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Stanbic IBTC Bank Plc V. Longterm Global Capital Limited & Ors. (CA/L/427/2016, 9 Mar 2018)

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➥ CASE SUMMARY OF:
Stanbic IBTC Bank Plc V. Longterm Global Capital Limited & Ors. (CA/L/427/2016, 9 Mar 2018)

by Branham Chima.

➥ ISSUES RAISED
Shares sale;
Misrepresentation;
Meaningless ground of appeal;
Locus standi.

➥ CASE FACT/HISTORY
The gist of the case of the 1st – 4th Respondents, who were the Claimants before the Court below, as can be gleaned from their pleadings and evidence, both oral through PW1, Mr. Patrick Akinkuotu, and documentary through Exhibits A I, as in the record of appeal was that the transaction was in issue between the parties was in relation to the sale of the shares of a public company, Starcomms Plc., the 5th Respondents by private placement and that in law the sale of the 5th Respondent’s shares in any form whatsoever, whether by private placement or public offer, is strictly regulated by the provisions of the Investments and Securities Act, ISA and the SEC Rules and Regulations made pursuant thereto. The 1st 4th Respondents sometimes in 2008 agreed to purchase 100 million units of the 5th Respondents shares from the Appellant through private placement vide an Investor Letter in which though it was, it had not been approved by the Securities and Exchange Commission (SEC) but that it will finally be approved latest on 31/5/2008 and that if the said approval was not obtained or granted in request of the said investor letter tendered as Exhibit A, then all monies paid by the 1st 4th Respondents shall be refunded in full. However, it was subsequently discovered by the 1st 4th Respondents, that an entirely different offer document as in Exhibit B was prepared and presented to SEC for clearance and registration and/or approval by the Appellant and the 5th Respondent in conjunction with a co-issuing house in respect of the same private placement without informing the 1st 4th Respondents, which in effect the 1st 4th Respondents were not aware that the said Exhibit B was in existence at the material time when it transacted with the Appellant for the purchase of the shares of the 5th Respondent. It was also their case that they never at any time irrevocably undertook to buy the 5th Respondents shares on the basis that Exhibit A, the only placement document given to them by the Appellant will never be approved by SEC. On the face and contents of Exhibit B which was never brought to the knowledge of the 1st 4th Respondents and on which basis the shares of the 5th Respondent were sold to the other investors they were misled by the misrepresentation and non disclosures by the Appellant into purchasing the shares of the 5th Respondent on the basis of Exhibit A, since if they had been made aware of the contents of Exhibit B they would not have proceeded with the purchase of the shares of the 5th Respondent from the Appellant.

On the other hand, the gist of the case of the Appellant, the 1st Defendant before the Court below, as can be gleaned from the pleadings and evidence, both oral through DW1, Mrs Oyinda Akinyemi, and documentary through Exhibits 1, as in the record of appeal, was that in 2008, the 5th Respondent carried out a private placement for the sale of shares in the 5th Respondent and engaged the Appellant as one of its agent, in the capacity of one of the Joint Issuing Houses for the Private Placement, to market the said shares to sophisticated investors. During the Private placement, each of the 1st 4th Respondents applied for 25,000,000 units of shares in the 5th Respondent by completing four separate Forms of Commitment dated 28/04/08 attached to an Investor letter dated 24/04/2008. The 1st 4th Respondents paid cumulatively the sum of ₦1.3 Billion to the 5th Respondent and the 5th Respondent allotted to each of them the 25,000,000 units of its shares, which aggregated to 100,000,000 units of shares. The Private Placement was approved by the Securities and Exchange Commission prior to the allotment of the 100,000,000 units of shares to the 1st 4th Respondents by the 5th Respondent. However, on 11/5/10, the 2nd 4th Respondents transferred all their 75,000,000 units of shares in the 5th Respondent to the 1st Respondent. It was also their case that the 1st 4th Respondents invested in the 5th Respondents shares based on the terms of the Investor Letter as in Exhibit A by completing individually the four Forms of Commitment attached to the Investor Letter, in which it was stated that it was not approved by SEC and that the 1st 4th Respondents had the responsibility of obtaining and evaluating the information necessary for them to determine whether to purchase shares in the 5th Respondent and by which they irrevocably undertook and confirmed their applications for subscription for the shares in the 5th Respondent. Curiously, after more than four of the allotment of 100,000,000 units of shares in the 5th Respondent to the 1st 4th Respondents by the 5th Respondent, they brought an action against the Appellant and the 5th Respondent praying for the rescission of the sale of the shares contracts between each of the 1st 4th Respondents and the 5th Respondent because they claim the shares have become worthless or worth much less than what they paid for them.

This is an appeal against the judgment of the Federal High Court, Lagos Judicial Division, Coram: J. T. Tsoho J., in suit No: FHC/L/CS/1383/2013. Long term Global and Ors. v. Stanbic IBTC Bank Plc and Anor, delivered on 14/12/2015 in which the sale of 100,000,000 units of share in the 5th Respondent sold through the Appellant to the 1st -4th Respondents was set aside and an order made against the 5th Respondent and the Appellant jointly and severally to refund to the 1st – 4th Respondents the sum of ₦1.3 Billion paid for the said 100,000,000 shares. The Appellant was peeved with the said judgment and had promptly appealed to this Court.

➥ ISSUE(S) & RESOLUTION(S)
[PRELIMINARY OBJECTION: OVERRULED]

↪️ I. Whether filing of additional grounds of appeal not included in the original notice of appeal is defective?

