ECOBANK v. ANCHORAGE LEISURES LTD & ORS CITATION: (2018) LPELR-45125(SC) In the Supreme Court of Nigeria ON FRIDAY, 13TH JULY, 2018 Suit No: SC.406/2016 Before Their Lordships: OLABODE RHODES-VIVOUR Justice of the Supreme Court MARY UKAEGO PETER-ODILI Justice of the Supreme Court JOHN INYANG OKORO Justice of the Supreme Court CHIMA CENTUS NWEZE Justice of the Supreme Court AMIRU SANUSI Justice of the Supreme Court Between ECOBANK NIGERIA LIMITED - Appellant(s) (2018) LPELR-45125(SC)And 1. ANCHORAGE LEISURES LIMITED 2. SILOAM GLOBAL LIMITED - Respondent(s) 3. HONEYWELL FLOUR MILLS PLC RATIO DECIDENDI 1. APPEAL - NATURE OF APPEAL: Nature of an appeal "...That shown to be the angle put forward by the objector, there needs be cleared the point variously referred to by this Court that an appeal presumes or presupposes the existence of some decision appealed against where there is an absence of such a decision on a point it will be a waste of time for an appeal to lie against what the Lower Court had not reached and pronounced a decision upon. This is in consonance with the laid down practice of law that an appeal is a rehearing and for that to take place the appellate Court would reconsider the materials before the trial judge and would not hesitate to overrule his decision even on facts where after due regard and consideration it is manifest that the decision is wrong. See Babalola v. State (1989) 4 NWLR (Pt.115) 264 at 294 per Oputa JSC; Okhuarobo v. Aigbe (2002) 9 NWLR (Pt.711) 29 at 83 per Ayoola JSC."Per PETER-ODILI, J.S.C. (P. 14, Paras. A-E) - read in context (2018) LPELR-45125(SC) 2. APPEAL - UNAPPEALED FINDING(S)/DECISION(S): Effect of unappealed finding(s)/decision(s) of court "It follows that the objection raised by the appellant in the Court below would be headed for failure since that meeting of 22nd July, 2013 was held in the clear purview of the banker/customer relationship. The decision of the Court below in that regard being not appealed against has the matter settled for all time. I shall place reliance on the case of Akere v Governor of Oyo State (2012) 12 NWLR (Pt.1314) 240 at 278 wherein this Court held thus:- "In the circumstance, it is very clear and as settled in a long line of cases by this Court that a decision of a Court/tribunal not appealed against is deemed accepted and remains binding on the parties and all and sundry." See also Kraus Thompson Organisation Ltd v Unical (2004) 9 NWLR (Pt.879) 631 at 653; A.G, Anambra State v A. G. Federation (2005) 9 NWLR (Pt.931) 572 at 615. The point has to be made that the learned counsel for the appellant's submission cannot take the place of the pleadings before the Court nor the evidence proffered. Therefore the findings of the trial Court of Appeal that what was at stake was based on a banker/customer relationship and upon which the trial High Court was empowered to entertain not having been appealed against, learned counsel now bringing up the same issue at this address stage has in my humble view laboured in vain. See Obasuyi v Business Ventures Ltd (2000) 5 NWLR (Pt.558) 568 at 690; Akinbobola v Plisson Fisko (1991) 1 NWLR (Pt.167) 270 at 287. Indeed the Lower Court could only have decided the issue of cause of action on the same basis as the trial Court's decision in reiteration that a reply address of counsel can neither be a re-argument nor an avenue to raise fresh not contained in the initial address or what was outside the pleadings of the plaintiff. Also to be brought in is the fact that the finding of the trial Court discountenancing the objection of the appellant on the cause of action as it relates to third party negotiations was not appealed in the court below and so remains binding and cannot be reopened at this stage either without a ground of appeal so holding it. See Akere v. Governor of Oyo State (supra) and A. G. Anambra State v A. G. Federation (supra); Agbakoba v INEC (2008) 18 NWLR (Pt.1119)(2018) 489; KT & Industries LPELR-45125(SC) Plc v The Tug Boat M/V Japaul B. (2011) 9 NWLR (Pt.1251) 13 at 151 - 152. On the third issue on whether or not the right to fair hearing of the appellant was breached. The stance of the appellant on this question stems from a motion filed by the respondents on 5th November, 2015 and when it was called up for hearing on 11th December, 2015 which said motion was withdrawn and the appellant opposed the said withdrawal and the Court of trial allowed the withdrawal and dismissed the application and no appeal arose therefrom. The implication of there being no appeal in that regard is that the order of dismissal remained a final