record, the learned trial Judge again stated as fol- lows:– c “But PW1 admitted that the official approval for the purported loan was only given on 30 November, 1998 and that by that time, the alleged Rasha Enterprises were indebted to the plaintiff bank about N100,000,000 (one hundred million Naira).” d I went through the evidence of two plaintiff’s witnesses-in- chief, under cross-examination as well as their re- examination and could not place my fingers on the evidence nor on material to the effect ascribed to them in the judg- e ment. Assuming that the questions from the judgment of the learned trial Judge correctly represented the evidence ad- duced by the two witnesses to whom they were ascribed, there is no evidence that the sums of money alleged contra- f vened the terms of the agreement. The surety, that is, the re- spondent, agreed to guarantee all the sums to be over drawn by Rasha Enterprises; to exclude what was over drawn be- fore approval on 30 November, 1998, on the showing of the g learned trial Judge himself, if has to be shown that such overdraft was outside “the sum to be borrowed from 1996 and above”. There is no evidence that any part of the sum claimed by the defendant is outside the prescribed period h “1996 and above”. In any case, clearly, it is not the averment of the plaintiff, appellant’s herein, in paragraph 7 of their statement of claim that:– “It is also clear that at paragraph 7 of the statement of claim, the alleged guarantee form was specifically for all the sum To Be Bor- i rowed from 1996 and above.” as implied in the judgment of the court below. With the greatest respect to the learned trial Judge, there is no such averment in paragraph 7 nor any other paragraphs of the j statement of claim. It is a figment of his own imagination.

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Since issue discussed in appellant’s Issue 4 touches upon a matters which were raised or canvassed by the learned trial Judge unilaterally and suo motu while writing his judgment, I do not think that their legal consequence belong to the case before him nor this appeal. All I am prepared to say, at this b stage, is that they were raised without jurisdiction by him and are, therefore, not for this Court to discuss them in this appeal for various reasons I have highlighted in this judg- ment. c All I want to add is that the learned trial Judge, S.B. Adamu, J, abandoned his sacred role of tendering the rope; descended into the arena, on the side of the defendant, and against the plaintiff, and his view was heavily beclouded by d the dust rising from the arena he has descended into. In fact he was blinded. He failed to display impartiality demanded of him, rather he displayed abundance of judicial rascality and indiscretion. e With this reason and the fuller reasons contained in the lead judgment of my learned brother, Adamu, JCA, I also allow the appeal and set aside the judgment of the learned trial Judge, S.B. Adamu, J, I, too make all the consequential f orders including the order as to costs endorsed in the lead judgment of my learned brother, Adamu, JCA. UMOREN JCA: I have read in advance the judgment of my learned brother, Dalhatu Adamu, JCA, just read. g I agree with his reasoning and conclusion that the appeal be allowed and I also hereby allow it. I assess costs at N5,000 in favour of the appellant. Appeal allowed. h

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Mallam Yaro Adaji Ndaforo v. Nigerian Agric and Co-op Bank Ltd 653 a Mallam Yaro Adaji Ndaforo v Nigerian Agricultural and Co-operative Bank Limited, b Kaduna and others COURT OF APPEAL, JOS DIVISION MUKHTAR, NZEAKO, OGBUAGU JJCA Date of Judgment: 17 APRIL, 2003 Suit No.: CA/J/126/2000 c Banking – Interest – Right of bank to charge Evidence – Documentary evidence – Attitude of Court Mortgage – Power of sale – When exercisable d Mortgage – Sale of property – Principle applicable Facts The appellant, a large scale farmer and businessman who e owned and farmed plantations of cocoa, cashew, kola nuts, oranges, mangos, banana, pineapple and palm trees offered his farm as security for a crop maintenance loan of N135,700 obtained from the first respondent. The loan was f to be disbursed in cash or kind instalmentally as set out in a loan agreement. The appellant and the respondent executed a loan agreement dated 11 June, 1987, as well as, a Deed of Mortgage of the same date. The interest rate was 11% and g subject to change at the discretion of the bank and without notice to the appellant. As at 16 July, 1996 the sum of N409,069.93 was outstanding. When the appellant defaulted in repayment of the loan plus h the accrued interest, the first respondent gave notice to exer- cise its Statutory Power of sale under the Deed of Mortgage and appointed the fifth respondent its auctioneer to sell the plantation by auction. The auction took place and the planta- tions at Ndaforo was sold to the sixth respondent who was i said to be the highest bidder at the price of N600,000. The appellant as plaintiff instituted an action at the High Court, Jalingo, claiming, inter alia, a declara- tion that he is still the owner of the plantation and that the j respondent or his agents had no title on the mortgage

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654 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) security to transfer to the sixth respondent, and that the pur- a ported sale by auction of his farm to the sixth respondent at N600,000 without any advertisement on the national dailies to the public was illegal. b He also claimed aggravated damages of N2,000,000 against the first respondent for defamation, N2,000,000 as general damages against sixth respondent for trespasses, and N2,000,000 as exemplary and general damages against the c first–sixth respondents for trespass. He sought an injunction restraining the first–sixth respondents for further acts of trespass pending the determination of the suit. The trial Judge dismissed the action on the ground that it d lacked merit. On appeal to the Court of Appeal, the appellant had argued that upon proper construction of both the loan agreement and the deed of mortgage, the respondent by disbursing only part e of the loan approved and charging interest on the approved loan had committed a fundamental breach of the terms of the security documents, and thereby rendered illegal the pur- ported sale by auction of the appellant’s plantation. f The respondents had on their part contended that from the facts contained in the documents tendered and admitted by the trial court the appellants had enjoyed in full all the loan granted and that the appellant was still indebted to the first g respondent, because the sum of N409,089.93 was still out- standing. Held – h 1. The power of sale vested in a mortgage can be exercised once the mortgage money is due and remains unpaid. (See Ogudu v AMB Nigeria Ltd (1990) 6 NWLR (Part 156) 330 at 343.) In other words, where the redemption i date has passed the mortgagee is entitled to exercise his power of sale and where the mortgage money is payable in instalments, the power of sale can be exercised as soon as any instalment is due. (See Ayanlere v FMB Ni- geria Ltd (1998) 11 NWLR (Part 575) 621 and 628.) j

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Mallam Yaro Adaji Ndaforo v. Nigerian Agric and Co-op Bank Ltd 655 a 2. Once the power of sale has arisen and the mortgagee sells the mortgaged property, he sells a good title, which the law regards as unimpeachable. Section 2 1(2) of the Conveyancing Act, 1881 a Statue of General Application b (forming part of Nigeria’s received English Law appli- cable here). Clearly this is what the parties in this matter have imported into their contract exhibit D16 and the courts have decide not to interfere with the sale even c though the sale be so disadvantageous to the mortgagor. 3. A mortgager had no right to question the mortgagee bank with respect to the manner and condition of sale of the mortgaged property, once any instalment of the loan, d interest or any other money payable by him as mortga- gor is in arrear and unpaid. 4. A mortgagee is only required to by law to obtain “a proper price” and not “the best price” for the property e sold. That once it is shown that he had acted bona fide, his exercise of power of sale cannot be impugned on any ground of sale at an under value. 5. Where the transaction between parties are embodied in f written documents, those documents are obviously rele- vant in determining the issues thereto, not just the oral evidence of what parties think of the transaction. g 6. In the absence of fraud or misrepresentation the party, who signs on agreement, is bound by it, and to such a case, the duty of the court, is merely to construe the provision of the agreement so as to discover the parties’ intention. If there is any disagreement between the parties to a written docu- h ment as to what is the terms of the contract/agreement on any particular point, the authoritative legal source of inter- pretation for the purpose of resolving the disagreement is the written agreement executed by the parties. i 7. Where the loan is with interest, the mortgagee could sell, if the sum to be advanced, was by instalments and the mortgagor is/was in arrears on interest due on the princi- pal money already advanced. This is so even though the j full sum under the indenture has not yet been advanced.

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(See S.O.N. Okafor and Sons Ltd v Nigeria Housing De- a velopment Society Ltd and another (1972) 4 SC 175.) 8. Bankers and Commercial banks for that matter are bound to charge interest rates fixed from time to time, by b the Central Bank of Nigeria. They have no discretion in this regard. As was held in the case of Crosswill v Bower v Turner (1863) L.J. Ch. 540; (1863) 3.W.Ch. 540, 640, by universal custom of bankers, a banker has the right to c charge simple interest at a reasonable rate on all over- drafts. (See also Barclays Bank of Nigeria Ltd v Alhaji Abubakar (1977) 10 SC 13.) 9. Per curiam d “A person who goes to a house where a kind of business is carried on and proceeds to engage without reservations in the business there carried on, must be deemed to have agreed to submit to, and be bound by the usage and practice usually appertaining to the business and the obligations e usually attached to the particular transaction in that busi- ness. (See Bank of West Africa Ltd v Sapele Nwakuba (1967-68) MSNLR 116.) In the case of Union Bank Nigeria Ltd v Prof. Ozigi (1994) f 3 NWLR (Part 333) 385 it was held that if the prevailing in- terest rate (prime rates) fixed by the Central Bank of Nige- ria vary from time to time then, interest rates stipulated or fixed by the bankers that are under obligation as banks to comply with the Central Bank of Nigeria guidelines has to g vary their interest also from time to time in response to the Central Bank of Nigeria guideline.” Appeal dismissed. h Cases referred to in the judgment

Nigerian Abaye v Ofili (1986) 1 NWLR (Part 15) 134 i Abisi v Ekwealor (1993) 6 NWLR (Part 302) 643 Adonri v Ojo-Osagie (1994) 6 SCNJ (Part 11) 192 Agbonifo v Aiwereoba (1988) 1 NWLR (Part 70) 325 j

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Mallam Yaro Adaji Ndaforo v. Nigerian Agric and Co-op Bank Ltd 657 a Agih v Ejimkonye and Bros. Ltd (1992) 3 NWLR (Part 228) 200 Agwunedu v Onwumanse (1994) 1 NWLR (Part 321) 375 b Akinloye v Eyiyola (1968) NMLR 92 Akinola v Olowo (1962) 1 All NLR 224 Alfotrin Ltd (The owners of MV Fotiri) v The Attorney- General of the Federation (1996) 12 SCNJ 236 c Amadi v Nwosu (1992) 5 NWLR (Part 241) 273 Amokomowo v Andu (1985) 1 NWLR (Part 3) 530; (1985) 5 SC 28 d Aromire v Awoyemi (1972) 1 All NLR 101 Atolagbe v Shorun (1985) 1 NWLR (Part 2) 360 Ayanlere v F.M.B. Nigeria Ltd (1998) 11 NWLR (Part 575) 621 and 628 e Bank of West Africa Ltd v Nwakuba (1967–68) MSNLR 116 Barclays Bank Ltd v Abubakar (1977) All NLR 278; (1977) 10 SC 13 f Bucknor Maclean v Inlak Ltd (1980) 7–11 SC 1 Da Rocha v Hussain (1958) 3 FSC 89; (1958) SCNLR 280 Doma v Ogiri (1998) 3 NWLR (Part 541) 246 g Dukur v Dapal (1998) 10 NWLR (Part 571) 573 Ebba v Ogodo (1984) 1 SCNLR 372 Egbase v Oriaregham (1985) 10 SC 80; (1985) 2 NWLR (Part 10) 884; (1986) N.L.T.R. 156 h Egeonu v Egeonu (1978) 11–12 SC 111 Enang v Adu (1981) 11–12 SC 25 Eka Eteh v Nigeria Housing Development Society Ltd i (1973) 6 SC 183 Ekwunife v Wayne (1989) 12 SCNJ 99; (1989) 5 NWLR (Part 122) 422 Famuroti v Agbeke (1991) 5 NWLR (Part 189) 1 j Folami v Cole (1990) 2 NWLR (Part 133) 455

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Ibanga v Usanga (1982) 5 SC 103 a Ihekwoaba v ACB Ltd (1998) 10 NWLR (Part 571) 590 Ike v Ugbaja (1993) 6 NWLR (Part 301) 539 Incar Nigeria Ltd v Adegboye (1985) 2 NWLR (Part 8) 453 b Invienagbor v Bazuaye (1999) 6 SCNJ 235 Ishola v Sociète General Bank Ltd (1997) 2 NWLR (Part 488) 405 c Kodilinye v Odu 2 W.A.C.A. 336 Koiki v Magnusson (1999) 5 SCNJ 296 Misr (Nigeria) Ltd v Ibrahim (1975) 5 SC 55 d Mogaji v Odofin and another (1978) 4 SC 91 Musa v Yerima (1997) NWLR (Part 511) 27 Narumal and Sons Nigeria Ltd v Niger Benue Transport Co Ltd (1989) 2 NWLR (Part 106) 730 e NBTC Ltd v Narumal Ltd (1986) 4 NWLR (Part 33) 117 NIDB v De Easy Life Electronic (1999) 4 NWLR (Part 597) 8 f Nigerian Housing Development v Mumuni (1977) 2 SC 57 Nnorodim v Ezeani (2001) 5 NWLR (Part 706) 203 Ogudu v FMB Nigeria Ltd (1990) 6 NWLR (Part 156) 330 Ogunbiyi v Ogundipe (1992) 9 NWLR (Part 263) 24 g Ogundipe v Attorney-General Kwara (1993) 8 NWLR (Part 313) Ogundulu v Phillips (1973) 2 SC 71 h Ogunlade v Adeleye (1992) 10 SCNJ 58 Ojibah v Ojibah (1991) 6 SCNJ 156 Ojo v Babalola (1991) 4 NWLR (Part 185) 267 i Okafor v Idigo III (1984) 1 SCNLR 481 Okechukwu v Onuorah (2000) 12 SCNJ 146 Okonofia v State (1981) 6–7 SC 1 Olaloye v Balogun (1990) 5 NWLR (Part 148) 241 j