RESOLUTION: IN APPELLANT’S FAVOUR.
[WHAT MATTERS IS THE FILING OF THE ORIGINAL NOTICE OF APPEAL AND NOT SUBSEQUENT GROUNDS
‘I have also considered the submission of counsel in their respective briefs and noted the statutory and judicial authorities relied upon by them and it does appear to me that the reliance on Section 24 of the Court of Appeal Act was to no avail in that the three months stipulated therein for the filing of a notice of appeal against a final judgment of the Court below is in respect of the filing of the original notice of appeal and does not relate, in my view to the filling of subsequent grounds of appeal by way of either additional grounds of appeal or amended grounds of appeal pursuant to the leave of this Court sought and obtained. I hold therefore that once the initial notice of appeal is filed within time, as in the instant appeal on 15/12/2015, the additional grounds 1, 3, 4, 6, 8, 10 and 11 in the Appellants Further Amended Notice of Appeal filed pursuant to the order of this Court made on 7/6/17 granting the amendment sought by the Appellant are competent and I am thus in agreement with the submission of the learned counsel for the Appellant that in the circumstances of this appeal, there was no need for the Appellant to seek an extension of time within which to file these additional grounds of appeal for which the leave of this Court had been sought and obtained.’

THE AMENDMENT TAKES EFFECT FROM THE DAY THE ORIGINAL NOTICE WAS FILED
‘In SPDC (Nig) Ltd and Anor v. Eriata and Anor (supra), decision later in time to Stanbic IBTC Bank Plc v. Longterm Global Capital Ltd and Anor (supra), this Court held inter alia thus: It is settled law that once leave to amend the notice of appeal is granted, the existing notice is vacated. It follows that if the amended notice of appeal is filed within the time ordered by the Court, the said amended notice of appeal automatically steps into the shoes of the Original Notice of Appeal which has been vacated by the amendment. In effect, the amendment takes effect retrospectively, not from the date it was made but from the date of filing of the original notice.” See also Trutec Investment Service Ltd. v. Moni Pulo Ltd and Ors (2010) LPELR CA/L/308M/03. See also Akinade v. NASU (1999) 2 NWLR (Pt. 592) 570 @ pp. 580 581.’]
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[APPEAL DISMISSED]

↪️ I. Whether the 2nd 4th Respondents have the requisite locus standi to institute and maintain the suit against the Appellant and the 5th Respondent by reason of whether they had sold or merely consolidated their 75 million units of shares in the 5th Respondent?

RESOLUTION: IN RESPONDENT’S FAVOUR.
[IT IS NOT PLEADED THAT THE 2ND-4TH RESPONDENTS SOLD THEIR SHARES TO 1ST RESPONDENT THUS NO GROUND TO DENY LOCUS STANDI
‘Now, the question is whether in the pleadings of either the Appellant or the 1st 4th Respondents were there any averments as to the sale of the shares by the 2nd 4th Respondents of their shares to the 1st Respondent? The simple answer is a resounding no! Neither the 1st 4th Respondents nor the Appellant or the 5th Respondent averred to any sale of the shares of the 2nd 4th Respondents to the 1st Respondent. In law, both the parties as well as the Court are bound by the pleadings and are thus obligated to and must conduct their cases within the confines of their pleadings and therefore, evidence on fact not pleaded would go to no issue. See The Registered Trustee of the Apostolic Church v. Mrs. Olowoleni (1990) SCNJ 69. See also Daniel Adenuga v. Lagos City Council (1950) 13 WACA 125; Onyekaonwu and Ors. v. Ekwubiri and Ors (1966) 1 All NLR 32. On the state of the pleading therefore, it is very clear to me and I so hold that the parties did not join any issue as to the consolidation of the 2nd 4th Respondents shares into one account with the 1st Respondent for the purposes of it being professionally managed by the 1st Respondent as averred to in paragraph 39 of the Statement of Claim, which remained un-denied or was so ineffectively traversed by the Appellant as not being in position to admit or deny. In law, where a Defendant, such as the Appellant, fails, neglects or refuses to effectively traverse positive averment of fact in the pleading of a Claimant, such as the 1st 4th Respondents, he would be deemed to have admitted such averments and I hold that the Appellant was deemed to have admitted the averments in paragraph 39 of the Statement of claim of the 1st 4th Respondent and what therefore, is admitted need no further proof in law. See Section 123 of the Evidence Act, 2011. See also Nsiegbe v. Mgbemena (2007) All FWLR (Pt. 372) 1769; Hashidu v. Goje 2 EPR P. 790 @ 836; Oversea Construction Company Nig. Ltd v. Creek Enterprises Nig.Ltd (1985) 3 NWLR (PT. 407) 40; Adesoji Aderemi v. Adedire (1966) NMLR 398; Nnameka Emegokwue v. James Okadigbo (1973) 4 SC 113; Woluchem v. Gudi (1981) 5 SC 291; George v. Dominion Flour Mills Ltd. (1963) NLR 74; Smurtiff Ltd v. MV. Gongola Hope (2002) 22 WRN 30; Solano v. Olusanya and Ors (1975) 1 SC; Olubode v. Oyesina and Ors (1977) 2 SC 97.’

‘My lords, the parties having not joined any issue of the consolidation of the shares as pleaded by the 1st 4th Respondents and there being not an iota of pleading from either or both parties on sale of the shares of the 2nd 4th Respondents to the 1st Respondent, I consider all the evidence of sale of shares elicited from the PW1 and DW1 on facts not pleaded as going to no issue. In law, evidence elicited under cross examination but not on facts pleaded does not enjoy a higher status than evidence in chief given on facts not pleaded merely because it was obtained under cross examination as they both go to no issue. Thus, it is only where the evidence elicited under cross examination is on facts pleaded either by the party being cross examined or by the party cross examining that such evidence is good evidence for the cross examining party if it is in support of his case. See Daggash v. Bulama (2004) 14 NWLR (Pt. 892) 144 @ p. 241. See also Ofem and Anor v. Ewa and Ors (2012) LPELR- 7852 (CA); Bamgboye and Ors v. Olarewaju (1991) 4 NWLR (Pt. 184) 132 @ p. 155; Gaji and Ors v. Paye (2003) 8 NWLR (Pt. 825) 583.’]
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↪️ II. Whether in the entire circumstances of this appeal, taking into consideration the pleadings, evidence and the applicable principles of law, the 1st 4th Respondents were bad investors being impari delicto in any irregularity in the purchase by them of the 100 million units of shares in the 5th Respondent through the Appellant or whether the 1st 4th Respondents were genuine investors who were misled by the misrepresentations of the Appellant into purchasing the 100 million shares in the 5th Respondent on the basis of Exhibit A?

