IN THE COURT OF APPEAL OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
ON THURSDAY, THE 4TH DAY OF APRIL, 2024
BEFORE THEIR LORDSHIPS:
MOHAMMED MUSTAPHA JUSTICE, COURT OF APPEAL
ABDULLAHI MAHMUD BAYERO JUSTICE, COURT OF APPEAL
MUHAMMAD IBRAHIM SIRAJO JUSTICE, COURT OF APPEAL
APPEAL NO. CA/LAG/CV/1003/2020
BETWEEN:
SURU WORLDWIDE VENTURES NIGERIA LIMITED --- APPELLANT
AND
ECOBANK NIGERIA LIMITED -------------------------- RESPONDENT
JUDGMENT
(DELIVERED BY MUHAMMAD IBRAHIM SIRAJO, JCA)
The Appellant herein, as the Claimant in Ikeja Division of the High Court of Lagos State (the lower Court), Coram: Pinheiro, J., initiated the action in Suit No: ID/4424GCMW/2017 vide the Amended Writ of Summons and an Amended Statement of Claim together with other relevant court processes, all dated and filed on 13th April, 2018, as found at pages 239-261 of the Record of Appeal.
The reliefs sought from the lower Court, as endorsed on the Amended Statement of Claim, are:
IN THE ALTERNATIVE
When served with the said court processes, the Respondent, as the Defendant in the lower Court, joined issue with the Appellant, when it filed its Statement of Defence, dated and filed on 30th April, 2018 as contained at pages 317-325 of the Record of Appeal, dispelling therein every of the Appellant’s claim as contained in the Amended Statement of Claim, consequent to which the trial commenced before the lower Court.
At the conclusion of trial, the lower Court, in its considered judgment delivered on 2nd June, 2020, found in favour of the Respondent, it held that the Appellant failed to prove any of its claims by cogent evidence and the suit was consequently dismissed.
The Appellant was aggrieved by the said judgment and had initiated the instant appeal when, on its behalf, a Notice of Appeal was filed to that effect. The said Notice of Appeal, copied at pages 513-530 of the Record, was dated and filed on 3rd July, 2020, with 10 grounds upon which the appeal was premised.
In furtherance to this, the Appellant also filed the Amended Appellant’s Brief of Argument, on 23rd January, 2023 but deemed on 11th July, 2023, wherein six (6) issues were formulated for determination of the appeal. The said issues, as set down by Bidwell Onyeakosi, Esq and Uzonna Mbaekwe-Onyeakosi, Esq., are as follows:
In response to the foregoing, Mr. David Ogebe, Esq., and Kini Marcus, Esq., filed the Respondent’s Brief of Argument on 11th August, 2023, wherein three (3) issues for determination in the appeal were distilled thus;
SUBMISSION OF THE PARTIES ON THE ISSUES.
On whether AMCON ought to be joined as a necessary party, as held by the lower Court, Mr. Onyeakosi, of counsel for the Appellant submitted that relief being sought from the Court determines whether or not a party is a necessary party in a suit. It was further averred, vide the cases of Chief of Army Staff vs Lawal (2012) 10 NWLR (Pt. 62); Green vs Green (1987) 3 NWLR (Pt. 61) 480, that the Court must examine whether such issues as raised in the suit cannot be effectually determined without the attendance of such a party in Court. It was contended that the Appellant’s complaint was all about the validity or otherwise of deeds of legal mortgages registered as 32/32/2033, 88/88/2032 and 89/89/2028, by the Oceanic Bank prior to the taking over by AMCON. It was stated that the allegation was criminal in nature to which AMCON cannot be joined.