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Mallam Yaro Adaji Ndaforo v. Nigerian Agric and Co-op Bank Ltd 659 a Olanloye v Fatumbi (1999) 8 NWLR (Part 614) 203 Omo Bare v New Nigeria Bank Ltd (1986) 1 SC 73 Omorhirhir v Enatevwere (1988) 1 NWLR (Part 73) 746 b Onajobi v Olanipekun (1985) 4 SC (Part 2) 156 Pinnock v G.B. Ollivant and Co Ltd 2 W.A.C.A. 158 Raji v Williams and others XVI NLR 14 c S.C.O.A. (Nigeria) Ltd v Bourdex Ltd (1990) 3 NWLR (Part 138) 380 S.O.N. Okafor and Sons Ltd v Nigeria Housing Development Society Ltd (1972) 4 SC 175 d Shell BP v Pere Cole (1978) 3 SC 183 Shell v Otoko (1990) 6 NWLR (Part 159) 208 Slac Transport Ltd v Oluwasegun (1973) 9–10 SC 7 e Tsokwa Motors Nigeria Ltd v UBN Ltd (1996) 9 NWLR 129 Udeorah v Wakonobi (2003) 4 NWLR (Part 811) 643 Ugwu v Barclays Bank (Nigeria) Ltd (1979) 1 MSLR 441 Union Bank of Nigeria Ltd v Sax (Nigeria) Ltd (1994) 9 f SCNJ 1 Union Bank of Nigeria Ltd v Ozigi (1994) 3 NWLR (Part 333) 385 g United Africa Co Ltd v Taylor (1936) 2 WACA 170 Useh v B.M.A. Ltd (1965) 1 ANLR 244 Usenfowokan v Idowu Bros. (1969) NSCC 108 Viatonu v Odutayo 19 NLR 119 h West African Breweries Ltd v Say Ltd (2002) 5 SCNJ 269 Woluchem v Gudi (1981) 5 SC 291 i Foreign Belton v Bass and others (1922) 2 Ch. 449 Blay v Pollard (1930) 1 KB 628 Crosswill v Bower v Turner (1863) L.J. Ch. 540; (1863) 3 j W. Ch 540

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Davy Bros. v Carpet (1887) 7 Ch.D. 489 a Jenkins v Jones (1860) 2 giff 99 Kennedy v De Trafford (1897) AC 180 b London Chatham and Dover Railway v South Eastern Rail- way (1893) AC 249 Re: Duncan and Co (1905) 1 Ch. 307 Sounders v Ancila Building Society (1971) AC 1004 (Callie c v Lee) Waring (Lord) v London and Manchester Assurance Co Ltd (1935) Ch.D. 310 Warner v Jacob (1882) 20 Ch.D. 220 d

Statutes referred to in the judgment

Nigerian e Banking Act Cap 28 Laws of the Federation of Nigeria, 1990, section 15 Evidence Act Cap 112 Laws of the Federation of Nigeria, 1990, section 138(1) f

Foreign Conveyancing Act, 1881, sections 19, 21(2) g Book referred to in the judgment Stroud’s Judicial Dictionary of Words and Phrases Volume 2, (4ed) page 1095 h Counsel For the appellant: E.A. Nyaro Esq.

Judgment i NZEAKO JCA: (Delivering the lead judgment) The appellant in this appeal was the plaintiff in Suit No. TRS/3m/98 insti- tuted in the High Court of Justice sitting at Jalingo Taraba State of Nigeria by writ of summons dated 28 January, 1997. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Nzeako JCA Mallam Yaro Adaji Ndaforo v. Nigerian Agric and Co-op Bank Ltd 661 a As shown in paragraph 33 of his amended statement of claim, he had claimed the following reliefs against the de- fendants jointly and severally:– b (a) A declaration that the plaintiff is still the owner of the co- coa, kolanut, orange and palm tree plantations comprising of 340 hectares covered by Kurai Local Government Cer- tificate of Occupancy No.1 situate at Ndaforo and that the first defendant or his agents had no title on the Mortgaged c Security whatsoever to transfer to the sixth defendant by way of auction or sale in view of the deal which was illegal, malevolent, null and void. (b) A declaration that the first–sixth defendants are trespassers and liable to pay damages to the plaintiff on the illegal and d fraudulent credit sale to the sixth defendant of plaintiff’s plantations situate at Ndaforo. (c) Aggravated damages of N2,000,000 against the first–fifth defendants for defamation (libel). e (d) N2,000,000 general damages against the sixth defendant for trespass and illegal cutting down of plaintiff’s economic trees, harvesting and selling of cocoa, orange, kolanut and palm fruits of the plaintiff between July, 1996 up to date. f (e) A declaration that the purported credit auction by first de- fendant and his agents to sixth defendant at N600,000 with- out any advertisement on the National dailies to the public was not an auction known to law and was therefore illegal, malafide, null and void and of no legal effect whatsoever. g (f) N2,000,000 exemplary and or general damages against the first–sixth defendants for trespass on the plaintiff’s planta- tions at Ndaforo sometimes in July, 1996 for the attempted illegal auction to sixth defendant. h (g) Injunction against the first–sixth defendants, heir agents and privies from further act of trespass on the plaintiff’s planta- tions situate at Ndaforo (the mortgage securities). (h) A determination of the plaintiff’s indebtedness to the first i defendant by the Honourable court if any on the loan of N135,700 approved which only N99,838.90 was released to plaintiff and which plaintiff had repaid N84,720 even when the loan had not matured for repayment as at 1991 when the plaintiff commence repayment up to 30 March, 1996 as a j balance of the loan to the loan to the tune of N435,361.10 is

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yet to be released to the plaintiff by first defendant up to a date. Grand total of the claim = N6,030,000 In a ruling delivered on 30 January, 1997, the learned trial b Judge had granted an interlocutory injunction restraining all the six defendants/respondents from parading themselves as purchasers/owners of the applicant’s plantation and com- pound situate at Ndaforo and Baissa, pending the determina- tion of the substantive suit. c Later, the plaintiff/appellant by leave of the court below filed an amended statement of claim. The defen- dants/respondents filed a joint statement of defence. In this parties had joined issues when the suit proceeded to trial. d The plaintiff testified for himself and called one witness. The defendants called one witness. Both parties also relied on documentary evidence – exhibits A1–A14 tendered by the plaintiff and D15–D25 tendered by the defendants. e On 15 February, 2000 the learned trial Judge delivered his judgment dismissing the claim of the plaintiff that it lacked merit. f The plaintiff, now the appellant has appealed to this Court on four grounds. As required by the Rules of this Court, his Counsel E. Nyaro, Esq. filed his brief of argument on 21 July, 2000 which was duly served on the respondents on 24 July, 2000. The respondents failed to file any brief of argu- g ment, whereupon the appellant moved this Court, by a Mo- tion on Notice filed on 18 January, 2001 for an order to set the appeal down for the “ex parte”, based on his brief of ar- gument alone. h The application was granted on 8 July, 2002, the appeal was then set down for hearing. It was heard ex parte, based on appellant’s brief of argument alone, which learned Coun- sel for the appellant adopted at the hearing. i Out of the 4 grounds of appeal the appellant has distilled two issues for determination as follows:– (a) Whether upon a proper construction of exhibits D15 and D16 i.e. the separate loan and mortgage j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Nzeako JCA Mallam Yaro Adaji Ndaforo v. Nigerian Agric and Co-op Bank Ltd 663 a agreements dated 11 June, 1987 and the evidence adduced in prove (sic) of that pleadings by the appel- lant vide PW1 and PW2 as corroborated by DW1 (the only witness of the respondents) under cross ex- b amination, the learned trial Judge was right to have dismissed the appellant’s case against the respondent for lack of merit. (b) Whether or not the respondents (particularly the c first–fourth respondents) pleaded and proved interest against the appellant in respect of the approved but partially disbursed loan of N135,700 in accordance with exhibit D15 to have warranted the auction of d the Mortgage Security exhibit D17 to the 6th re- spondent vide a secret deal as per the powers in ex- hibit D16. As I proceed to consider this appeal, I intend to group to- e gether and refer to the first, second, third and fourth respon- dents Bank, unless there be reason to single each out. Three of them first, second and fourth are branches of the same Bank, Nigerian Agricultural and Co-operative Bank Ltd f with its Head office in Kaduna. The third respondent is an employee or agent of the bank, so the appellant stated in his statement of claim, not acting in any personal capacity. In their joint statement of defence, the respondents have g averred in paragraph 1 thus:– Para 1:– “The first, second and fourth defendants hereby state that there are no multiple NACB rather only one with several branches all over the Federation, it is therefore in capable of being separated for whatever purpose in- h cluding litigation.” They have defended the suit as an entity. Only the fifth and sixth respondents stand in their own respective capacities be the auctioneer of the Bank and the purchaser of the mort- i gaged property. It is also convenient before considering the issues for determination to set out as briefly as possible what led to these proceedings. The appellant, ostensibly a large scale farmer and busi- j nessman owned and farmed plantations of cocoa, cashew,

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Nzeako JCA 664 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) kolanuts, oranges, mangoes, banana, pineapple and palm a trees. He had been engaged in this business since about 1968. According to him, sometime in 1986, the Kaduna Branch of the Nigerian Agricultural and Co-operative Bank Ltd, the first respondent invited him and offered him a loan b because of the success of his farming endeavour, which it heard of. He duly completed necessary application forms and the sum of N135,700 was approved by a memorandum dated 7 October, 1986.The loan was to be disbursed in cash c or kind installmentally as set out in a loan Agreement. The appellant and the respondent Bank executed a loan agreement, dated 11 June, 1987 and a deed of mortgage of the same date. The appellant offered his farm as security for d the loan. The loan is said to be a tree crop maintenance loan. The agreement, exhibit D15 tendered by the respondents at the trial set out the terms of disbursement of the loan, within a loan period of 6 years, presumably from July, 1987. The e rate of interest agreed on was initially 11% per annum, “payable from the date of each disbursement”. The interest rate of 11% was subject to change at the dis- cretion of the bank and without notice to the appellant. f The first disbursement took place on 10 July, 1987, fol- lowed by four others on 16 November, 1987, 7 September, 1988, 10 October, 1988 and 25 September, 1989. This brought the total cash disbursement to N99,838.90 as g claimed by the appellant. By virtue of exhibit D15, the loan agreement, however disbursement could be in cash or kind. Liability for bearing legal fees also fell on the appellant. The N legal fees came to 3,536.50 bringing the sum disbursed to h N103,375.40 as testified to by the respondent Bank. Repayment of the loan made by the appellant commencing from 25 November, 1991 when the first repayment was N made, totalled 84,720. This was so, notwithstanding the i terms of the mortgage, exhibit D16 stating that the loan and interest were to be paid off by 28 July, 1993. Exhibit A6, loan repayment receipts issued to the respondent Bank to the appellant bear the payments out. The appellant complained however that that sum was not reflected in his statement of j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Nzeako JCA Mallam Yaro Adaji Ndaforo v. Nigerian Agric and Co-op Bank Ltd 665 a account, that only N5,000 was and interest was fraudulently charged on the whole loan of N135,700 from October, 1986, not on each of the disbursements, from the date of disburse- b ment, as provided in the agreement, exhibit 015. This, ac- cording to him, failed to take into account that only N99,838.90 was disbursed, remaining N35,861.10 undis- bursed, that the disbursement was to be spread over a period c of 6 years and that the last disbursement made on 25 Sep- tember, 1989 took place 2 years after disbursement com- menced in July, 1987. The appellant’s grouse was that the foregoing complaints to d the attention of the respondent Bank not notwithstanding the respondent purporting to exercise its power of sale under the deed of mortgage, exhibit D16, appointed the fifth respondent its auctioneer to sell by auction, his plantations at Ndaforo. e On 16 July, 1996, the auction sale took place. The appellant’s 340 hectares plantation, which according to him was valued at N3 million was sold to the 6th respondent. It was the sixth respondent who was said to be the highest f bidder at the auction sale at the price of N600,000. He only paid N70,000 down and later another N180,000 bringing to- tal payment to N250,000 out of the N600,000. In this state of affairs, the fifth respondent took steps to transfer appel- g lant’s title to the 340 hectares plantations to the same sixth respondent. The appellant brought this action, secured the interim injunction earlier mentioned, after which the High Court heard the suit. h The respondents’ relied mainly on documentary evidence and oral evidence of one witness and had a different case. The appellant’s loan approved on 27 October, 1986 in the sum of N135,700 had been fully enjoyed by him. According i to them the Bank had properly exercised its power of sale as a mortgagee. The appellant’s loan including the expense of perfecting the loan agreement and deed of legal mortgage executed by the appellant which he had fully enjoyed. Inter- est was duly charged for the loan. The respondents insisted j that the appellant was indebted to the Bank and in the sum