determination and end of all rights of a party arising from the dismissed process. I refer to Mohammed v. Abdulaziz (2009) All FWLR (Pt.465) 1684 at 1701."Per PETER-ODILI, J.S.C. (Pp. 31-33, Paras. B-F) - read in context 3. APPEAL - INTERFERENCE WITH CONCURRENT FINDING(S) OF FACT(S): Instances where the Supreme Court will not interfere with concurrent findings of fact(s) made by Lower Courts "It has been a strange encounter that the respondents who initiated the process is not complaining but appellant not only is complaining and raising the issue of a breach of fair hearing but is doing so with counsel using very unsavoury and abusive language. See Mobil Oil (Nig.) Unlimited v LASEPA (2002) 18 NWLR (Pt.798) 1. The anchor of the appellant on the infraction of its right to fair hearing was found unsustainable by the Court of Appeal which appellant took umbrage against stating that its issue on the infringement of its right to fair hearing was left unattended by the Court below. Going through the length and breadth of the proceedings the position of the appellant in this regard is really unsubstantiated and therefore cannot be sustained and so descending into the arena of verbal abuse on the Court would not do any good either in the interest of the appellant nor the adjudicatory process whereby the integrity of the Court or its officers are to be held sacrosanct especially when viewed through the lens of the Court exercising the discretion available to it judiciously and judicially. It is on that note that I have no difficulty in going along the trend and practice of this Court of non - interference with the concurrent decisions of the two Lower Courts which have been reached without a miscarriage of justice or the non application of substantive or procedural law. The two Courts were on firm ground in the dispensation of justice with the materials available to them. See Idufueko v Pfizer Products Ltd (2014) 1 NWLR (Pt.1420) 96 at 113."Per PETER-ODILI, J.S.C. (Pp. 33-35, Paras. F-B) - read in context (2018) LPELR-45125(SC) 4. BANKING LAW -BANKER-CUSTOMER RELATIONSHIP: Nature of a banker/customer relationship "It is to be noted though the situation has become trite that it is the claim of a plaintiff that vests jurisdiction in a Court. See Adeyemi v Opeyori (1976) 9 - 10 SC 31. That is the basis on which the trial Court held thus:- "Whilst the defendant is not contesting the fact that it acquired all the rights and liabilities accruable to Oceanic Bank Plc, it then becomes lucid that the banker-customer relationship which existed between the plaintiffs and Oceanic Bank transposes to a relationship between the defendants (sic) and the defendant. See paragraph 9 of the statement of claim"' As a guide I shall cite the case of Bank of the North v. Yau (2001) 10 NWLR (Pt.721) 408 at 438 paras D - E, this Court per Ayoola JSC held thus:- "In the course of carrying on business of banking, a bank enters into several contractual relationships and performs various roles. It is important in an action between bank and customer to be clear which of the several contractual relationships forms or form the basis of the action. In this case, it is pertinent to note only four of these possible relationships, namely: (i) The relationship of creditor and debtor that arises in regard to the customer's funds in the hands of the bank; (ii) The relationship of creditor and debtor that arises when the bank loans money to the customer or allows him to overdraw on this accounts; (iii) The relationship that arises from the role of the bank as a collecting bank of cheques drawn or other banks or branches of the same bank by a third person; and (iv) the possible role of the bank as a holder for value of a negotiable instrument." (Underline mine for emphasis). The said meeting was also specifically referenced in relief 45 (a) of the statement of claim thus:- "A declaration that the plaintiffs (as customers), by the agreement reached at the meetings of July 22, 2013 and December 12, 2013 with the defendant (as banker to the plaintiffs) are not indebted to the defendant in any amount apart from the agreed sum of N3,500,000,000.00 (Three Billion, Five Hundred Million Naira) as full and final settlement/liquidation of their indebtedness." Evidently clear from what has been showcased above is that what is available as the relationship between the parties is that of banker/customer, a situation of interaction(2018) emanating from LPELR-45125(SC) a banking transaction where both parties assumed the role of creditor and debtor however the colouring presentation may seem to be.