Counsel stated that the presence of AMCON was not necessary in the circumstance of the case, submitting thereby that the decision of the lower Court, in that regard, was not borne out of any evidence adduced before it. He referred to the case of Federal University of Technology, Yola vs A.S.U.U, (no citation); Kalu vs. Odili (1992) SCNJ 292 at 304; Ibrahim vs NUB Ltd (2004) 11 NWLR (Pt 865) 537 at 549 - 550; Naburama vs Offodile (2004) 13 NWLR (Pt 891) 599, when urging the Court to hold that AMCON is not a necessary party to the suit and to resolve the issue in favour of the Appellant.
On issue 2, learned counsel for the Appellant submitted that the lower Court erred when it held that the Appellant's suit was intended to query the decision of the Federal High Court in suit No: FHC/L/CS/1059/16, contending that the said judgement was not a declarative judgment conferring any form of right on AMCON. Counsel argued that the decision of the lower Court introduced the issue of res judicata. While placing reliance on the case of Abiola & Sons vs. 7up Bottling Co. Ltd (2012) 15 NWLR (Pt 1322) 184 SC, counsel submitted that the judgment of the Federal High Court relied upon by the lower Court did not determine any issue and or authenticity of the deeds of legal mortgages, hence cannot be relied upon to render Appellant's suit incompetent.
Counsel highlighted the condition for the application of res judicata, to wit: (a) the parties or privies in both the earlier case and the latter case must be the same; (b) the judgment or relief upon which it is based is valid, subsisting and final; (c) the claim or issue in dispute in the proceedings are the same; (d) the subject matter of the litigation in both cases is the same and (e) the Court that decided the previous suit is a Court of competent jurisdiction. Reliance was placed on the following cases; D. T. T. Ent. (Nig) Co. Ltd vs. Busari (2011) 8 NWLR (Pt. 1249) 387; Agu vs Ikewibe (1991) 3 NWLR (Pt 180) 385, Ajibode vs. Idola (2006) 13 NWLR (Pt. 998) 628; Ebba vs Ogodo (2000) 10 NWLR (Pt 675) 387; Chukwura vs Ofochebe (1972) 12 SC.7.5, when submitting that the validity or otherwise of the deed of legal mortgages in issue herein, was not canvassed by the Applicant in that application before the Federal High Court.
Counsel also argued that the learned trial Judge, in the judgment being appealed herein, upturned the decision of the pre-trial Judge, who had earlier ruled against the preliminary objection filed by Respondent's counsel against Appellant's suit on the ground that it was an abuse of court process. It was argued that the Appellant was not a party to the suit at the Federal High Court, rather, it was between AMCON and the security agencies listed as Respondents who were meant to provide security assistance to AMCON. Counsel stated that the decision of the lower Court does not represent the position of the law with respect to the Appellant’s right to seek redress in a Court of law.
It was further submitted that the decision of the lower Court to the effect that the Appellant ought to have commenced a judicial review of the Ruling of the Federal High Court in suit No: FHC/L/CS/1059 before commencing an action to challenge the validity of the legal mortgages, was not correct and same breached the Appellant's constitutional right to seek redress in a Court of law, maintaining that the dispute in the suit filed by the Appellant had not been earlier litigated upon by any Court. It was contended that the decision reached by the lower court was wrong and had occasioned miscarriage of justice on the Appellant. Counsel cited the cases of Gbadamosi vs Dairo (2007) 3 NWLR (Pt 1021) 282; Oke vs Mimiko (2014) 1 NWLR (Pt. 332) SC; Aigbobahi vs. Aifuwa (2006) 6 NWLR (Pt. 976) 270, to submit that had the learned trial Judge applied the correct principle of law it would have reached a different finding in favour of the Appellant's suit.
On whether the Appellant was able to discharge the evidential burden of proof of the said fraudulent legal mortgages registered by the Respondent, counsel restated the law that when a trial Court failed to understand the dispute submitted to it, the decision therein will be perverse and invariably cause a miscarriage of justice, and the decision must be set aside on appeal. Counsel cited the case of Mogaji vs. Odofin (1978) 3-4 SC page 65 at 67 to contend that the lower Court failed to properly evaluate the evidence adduced in the suit, just as it is not permitted to rewrite the agreement for the parties. Counsel argued that there was no contradiction in the evidence of the Appellant as adduced in the lower Court. Citing the case of Mogaji vs. Nigerian Army (2008) 8 NWLR page 351, he submitted that the lower Court ought to act on the uncontroverted evidence of the Appellant.