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Nzeako JCA 666 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) of N409,069.93 as at 16 July, 1996. He failed to pay despite a various demand notices. This caused the auction sale. At the trial all the documents pleaded and to be tendered by the appellant were pulled together and were by consent b admitted in evidence as exhibit A1–A14. For the respon- dents exhibits D15–D25 were also received in evidence. Be- fore addressing the issues, I would here also state that on the whole, I agree with learned Counsel for the appellant that c grave allegations were indeed made by the appellant against the respondents at the trial in the court below. The complaint on appeal is also serious bordering on fail- ure to perform by the court below of one of its primary du- d ties which may affect the decision of the learned trial Judge. The learned trial Judge is charged with failure to evaluate the evidence of parties adduced before him. Issue A questions the correctness of the dismissal of the e case of the appellant, inspite the evidence adduced by the parties and their witnesses. In particular, construction of ex- hibits D15 and D16, the loan agreement and deed of mort- gage both bearing the same date, is called for by the appel- f lant under this issue. In respect of the issue, learned Counsel for the appellant Mr Nyaro submitted that the learned trial Judge was in grave error when he dismissed the appellant’s case. This is to be g seen upon a proper construction of clauses 3(a), 4, and 5(2) of the loan agreement exhibit D15 and clause 4(VII) of the deed of mortgage exhibit D16 and perusal of appellant’s amended statement of claim, and the evidence adduced by PW1, PW2 and DW1, the only witness of the respondents. h Learned Counsel for the appellant had identified as “the main grouse of the appellant against the respondents” as bordering on fundamental breach of the loan Agreement, i exhibit D15 and the mortgage, exhibit D16. Breaches identified are:– (1) Disbursement of only a part of the loan approved leaving N35,861.10. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Nzeako JCA Mallam Yaro Adaji Ndaforo v. Nigerian Agric and Co-op Bank Ltd 667 a (2) Charging interest on the loan of N135,700 approved instead of on the sum disbursed which in his calcula- tion was only N99,838.90 interest is thus unlawful and fraudulent. b (3) Illegal credit auction of appellant’s plantation. (See page 10 of brief). According to him, the trial court had failed to properly c evaluate the evidence and document tendered, to make the appropriate finding of fact and to draw the right infer- ences/conclusions on these issues. He reiterated that the Court of Appeal is in as good a position as the trial court to evaluate the evidence and make findings as enunciated in d Adonri v Ojo-Osagie (1994) 6 SCNJ (Part 11) 192 at 209; Tsokwa Motors v UBN Ltd (1996) 6 NWLR 129 and Musa v Yerima (1997) NWLR (Part 511) 27 at 45. He identified clauses 3(a) and 4 of exhibits D15 as e breached by the respondent. He submitted that the trial Judge had a duty to investigate whether interest was com- puted in accordance with 3(a) and 4 exhibit D15 as averred in the amended statement of claim and oral evidence of PW1 f and PW2. Evaluation of evidence by trial court as properly submitted by Mr Nyaro, is indeed a duty which the law has placed it. Where it fails to perform that duty, the Appellate Court is g entitled to consider the evidence and make its own evalua- tion provided the exercise does not involve considering the credibility of witnesses. (See Okonofia v State (1981) 6–7 SC 1, Ebba v Ogodo (1984) 1 SCNLR 372; Ogundipe v A.G. h Kwara (1993) 8 NWLR (Part 313) at 569 A.C.) This is so because in such circumstances the trial court has no edge over the Appeal Court. See Akinloye v Eyiyola (1968) NWLR 92 at 95; Woluchem v Gudi (1981) 5 SC 291 i at 320; Amadi v Nwosu (1992) 5 NWLR (Part 241) 273 at 280; Nnorodim v Ezeani (2001) 5 NWLR (Part 706) 203 at 210; Okafor v Idigo III (1984) 1 SCNLR 481 and Shell BP v Pere Cole (1978) 3 SC 183:– Method of evaluating evidence in civil cases – it is trite law that j this is effected by placing each set of evidence adduced by the

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opposite parties on either side of ‘an imaginary scale’, and see a which out weights the other. This is the rule in Mogaji v Odofin (1978) 4 SC 94. (See also Incar Nigeria Ltd v Adegboye (1985) 2 NWLR (Part 8) 453 at 463.) The rule in Mogaji v Odofin is however said not to be sacrosanct b in the sense that each trial Judge is entitled to follow his own method of considering and weighing evidence – provided the final decision arrived at . . . substantially conforms with the Mogaji v Odofin rule (see Amokomowo v Audu (1985) 1 NWLR (Part 3) 530 or (1985) 5 SC 28 at 42). This is understandable as no two cases c are entirely the same and learned trial Judges are subject to their individual expressions. Evaluation or non-evaluation of evidence will affect the decision of the trial court whose duty it is to issues before him, if it affects d the live issues before the court. Where the evidence of witnesses before the court does not really affect or go into such live issues, non-evaluation or improper evaluation of such evidence may not affect the decision of the trial court. (See Doma v Ogiri (1998) 3 NWLR (Part 541) 246 at 268 paragraph B. Per Oguntade, JCA.) e Therefore, when evidence which is vital to the matter in is- sue is not evaluated or is improperly evaluated by the trial court, Court of Appeal intervene, provided that the question f do not involve the determination of the credibility of wit- nesses. (See Atolagbe v Shorun (1985) 1 NWLR (Part 2) 360; Abisi v Ekwealor (1993) 6 NWLR (Part 332) 6 and Na- rumal and Sons Nigeria Ltd v Niger Benue Transport Co Ltd g (1989) 2 NWLR (Part 106) 730 at 742.) For, the question of credibility of witnesses is one squarely within the province of the trial Judge who hears and sees them testify before him at the trial. h To succeed, an appellant who complains of non-evaluation or improper evaluation of evidence must be able to identify and specify the evidence improperly evaluated or not evalu- ated and show clearly that if the error had been corrected i that is, the evidence properly evaluated, the judgment ap- pealed against cannot stand (see Enang v Fidelis Ikor Adu (1981) 11–12 SC 25 at 42 and Dukur v Dapal (1998) 10 NWLR (Part 571) 573 at 589 SC). j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Nzeako JCA Mallam Yaro Adaji Ndaforo v. Nigerian Agric and Co-op Bank Ltd 669 a In this later case, it was held that the evidence alleged im- properly evaluated was not particularised nor was it shown to be capable of making the judgment not to stand if cor- rected. The Court of Appeal dismissed the appeal. b In this appeal learned Counsel for the appellant has ade- quately identified in his brief of argument the evidence not properly appraised by the court below. It is that the court has not properly construed clauses 3(a), 4 of the loan agreement c exhibit D15, and clause 4 (VII) of the mortgage deed exhibit D16 evaluated with them the appellant’s amended statement of claim on page 43–55 of the records, and the evidence of PW1 and PW2 and DW1 under cross-examination with re- d spect to the issue of the amount of loan disbursed and inter- est charged. The first question is, what did the learned trial Judge make out of the foregoing in his judgment. Did he properly e interpret them and evaluate the evidence? It is my respectful view that he did. I should think that it is appropriate to state immediately that in the action before the trial Court, the matters in con- troversy were such that much of the evidence required to re- f solve them were documentary. There were exhibits A1–A14 and D15–25, the record of the transaction between the par- ties. It was a question of interpreting those documents wit- nessing the creation of the relationship of the mortgagor and g the mortgagee/bank and the records witnessing the exercise of the rights accruing therefrom to each party. Virtually all 25 exhibits tendered by the two parties – A1– A14 by the appellant and D15–D25 by the respondent are h relevant. The evidence, the contracts and transactions be- tween the parties. This is manifest upon reading through the pleadings of the parties, the evidence of the parties and their witnesses, oral and documentary and other contents of the i record of proceedings from the court below. The learned trial Judge, appreciating this primary rele- vance of the documentary evidence, quite rightly, in my humble view, stated this in his judgment. He said:– “Now, since this is a transaction between the Bank and a borrower, j and that all the transaction was conducted in writing, this Court

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has no option but to rely solely on the written document between a the Bank and the plaintiff who is the borrower. The plaintiff had tendered 14 exhibits A1–A14, whereas the defendant tendered ex- hibits D15–D25.” (See page 111 of the records.) Later he added in concluding his judgment:– b “Finally where parties conduct their business in writing, this Court has no power to interfere and change the written terms of their agreements. In the case of NIDB v De Easy Life Electronic (1999) 4 NWLR (Part 597) 8 at 22, the Supreme Court held that:– c ‘Oral evidence should not be allowed to vary or add or sub- tract from or contradict written. See also the case of Union Bank Plc v Ozigi (1994) 3 NWLR (Part 333) 385 and the case of Olanloye v Fatumbi (1999) 8 NWLR (Part 614) 203 . . .’ ” d What may be considered most relevant to this appeal in exhibits D15 including clauses 3(a), 4 and 5(2) and D16 including clauses 4(Vii) thereof will now be set out here- under. e For, when these clauses in the loan agreement, exhibit D15 and the mortgage deed, exhibit D16 are read together, a clear perspective of the matters in issue in this appeal is ob- tained. f Exhibit D15 – clauses are as follows:– “Clause 2 – The loan period is for six years. Clause 3(a) – The borrower shall pay to the Bank interest on such g part of the loan as may from time to time be outstanding at the rate of 11% per annum payable from the date of each disbursement provided the Bank may vary the rate of interest without prior no- tice and the new rate shall be deemed to form part of the agree- ment. h Clause 3(b) – If any interest required by this Agreement to be paid shall not be paid by the day on which the same shall become pay- able then without prejudice to any or all of the rights and remedies accruing to the Bank consequent on such default and without ren- dering such interest other than overdue and immediately payable i without demand, the interest so in arrears, shall thenceforth itself bear interest at the rate of 11 percent per annum computed from the date the same became payable to the date on which it is in fact paid and may at the sole discretion of the lender be at any time capitalised and added for all purposes to the loan hereby secured j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Nzeako JCA Mallam Yaro Adaji Ndaforo v. Nigerian Agric and Co-op Bank Ltd 671 a and bear interest accordingly until actually paid and, the interest charged thereon, shall be accrued in the same manner as the loan and overdue interest, whatever capitalised or not and all covenants, provisions and remedies contained in and conferred in this agree- b ment and rules of law and equity in relation to the loan and interest thereon shall equally apply to such overdue interest and to the thereon. Clause 4 – Disbursement of the loan shall be in cash and/or kind at c the discretion of the Bank and shall be spread over six years as per the tentative ‘schedule of disbursement’ hereto attached (form O/SD).” Apart from clause 5(2) of exhibit D15 cited by learned d Counsel for the appellant, clauses 5(1) and 5(3), 6, 7 and 14 are also relevant as well as 18. They provide as follows:– “Clause 5: The borrower hereby covenanted with the Bank that while any of the loan or any moneys hereby cove- e nanted to be repaid remains outstanding, the bor- rower shall:– (1) Provide securities mentioned in the schedule . . . as continuing security with the payment to the f Bank of the principal money, interest and any other money which shall for the time being con- stitute the balance due from the borrower to the Bank. (2) Repay the loan according to the ‘schedule of g Repayments’ hereto attached (Form O/SR). (3) Repay to the Bank all expenses covered by legal or other fees and charge incident to this loan (such sum to be added to the principal loan and h charged accordingly). Clause 6: The Bank shall allow the borrower a grace period of one year. Clause 7: If the said sum or any part thereof or any accrued i interest shall not be so paid . . . then the whole of the said sum or any part thereof or any accrued interest as shall from time being remain unpaid shall there- upon immediately become due and payable with in- terest thereon at the rate aforesaid to the date of ac- j tual payment thereof.