Available:  Alhaji Abba Asheik v. Borno State Government & Ors. (2007)

RESOLUTION: IN RESPONDENT’S FAVOUR.
[MISREPRESENTATION IS PROVED – MISREPRESENTATIONS WERE NOT CHALLENGED BY THE APPELLANT
‘The DW2, who should know and appears to say what he knows stated categorically that while Exhibit A, presented to the 1st – 4th Respondents by the Appellant as the private placement document and on which they proceeded to allegedly purchase the shares of the 5th Respondent from the Appellant was unknown to and unapproved by the 5th Respondent, it was Exhibit B to the knowledge of both the Appellant and the 5th Respondent that was exclusively used for the private placement of the shares of the 5th Respondent to investors. The Appellant neither denied nor challenged the DW2 on these damaging evidence against the interest and position of the Appellant. He was believed by the Court below and I too have no reason not to believe him.’

THE APPELLANT DID NOT MAKE AWARE TO THE 1ST-4TH RESPONDENTS THE EXHIBIT B
‘The case of the 1st 4th Respondents as was clearly pleaded and sufficiently made out, was that they were not aware of the Existence of Exhibit B when Exhibit A was presented to them as the sole investor letter for the private placement of the 5th Respondents shares and that they only became aware of Exhibit B upon the investigation activities of SEC when a letter was written to them and upon inquiry they found out that contrary to the representation made to them by the Appellant, Exhibit A was not the authentic approved private placement document used for the sale of the 5th Respondent shares but that rather it was Exhibit B that was used exhaustively for the said sale of shares of the 5th Respondent to investors. Now, what did the Appellant say in response by way of defence? It pleaded and led evidence and contended vehemently through its counsel in this appeal too that the 1st 4th Respondents did not ask for Exhibit B from it and were sophisticated investors who took their own decision to invest in the 5th Respondents shares and that at any rates Exhibit B was only but a little more detailed than Exhibit A without any significant difference if any difference at all. I think this is where the Appellant got it all wrong! Since it was not and did not act as it alleged as investment advisers to the 1st 4th Respondent it does not also lie in its mouth to say how more detailed Exhibit B was or insignificant any difference in Exhibit A and B were but simply present to the 1st- 4th Respondents or at least inform them of the existence of Exhibit B to allow them take the decision on their own whether to ignore the insignificant difference in Exhibit A and B and to proceed to invest in the shares of the 5th Respondent. This it is clear the Appellant failed to do and ended up concealing both the contents and the facts of the existence of Exhibit B from the 1st 4th Respondents. In the circumstances therefore, I find it strange as well as unconscionable for the Appellant to not only mull the issue of waive but also to seriously attempt to rely on it against the 1st 4th Respondent. In my finding the issue of waiver does not even arise at all in the first place and the 1st 4th Respondent did not either expressly or impliedly waived their rights to have the knowledge of the contents of Exhibit B of which they were not even made aware of its existence in the first place by the Appellant.’

IN PARI DELICTO DOES NOT ARISE
‘The law is well settled that it is he who alleges a fact that has the burden of proving what he alleges and I find that neither was any allegation of complicity or bad faith made against the 1st 4th Respondents nor was any such allegation made out in evidence by the Appellant against the 1st 4th Respondents as required by law. I find therefore that the 1st 4th Respondents, acted in good faith based on the limited information made available to them by the Appellant vide Exhibit A, and were not in any way impari delicto with the Appellant who knew all along that Exhibit A was not the mandate document approved by the 5th Respondent for the sale of its shares by parties placement and the consequential failure of its approval by SEC acted on its own to mislead them into purchasing the shares of the 5th Respondent on the strength of Exhibit A without any fault on the part of the 1st 4th Respondents.’]
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↪️ III. Whether the Court below was right when it held that the 1st 4th Respondent made out their case and were thus entitled to judgment, including the relief of pre-judgment interest against the Appellant and the 5th Respondent?

RESOLUTION: IN RESPONDENT’S FAVOUR.
[THE RESPONDENTS WERE ENTITLED TO JUDGEMENT AS GIVEN BELOW
‘I have already held that the Court below was right when it found that the 1st 4th Respondents proved their case of misrepresentation and rescission of the transaction in Exhibit A against the Appellant and the 5th Respondent and that being so it follows that the 1st 4th Respondents having proved their case as required of them by law were entitled to the judgment of the Court below, which the Court below rightly entered for them against the Appellant and the 5th Respondent.’