It was the Appellant’s contention, while relying on the cases of Bamikole vs. Oladele (2011) 11 NWLR (Pt 15122) 483; Ndoma-Egba vs ACB Plc (2005) ALL FWLR (Pt 283) 152 at 171; Ogbole vs. Lawani (2000) FWLR (Pt 187) 844 at 859; Maher vs Hibernia Ins. Co. 67 N. Y. 292, that the Appellant succeeded in enumerating the particulars of fraud alleged in his statement on oath. The provision of Section 80 of the Stamp Duties Act and the cases of Adetona vs Zenith Bank Plc; Nabu Akibiya vs Alhaji Sambo (1978) 11-12 SC 139 were also referred to in asserting that the legal consequences of a contract of mortgage is that the owner of the mortgaged property becomes divested of the right to dispose of it until he has secured a release of the property from the mortgagor, and that the Respondent is duty bound by the loan agreement between them and ought not to alter the terms therein without the consent and or approval of the Appellant. The Appellant further submitted that the stamp duty payable on the loan transaction between it and the Respondent was based on the value of the loan sum secured under the transaction, referring to Section 56 of the Stamp Duties Act, to buttress the submission. Counsel submitted that the defence of non-est factum avails the Appellant as regards the nature of exhibit C2. The decisions in Egbesa vs Oriareghan (1985) 2 NWLR p. 27 paras; Macfoy vs. U.A.C, (1962) AC; 158; CE; T.C BID TETTEH (1965) ALR. Comn. 100; Foster vs Mackinnon (1869) L. R. 4 C. P. 704; Saunders vs Anglia Building Society (1970) 3 All E. R. 961 at p. 272, were relied on by counsel to contend that the duo of Exhibits C2 and C4 were unilaterally altered, falsified and fraudulently registered by the Defendant contrary to the agreement of parties. He urged the court to accordingly set it aside as void and illegal.
Counsel stressed that the wrongful evaluation of evidence by the lower Court occasioned a grave miscarriage of justice against the Appellant, urging the court to set aside the judgment and resolve the issue in favour of the Appellant.
On the Appellant’s issue 4, counsel argued that the intention of the parties, as could be gleaned from the loan contract in Exhibit C1, was to create an equitable mortgage on the properties situate at No. 12, Reverend Ogunbiyi Street, GRA, Ikeja, Lagos. It was asserted that the conduct of the Respondent in registering the said properties as a legal mortgage as opposed to an equitable mortgage as agreed by parties in exhibit C1, was unlawful and bound to be set aside on appeal, in support of which counsel cited the cases of Yaro vs Arewa Construction Ltd & Ors (2007) LPELR-SC213/2000; Ogundiani vs Araba & Anor (1978) NCCC (Vol. 11) 55.
The Appellant contended that the Respondent failed to cross examine CW1 on this issue. Relying on Daggash vs Bulama & Ors (2004) 14 NWLR (Pt 892) 144 at 240, counsel submitted that the failure of the Respondent to controvert the evidence adduced at trial by the CW1 on this issue, was fatal to its case. Learned counsel argued that the by dint of exhibit C1, parties were to create "equitable mortgage over 22 properties in GRA, Ikeja, also covering customer's existing facility with Oceanic Bank Plc. He asserted that the learned trail Judge wrongly evaluated this piece of evidence and therefore reached a wrong finding thereupon. He submitted that the lower Court was bound to make specific findings on the issue of fraudulent and unilateral registration of the legal mortgage in question, failure of which, the Appellant contended, occasioned a grave miscarriage of justice on the Appellant. The Appellant contended that the evidence of the police report dated 31st August, 2021, tendered on appeal by the Appellant, corroborated the evidence of CW1 on the issue of alleged fraudulent registration of the legal mortgages in issue. He urged the court to admit and rely on the said report and to resolve the issue in favour of the Appellant.