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Clause 14: The loan and other moneys herein before covenanted a to be paid whether by way of interest or otherwise, shall become due and payable on any of the follow- ing events:– (1) If the borrower makes default for a period of 14 b (fourteen) days in payment of any instalment or interest of the loan which may have become due under this agreement. (2) If the borrower shall commit any breach of the c provisions contained in or implied by this agreement. Clause 18: Where . . . d . . . The grace period is the period allowed the borrower to pay interest only without repaying Principal.” Relevant clauses of exhibit D16, the mortgage deed, also e dated 11 June, 1987 are:– “Clause 1. . . . The borrower and guarantor jointly and severally convenant with the Bank to pay to the Bank on 28 February, 1993 next the sum of N135,700 . . . with interest thereon from the date f thereof at the rate of 11 percent per annum and if the said sum (hereinafter called the principal money) or any part shall not be paid on that day to pay interest to the Bank at the rate aforesaid (as well after as before any judgment) on the principal money or such part thereof as shall from time to time remain owing. g Clause 4(VII). The borrower hereby convenants with the Bank that the borrower will duly and punctually pay to the Bank the said sum of N135,700 . . . with interest thereon at the rate herein before mentioned by instalments as provided for in a schedule of payment h attached to the separate loan agreement between the parties . . . un- til the whole principal money hereby secured and interest calcu- lated as mentioned herein has been fully paid, and if there shall not have been any breach of any obligation statutory or otherwise, binding on the borrower or of any of the convenants expressed or i implied herein contained and on his part to be observed and per- formed (other than the convenants in clause 1 hereof for payment of the principal money and the interest thereon by instalments at the times and in the manner stated in the schedule of payments at- tached to the separate loan agreement herein before mentioned and j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Nzeako JCA Mallam Yaro Adaji Ndaforo v. Nigerian Agric and Co-op Bank Ltd 673 a will not require payment of such principal money otherwise than by instalments. Notwithstanding the provision for the payment of the principal b money hereby secured by instalments, but without prejudice to that provision, such principal money shall be deemed to become due within the meaning of the Conveyancy Act, 1881, and for all the purposes of that Act on the date or dates prescribed by Clause 1 hereof. c Clause 5: It is Hereby Agreed and Declared as follows:– (1) If at any time:– d (a) any instalment of principal and interest or any other monies (other than the said principal sum) which shall be payable by the borrower to the Bank under conve- nants herein before contained shall be in arrears and e unpaid for three months after the same shall have be- come due; or (b) the Bank in accordance with the power in that behalf hereinafter contained shall give notice demanding payment of all monies for the time being secured here- f under and default shall have been made in payment of the sum demanded or part thereof; or (c) . . . g (d) the borrower shall fail to observe or perform any of the convenant by the borrower contained in this security (other then a convenants for repayment of the said principal sum on a fixed date) or in any deed expressed to be supplemental or collateral hereto then and in any h of such cases the said floating charge shall become fixed and immediately enforceable when the Bank may by notice in writing to the borrower convert the said floating charge into specific charge as regards assets specified in the notice and all the principal money in- i terest and other monies hereby intended to be secured shall immediately become payable by borrower to the Bank and shall be recoverable by the Bank with inter- est thereon from the time of the same becoming pay- able at the rate chargeable under conditions of the j Bank or this security and the Bank at any time

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thereafter without any further consent on the part of the a borrower may:– (i) take possession of the said mortgaged property and the specified assets or any part thereof; and b (ii) enter into receipt of the rent and profits of the said mortgaged property and the specified assets or any part thereof; and (iii) appoint at the cost and sole risk of the borrower a Receiver to collect and receive such rents and c profits for the use and benefit of the Bank at such commission as the Bank shall think fit; and (iv) lease the said property or any part thereof for such purposes or term of years and on such d terms as the Bank shall in their discretion think fit; and (v) absolute sell of the said mortgaged property and the specified assets or any part thereof at such time in such manner and subject to such condi- e tions as the Bank in their discretion may deem expedient and with power to buy in or rescind or vary any contract for sale and to re-sell without being responsible for loss occasioned there by and with all such other incidental powers in that f behalf as if the Bank were absolute owners; and (vi) exercise and put in force all other powers which may be vested in the Bank as mortgagees by vir- tue of this security or by statute. g (2) No tenant of or purchaser from or other person dealing with the Bank shall be concerned to see or enquire if any of the aforesaid events or cases have occurred or be prejudiced by any improper exercise of any of the said powers. h (3) The receipt in writing of the Bank for any purchase-money rent or other money shall effectually discharge the person or persons paying the same therefrom and from being con- cerned to see to the application or non-application thereof. (4) The monies owing upon this security shall be deemed to i have become due immediately on demand for payment be- ing made by the bank or any Manager or Acting Manager or officer of the Bank or any branch thereof and that such de- mand may be effectually made by three months notice in writing either served personally on the borrower . . .” j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Nzeako JCA Mallam Yaro Adaji Ndaforo v. Nigerian Agric and Co-op Bank Ltd 675 a The learned trial Judge in his judgment reviewed and ap- praised the relevant provisions of exhibits D15 and D16 thus:– “After the finding in page 111 of the records set out above, regard- b ing the importance of the documentary evidence, exhibits A1–A14 and D15–D25, he later went on:– ‘I will now consider these, first the loan agreement entered into on 11 June, 1987 . . .’” c Thereafter he reproduced the preamble to exhibit D15 and the terms in Clauses 3(a), (b), 4 and the interpretation of the words “period of grace” (supra). The learned trial Judge also took up exhibit D16, the deed d of legal mortgage and its paragraph 5(1)(a), (v) which he set out. This exposes the power of sale vested the bank as Mort- gagee should the plaintiff mortgagor default in his payment or convenant in the mortgage – exhibit D16. e The learned trial Judge also reviewed exhibits D17–25, identified in particular, exhibit D21, “a letter dated 25 May, 1995 reminding the plaintiff that the outstanding loan against him was N300,197.29, of the demand letter written f to him on 20 January, 1995 which carried the same out- standing loan amount . . . and . . . that he pay up immedi- ately (within 30 days) of exhibit D21”. He reviewed exhibit D23 a letter dated 10 July, 1995 re- g minding the plaintiff of his obligation in respect of the Loan of N135,700 granted him in 1987 for the acceptance of which he signed the loan agreement of 11 June, 1987. He noted that exhibit D23 called on the plaintiff to know that he had been N h defaulting in payment and his debt then stood at 314,358.76 as at 30 June, 1995, “made up of N266,372.19 principal and N47,986.57 as interest and was given 3 months from the date on exhibit D23 to clear the debt . . . exhibit 24 is notice of sale . . . exhibit D25, the client’s Loan Card”. i Regarding the plaintiff’s exhibits A1–A14, its review, un- dertaken by the Court below can be found from page 114 of the records to page 116. He noted exhibit A1 plaintiff’s Bank Teller evidencing payments credited to him from first j defendant, exhibit A2, first defendant’s loan repayment

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Nzeako JCA 676 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) receipts – 22 in number – 6 are repayment of interest and 16 a are for loan repayment. Total investment loan paid N67,520 while the amount paid for interest . . . is N17,200. Of exhibit A1, the Bank Teller b (supra) and exhibit A2 the learned trial Judge made the fol- lowing findings:– “This exhibit (A1) did not help since it showed that the plaintiff had deposited N109,611.99 in his name in the African Continental Bank . . . c There is no evidence that the amount paid to first defendant or any other . . . What is important is exhibit A2 . . . the Receipts from first defendant notifying that he had received the money from the plaintiff.” d It is noted that the learned trial Judge took all the other ex- hibits tendered by the plaintiff one by one – and aligned the loan and interest in the various documents, linking them, and answering to the plaintiff’s charge of fraud and illegality e against the defendants in the evidence of PW2. He said:– “Exhibit A3 and A4 are the evidence of the statement of accounts of the plaintiff. Exhibit A3 showed that the balance of the loan as f at 20 January, 1995 is principal – N266,372.19 while interest stood at N33,825.10. In exhibit A4 it was shown that as at January, 1996, the amount against the plaintiff was principal N283,097.29 while interest was N57,714.01. Both in the 2 exhibit interest fluc- tuated from 17% to 20%. Exhibits A5 and A6 are documents g notes. Exhibit A5 showed the demand as at 1 January, 1995 showed that interest capitalised and principal stood as N266,372.19 and interest to total of N33,825.10, making the grand total demand to N300,197.29. Exhibit A6 is another demand note, demanding the plaintiff to pay as at 1 January, 1996 as follows:– h Interest capitalised N16,725.10 principal N266,372.19 in- terest N33,825.10 less interest paid after last demand of N16,725.10 making the total demanded at 1 January, 1996 to N340,811.30. i Exhibit A7 is the same exhibit D22 tendered by defendant. It is noti- fication of enforcement of security. Exhibit A8 is a complaint lodged by the defendant on the issue of exhibit A7. It complained bitterly on the notification. The plaintiff informed defendant that he received only N135,700 as loan and out of this only was disbursed j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Nzeako JCA Mallam Yaro Adaji Ndaforo v. Nigerian Agric and Co-op Bank Ltd 677 a to him. He had attached the list of repayment he made to defendant amounting to N84,720 was shown there. That there is no reason for adding or charging interest on the total loan of N135,700. Exhibit A9 is the letter written by one S. Haruna, Esq. of Ministry of Justice b Jalingo. He had also testified in this case as PW2. He had levied ac- cusation of fraud and illegality against the defendant. I consider this exhibits worthless because:– (1) accusation of fraud and illegality must according to section c 138 of the Evidence Act be proved beyond reasonable doubt, which is not the case here. (2) Exhibit A10 which is the reply to exhibit A9 has effectively answered the queries levied in exhibit A9.” d From the foregoing, rather long exposure of part of the trial courts judgment, it is without doubt that trial Judge ap- praised the documentary relevant and oral evidence which he had correctly remarked, the relationship between the par- ties depended upon. e It was based on the foregoing review and appraisal of the documentary evidence that the learned trial Judge made the findings on pages 115–116 complained of by the appellant when he stated that the appellant had a misconception of the f import of the terms of the sales agreement exhibit D15 and the mortgage exhibit D16 regarding the issue of loan period, interest capitalisation, date of payment of the loan and even grace period. These are matters clearly provided for in the 2 g exhibits (supra) which need not bring about this suit, had they not been misconstrued by the appellant. Thereafter the learned trial Judge proceeded to give appro- priate meaning to the terms of the contracts in the two exhib- h its. In the process, he brought in relevant oral evidence which he considered within the meaning of the terms of the two contract documents exhibits D15 and D16. Learned Counsel i to the appellant has stressed that the trial court had failed to take into account the evidence of PW1 and 2 which he said was corroborated by DW1. With respect, that is not so. What evidence? Learned j Counsel for the appellant identified evidence on unlawful

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Nzeako JCA 678 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) interest fraud, defamation and illegal credit auction of appel- a lants 340 hectares plantation to 6th respondent on credit. What did the learned trial Judge say concerning these in his judgment? As to the charge of fraud relating to charging b of interest, it is my finding that he examined it along the line while reviewing the claim of the appellant. He then said:– “It can be noted that I have deliberately avoided using the terms fraud, fraudulently and illegally, etc. because the words indicated c criminality and criminal cases are proved beyond reasonable doubt as indicated under section 138(1) of the Evidence Act, 1990.” (See page 96 of the records.) Then later at page 114, while appraising the evidence on in- d terest and the accusation of fraud, he also said:– “Exhibit A9 is a letter written by one S. Haruna, Esq. of Ministry of Justice, Jalingo. He had also testified in this case as PW2. He had levelled accusation of fraud and illegality against the defen- e dant. I consider this exhibit worthless because (1) accusation of fraud and illegality must according to section 138 of the Evidence Act be proved beyond reasonable doubt which is not the case here. (2) exhibit A10 which the reply to exhibit A9 has effectively an- swered the queries levelled in exhibit A9.” f The foregoing in my view clearly forecloses appellant’s complaint that the trial court did not properly evaluate the evidence of his two witnesses and pleadings relating to in- terest fraud; or take into account the evidence of PW2. In g any event, what evidence of fraud was there on record in the face of exhibits A3 and A4, the appellant’s bank statements in his possession since January, 1995 and February, 1996 respectively and which he tendered at the trial? h On the issue of defamation, which he pleaded, where is the evidence led in the trial? None. The law is trite that an averment in pleadings is no evidence. Or, was appellant’s i Counsel imputing that contents of the letter written by PW2 as Counsel on the instruction of the appellant had turned into proof of appellant’s allegations? That cannot be the law. A mere assertion by a party that he had been defamed is no proof thereof. It is no wonder the court below ignored it. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Nzeako JCA Mallam Yaro Adaji Ndaforo v. Nigerian Agric and Co-op Bank Ltd 679 a On the issue of illegal credit auction of appellant’s planta- tion, the learned trial Judge’s findings is clearly discernible where he decided thus:– b “I therefore find and hold that the plaintiff according to their writ- ten agreement should pay the loan . . . up to 28 February, 1996 when he was served exhibit A7 the Notification of Security En- forcement and later, his . . . property was auctioned. He had de- faulted and the defendants exercised their right given to them by c their written agreement.” In the foregoing way, the trial court justified the sale and cannot be said not to have evaluated the evidence or made appropriate findings. d Although he did not state that he was putting the evidence on an imaginary scale, he did consider the documentary evi- dence of the parties and the evidence of PW2 which in itself is a reproduction of the plaintiff/PW1’s evidence, passed e into him as his solicitor. Applying the legal principles earlier set out, it is my re- spectful view that the issue relating to the interpretation of exhibits. D15 and D16 vis-à-vis the appraisal of the oral evi- f dence of the parties, was adequately dealt with by the learned trial Judge. I may add here that a look at exhibit D15 the loan agree- ment, clauses 2, 3(a), 3(b), 4, 5, 6, 7, 14 and 8 and exhibit g 16, the mortgage deed, clauses 1, 4(vii), 5(i)(a), (b), (d), 5(2) 5(3), 5(4), and the documentary exhibits gone through by the trial court shows that the learned trial Judge was justified in his findings. h In summary, these clauses and documentary exhibits, show:– That the parties were agreed that the loan period was for six years. That interest was payable only on such part of the loan which may be outstanding (the bank statements ex- i hibit A3 an A4 show that interest was based on total dis- bursement of N103,375.40 not N135,700 as alleged by the appellant. That the initial rate of interest was 11% per annum, subject to change without notice to the borrower and this oc- curred as shown exhibits A3 and A4. That interest remaining j unpaid as required by the contract would be capitalised and