PRE-JUDGEMENT INTEREST WAS PROVED BY THE RESPONDENTS
‘Having considered the entirety of the pleadings and evidence led by the parties, I find that there are indisputable evidence that not only did the 1st 4th Respondents approached the Appellant for credit facility to finance the purchase of the shares of the 5th Respondent from the Appellant, which was refused and they had to resort to applying and securing credit facility from FBN Securities at the rate of 18% interest per annum to enable them purchase the shares of the 5th Respondent from the Appellant. This was clearly to the knowledge of the Appellant as the credit facility availed the 1st 4th Respondents were on their instruction paid over directly to the Appellant as the purchase price of the 100,000,000 shares of the 5th Respondent. I have just pondered why the Appellant which was eager to the extent of even misleading the 1st 4th Respondents into purchasing the shares of the 5th Respondent through it failed to advance the credit facility to the 1st 4th Respondents for that purpose and it dawn on me that from the transactions in Exhibit A, unapproved by both the 5th Respondent and SEC the Appellant knew that the transaction with the 1st 4th Respondent was leading them to nowhere as it was an ill-fated transactions on which the Appellant does not want to stake his funds by way of a loan to the 1st 4th Respondents. This is an irresistible inference this Court cannot fail to draw from the proved facts in the evidence in the record. Thus, the 1st 4th Respondent not only pleaded but also proved by unchallenged evidence their entitlement to pre-judgment interest against the Appellant and the 5th Respondents and I so hold.’]
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✓ DECISION:
‘On the whole therefore, having resolved all the three issues for determination against the Appellant in favour of the 1st 4th Respondents, I have no difficulty holding that this appeal is bereft of any merit and ought to be dismissed. Consequently, it is hereby so dismissed. In the result the judgment of the Federal High Court, Lagos Judicial Division, Coram J.T. Tsobo J., in suit No: FHC/L/CS/1383/2013: Longterm Global Capital Limited and Ors v. Stanbic IBTC Plc and Anor., delivered on 14/12/2015 in which the sale of 100,000,000 units of shares in the 5th Respondent sold through the Appellant to the 1st 4th Respondent was set aside and an order made against the 5th Respondent and the Appellant jointly and severally to refund to the 1st 4th Respondents the sum of ₦1.3 Billion paid for the said 100,000,000 shares together with pre-judgment interest on the judgment sum is hereby affirmed. There shall be cost of ₦400,000.00 against the Appellant in favour of the 1st 4th Respondents only.’

➥ FURTHER DICTA:
⦿ THE LATTER DECISION OF COORDINATE COURT IS THE ONE TO FOLLOW
I am not unaware of an earlier decision of this Court to the contrary in Stanbic IBTC Bank Plc v. Longterm Global Capital Ltd and Anor (supra). However, having also averted my mind to the principle of law making a decision of the same Court or Courts of coordinates jurisdiction later in time to be the preferable decision to be followed, the later decisions of this Court in line with my conclusion on this issue are the one to be preferred and followed in this judgment. — B.A. Georgewill JCA.

⦿ OBITER DICTUM MAY BE A GROUND OF APPEAL WHERE IT IS CLOSELY LINKED TO THE RATION
See Eneh v. Ozor (2016) 16 NWLR (Pt. 1538) 219 @ pp. 233 234, where it was stated inter alia thus: It is well settled that grounds of appeal must arise or flow from or tied to the judgment of the Court appealed against. In fact a ground of appeal needs to be against the ratio decidendi of the Court and not obiter dicum or remarks by the Court except where the obiter or remark is closely linked with the ratio as to be deemed to have radically influenced the ratio. — B.A. Georgewill JCA.

⦿ A COURT OF LAW DOES NOT CONCERN ITSELF WITH TRIFLES
A Court of law, it must be remembered always, does not concern itself with triffles but with substance and justice of the case which are weightier matters. The long accepted Latin maxim is de minimis non curat lex. See Jeric Nigeria Ltd. v. Union Bank Nig Plc (2000) 15 NWLR (Pt. 691) 477. See also Chief Adebili Adegbuyi v. All Progressives Congress and Ors (2013) LPELR 22799 (CA). — B.A. Georgewill JCA.

⦿ A VAGUE GROUND OF APPEAL IS INCOMPETENT
I have taken a calm look at ground 6 and considered the submissions of counsel to the respective parties and it does appear to me that though the law is that a ground of appeal should not be considered in isolation of its particulars in order to understand its purports, yet it is also the law that a ground of appeal which defies understanding or is not particularized or indeed contains irrelevant particulars is simply a vague ground of appeal and thus incompetent. See CBN and Anor v. Okojie and Ors (2002) LPELR- 836 (SC). — B.A. Georgewill JCA.

⦿ ISSUE DISTILLED FROM COMBINED GROUNDS WILL BE SAVED WHERE ONE GROUNDS SUPPORTS IT
However, issue four which was partly distilled from grounds 6 and also from ground 7 and 8 should in my view be saved by the competent grounds 7 and 8 and is thus not liable to be struck out along with the incompetent ground 6. See Order 7 Rule 3 of the Court of Appeal Rules 2016. See also CBN and Anor v. Okojie and Ors (2002) LPELR – 836(SC). — B.A. Georgewill JCA.

⦿ MEANINGLESS AND VAGUE GROUND OF APPEAL WILL BE STRUCK OUT
My Lords, I have for the sake of doing substantial justice to the parties taken time to read over and over again the above ground 6 and the more I read it the more meaningless it comes across to me. Both the grounds and the particulars taken together reveal no complaint against the judgment of the Court below when not a single rule or regulation not identified and evaluated by the Court below in its judgment was disclosed in the ground and its particulars. I therefore cannot but agree with the apt and unassailable submissions of the learned counsel for the 1st -4th Respondent that ground 6 defies all understanding and is thus vague and incompetent and I so hold. This objection is hereby upheld and consequently ground 6 is hereby struck out for being incompetent. — B.A. Georgewill JCA.

⦿ DECIDING WHETHER A CLAIMANT HAS LOCUS STANDI
Having held as above, what is the position of the law on the issue of locus standi? In law, deciding whether a Claimant has the requisite locus standi is a function of whether the claim he makes has disclosed his sufficient interest in the subject matter and to determine this it is the averments of the Claimant in his pleadings that the Court has to look at and critically examine to see if it discloses his interest sufficient enough to clothe him with the requisite locus standi to sue. — B.A. Georgewill JCA.

Available:  Archibong Tom Udo v Ibanga Udo Robson (2018) - CA

⦿ WHAT IS A CAUSE OF ACTION IN LAW
What then is a cause of action in law? Simply put a cause of action refers to those facts which show or give life to a right of action. It is the factual situation which gives a person a right of action. It is only where the claim of the Claimant does not disclose his sufficient interest in the subject matter that it must be terminated in limine by the Court if so moved by the Defendant. See Thomas v. Olufosoye (1986) 1 NSCC 321. See also AG. Federation v. AG Abia State and Ors (2001) FWLR (Pt. 64) 202 @ p. 264; Ndamzu v. Nemson Fishing Enterprises (2000) FWLR (Pt. 7) 1064 @ p. 1072. — B.A. Georgewill JCA.