On issue 5, it was the Appellant’s contention that the lower Court misdirected itself when it held that the conventional practice of the Appellant adopted in signing of official documents ought to be proved as a rule of custom as required by the evidence Act. Counsel argued that the Appellant's pattern of execution of official documents did not qualify as a rule of custom as provided in section 73 (2) of the Evidence Act, 2011.
Counsel further cited the provisions of Sections 16, 17, 18 and 19 of Evidence Act and the cases of Unilorin Teaching Hospital vs Abegunde (2015) 3NWLR (Pt 1447) 421; Onyekwelu vs EFL Pet. (Nig.) Ltd (2009) 5NWLR (Pt 1133) 181; Momoh vs Umoru (2011) 15 NWLR (Pt 1270) in contending that the lower Court erred in its evaluation of evidence which occasioned a grave miscarriage of justice on the Appellant. Counsel stated that the lower Court misconceived and misapplied the law in this regard, stressing that issue of proof in respect of a rule of custom and practice is distinguished from a mere convention or tradition by a company, which is governed respectively by the provisions of the Evidence Act and by the Appellant's private policy.The Appellant submitted that exhibit C1, signed the same day with the other mortgage documents across the pages corroborates the conventional practice of the Appellant in signing official documents. It was submitted that failure of the lower Court to attach the required weight to this piece of evidence occasioned a grave miscarriage of justice on the Appellant. The Court was urged to resolve the issue in favour of the Appellant.
On the entitlement of the Appellant to award of damages, counsel submitted that the Appellant suffered untold damages as a result of the illegal conduct of the Respondent and therefore entitled to award of special and general damages, citing the cases of GKF Investments Ltd vs. Nigeria Telecommunications Plc (2009) 15 NWLR (Pt 1164) 344, Tanko vs. Mai-Waka (2010) 1 NWLR (Pt 1176) 468, Kopek Construction Ltd vs. Ekisola (2010) 3 NWLR (Pt 1182) 61, Aluminium Manufacturing Co. Nigeria Ltd V. Volkswagen of Nigeria Ltd (2010) 7 NWLR (Pt 1192) 97 in support of the assertion. Counsel stressed that the Appellant had sufficiently proved its case by credible evidence which entitled it to an award of special damages, placing reliance on Arabambi vs. Advance Beverages Industries Ltd (2005) 19 NWLR (Pt 959) 1, Vinz International Nigeria Ltd vs. Morohundiya (2009) 11 NWLR (Pt 1153) 562, Adim vs. Nigerian Bottling Co. Ltd, (2010) 9 NWLR (Pt 1200) 543.
The Court was urged to allow the appeal and set aside the judgment of the lower Court.
In its response, the Respondent distilled three (3) issues for determination as earlier reproduced.
On the issue of non-joinder of AMCON as a party in the suit in the lower Court, learned counsel for the Respondent argued that the lower Court was right when it held that the failure of the Appellant to join AMCON as a party was fatal to its case. It was submitted, vide the cases of Azubuike vs. P. D. P. (2014) 7 NWLR (Pt. 1406) 299 and Chief of Army Staff vs. Lawal (2012) 10 NWLR (Pt. 1307) 62 at 70, that the lower Court could not have made orders to bind AMCON who was said to be a stranger in the case. Counsel cited section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and submitted that the question of law posed by the Appellant for determination by the lower Court could not have been effectually and completely answered in the absence of AMCON, calling in aid the cases of Okwu vs. Umeh (2016) 4 NWLR (Pt. 1501) p. 120; Mssrs U. Maduka (Nig.) Ltd vs. B. P. E. (2019) 12 NWLR (Pt. 1687) 429; Olawoye vs. Jimoh (2013) 13 NWLR (Pt. 1371) 362; NDP vs. INEC (2013) 6 NWLR (Pt. 1350) 392. Counsel iterated that reliefs 5 and 7 in the Appellant’s Amended Statement of Claim specifically affect the proprietary right of AMCON over the subject property of the mortgage, even when AMCON was not heard in the matter. It was submitted that the learned trial Judge avoided a pitfall that would have occurred in such circumstances. The Court was urged to resolve the issue in favour of the Respondent.