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Nzeako JCA 680 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) bear interest, was adhered to and also shown in exhibits A3, a A4 and D25. That disbursement of the loan agreed upon is to be in cash and kind was followed and came to N103,375.40 (N99,838.90 + N3,536.50 being cash disbursement and legal fee admitted by both parties). That the appellant undertook to b provide security for the loan evidenced by exhibit D16, and to repay the loan and interest – Exhibits A3 and A4 as well as A5 and A7 which are demand notes to appellant, tendered by him show that he was owing. Exhibits A3 and A4 and D25 also c show that all appellant’s payments totalling N84,720 shown in PW2’s letter exhibit A9 to the Bank and exhibit A2 acknowl- edging the payments, were fully credited to that appellant’s account. That the loan and interest was due payable on 28 Feb- d ruary, 1993 and that upon failure to pay the mortgagee Bank would exercise its power of sale conferred on it by exhibit D16. That it would sell the mortgaged property at any time “in such manner and subject to such conditions as the Bank shall in its absolute discretion deem fit”, even with power to buy in e or rescind or vary any contract of sale and to resell without be- ing responsible for loss occasioned thereby. That the Bank will exercise such other incidental powers as if it were the absolute owners of the mortgaged property. That the bank may exercise f all other powers vested in it as mortgagee by virtue of the mortgagee or by statute. That no purchaser of the mortgaged property shall be concerned to see or enquire if any events set out on the mortgage deed occurred or be prejudiced by any g improper exercise of the above powers by the mortgagee. That the monies owing under the mortgage exhibit D16 shall be deemed due immediately on demand for payment by notice served on the mortgagor/appellant. Due notice as h served by exhibits A5, A6 and A7, respectively dated 20 January, 1995, 2 February, 1996 and 28 February, 1996 the sale occurred on 26 July, 1996. It may be stated here that the foregoing provisions and i powers conform with those which have become well founded by law and statute as applicable to mortgage con- tracts such as exhibit D16, binding on parties thereto and pronounced upon in a plethora of legal authorities. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Nzeako JCA Mallam Yaro Adaji Ndaforo v. Nigerian Agric and Co-op Bank Ltd 681 a To only give a few examples:– The power of sale vested in a mortgagee can be exercised once the mortgage money is due and remains unpaid. (See b Ogudu v FMB Nigeria Ltd (1990) 6 NWLR (Part 156) 330 at 343.) In other words, where the redemption date has passed, the mortgagee is entitled to exercise his power of sale and where the mortgage money is payable in instal- c ments, the power of sale can be exercised as soon as any in- stalments is due. (See Ayanlere v F.M.B. Nigeria Ltd (1998) 11 NWLR (Part 575) 621 and 628.) Once the power of sale has arisen and the mortgagee sells d the mortgaged property, he sells a good title which the law regards as unimpeachable. See section 21(2) of the Convey- ancing Act 1881, a statute of general application (forming part of Nigeria’s received English law applicable here). e Clearly, this is what the parties in this matter have imported into their contract exhibit D16 and the courts have decided not to interfere with the sale even though the sale be so dis- advantageous to the mortgagor. (See Eka-Eteh v Nigeria Housing Development Society Ltd (1973) 6 SC 183 at 198.) f However a sale will be set aside if fraud is proved. (See Warner v Jacob (1882) 20 Ch.D. 220 at 224 and Ihekwoaba v ACB Ltd (1998) 10 NWLR (Part 571) 590.) In such a case where fraud is alleged however, apart from the requirement g that evidence of fraud must support the charge, the market value of the property must also be established by credible evidence. In the present case, none of these requirements have been h satisfied. The mere averment and “ipse dixit” of the appel- lant that his property was worth N3,000,000 cannot consti- tute credible proof. A professional valuer’s report would have sufficed rather than a mere statement, not based on any i particulars proved in court. The protection which the Conveyance and Law of Property Act affords a purchaser of mortgaged property sold by the mortgagor in exercise of his power of sale is said to be abso- j lute and described as “unimpeachable on the ground that no

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Nzeako JCA 682 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) occasion has arisen to authorise the sale”. (See Raji v Wil- a liams and others XVI NLR 14.) The foregoing authorities provide a clear and binding guide on the application of clauses 1, 3, 4 (VII) and 5 in ex- b hibit D16. That the appellant raised the issues which he did in his pleadings and at the trial in protesting the exercise of the power of sale by Bank is clear proof that he had miscon- strued the application of the terms of the contract and the c operation of the mortgage transaction with the Bank. The learned trial Judge was right after all.

Let me break off here a while, to state that I see nothing in d the clauses in exhibit D15 which provide that every kobo of the N135,700 loan approved must he disbursed before re- payment of the sum disbursed or interest will commence. Indeed, by clauses 6 and 18 (supra) repayment of interest e would commence forthwith while loan repayment starts one year later. The one year is the period of grace provided in exhibit D15 as set out above. f It is worthy of note that in his evidence in court, the appel- lant even stated that he was only owing N15,000. How did he arrive at that? It is uncertain. But the statement of account exhibits A3 and A4 in any event counter this. Also, it has g been well established that nothing short of repayment in full of the principal sum and interest due would restrain a mort- gagee from exercising his power of sale. So the Supreme Court decided in Nigerian Housing Development v Mumuni h (1977) 2 SC 57. (See also Jenkins v Jones (1860) 2 giff 99.) It is obvious that the appellant had not even by 1996 paid off the instalments or the entire part of the loan disbursed to him, expected to be paid off within 6 years by virtue of ex- i hibits A15 and 16. Thus whether he was only owing N15,000 as admitted or more as claimed by the respondent Bank, the Bank cannot be restrained. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Nzeako JCA Mallam Yaro Adaji Ndaforo v. Nigerian Agric and Co-op Bank Ltd 683 a Let me comment on some note-worthy submission of Counsel. At page 13 of the appellant’s brief of argument, Mr Nyaro based his contention that the exhibits A5 an A6, the demand notices and statement of account exhibits A3 b and A4 were fraudulent on terms in clause 3(a) of exhibit D15, on evidence purportedly given by DW1 under cross- examination at page 80 line 25 of the records to the effect that the respondent computed interest on N135,700 not on c N103,375.40 disbursement to the appellant. I see no breach by the respondent of clause 3(a) or any other terms of exhibit D15 or anything in exhibit A3, A4, A5 and A6 proving any fraud or that interest was calculated by the d Bank on the approved loan sum of N135,700 rather than the disbursed sum of N103,375.40. It is surprising to observe that learned Counsel did not seem to have examined these docu- ments. Otherwise, he would have observed in exhibits A3 and e A4 the columns on “Disbursements”, “Interest accrued”, “Rate”, “Repayment”, “Principal” and “Interest”. These col- umns clearly show that interest was charged on each sum as and when disbursed. They progressively accumulated as more disbursements were made and proceeded to bear interest over f time. Although N135,700 is written on top of the statement as “Loan amount”, the statement shows clearly the amount of the disbursed loan on which interest was being charged as earlier stated. “Interest capitalisation” dates clearly appear g also, obviously swelling up the appellant’s loan liability which he failed to address immediately in accordance of the written contracts, D15 and D16. When he did, he paid in only N84,720 altogether over the 9 years period since the dis- h bursement started in 1987 till the sale in 1996, which was not even sufficient to liquidate the sum disbursed being N103,375.40, not to talk of interest accruing on each dis- bursement from its own date between 1987 and 1996. The redemption date of 28 September, 1993 had long passed i when in 1996 the bank took action to realise the security. At page 80 of the records DW1 had stated in cross- examination as follows:– “DW1: The legal fees born by plaintiff for registration and per- j fecting of the deed was N3,536.50.

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Nzeako JCA 684 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I)

DW1: As regards project loan, it is not correct to say that un- a til all the loan approved has been disbursed to the cli- ent that repayment and interest start. DW1: It is not correct to that the loan agreement exhibits D15 is totally disbursed by 11 June, 1987. As per the b agreement, interest were compacted at the rate of 11% on the loan amount which is N135,700. DW1: As at the time of auction, the total loan disbursed to the N client was 103,375.40.” c I see nothing in the foregoing evidence to alter the bank re- cords. Exhibits A3 and A4 conform to the written contracts, exhibits D15 and 16. The evidence does not corroborate the unjustified com- d plaint of the appellant that the respondent calculated the in- terest on the sum approved rather than the sum disbursed. The correct evidence is documentary in exhibits A3, A4 and D25. It is correct that the learned trial Judge did not dwell on e it as complained by the appellant. In any event, it is trite law that it is not every omission or slip in judgment that will result in the judgment being set aside. It is only such a slip or omission or error which is f substantial in the sense that it has occasioned a miscarriage of justice which an Appellate Court is bound to interfere, with Onajobi v Olanipekun (1985) 4 SC (Part 2) 156 at 163; Ojo v Babalola (1991) 4 NWLR (Part 185) 267 at 282; Ike v Ugbaja (1993) 6 NWLR (Part 301) 539 and Famuroti v Ag- g beke (1991) 5 NWLR (Part 189) 1. Thus even if the learned trial Judge had committed any omission in respect of that piece of evidence, it cannot be h deemed so grave as to cause a miscarriage of justice and lead to upturning the judgment. The obvious conclusion in the light of the foregoing is that Issue A must and is answered in the positive, that is to say i against the appellant. The learned trial Judge sufficiently evaluated the evidence before him as was relevant to the case. He gave the correct construction to exhibits D15 and D16 which must be read together and also examined it with the other documents in evidence before the court below. The j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Nzeako JCA Mallam Yaro Adaji Ndaforo v. Nigerian Agric and Co-op Bank Ltd 685 a documents and the law justify his decision that the appel- lant’s case lacks merit. Grounds 1 and 2 of the grounds of appeal from which this b issue A was distilled are hereby dismissed. Issue B The appellant herein questions whether or not the first– fifth respondents, i.e. the Bank and the Auctioneer pleaded c and proved interest against the appellant in respect of the partially disbursed loan of N135,700 in accordance with ex- hibit D15 to have warranted the auction of the mortgage se- curity. d Learned Counsel for the appellant has submitted that they have not and urged this Court to so hold. The resolution of this issue relating to interest on the loan sum disbursed to the appellant has already been undertaken e under Issue A (supra). For, interest was listed by the appel- lant among the matters in Issue A wherein he complained that the learned trial Judge had not properly evaluated the evidence before him and drawn the right inferences and con- f clusions. In dealing with that, I had come to the conclusion that the learned trial Judge did properly evaluate the evidence which was virtually documentary and arrived at the correct deci- g sion. Learned Counsel for the appellant has virtually repeated his argument and legal authorities under Issue A in address- ing Issue B. He has however put forward some peculiar mat- h ters which deserve to be further addressed under issue B. He stated that, “it is settled law on the relationship of banker/customer on interest (sic) that a party that claimed interest has a duty to plead and prefer credible evidence in i proof thereof”. He relied on the case of Ishola v Sociète General Bank Ltd (1997) 2 NWLR (Part 488) 405 at 433 paragraph D–F. It would appear that learned Counsel laboured under a no- j tion that the bank had a principal duty to plead and prove

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Nzeako JCA 686 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) interest but had failed to do so and according to him, Issue B a should be answered by this Court in the negative. That is that the respondents had not pleaded and proved interest. In the first place, the respondents, it is to be pointed out b no such primary duty. Secondly, they pleaded and preferred documentary evidence in rebuttal to the evidence of the appellant that he had duly met his liability under the loan agreement, exhibit D15 and the mortgage exhibit D16 and c therefore the respondent Bank’s power of sale had not arisen at the time it proceeded to realise the security in exhibit D17 under the mortgage. I would add here that the learned trial Judge after properly d appraising the evidence before him which was virtually documentary came to the correct decision that the power had arisen in that after 9 years, when the disbursement of the loans started appellant had not fully met his liabilities under exhibits D15 and D16. He particularly referred to the inter- e est which had accumulated and capitalisation of interest which had up-stepped the appellant’s debt.

The case of Ishola (supra) does not apply here. It is an au- f thority in which a Bank instituted an action claiming the principal overdraft granted the defendant and the interest and bank charges accruing thereon. Held:– “Without doubt a party who claims interest has a duty to plead and prefer credible evidence in proof thereof Ekwunife v Wayne (1989) g 12 SCNJ 99, (1989) 5 NWLR (Part 122) 422.” In the case, after it examined how the plaintiff claimed and proved the interest claimed, the Supreme Court held that the court below was right in deciding that interest claimed by h the plaintiff was not satisfactorily established. On the principles in the case of Ishola (supra) relied on by learned Counsel, it must be firmly stated that the respondent i Bank herein is not the plaintiff. He did not institute any suit claiming principal overdraft or loan and interest from a de- fendant – borrower, so that the onus of proof of the principal and interest as submitted by learned Counsel for the appel- lant may fall on him as in the Ishola case relied on. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Nzeako JCA Mallam Yaro Adaji Ndaforo v. Nigerian Agric and Co-op Bank Ltd 687 a The position herein is that the appellant is the plaintiff. He brought this action against the respondent Bank. The onus is on him to prove his case by credible evidence which will en- able the trial court determine his claim in his favour. It is b trite law that the plaintiff must succeed on the strength of his own case and not on the weakness of the defendant’s case. (See Akinola v Oluwo (1962) 1 All NLR 224.) Before the consideration of the case of the defence or any c weakness which therein arises, the plaintiff ought to have made a prima facie case (see Aromire v Awoyemi (1972) 1 All NLR 101 Kodilinye v Odu 2 W.A.C.A. 336 and Abaye v Ofili (1986) 1 NWLR (Part 15) 134). If the plaintiff makes d such a case, thereafter, the onus shifts on to the defence to rebut the evidence of the plaintiff. Learned Counsel for the appellant submitted that it was proved that interest was computed by the respondent on the e approved loan sum of N135,700 instead of the disbursed loan Sum of N99,838.90. Let me quickly state here at once that there is no such proof, there is only the averment of the appellant and his f “ipse dixit” in evidence. This however, was so clearly rebut- ted by the documentary exhibits before the court – exhibits A3, A4, A5, A6, which show that interest was charged on the disbursed cash of N99,838.90 plus disbursement in kind g viz, legal fee of N3,536.50 (as agreed by the parties in ex- hibit A15) together adding up to N103,375.40. These docu- ments show the rate of interest charged at various times ranging from 11–20% and back to 17%, etc. Significantly, h these exhibits were in the custody of the appellant who ten- dered them. Did he not see the contents? Learned Counsel for the appellant at page 22 of his brief of argument had submitted also that the appellant’s grouse on i the issue of computation of interest and capitalisation on the statement of account exhibits A5 and A6 were on the grounds that the computation breached Clause 3(a) and 4 of exhibit D15 and therefore the appellant was under no obliga- tion to repay the loan and interest by 28 February, 1993 set j out in exhibit D16. He contended that the computation of