⦿ WHAT IS LOCUS STANDI
In law therefore, locus standi denotes the right standing of a person to sue over a wrong allegedly done to him. It is the totality of the right conferred on a person who approaches a Court to seek remedy to have the right standing to seek particular remedy. It is for this reason that in law a person without the requisite locus standi, no matter the colossal nature of the injury or damages allegedly done or suffered, cannot sue or have the right standing in a Court of law to seek redress over such an alleged injury or damage done in which he has no or cannot show his locus standi to sue. Such a person can simply or safely be described as meddlesome interloper. See Owodunni v. Regd. Trustees, Celestial Church of Christ (2009) FWLR (Pt. 9) 1488. See also Ikeja Hotels Plc v. LSBIR (2005) All FWLR (Pt. 279) 1260. Abubakar v. Bebeji Oil and Allied Products Ltd. (2007) All FWLR (Pt. 362) 1855; NPA Plc v. Lotus Plastic Ltd. (2006) All FWLR (Pt. 297) 1023; Taiwo v. Adeboro (2013) All FWLR (Pt. 584) 53; Adesanya v. President, Federal Republic of Nigeria (2001) FWLR (Pt. 46) 859; Amah v. Nwankwo (2008) All FWLR (Pt. 411) 479. — B.A. Georgewill JCA.

⦿ LOCUS STANDI IS JURISDICTIONAL
So crucial and of utmost importance is the issue of locus standi that it has over the years attained the level of a jurisdictional status in the litigation battlefield and thus can be raised at any stage of the proceedings. It can also be raised suo motu by the Court, so far as the parties are called upon to address the Court on it, to ensure that whilst the door of the hallowed halls of the Courts in the land are open to persons with genuine grievances resulting from wrongful acts or omissions of others affecting them to approach the Court to seek redress from the temple of justice, that same door would be shut against persons who are mere busy bodies or meddlesome interlopers, without any real or genuine grievance affecting them from inundating the Courts with frivolous claims without any foundational or factual basis. See Ikeja Hotels Plc v. LSBIR (supra) @ pp. 1274 1275, See also Adesanya v. President, Federal Republic of Nigeria (supra) @ p. 854; Owodunni v. Regd. Trustee, Celestial Church of Christ (supra) @ p. 1815. — B.A. Georgewill JCA.

⦿ A RELIEF DOES NOT STAND IN ISOLATION TO AVERMENTS IN THE PLEADINGS
I find this contention as highly misconceived and this is because a relief does not in law stand in isolation from the averments of the party seeking the reliefs and in my view relief no. 6 is rather clearly in tandem with the averment in paragraph 39 of the 1st – 4th Respondent Statement of Claim to the effect that the transaction between the 2nd-4th Respondents and the 1st Respondent in respect of their shares in the 5th Respondent was one of consolidation of their shares for effective management by the 1st Respondent. — B.A. Georgewill JCA.

⦿ MORE OFTEN THAN NOT THE STATEMENT OF OATH IS A REPLICA OF THE PLEADINGS; THE COURT RELIES ON THE QUALITY OF THE EVIDENCE
It must be borne in mind, and very crucially too, that in trials under new regime of front loaded evidence, more often than not the statement on oath of a witness is the replica of the pleadings of the party on whose behalf the evidence is given. The written deposition of a witness is thus adopted as his evidence in chief, while his cross examination is the test of his veracity and the Court would only act on such evidence if it is found to be cogent, credible and reliable upon proper evaluation. Thus, the fact that a witness had deposed to any of all the facts as pleaded alone would not suffice because the Court still has the duty to assess the quality of his evidence. See Gundiri v. Nyako (2014) 2 NWLR (Pt. 1391) 201. See also Saeed v. Yakowa (2013) 17 NWLR (Pt. 1352) 124; Tuah v. Michael (2010) 10 NWLR (Pt. 1203) 519, Aregbesola v. Oyinlola (2010) LPELR 3805 (SC). — B.A. Georgewill JCA.

⦿ WITNESS INCONSISTENT ON MATERIAL FACTS
Thus, in considering and ascribing probative values to the evidence of witnesses, a Court is under duty to appraise it to see whether they are admissible, cogent, credible and probable. Thus, in the discharge of this onerous but very essential duty, a Court will be wary of crediting any witness who has either been so discredited or his so inconsistent on material facts in contention between the parties. It is for this reason that it is settled law that no witness who has given materially inconsistent evidence on oath is entitled to the honour of credibility and such a witness does not deserve to be treated as a truthful witness. See Ezemba v. Ibeneme (2009) 14 NWLR (Pt. 789) 623. — B.A. Georgewill JCA.

⦿ SOME PRINCIPLES OF PLEADINGS
It is for the above position of the law that I bear in mind that issue of facts on which the parties are ad idem would require no further proof and are taken as having been duly established. It is also the law that facts admitted by either party of the averments of the other party also need no further proof. It is equally well accepted that facts in a pleading of one party which are not specifically traversed but are generally or evasively traversed are also deemed as having been admitted by the other party. It is basic but a fundamental principle of law that parties are bound by their pleadings. See also Hashidu v. Goje 2 EPR P. 790 @ p. 836. See also Oversea Construction Company Nig. Ltd. v. Creek Enterprises Nig. Ltd(1985) 3 NWLR (Pt. 407) 40; Adesoji Aderemi v. Adedire (1966) NMLR 398; Nnameka Emegokwue v. James Okadigbo (1973) 4 SC 113; Woluchem v. Gudi (1981) 5 SC 291; Iwuoha v. NIPOST (2003) 8 NWLR (Pt. 822) 308; Akpapuna and Ors v. Obi Nzeka and Ors (1983) 2 SCNLR 1, (1983) 7 SC 1; Omoboriowo v. Ajasin EPR (Vol 3) 488 @ 511; Iniama v. Akpabio (2008) 17 NWLR (Pt. 1116) 225 @ p. 309. — B.A. Georgewill JCA.