On Respondent’s issue 2, learned counsel submitted that the lower Court correctly found that the Appellant’s suit was incompetent for seeking to question the order made by the Federal High Court in Suit No. FHC/L/CS/1059/16 which the Appellant neither appealed nor applied to have it set aside, and that the Appellant’s suit, as filed in the lower Court, amount to a tacit invitation by the Appellant for the lower Court to sit on appeal over the said order of the Federal High Court. Placing reliance on Cole vs. Jibunoh (2016) 4 NWLR, (Pt.1503) 499 at 521, which relied on the case of Fawehinmi vs. A-G, Lagos State (No. 1) (1989) 3 NWLR (Pt. 112) 707 at 724, counsel submitted that the lower Court was correct in holding that the Appellant’s suit was incompetent. Counsel maintained that the argument on res judicata canvassed by the Appellant was based on the Appellant’s misconception of the decision of the lower Court. He stated that the option opened to the Appellant from the said decision was to either appeal against the Order of the Federal High Court or file an application to the Federal High Court to set aside the Order based on fraud, especially as the Appellant failed to join AMCON in his suit. He urged the Court to resolve the issue in favour of the Respondent
On whether the Appellant was entitled to the relief sought in the lower Court, counsel submitted that the lower Court was right when it held that the Appellant failed to prove its case and, hence, was not entitled to the reliefs sought. Counsel cited Section 131 of the Evidence Act 2011 and the cases of A.G., Bayelsa State vs. A.G., Rivers State (2006) 18 NWLR (Pt. 1012) 596 at 625; Makinde vs. Adekola (2022) 9 NWLR (Pt. 1834) 13 at 39; Takori vs. Matawalle (2020) 17 NWLR (Pt. 1752) 165 at 187-188; Akpan vs. U.B.N Plc (2011) 2 NWLR (Pt.1231) 399 at 412-413, and submitted that the Appellant had a duty to prove her assertions with credible evidence and could not validly rely on the strength or weakness of the Respondent’s case.
He further cited and relied on the cases of Oluyede vs. Access Bank Plc (2015) 17 NWLR (Pt. 1489) 596 at 607 paras F-G; Elewa vs. Guffanti (Nig.) Plc (2017) 2 NWLR (Pt.1549) p. 233 at 248 paras. B-C and Akanmobe & Anor vs. Dino Ors. (2008) LPELR 8405 (CA), to contend that even where the Respondent rested its case on the Appellant’s case, the Appellant still had to succeed in proving its case on the strength of credible evidence adduced by it.
It was argued that the Appellant also failed to prove the criminal allegation of forgery beyond reasonable doubt and in line with the cases of Agi vs. P.D.P (2017) 17 NWLR (Pt. 1595) 386 at 457; A.P.C. vs. P.D.P. (2015) 15 NWLR (Pt.1481) 1 at 66-67; Omon vs. Ekpa (2019) 15 NWLR (Pt. 1696) p. 504 at 537, by failing to tender in evidence the original copy of the legal mortgages allegedly forged by the Respondent. Counsel submitted that the Appellant failed to prove its entitlement to the reliefs and same was rightly dismissed by the lower Court.