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Nzeako JCA 688 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) interest was a relief claimed by the appellant in paragraph a 33(1) of his amended statement of claim (supra) but that the learned trial Judge never resolved the issue in his judgment. With due respect to the learned Counsel for the appellant, b he himself is in error. There was no breach of clause 3(a) and 4 of exhibit D15. The documentary evidence show this. Also the learned trial Judge did consider and resolve the issue. Excerpts from page 114–116 of the records show this. He said:– c “Exhibits A3 and A4 are the statement of accounts of the plaintiff. Exhibit A3 showed that the balance of the loan as at 20 January, 1995 is principal – N266,372.19 while interest stood at N33,825,10, In exhibit A4 it was shown that as at January, 1996, d the amount against the plaintiff was principal N283,097.20 while interest was N57,714.01. Both in the 2 exhibit interest fluctuated from 17% to 20%. Exhibits A5 and A6 are documents Notes. Ex- hibit A5 showed the demand as at 1 January, 1995 showed that capitalised and principal stood at N266,372.19 and interest to to- e tal of N33,825.10, making the grand total demand to N300,197.29. Exhibit A6 is another demand note demanding the plaintiff to pay as at 1 January, 1996 as follows:– ‘Interest capitalised N16,725.10 principal N266,372.19 f interest N33,825.10 less interest paid after last demand of N16,725.10 making the total demanded as at 1 January, 1996 to N340,811.30.’ I am of the view that there is some misconception on the part of the plaintiff on the operation of the Banks and that was what g brought the confusion and subsequently this case . . . The plaintiff’s misconception is that he was given an investment loan of N135,700 by the first defendant. The loan agreement ex- hibit D15 showed that the loan period is 6 years and it attracts 11% h P.A. This interest according to paragraph 3(a) is payable from the date of each disbursement, provided that the Bank may vary the rate of interest without prior notice and the new rate shall be deemed to form part of the agreement. And according to exhibit D16, the legal mortgage, the loan shall be repaid by 28 February, i 1993. According to the plaintiff’s statement of claim, the loan shall not start to produce interest until after he has received all the N135,700 and after the period of grace lapsed. That is the plain- tiff’s misconception. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Nzeako JCA Mallam Yaro Adaji Ndaforo v. Nigerian Agric and Co-op Bank Ltd 689 a The plaintiff thought that all these sums would not attract interest until when the last kobo of the approved loan of N135,700 has been disbursed to him, whereas the agreement provided that inter- est shall start to run immediately the first disbursement or on the b date of each disbursement. This misunderstanding was the cause of this case. The plaintiff had denied ever defaulting in his repayment, but the evidence in exhibit A2 presented by the plaintiff himself showed that even though the plaintiff received his first disbursement on 10 c July, 1987 he started the repayment of the N500 as interest on the loan on 25 February, 1991 and the repayment of the actual loan started on 12 March, 1991, after 4 years of receiving the first loan disbursement. As for increase in the amount, the P1aintiff had been on several occasion served with demand see exhibits A5 and d A6. He had also been served with statement of his account. The rate of interest as increased from 11% to 17% and 18% and 19% and 20% have all been showed to the plaintiff. (See exhibits A3 and A4 and A13 ‘Notice of Review of interest rate.’) e Again, this loan was entered into on 11 June, 1987 and disburse- ment started on 10 July, 1987 and the warning to the plaintiff of the notification for the security enforcement was issued to him on 28 February, 1996, about 9 years after and the debt was expected to be repaid after 6 years from 16 June, 1987 showed really that f the plaintiff was in default.” (Italics in the excerpts mine to high- light the issue of interest). The law is well-settled that where a judgment is attacked on the issue of finding or non-finding of fact the Appeal Court g in undertaking its primary role of considering the judgment or appeal, will seek to know:– (i) The evidence before the court of trial; (ii) Whether the trial court accepted or rejected any evi- h dence upon the correct perception; (iii) Whether it correctly approached the assessment right at the evidence before it and placed the value on it; i (iv) Whether the trial court used the imaginary scale of justice to weigh the evidence on either side as enun- ciated in the classical case of Mogaji v Odofin; and (v) Whether it appreciated upon the preponderance of j evidence which side the scale tilted or weighted

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having regard to the burden of proof. (See Egeonu v a Egeonu (1978) 11–12 SC 111 at 129; Misr (Nigeria) Ltd v Ibrahim (1975) 5 SC 55 at 62; Agbonifo v Ai- wereoba (1988) 1 NWLR (Part 70) 325 and Abisi v Ekwealor (1993) 6 NWLR (Part 302) 643.) b Applying these principles to this case, it is not in doubt from the foregoing excerpts from the judgment that the court below reviewed and appraised the documentary exhibits submitted by both parties relating to the interest which had c accrued on that part of the loan disbursed to the appellant. He identified when interest would begin to run and what in- terest was due and the rate at various times from exhibits A3, A4, A5, A6, A13. Also noted, was what the appellant d had repaid, shown in the exhibits which were from his cus- tody. The learned trial Judge concluded that disbursement started on 10 July, 1987, the appellant was supposed to pay off the debt in 6 years yet 9 years later in 1996 he still had e not paid. The truth of the matter is that from the evidence on record, the appellant did not prove that he paid and the loan and in- terest which had accrued from 10 July, 1987 when the first f disbursement was made the respondent Bank exercised its power of sale in 1996. The learned trial Judge so rightly found. I must again reiterate here that I have not seen anything in g the judgment of the lower court to lead us to upturn it. The documentary exhibits from both sides speak volumes on the operation of the terms of the contract between the parties. h Where the transaction between parties are embodied in written documents, those documents are obviously relevant in determining the issues, thereto, not just the oral evidence of what parties think of the transaction. The appellant has i not adequately appreciated the import and status of the documents particularly exhibits A3, A4, A5, A6 and D25. On the other hand, the court below has appreciated this and properly taken recourse to them, rather than the oral evi- dence. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Nzeako JCA Mallam Yaro Adaji Ndaforo v. Nigerian Agric and Co-op Bank Ltd 691 a I would commend to Counsel the useful advice of the Court of Appeal on the status of documentary evidence enunciated in the case of Udeorah v Wakonobi (2003) 4 NWLR (Part 811) 643 at 674. In that case, the Court of Ap- b peal had this to say concerning documentary evidence vis-à- vis oral evidences:– “Where a party relies mainly on oral evidence while the other relies mainly on documentary evidence the trial court should give c more weight to the documentary evidence rather than the oral testimony. This is because oral evidence may tell a lie but docu- mentary evidence which is shown to be genuine does not tell a lie. This may be what the learned Senior Counsel for the respondents meant when he submitted before us that this appeal depends d wholly and entirely on exhibit 3, 8, 13, 14, 16, 17 and 18. All these exhibits are documentary evidence, they should be used as a base from which assess the oral evidence.” (Per Ubaezuonu, JCA read- ing the leading judgment). e I do agree entirely that the court below was right in its ap- praisal and reliance on the documentary evidence. Learned Counsel had also contended that the trial court did f not draw appropriate inference to arrive at the right conclu- sions on the issue of unlawful interest, etc. He submitted that the Court of Appeal is in a good position as the trial court to properly evaluate the evidence and make g proper findings and draw the right inferences and conclu- sions citing Adonri v Ojo Osagai (1994) 6 SCNJ 192 at 200; Tsokwa Motors Nigeria Ltd v UBN Ltd (1996) 9 NWLR 129 (sic) Ratio 4 and Agih v Ejimkonye and Bros. Ltd (1992) 3 h NWLR (Part 228) 200 at 211–212 paragraphs H–A were cited to show that the appellant was entitled to judgment in view of the uncontroverted evidence of the appellant’s wit- nesses, PW1 and PW2. i It was further contended for the appellant that the demand notices, exhibit A5 and A6 were fraudulent, the effective date to commence the calculation of interest was not 1996 before the signing of exhibits D15 and D16 but the date of j the first disbursement which was 11 June, 1987.

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With much respect to learned Counsel, although the prin- a ciples represented by the legal authorities cited are correct, they do not apply here. The learned trial Judge rightly appraised the documentary b exhibits which portray the transaction between the parties. There is a point which learned Counsel for the appellant kept harping on from the pleadings of the respondents and the evidence of DW1. It is that the respondents had averred c in paragraphs 3 and 6 of their statement of defence that the appellant enjoyed every kobo of the approved loan sum of N135,700 and that DW1 under cross-examination confirmed that interest was computed on that sum not on the piece meal d instalment as agreed in clause 3(a) of exhibit D15. In this regard, Counsel submitted that the computation was unlaw- ful and fraudulent, relying on Barclays Bank Ltd v Alhaji Mama Abubakar (1977) All NLR 278 at 279. e Let me, with respect, remind learned Counsel that both the assertion by the appellant in his pleadings and evidence and repeated in his brief to PW2 which PW2 set out in exhibit A9 and recited at the trial in his oral testimony failed to f reckon with the Bank’s statements of account made avail- able to the appellant. They were indeed put in evidence by him. He has had them in his possession for so long before he filed this suit. These are exhibits A3, A4, A5, and A6. They show clearly that interest was computed, not on N135,700 g but on the instalments, which accumulated to N103,375.40 as at 22 September, 1989 the last disbursement by reason of the cash disbursement of N99,383.90 plus the legal fee of N3,536.50. From his contentions, it looks as if the learned h trial Judge was expected by Counsel for the appellant’s to point out to him the contents of these exhibits which he him- self ought to have studied before and in the course of con- ducting the suit and employed to adjudge if he had a good i case. The duty of a trial court is to examine and use material evidence placed before it to determine the case of the parties before it. The learned trial Judge identified these relevant exhibits in his judgment and relied on them correctly to come to the decision which he did. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Nzeako JCA Mallam Yaro Adaji Ndaforo v. Nigerian Agric and Co-op Bank Ltd 693 a If I may comment on the Barclays Bank case (supra) relied on by learned appellant Counsel, even the dictum of Obaseki, JSC quoted in appellant’s brief does not support his case in any way. Rather, it underlines the fact that where the amounts b in issue failed to appear in the statement of accounts on which the claim before the court was founded, the court ought not to have deducted them from the sum claimed. It is not the same facts as herein where the amounts clearly appear on the c statement of account of the appellant in his possession for several months, before this suit was commenced. When learned Counsel for the appellant described the auction sale as “secret deal”, illegal or fraudulent, or con- d tended that the payment of N70,000 out of N600,000 by the purchaser of the mortgaged property, the sixth respondent was unlawful and illegal, he took no account of the evidence by DW1 that N70,000 was paid after the auction and another e N180,00 later bringing the total to N250,000,or indeed ex- hibit A10 tendered by the appellant. But in particular, he has also failed to read and apply clause 5 of exhibit D16 the mortgage deed which right accrues to the mortgage without f the consent of the borrower to; “absolutely sell the said property . . . at such time in such manner and subject to such condition as the Bank in its absolute discretion may deem expedient and with power to buy in or rescind or vary any g contract of sale and to resell without being responsible for loss occasioned thereby and with such other incidental pow- ers in that behalf as if the Bank were absolute owners”. Had he taken cognisance of the foregoing, he would see h that the appellant as mortgagor had no right to question the mortgagee Bank with respect to the manner and conditions of sale of the mortgaged property, once any instalment of the loan, interest or any other money payable by him as mortga- i gor is in arrear and unpaid. That DW1 was not an eyewitness to the transactions be- tween the appellant and the Bank or that he had no transac- tion with the appellant has been repeated in appellant’s brief j to destroy the weight on his evidence.