⦿ CONSTITUTING A BINDING CONTRACT: OFFER, ACCEPTANCE, CONSENSUS AD IDEM
In law, to constitute a binding contract between parties, there must be a meeting of the mind often referred to as consensus ad idem. The mutual consent relates to offer and acceptance. While an offer is the expression by a party of readiness to contract on the terms specified by him by which if accepted by the offeree gives rise to a binding contract, the offer only matures into a contract where the offeree signifies a clear and unequivocal intention to accept the offer. An offer can be accepted in such a manner as may be implied, such as doing an act which the person expecting acceptance wants done. On the other hand, an invitation to treat is simply the first step in negotiations between the parties to a contract. It may or may not lead to a definite offer being made by one of the parties to the other in the negotiation. In law therefore, an invitation to treat is thus not an agreement or contract. See Meka BAB Manufacturing Co. Ltd v. ACB Ltd (2004) 2 NWLR (PT. 858) 521. See also Unitab Nigeria Ltd v. Engr. Oyelola and Anor (2005) All FWLR (Pt. 286) 824 @ pp. 829-830; Okugbule and Anor v. Oyegbola and Ors (1990) 4 NWLR (pt. 147) 723; See also Afolabi v. Polymera Industries Ltd (1967) 1 All NLR 144; Nneji v. Zakhem Construction Nig. Ltd (2006) 12 NWLR (Pt. 994) 297; BFI Group Corporation v. Bureau of Public Enterprises (2012) LPELR-9339 (SC). — B.A. Georgewill JCA.

⦿ A PERSON WHO HAD FULL KNOWLEDGE OF WHAT HE WAS ENTERING INTO CANNOT BE SAID TO BE MISLED
Thus, was the Appellant shown to have been responsible for the misleading by misrepresenting Exhibit A as the private placement documents to the 1st 4th Respondents and making them to purchase the shares of the 5th Respondent? To answer this question one must first consider whether or not the 1st 4th Respondents waived their right to be given Exhibit B by the Appellant? In law, persons such as the 1st 4th Respondents who have not been shown to be under any legal disability ought ordinarily to be the best judges of their own interest and thus if they are shown to have the full knowledge of what they were entering into with the Appellant in respect of the shares of the 5th Respondent and proceeded to its conclusion. Then they could be said to have waived their right and to hold their peace forever and thus cannot be heard to complain thereafter. However, if they were not given the opportunity of the full knowledge of facts and circumstances surrounding the private placement of shares of the 5th Respondent and had been goared on by the Appellant and its staff as they had alleged into buying the shares of the 5th Respondent without full disclosure or upon concealment then they could not be said to have waived their right. — B.A. Georgewill JCA.

⦿ CONCEPT OF WAIVER OF RIGHT
My lords, in law the concept of waiver is one that presupposes that the person who is to enjoy a benefit or who has the choice of two benefits is fully aware of his right to the benefit or benefits, but he either neglects to exercise his right to the benefit, or where he has a choice of two, he decides to take one but not both. Thus, if one party by his conduct leads another to believe that the strict rights arising under contract between himself and another will not be insisted upon, intending that the other person should act on that belief and does not act on it, then the first party has waived his right and will not afterwards be allowed to insist on the strict rights when it will be inequitable for him so to do. In Nigerian Bank of Commerce and Industry v. Integrated Gas (Nigeria) Limited (2005) 4 NWLR (Pt. 916) @ 642-643, the Supreme Court pronounced with finality on this issue inter alia thus: If one party by his conduct leads another to believe that the strict rights arising under the contract will not be insisted upon, intending that the other should act on that belief, and he does act on it, then the first party will not afterwards be allowed to insist on the strict right when it will be inequalities for him to do so. Thus where the defendant relied upon the failure of the plaintiff to perform a condition of the contract as to the precise time or mode of performance fixed by the contract as a ground for cancelling or repudiating the contract or as justifying his own refusal to perform his own obligation. The plaintiff may reply that the defendant has waived his right to insist that the contract should be or have been performed according to its original tenor. Waiver is not a cause of action, but a man may be debarred by the doctrine of waiver from asserting that an original condition precedent is still operative and binding waiver may be oral or written or inferred form conduct. See also United Calabar and Co v. Elder Dempster Lines Ltd (1972) All NLR 244; Tsvetan, Dimitrov v. Multichoice Nigeria Ltd (2005) 13 NWLR (Pt. 943) 391; Ariori v. Elemo (1983) 1 SCNLR: Total Nigeria Plc v. Chief Elijah Omoniyi Ajayi (2004) 3 NWLR (Pt. 869) @ pp. 285-286. In Nigeria Universal Bank Ltd v. Samba Petroleum Company Ltd (2006) 12 NWLR (Pt. 993) @ p. 122, it was reiterated inter alia thus: Waiver carries some element of abandonment of a known legal right. By his conduct the person has given impression that he is not ready to pursue his legal right in the matter. He may not say so in specific words. He may not say so at all. But once his conduct shows that trend, a Court of Law will hold that he has waived his right. See also Prince Sikiru Adebayo Sobamowo v. Prince Alhaji Waheed Elemuren (2008) 11 NWLR (PT. 1097) @ 31; Nigeria Bank of Commerce and Industry v. Integrated Gas (Nigeria) Ltd (2005) 4 NWLR (Pt. 916) @ 642-643. See B. Stabilin and Co. Ltd v. Nwabueze Obasi (1997) 9 NWLR (Pt. 520) 293 @ p. 305. See also Bioku v. Light Machine (1986) 5 NWLR (Pt. 39) 42: Udochukwu v. Ngene (1992) 8 NWLR (Pt. 261) 565. In Guinness (Nig.) Plc v. Onegbadan (2012) 15 NWLR (Pt. 1322) 33 @ p. 50, it was also held inter alia thus: It is trite law that a person who is not under legal disability should be the best judge of his own interest. Where he had full knowledge of his rights, interest, benefits or profits conferred upon him by statute or accorded to him under a statute and intentionally yet interestingly decided to give up all or some of these statutory rights, he therefore cannot be heard to complain afterwards. — B.A. Georgewill JCA.