In the same vein, it was asserted that the Appellant failed to prove the custom of its signing of contractual documents, stressing that the Appellant was under an obligation to prove the custom by tendering similarly executed contracts signed in same manner and to call more than one witness to testify to such culture, relying on the cases of Eyo vs. Onuoha (2011) 11 NWLR (Pt. 1257)1 SC at 20-21; Shuaibu vs. Muazu (2014) 8 NWLR (Pt.1409) 207 CA at 317-318; Adegbite vs. Adegbite (1978) 7 FCA 267/271; Terab vs. Lawan (1992) 3 NWLR (Pt.231) 569; M.M.A Inc. vs. N.M.A (2012) 18 NWLR (PL.1333) 506 SC at 547; Yakubu vs. Jauroyel (2014) 11 NWLR (Pt.1418) 205 SC at 226.
It was argued that the sums in Exhibits C2, C3 and C4 are different from the sum stated in Exhibit C1 as they are said to be distinct and independent transactions from the transaction evidenced in Exhibit C1. It was the Respondent’s contention that the Appellant failed to show that the transactions in Exhibits C2, C3 and C4 were the same as the loan contract in Exhibit C1. The cases of Niger Guards Ltd vs. Usoroh (2010) 12 NWLR (Pt. 1208) 207 at 222 paras. C-H; Nsiegbe vs. Mgbemena (2007) 10 NWLR (Pt.1042) 364 SC at 390-391 paras H-A; Oluyede vs. Access Bank Plc (2015) 17 NWLR (Pt. 1489) 596 CA were cited when submitting that the Appellant’s case must fail for failure to prove its claim before the lower Court.
Counsel argued that the issue founded on the Stamp Duty was raised for the first time on appeal without the leave of Court, which violated the provision of Order 7 Rule 2(1) of the Court of Appeal Rules 2021. Reliance was placed on the case of Oredoyin vs. Arowolo (1989) 4 NWLR (Pt. 114) p. 172 at 211.
He urged the court to discountenance the submission made by the Appellant on the issue
It was the Respondent’s contention on the Appellant's claim of equitable mortgage in Exhibit C3, that the Appellant was unable to prove that the parties agreed that an equitable mortgage is to be created over the property in question. Counsel contended that the said property was not mentioned at all in Exhibit C1, submitting in the circumstance that the Appellant's submission was speculative. He cited the cases of Ezemba vs. Ibeneme (2004) 14 NWLR (Pt.894) 617 at 689; Plateau State vs. A.G, Fed (2006) 3 NWLR (Pt. 967) 346 at 419, and submitted that the Respondent is not duty bound to cross-examine the Appellant's witness on the issue as the Appellant did not discharge the evidential burden on that issue. It was contended that the Appellant’s evidence on the issue could not be said to be unchallenged, placing reliance on the cases of Akporo vs. Ughalaa (1995) 8 NWLR (Pt. 411) p. 118 at 128; Omoreghe vs. Lawani (1980) 3-4 S.C. 108; Nigerian Maritime Services Ltd. vs. Afolabi (1978) 2 S.C. 79; Jalingo vs. Nyame (1992) 3 NWLR (Pt. 231) 538, to buttress the contention that the Appellant was not entitled to the grant of its claim.
Similarly, Counsel urged the Court to discountenance submission made by the Appellant on the issue of the police report which was adduced, with leave, as fresh evidence on appeal. It was argued that the said report did not establish that Exhibits C2, C3 and C4 were forged by the Respondent. Learned counsel cited the case of U.B.N. Plc vs. Petrol Union Oil and Gas Co. Ltd (2022) 7 NWLR (pt. 1829) p. 199 at 243, to submit that the Court cannot rely on the contents of the said Report to hold that the allegation of forgery and fraud has been proved by the Appellant.
On the issue of the award of damages, counsel stated that the lower Court was right to refuse the Appellant’s claim for being speculative, relying on several authorities including Ajigbotosho vs. R.C.C. LTD (2019) 3 NWLR (Pt. 1659) 287 at 296; 30i-304; Oshinjinrin vs. Elias (1970) 1 ALL NLR 153; Anyanwu vs. Uzowuaka (2009) 13 NWLR (Pt. 1159) 445; Nwanji vs. Coastal Services (Nig) Ltd (2004) 13 NWLR (Pt. 889) 128.