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First, it must be realised that a Bank, like other corporate a persons only act through natural persons who represent it from time to time. In an appropriate case, such persons can rely on records of the corporation to adduce evidence of acts performed on its behalf, whether by the person testifying or b any other acting on its behalf. Secondly, the appellant seems to blow hot and cold while dealing with the testimony of the witness DW1. In one c breath, DW1’s evidence is no use because he was not an eye witness to the transactions. In another breath his testimony in cross-examination is being flaunted about by the appellant as corroborating to some oral testimony of PW1 and PW2 d which the appellant contends proves his case. The law does not allow parties to blow hot and cold. Consistency is the rule of justice. The submission regarding the testimony of DW1 is of no moment. It is discarded. Before I leave the e submission regarding DW1, let me re-emphasise that the de- termination of the case in the court below was virtually based on the documentary evidence before the court, rather than on any oral evidence which inexcusably contrives to f contradict the documentary evidence. Thus, whether it was PW1, PW2 or DW1, whose oral testimony is on the scale, evidence of the transaction between the parties, embodied in the documentary exhibits before the court have out-weighed g the oral evidence. The accusation by the appellant that the trial court went outside the case canvassed in open court and did cloistered justice is entirely without foundation, particularly when it is h hinged on what may be called “an imagined” non- examination of the documents in court. The documents were evidence tendered before the court and the court had no op- tion than to consider them in the judgment. i Generally, in appellant’s submission under Issue B, one could not but have the impression that principle which do not really apply to the matter in hand were being bandied about. Some legal authorities cited, did set out the legal principles correctly, but they do not support the case of the j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Nzeako JCA Mallam Yaro Adaji Ndaforo v. Nigerian Agric and Co-op Bank Ltd 695 a appellant due to its facts and circumstances. So it is with Ogunbiyi v Ogundipe (1992) 9 NWLR (Part 263) 24 where principles were re-enacted that where evidence called con- b tradicts averments in pleadings which are material to the case of a party, the result is that the party has failed to prove his case and the proper order is one of dismissal of the party’s case. The same goes for the Supreme Court case of c Invienagbor v Bazuaye (1999) 6 SCNJ 235 at 243 cited to support the charge that the court below had made enquiry outside the court when he relied on documentary evidence tendered at the trial. d It remains to state that the differing sums claimed by the Bank in its notices or set out in its statement of defence which the appellant complained of while making its case that the respondent Bank had not proved the sums due to it e by virtue of exhibits D15 and D16 have been noted by this Court. Understandably, they are sums which accrue at dif- ferent times subject to such variables as rate of interest for the time being, repayments by the appellant recorded in the f statements of account exhibits A3 and A4, capitalisation of unpaid interest by virtue of exhibits D15 and D16. See clause 3 of D15 and 1 of D16). They do not in any way prove fraud as imputed for the ap- g pellant or that the respondent Bank could not establish what principal and interest was due at the time of the sale or that there is conflict in the Bank’s claim. In conclusion, for the reasons set out under Issue A which h also addressed the issue of interest with other matters raised thereunder and the contentions resolved above, the answer to Issue B is yes – that the documentary evidence was pleaded and tendered in court was fully appraised by the court below, i proves that interest was charged on the sum disbursed i.e. N103,375.40 being the disbursed part of the loan of N135,700 approved by the Bank for the appellant. Thus in accordance with exhibit D15 the loan agreement and the auc- tion sale of the mortgaged property accords with the mort- j gagee’s power of sale in exhibit D16 the deed of mortgage.

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Issue B is answered in favour of the respondent against the a appellant. In the premises, Grounds 3 and 4 of the grounds of appeal from which the issue is distilled fail and are dismissed. In the final analysis, both Issues A and B collapse with b their four grounds of appeal which are hereby dismissed. The judgment of Mohammed, J sitting at the High Court Jal- ingo Taraba State delivered on 15 February, 2000 dismissing the plaintiff/appellant’s claim is affirmed. c There will be N10,000 costs to the respondents against the appellant. MUKHTAR JCA: I have had the advantage of reading in ad- vance the lead judgment just delivered by my learned d brother, Nzeako, JCA. The appeal definitely lacks substance and is devoid of any merit. I am in complete agreement with the reasoning and conclusion reached in the lead judgment, and also dismiss the appeal in its entirety. I abide by the e consequential orders made by my learned brother. OGBUAGU JCA: I had the privilege of reading before now, the Judgment of my learned brother, Nzeako, JCA just read and delivered in the open court by him. I entirely agree with f his reasoning and conclusions. I adopt the same in this my Judgment wherein I hereunder, make my own contribution. This is an appeal against the decision of the Taraba State High Court, sitting at Jalingo delivered by Mohammed, J on g 15 February, 2000. The facts, have been adequately stated in the lead judgment of my learned brother Nzeako, JCA. Four grounds of appeal were filed out of which the appel- lant formulated two (2) issues for determination. The said h issues have been reproduced in the said Judgment. I wish to make my own brief contribution by way of emphasis in some of the issues highlighted in the lead judgment. I ob- serve that, it was wrong to have joined the second, third and i fourth defendants in the suit because, as evident or averred in paragraphs 3, 4 and 5 of the amended statement of claim, the second and fourth defendants, are branches of the first defendant, while the third defendant, is a branch Manager of the first defendant. As rightly averred in paragraph 1 of the j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Ogbuagu JCA Mallam Yaro Adaji Ndaforo v. Nigerian Agric and Co-op Bank Ltd 697 a joint statement of defence, uncontroverted by the appellant, that there are no multiple first defendant, but rather, the first defendant is one legal entity with several branches all over the country. The names of the second, third and fourth de- b fendants, ought to and should have been struck out of the suit, even suo motu by the trial court before hearing evi- dence. c On 10 February, 2003 when this appeal came up for hear- ing, Nyaro, E.A. Esq. – learned Counsel for the appellant, adopted their brief of argument filed on 21 July, 2000. He urged the court to allow the appeal. d Thereafter, judgment was reserved to 3 April, 2003, but was later adjourned to today. The determination of the Suit, in my view was indeed or substantially, based on the documentary evidence tendered e by the parties i.e. exhibits A1 to A14 tendered by the appel- lant and exhibits D15 to D25 tendered by the first defen- dants/respondents and were duly admitted in evidence by consent of the parties. Of relevance, are particularly, exhibit f D15, D16 and D25 and perhaps, exhibits 23 and 24 respec- tively. Also of importance, is the evidence of the DW1 – re- corded at page 77 of the records firstly, as PW1 and later just DW1. g It is noted by me, that the appellant signed/executed exhib- its D15 and D16 which are the loan agreement and deed of legal mortgage both dated 11 June, 1987. Exhibit D25 is the original Ledger Card kept by one of the first defendant’s branches. h To be noted, is that it was the appellant, who tendered ex- hibits A2 and A3 – the statement of account of the appellant prepared and sent by the first defendant’s branch to the ap- i pellant who received and kept custody of them. There are also exhibits A4, A5, A6 and A7 respectively. Exhibits A4 and A5, are demand notes/letters received by the appellant. There is also exhibit A6 – an official receipt from the first defendant showing clearly, all the repayments made by the j appellant to the first defendant.

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Now, under Issue A of the appellant, the construction of a exhibits A15 and A16, has been called for by the learned Counsel for the appellant. My quick answer, is that it has been stated and re-stated in legions of decided authorities, about the principles relating to the construction of docu- b ments and in particular, contracts/agreements. It is now settled firstly, that direct evidence, is inadmissi- ble, to construe the language of a document. In other words, c prima facie, oral evidence would not be admitted to prove, vary, alter or add to the term of any contract which has been reduced into writing when the document is in existence, ex- cept the document itself. (See SCOA (Nigeria) Ltd v Bour- dex Ltd (1990) 3 NWLR (Part 138) 380 at 389 citing the d case of Da Rocha v Hussain (1958) 3 FSC 89 at 92; (1958) SCNLR 280.) This is the essence of section 132(1) of the Evidence Act. (See also Union Bank of Nigeria Ltd v Sax (Nigeria) Ltd and e 2 others (1994) 9 SCNJ 1 at 12 – per Adio, JSC.) However, evidence of subsequent oral agreement between the parties to modify a contract, is admissible under section f 132 of the Evidence Act. The proviso, allows oral or extrinsic evidence to be given to prove illegality, want of considera- tion, or any other matter, which if proved, will produce any effect upon the validity of the document or any part of it. g Secondly, in the case of NBTC Ltd v Narumal Ltd (1986) 4 NWLR (Part 33) 117, it was held that in the absence of fraud or misrepresentation, the party who signs an agreement, is bound by it, and to such a case, the duty of the court, is merely to construe the provision of the agreement so as to h discover the parties’ intention. (See also the observation of Scrutton, LJ in Blay v Pollard (1930) 1 K.B. 628 at 633 referred to with approval by the i Supreme Court in the case of Agwunedu and 7 others v On- wumanse (1994) 1 NWLR (Part 321) 375 at 386 – per Onu, JSC.) This view was also expressed in the cases of Egbase v Oriaregham (1985) 10 SC 80 at 92; (1985) 2 NWLR (Part 10) 884; (1986) N.L.T.R. 156 – per Eso, JSC and Chief j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Ogbuagu JCA Mallam Yaro Adaji Ndaforo v. Nigerian Agric and Co-op Bank Ltd 699 a Okoya and 2 others v Santili and 2 others (1994) 4 SCNJ (Part 11) 333 at 353 – per Belgore, JSC. It is said that what is necessary, is the full knowledge of b the nature and not of the contents of the document. Thus, before a document is totally rendered void, the element of consent, must be totally lacking. (See Sounders v Ancila Building Society (1971) A.C. 1004 (Callie v Lee) – per Lord Wilberforce.) c The appellant did not say that he is an illiterate. He did not deny signing exhibits D15 and D16 respectively. He did not raise the plea of non est factum or misrepresentation in re- spect of the two documents or exhibits. He did not say that d he did not know the nature of what he signed. What the ap- pellant embarked upon in his pleadings and in his evidence at the trial, was in fact, giving extrinsic and oral evidence to contradict or vary the terms of the clear and unambiguous e contents of exhibits D15 and D16. Surely, he was not enti- tled to do that. However, he pleaded in paragraph 16 of his amended statement of claim, that he was made to sign the mortgage agreement as interpreted to him by the first defen- f dant and its agents. He did not mention the name of the offi- cer or agent who did the interpretation. It is now also firmly settled that if there is any disagree- ment between the parties to a written document as to what is g the term of the contract/agreement on any particular point, the authoritative and legal source of interpretation for the purpose of resolving the disagreement, is the written agree- ment executed by the parties. (See Union Bank of Nigeria h Ltd v Sax (Nigeria) Ltd and others (supra).) When a document (such as exhibits D15 and D16) is clear, the operative words in it/them, should be given their simple and ordinary grammatical meaning. The general rule is i stated to be that when the words of any instrument, are free from ambiguity in themselves and when the circumstances of the case, have not created any doubt or difficulty as to the proper application of the words to claimants under the in- strument or the subject-matter to which the instrument re- j lates, such an instrument, is always to be construed

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Ogbuagu JCA 700 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) according to the strict, plain and common meaning of the a words themselves. So said the Supreme Court in Union Bank Nigeria Ltd v Sax (Nigeria) Ltd and others (supra). (See also Olaloye v Madam Balogun (1990) 5 NWLR (Part 148) 241; (1990) 7 SCNJ 205; Koiki v Magnusson (1999) 5 b SCNJ 296 at 320 and recently Okechukwu v Onuorah (2000) 12 SCNJ 146 at 153–154.) The appellant, did not thumb- print the two said exhibits and there is no jurat. His signa- ture is there and he has not said that he could only sign his c name but cannot read and write in any language. The learned trial Judge, quite rightly in my respectful view, in his concluding Judgment, referred to and relied on the case of Nigeria Industrial Dev Bank (NIDB) v De-Easy d Life Electronics and another (1999) 4 NWLR (Part 597) 8 at 22 C.A. (which he stated is a Supreme Court decision. I have not been able to see or trace such a case in the 1999 Reports, however it is the Court of Appeal). The ratio is at e page 17 and not at 22. He also referred to the cases of Union Bank of Nigeria Ltd (not Plc) v Prof. Albert Ozigi (1994) 3 NWLR (Part 333) 385 (it is also reported in (1994) 3 SCNJ 42 at 59–60 and (1994) N.A.C.R. 1; (1994) 3 KLR 1 and f Olaloye (Mrs) (not Olanloye) v Madam Balogun (supra) where some of the principles of interpretation of con- tracts/documents as I stated herein above, were also stated or referred to. g He concluded, again, rightly in my view, thus:– “I therefore found (sic) and hold that the plaintiff, according to their written agreement should pay the loan granted to him on 28 h February, 1993 but he failed to pay the loan up to 28 February, 1996 when he was served with exhibit Al the Notification for Se- curity Enforcement and later his property was auctioned. He had defaulted and the defendant exercised their rights given to them by their written agreement . . .” (Italics mine.) i He proceeded to dismiss the case which he held, rightly again in my view, lacks merits. Let me now deal briefly also with the word “fraud”, con- tained in exhibit A9 which the learned trial Judge at page j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Ogbuagu JCA Mallam Yaro Adaji Ndaforo v. Nigerian Agric and Co-op Bank Ltd 701 a 115 of the records, considered and held us worthless. He had referred to section 138 of the Evidence Act as to the stan- dard of proof, being beyond reasonable doubt. b Now, in the case of Koiki and others v Magnusson (supra) the Supreme Court – per Ugwuegbu JSC, held that fraud and misrepresentation, are criminal offences and that the legal implication, is that they have to be proved beyond reason- c able doubt and that it was directly in issue. Section 138(1) of the Evidence Act, was also referred to. See also the cases of Folami and 3 others v Cole and 2 others (1990) 2 NWLR (Part 133) 455; (1990) 4 SCNJ 13 at 18–19 and Davy Bros. v Carpet (1887) 7 Ch. D. 489 where Thesiger, LJ said, inter d alia:– “In common law Courts no rule was more clearly settled than that fraud must be distinctly alleged and distinctly proved and that it was not allowable to leave fraud to be inferred from facts.” e (See also Alhaji Olufunmise v Mrs Falana (1990) 3 NWLR (Part 136) 1; (1990) 4 SCNJ 144 (1990) 21 NSCC (Part 2) 97 at 107 and Wellingford v Mutual Society 5 A.C. 685 at 697 – per Blackburn at page 704.) f Undoubtedly, fraud carries far much wider implications than impugning the truth or correctness of a document. At common law, its foundation, is deceit of which the intention to mislead and a false representation, are material. g So, although the word frauds need not be used, one of the most fundamental rules about the pleading of fraud, is that the pleading must contain precise but full allegations of facts h and circumstance with all necessary particulars, leading to the reasonable inference that fraud is the cause of the loss complained of. So, fraud must be distinctly alleged, with all necessary particulars and distinctly proved. So said Supreme Court in the case of Ojibah v Ojibah (1991) 6 SCNJ 156 at i 164. (See also Commission Omorhirhir and 4 others v Enat- evwere (1988) 1 NWLR (Part 73) 746 at 769; (1988) 19 (Part 1) NSCC 909 – Per Oputa, JSC.) It need be stressed, that where fraud has not been pleaded, j it is well-settled that neither party, may invite the court to