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⦿ IN PARI DELICTO – BOTH AT FAULT
It is also true that in law parties to an illegal contract cannot seek any remedy over such illegal contract in Court, yet in law no one can be allowed in good conscience and in equity, to benefit from his own wrong and resile from a contract after taking the benefit therefrom. In law therefore, when parties to a transaction are both at fault rendering the transaction irregular or faulty, it is said that the condition of the Defendant is better in that the Claimant who is also in fault would stand no better chance in repudiating the transaction, which though found or turned out to be irregular, he was also in fault. This is buttressed by the Latin maxim: ‘in pari delicto potion est condition defendant’. See Ukejianya v. Uchendu (1950) 13 WACA 45: Ekpenyong v. Nyong (1975) 2 SC 71; Abubakri v. Smith (1975) 6 SC 31, Oyegoke v. Iriguna (2001) FWLR (Pt. 75) 448 @ p. 451; Ibrahim v. Osim (1988) 3 NWLR (Pt. 82) 257 @ p. 278; Oilfield Supply Centre Ltd v. Lloyd Johnson (1987) 2 NWLR (Pt. 58) 625); Pan Bisbilder (Nig) Ltd v. FBN Ltd (2000) 1 NWLR (Pt. 642) 684 @ p. 695. — B.A. Georgewill JCA.

⦿ MASTER AND SERVANT ARE JOINTLY LIABLE FOR AUTHORISED AND UNAUTHORISED MODE IF DOING AUTHORISED ACT
This is so because in England as in Nigeria the law has been well settled, that a master is jointly and severally liable for both the authorized act of and unauthorized mode of doing an act authorized by the servant. See Young v. Edward Box and Co (1951) 1 TLR 789, where it was held inter alia thus: A master is jointly and severally liable for any act committed by his servant while acting in the course of his employment. The wrongful act of a servant is deemed to be done in the course of his employment if it is either (1) a wrongful act authorized by the master or (2) a wrongful and authorized mode of doing same act authorized by the master The present Appellant’s case falls under the second category.” The Supreme Court in dealing with a similar situation in the case of ACB Ltd Calabar v. Agbonyin (1960) 1 NSCC @ P.12 had held inter alia thus: ”It was contended before us by Mr. Nonyelu, for the Appellant that assuming the money had been paid and that Mr. Onwuleaku had embezzled it, the Appellant would not be liable and he cited Barwick v. English Joint Stock Bank (1967) 2 Ex 259. With respect, it is difficult to see how that case helps him, since the Court there held that the bank would be liable for the fraud of its Manager, if in fact he had been fraudulent.” See also Vulcan Gases Ltd v. Gesellshaff Fir Industries G.A.G (GIV) (2001) 9 NWLR (Pt. 719) 610 SC. — B.A. Georgewill JCA.

⦿ IT IS THE PRIMARY DUTY OF TRIAL COURT TO ASSESS WITNESSES
I fully subscribe to the well settled position of the law that an appellate Court which had not seen the witnesses testify and observe their demeanour in the witness stand, should respect the views of a trial Court and should not readily substitute its own views except where it is shown that the conclusion reached by the Court below was perverse. An appellate Court must always bear it in mind that the primary function of assessing the quality of evidence and ascribing probative value thereto is that of the trial Court, which heard and saw the witnesses testify. Thus, it is only when the findings of the trial Court have been demonstrated to be perverse as not flowing from the established and proved evidence or hinged on extraneous matters or for whatsoever other reasons not correct that an appellate Court would intervene to disturb such findings of fact and re-evaluate the evidence on the printed record, if so called upon by the Appellant to make proper findings in accordance with the dictates of justice. See Saeed v. Yakowa (2013) All FWLR (P. 692) 1650 @ p. 1681. See also Layinka v. Makinde (2002) FWLR (Pt. 109) 1557 @ p. 1570; Martins v. COP (2013) All FWLR (Pt. 666) 446 @ p. 460; Obajimi v. Adeobi (2008) 3 NWLR (Pt. 1075) 1 @ p. 19. See also Owor v. Christopher (2010) All FWLR (Pt. 511) 962 @ p. 992; Sogbamu v. Odunaiya (2013) All FWLR (Pt. 700) 1247 @ p. 1307. — B.A. Georgewill JCA.

⦿ APPELLATE COURT IS ONLY CONCERNED WITH WHETHER THE DECISION GIVEN IS RIGHT, NOT WHETHER THE REASON IS RIGHT OR WRONG
An appellate Court is only concerned with whether the judgment appealed against is right or wrong not whether the reasons given are right or wrong. Where the judgment is right but the reasons given are wrong, the appellate Court does not interfere. It is only where the misdirection has caused the Court to come to a wrong conclusion that the appellate Court will interfere See also Abaye v. Ofili (1986) 1 NWLR (Pt. 15) 134: Ukejianya v. Uchendu 18 WACA 46; Obajimi v. Adeobi (2008) 3 NWLR (Pt. 1075) 1 @ p. 19: Owor v. Christopher (2010) All FWLR (Pt. 511) 962 @ p. 992; Sogbamu v. Odunaiya (2013) All FWLR (Pt. 700) 1249 @ p. 1302; Mini Lodge v. Ngei(2010) All FWLR (Pt. 506) 1806 @ pp. 1820-1821; Saeed v. Yakowa (2013) All FWLR (Pt. 692) 1650 @ p. 1681. — B.A. Georgewill JCA.