It was argued that the Appellant failed in its duty to specifically plead; particularize the claims and prove same by credible evidence in order to be entitled to the special damages claimed. He cited the cases of Eneh vs. Ozor (2016) 16 NWLR (Pt. 1538) 219 at pp. 235-236; Ngilari vs. Mothercat Ltd (1999) 12 SC (Pt. 11) 1; Neka BBB Manufacturing Co. Ltd vs. African Continental Bank Ltd (2004) 1 SC (Pt. 1) 32; (2004) 2 NWLR (Pt. 858) 521 at 540, to submit that the Appellant’s claim was rightly dismissed by the lower Court. The Court was urged to resolve the issue in favour of the Respondent and to dismiss the appeal.
The Appellant filed a Reply Brief where it reiterated that the judgment of the Federal High Court in the previous case is a directive to the concerned Security Agencies and not a judgment in rem, upon which counsel relied on authorities such as Ogboru vs Uduaghan (2011) 17 NWLR (Pt. 1277) 727 @ 764-765; Okpalugo vs Adeshoye (1996) 10 NWLR (Pt. 476) 77; Fointrades Ltd vs Uni Association Co. Ltd. (2002) 8 NWLR (Pt. 770) 669; Olaniyan vs. Fatoki (2003) 13 NWLR (Pt. 837) 273. Counsel noted that the Appellant was neither a party to the suit at the Federal High Court nor was the subject matter in the Appellant's suit the same as decided by that Court. He cited the cases of Aribisala vs. Bello (2016) LPELR- 40145 (CA); Bello vs. INEC (2010) 8 NWLR (Pt. 1196) 342 and Adenuga vs. Odumeru (2003) 8 NWLR (Pt. 827) 163; Oyeyemi & Ors vs. Owoeye & Anor (2017) LPELR-41903 (SC) and submitted that not being a party to the Respondent’s suit in the Federal High Court, the Appellant could not have exercised any right of appeal against the judgment of the Federal High Court, save with leave of Court.
He cited the provision of Order 15 Rule 16 [1] of the Lagos State High Court Rules, 2019 and the cases of PDP vs. Abubakar (2004) 16 NWLR (Pt. 900) P. 455 @ 467; Jegede vs Oluwasanmi (2013) All FWLR (Pt. 671) 1 484 at 1506- 1507, to submit that the lower Court ought to have joined AMCON to the suit, if its presence was necessary
RESOLUTION OF ISSUES
It is necessary to state that many an Appellant in appeals nowadays are wont to be lost on what be the essence of filing a Reply Brief in an appeal of this nature. It is to respond in a concise form, to new points of law raised by the Respondent. It is limited to finding answers to the questions raised in the Respondent's Brief, which the Appellant has not addressed or dealt with in the main Brief. It has been repeatedly admonished that a Reply Brief is not the forum for the Appellant to strengthen his main Brief by repeating or expanding the arguments earlier canvassed. See Statoil (Nig) Ltd vs. Inducon (Nig) Ltd & Anor (2018) LPELR-44387 (SC); Onemu & Ors vs. Commissioner for Agric & Natural Resources Asaba & Ors (2019) LPELR-47391. The Appellant went to town in the rehash of its initial argument in the Appellant’s Brief, or rather to reinforce its position, it is an attitude adjudged to be a sheer waste of the precious judicial time. The Court, however, in order to do substantial justice in the instance, would overlook same.
Now, to the resolution of the issues for determination of the instant appeal, it is apt to note that the issues formulated for determination by the parties are basically similar.
I find that the issues for determination, as set down by the Respondent, are capable of resolving all legal questions for determination in the appeal, it is hereby adopted.
Meanwhile, the cases of the respective parties, as gleaned from the Record before the Court, shall be briefly stated as below.