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Ogbuagu JCA 702 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) find it proved. And there are even stronger objections to the a courts doing so uninvited. It is also settled that a party who intends to prove fraud, must plead it expressly. If he has/had not done so, he will not be allowed to produce evidence b which points unequivocally to fraud and nothing else. (See Useh v B.M.A. Ltd (1965) 1 ANLR 244, 247 per Brett, JSC; Usenfowokan v Idowu Bros. and another (1969) NSCC 108 at 112 and United Africa Co Ltd v Taylor (1936) 2 c W.A.C.A. 170 at 171 and many others.) Finally, because there are too many decided authorities on fraud, let me conclude by stating that the court have how- ever, been advised that they must be careful in the way they d accept the use of the word “fraud” by litigants in proceeding before them. That the word “fraud” is so elastic in meaning as to cover the commission of a criminal offence as well as incidents of impropriety. That it is often loosely used to cover both situation. That it is not unusual to allege fraud in e civil cases, without imputing any crime. That fraud in mis- representation as said by Lord Horschell in the famous case of Derry v Peak (1889) 14 A.C. 337 at 369, may simply mean that someone “knowingly made a false statement or f one which he did not believe to be true, or was careless whether what he stated, was true or false”. (See His High- ness Igwe Job Ezemuokwe (The Obi of Achina) v The Hon. Commissioner for Local Government, Rural Development g and Chieftaincy Matters (Anambra State of Nigeria and 2 others in Suit No. CA/E/36/89 dated 14 January, 1991.) Fraud is also defined in Stroud’s Judicial Dictionary of Words and Phrases Volume 2 (4ed) page 1095. h The appellant pleaded fraud and misrepresentation, in paragraphs 10, 22 and 25 of his amended statement of claim and particularised the same in paragraph 11 thereof. But he failed to prove the same in the face of exhibits D15, i D16 and exhibit D23 and exhibits A2, A3, A5 and A7 re- spectively – which are the appellant’s statement of account with the first defendant, demand note and notification for Security enforcement from the first defendant to the appel- lant. j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Ogbuagu JCA Mallam Yaro Adaji Ndaforo v. Nigerian Agric and Co-op Bank Ltd 703 a I will touch and deal again briefly, with the power of mort- gagee in respect of a mortgaged property. In the case of Thomas Pinnock v G.B. Ollivant and Co Ltd 2 W.A.C.A. 158 at 168, it was held – per Kingdom, CJ thus:– b “Equity has always aimed at protecting a mortgagor from unrea- sonable treatment at the hands of a mortgagee at a time when his necessities may have placed him at the mercy of the mortgagee, and has looked with jealousy any attempt to counteract or oppose c its interference on behalf of the mortgagor.” What has held to be paramount in the exercise of such sale, is absolute good faith. In other words, where a mortgagee exercise his power of sale bona fide for the purpose of re- d leasing his debt and without any collusion with the pur- chaser, the court will not interfere even though the sale be very disadvantaged unless the price is so low as in itself, to be evidence of fraud. Therefore, once or if the power is ex- e ercised for fraudulent purposes, the court will interfere. (See Warner v Jacob (1882) 20 Ch. D. 220 at 244 – per Kay, J.) In the case of Eka-Eteh v Nigeria Housing Development f Society Ltd and another (1973) 6 SC 183 at 33; (1973) NSCC 373, 380 at 381; (1973) 3 ECSLR 456, (Warner v Jacob (supra), was referred to) it was held that a mortgagee is only required by law, to obtain “a proper price” and not “the best price” for the property sold. That once it is shown g that he had acted bona fide his exercise of power of sale, cannot be impugned on any ground of sale at an under value. I will add, that the mortgagee can also obtain, the true mar- ket value. h It was further held, that an under value, does not with the exercise of the power to sell and that it must be shown that the sale, was made at a fraudulent or gross under value. (See also Ihekwoaba and another v ACB Ltd and 4 others (1998) i 10 NWLR (Part 571) 590–609 C.A. and Waring (Lord) v London and Manchester Assurance Co Ltd (1935) Ch.D. 310.) Where the loan is with interest as in the instant case, the j mortgagee could sell, if the sum to be advanced, was by

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Ogbuagu JCA 704 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) instalments and the mortgagor is/was in arrears on interest a due on the principal money already advanced. This is so, even though the full sum under the indenture, has not yet been advanced. (See S.O.N. Okafor and Sons Ltd v Nigeria Housing Development Society Ltd and another (1972) 4 SC b 175.) The right of such sale, is clearly provided in section 19 of the Conveyancing Act, 1881. This appears to be the case in the instant suit leading to this appeal. c In the case of John Kennedy v Mary Annette De Trafford and others (1897) A.C. 180 it was held that the obligation incumbent on a mortgagee selling under and in pursuance of a power of sale in his mortgage, is that the should act in good faith. d It need be stressed and always borne in mind, that the court cannot look at the mortgagee’s motive for exercise his power. He, like a pledgee must conduct the sale of property, and must sell at a fair value and he cannot sell to himself. e (See Belton v Bass and others (1922) 2 Ch. 449.) I wish to state and this is settled, that where there is or in the event of suspicion, the onus, shifts on the mortgagee to f uphold the sale as having been made bona fide. (See Viatonu v Odutayo 19 NLR 119.) In respect of the statutory notice of intention to exercise the power of sale, which provides for twenty one (21) days g notice, it appears to me that by exhibit 7 dated 26 February, 1996, and exhibit D23 dated 10 May, 1995, the said auction of the property of the appellant, was effected, according to the appellant in paragraph 1 of his amended statement of claim, in July, 1996 which is even about five (5) months af- h ter the said notice of sale. So, the said sale, was not invalid. (See Timothy Omo-Bare v New Nigeria Bank Ltd (1986) 1 SC 73 at 79.) See also exhibit D24 – notice of sale of move- able property. i The appellant is complaining about the said sale without his knowledge or consent as appears from his said pleading in paragraph 19 of his amended statement of claim. It could be said by me, that since the appellant offered his said j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Ogbuagu JCA Mallam Yaro Adaji Ndaforo v. Nigerian Agric and Co-op Bank Ltd 705 a property as security, for the loan or overdraft which was given or granted to him, the issue of getting consent to mortgage the property was his responsibility. (See Bucknor Maclean v Inlak Ltd (1980) 7–11 SC 1.) But since he did not b make this point of consent an issue, I say no more about it. This principles as regards the power of the mortgagee to sell mortgaged property, was, with respect, succinctly, dealt with by Ogwuegbu, J (as he then was ) in the case of Duru- c Ugwu v Barclays Bank (Nigeria) Ltd and another (1979) 1 MSLR 441. (See also the recent decision by the Supreme Court – per Ayoola, JSC in the case of West African Brewer- ies Ltd v Savannah Ventures Ltd and 5 others (2002) 5 d SCNJ 269 at 292.) Where this issue, with respect was extensively treated by the learned Jurist. Let me end this point by referring to section 21(2) of the e Conveyancing Act, 1881 which has given adequate protection to a purchaser of the mortgaged property and in this case, to the sixth defendant/respondent. (See also Raji v Williams and others 16 NLR 14.) The remedy of the mortgagor or the ap- f pellant, is to sue the first defendant i.e. the person exercising the power. He has sued the first to sixth defen- dants/respondent claiming exemplary and/or general damages for trespass. Significantly, there is no claim by him, for an g order of the court, setting aside the said sale and damages for wrongful sale. Instead, he claimed for declaration. A declaratory judgment, afterwards, merely declares the right of the litigant/claimant. The rights which it confers on h a plaintiff, can only become enforceable, if another subse- quent judgment, albeit, relying on the rights it declared so decrees. (See Ogunlade v Adeleye (1992) 10 SCNJ 58 at 65– 67.) That is why a declaratory judgment is not executory and it cannot be stayed. i The appellant himself pleaded and confessed, that he was/is still indebted to the first defendant to the tune of N15,000 (Fifteen Thousand Naira). I should perhaps, em- phasise the point, as rightly stated by the learned trial Judge j at page 115 of the records, that Banks, trade in money. That

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Ogbuagu JCA 706 Nigerian Banking Law Reports [2002 – 2004] 11 N.B.L.R. (PART I) they buy and sell money and that the proceeds of the trade, a is the interest. The appellant for good (9) years, did not bother to pay his indebtedness to the first defendants. In other words and this is settled, that bankers and Com- b mercial Banks for that matter, are bound to charge interest rates fixed from time to time, by the Central Bank of Nige- ria. They have no discretion in this regard. As was held in the case of Crosswill v Bower v Turner (1863) LJ Ch. 540, 544; (1863) 3 W.Ch. 540, 644 by universal custom of bank- c ers, a banker, has the right to charge simple interest at a rea- sonable rate on all overdrafts. (See also Barclays Bank of Nigeria Ltd v Alhaji Abubakar (1977) 10 SC 13 at 23–24.) d Also settled, is that a person who goes to a house where a kind of business is carried on and proceeds to engage with- out reservations, in the business there carried on, must be deemed to have agreed to submit to, and be bound by the usage and practice usually appertaining to the business and e the obligations usually attached to the particular transaction in that business. (See Bank of West Africa Ltd v Sapale Nwakuba (1967–68) MSNLR 116.) In the case of Union of Nigeria Ltd v Prof. Ozigi (supra), it was held that if the pre- f vailing interest rates (prime rates) fixed by the Central Bank of Nigeria, vary from time to time, then, interest rates stipu- lated or fixed by the bankers that are under obligation as banks to comply with the Central Bank of Nigeria guide- g lines, has to vary their interest also from time to time in re- sponse to the Central Bank of Nigeria guidelines. This being the position, the onus is on the appellant to prove that the interest rates contained in exhibits A2, A3, h and exhibit D25 – the ledger, are not the approved interest by the Central Bank of Nigeria. Also to be proved by him, is that he did not agree to the interest rates stated in the D15 and D16, I want to state that the interest structure of each licenced Bank, is subject to the approval by the Central i Bank of Nigeria. See section 15 of the Banking Act Cap 28 Laws of the Federation of Nigeria, 1990. Once parties agree on interest, they are bound by the agreement or contract. (See Re: Duncan and Co (1905) 1 j

[2002 – 2004] 11 N.B.L.R. (PART I) (COURT OF APPEAL, JOS DIVISION) Ogbuagu JCA Mallam Yaro Adaji Ndaforo v. Nigerian Agric and Co-op Bank Ltd 707 a Ch. 307; London Chatham and Dover Railway v South East- ern Railway (1893) A.C. 249 at 434 and Alfotrin Ltd (The owners of MV Fotiri) v The Attorney-General of the Federa- b tion and another (1996) 12 SCNJ 236 at 264, just to mention but a few.) Before concluding this judgment, I wish to state and this is settled, that where a court of trial unquestionably, evaluates c the evidence and appraises the facts, (as in the instant case), it is not the business of a Court of Appeal to substitute its own views of the trial court. (See Akinloye v Eyiyola (1968) NMLR 92 at 95; Slac Transport Ltd v Oluwasegun and an- d other (1973) 9–10 SC 7; (1973) 3 ECSLR 176 and Chief Woluchem and others v Chief Gudi and others (1981) 5 SC 291 cited in Ibanga and others v Usanga and others (1982) 5 SC 103 at 132 and many others.) e The duty of appraising evidence given at a trial, is pre- eminently, that of the trial court who saw and heard wit- nesses. It is the right of that Court to ascribe values. (See f Ogundulu and others v Chief Phillips and others (1973) 2 SC 71.) In concluding this judgment, it need be borne in mind, that this Court is not precluded from evaluating the documentary evidence before it either by itself or alongside g with the other evidence in the case in order to make findings of fact on issues before it. (See West African Breweries v Savannah Ventures Ltd and others (supra) at 287.) h An Appeal Court has a duty to determine an appeal before it on merits and not on mere technicalities. (See Shell v Otoko (1990) 6 NWLR (Part 159) 208–209.) Where even a trial Judge fails to first review the evidence i of both sides in accordance with the principle in Mogaji v Odofin and another (1978) 3 SC 91, but his findings, are based on due consideration of both parties’ case as support by the evidence, such findings will be upheld by this Court. j (See Alhaji Amokomowo v Alhaji Andu (1985) 5 SC 28.)

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It is from the foregoing and the more detailed and compre- a hensive judgment of my learned brother, Nzeako, JCA, that I too find no merit in this appeal. I too dismiss the same and I also affirm the well considered Judgment of Mohammed, J b delivered on 15 February, 2000. I abide by the order of costs contained in the said lead judgment. Appeal dismissed.