⦿ GENERAL TRAVERSE – NOT IN POSITION TO DENY
In law, an issue of fact on which the parties are ad idem or on which the adverse party did not effectively traverse are deemed to have been admitted and would thus require no further proof as they are taken as having been duly established. A general traverse or averment that a party is not in position to either admit or deny an allegation made by the other party does not amount to effective denial as to put such a fact in issue to be proved by the party so alleging. See paragraph 34 of the Statement of claim of the 1st 4th Respondents. See also paragraph 3 of the Statement of defence of the Appellant. — B.A. Georgewill JCA.

⦿ NATURE OF PRE-JUDGEMENT INTEREST
The law on pre-judgment interest is that it is to be awarded where there is an agreement for payment of interest or under mercantile custom or under principle of equity, as in breach of fiduciary duty. In all such cases the law is that pre-judgment interest is as of right. The Appellant is no doubt a licensed Commercial Bank and thus bound by its trade custom to give interest on money lodged with it. The law requires a person claiming such right to pre-judgment interest to so plead and prove at the trial. In law generally the Courts have the power to award post-judgment interest but not pre-judgment interest since pre-judgment interest which must be based on pleadings and proof by the party so claiming entitlement to it save if it is part of the mercantile custom of the transaction involving the parties. In all therefore, it is never granted as of course, but must either be part of the contemplation of the parties by virtue of their contract terms or mercantile custom of fiduciary duty or it is specifically pleaded and proved. In Ferrero and Company Ltd. v. Henkel Chemicals Nigeria Ltd. (2011) LPELR 12 (SC). His Lordship, Onnoghen, JSC (as he then was, now CJN) had expatiated on the rationale behind this principle of law inter alia thus: It follows that before a party can claim pre-judgment interest, he has to plead not only his entitlement to the interest but the basis of the entitlement either by Statute or contract/agreement between the parties, or mercantile custom or principle of equity, such as breach of fiduciary relationship. It is not for the Court to speculate or conjecture or assume the facts relevant to the claim. The relevant facts must be pleaded, as fact not pleaded goes to no issue. In addition to the requirement of pleading the relevant facts, the Plaintiff must adduce evidence at the trial in proof of the relevant facts. Where there is no evidence in proof of the facts, then the pleadings are deemed abandoned. See also UBA Plc. v. Oranuba (2013) LPELR- 20692 (CA). See also Hausa v. FBN Plc (2000) 9 NWLR (Pt. 671) 64; Ekwunife v. Wayne W/A Ltd (1989) NWLR (Pt. 122) 422: Hinma Merchant Ltd v. Alhaji Inuwa Aliyu (1994) 5 NWLR (Pt. 347) 667 @ pp. 676-677; Stabilini Visinoni Ltd v. Metalum Ltd. (2007) LPELR-8661 (CA) UBN Ltd v. Salami (1998) 3 NWLR (Pt. 538) 347: Idakula v. Richards (2000) FWLR (Pt. 14) 2439; Jallco Ltd. v. Owoniboys Tech Serv. Ltd. (1995) 4 NWLR (Pt. 391) 534 @ p. 550; Petgas Resources Ltd. v. Louts N. Mbanefo (2007) 6 NWLR (Pt. 1031) 545 @ p. 549; Consolidated Resources Limited v. Abofar Ventures Nigeria Limited (2007) 6 NWLR (pt. 1030) 225. — B.A. Georgewill JCA.

➥ LEAD JUDGEMENT DELIVERED BY:
Biobele Abraham Georgewill, JCA

➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Dr. K.U.K. Ekwueme.

⦿ FOR THE RESPONDENT(S)
Chief F.O. Fagbohungbe SAN.

➥ MISCELLANEOUS POINTS

➥ REFERENCED (LEGISLATION)

➥ REFERENCED (CASE)
⦿ FOREIGN DECISIONS ARE ONLY OF PERSUASIVE VALUE
In Olafisoye v. FRN (2004) 4 NWLR (Pt. 864) 580, Niki Tobi JSC (God bless his soul) had emphatically held inter alia thus: Decisions of Foreign Countries are merely of persuasive authority. This Court will certainly allow itself to be persuaded in appropriate cases but this Court will not stray away from its course of interpreting the Nigerian Constitution by resorting to foreign decisions which were decided strictly in the context of their Constitution and which are not similar to ours. See also Okon v. The State (1988) 1 NWLR (Pt. 69) 172 @ p. 180, where Nnemeka-Agu, JSC had stated inter alia thus: ”It is well to remember not only that a foreign decision should at best be of persuasive authority in a Nigerian Court but also that before it can even qualify as such, the legislation, substantive or adjectival, upon which it was based must be in pari materia with our own. It is dangerous to follow a foreign decision simply because its wording approximates to our own. Nigerian Courts are obliged to give Nigerian Legislation its natural and ordinary meaning, taking into account our own sociological circumstances as well as other factors which form the background of our Local Legislation in question. A Copy-Cat transportation of an English decision may in some circumstance turn out to be inimical to justice in our own Courts. See also Adetoun Oladeji (Nig) Ltd v. Nigerian Breweries PLC (2007) LPELR 160 (SC) Dada v. The State (1977) NCLR 135; Eliochin Nig. Ltd. v. Mbadiwe (1986) 1 NWLR (Pt. 14) 47; Nigerian National Supply Co. Ltd v. Alhaji Hamajode Sabana Co. Ltd (No 3) (1988) 2 NWLR (Pt. 74) 23: Senator Adesanya v. President of the Federal Republic of Nigeria (1981) 5 SC 112; Yahaya v. State (2002) 3 NWLR (Pt. 754) 289.

➥ REFERENCED (OTHERS)

End

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