The fact of the Appellant’s case, as the Claimant in the lower court, was that it applied for a loan facility of the sum of 6.2 Billion Naira from the then Oceanic Bank Int’l Plc, a bank which was later acquired, through the recapitalization policy of the CBN, by the Respondent Bank. And, by an offer letter dated 10th October, 2008, the said Oceanic Bank availed the Appellant a credit facility in the sum of N6,200,000 000.00) (Six Billion, Two-Hundred Million Naira) to finance the construction of a 109-Bederoom CRESTA Hotel at Allen Avenue, Ikeja, Lagos, valued at over N720 Million; a 200-BedRoom CRESTA Hotel at Opebi Road, Ikeja, Lagos valued at over N1Billion and 42-Bedroom luxury townhouses at GRA, Ikeja, Lagos. The facility was to be secured by a Deed of Legal Mortgage each, over the financed properties, to wit; the Cresta Hotel at Allen Avenue and the Cresta Hotel at Opebi in Ikeja and also an equitable mortgage created over 22 properties in GRA, Ikeja, Lagos. There was also a personal guaranty of the Appellant’s Managing Director by which he accepted liability in the event of default by the Appellant in fulfilling its contractual obligation under the loan contract.
The Appellant maintained that only the 2 legal mortgages, as provided in the loan agreement, were duly executed between the parties in respect of the contract, but contended that the 3 legal mortgages, to wit; those registered as 32/32/2033; 88/88/2032 and 89/89/2028 were unilaterally and fraudulently created by the Respondent. It is on record that the unpaid loan was later acquired by the AMCON, who by virtue of the order of the Federal High Court, dated 30th May, 2017, enforced the taking over of the Appellant’s property at No. 12, Allen Avenue, Ikeja, Lagos State as cited in the said legal mortgages being contended.
The Respondent, who was the Defendant in the said suit contended that, contrary to the Appellant's claim, the Deeds of Legal Mortgage being contended, were duly negotiated, mortgaged and registered as security for various loans obtained, utilized, taken benefit of and unpaid by the Appellant ten years after receiving such loan. It was contended that the Appellant fully participated in the process of perfecting the legal mortgages and duly executed same.
The Respondent disclaimed any knowledge of the events between the Appellant and AMCON concerning Suit No. FHC/L/CS/1059/16, but admitted it assigned to AMCON the loan element sought to be recovered from the Appellant by AMCON in the said suit, and that the Appellant was duly notified of the assignment of the debt to AMCON since 20th January, 2011.
At trial, a sole witness, the Managing Director of the Appellant company, testified for the Appellant and tendered a considerable number of documentary exhibits to prove its case, at the close of which the Respondent rested its case on that of the Appellant. In its considered judgment, after the adoption of written addresses filed by the parties, delivered on 2nd June, 2020, the learned trial Judge dismissed the Appellant’s claim in the suit.
In resolving Respondent’s issue 1 as adopted for determination in this appeal, regard must be had to the fact that the contention therein was the failure of the Appellant to join the Assets Management Corporation of Nigeria, AMCON, as a party in the suit filed at the lower Court. I have carefully examined the record before the Court, and I observe that the state of the loan contract, which was the subject matter of the suit between the parties, was assigned to the Assets Management Corporation of Nigeria, AMCON, and same was communicated to the Appellant vide a Notice of Assignment dated 20th January, 2011 as reproduced at pages 328-329 of the Record of Appeal. A cursory look at the said Notice of Assignment reveals that the outstanding balance of the sum of N15, 341,050,642.21 was standing as the Appellant state of account with the Oceanic Bank at the material time when same was assigned to AMCON. It was stated in the said Notice of Assignment that the assignment takes effect from 31st day of December, 2010, when the Loan Purchase & Limited Service Agreement between the then Oceanic Bank and AMCON took place.
It is equally observed that there was a Ruling of the Lagos Division of the Federal High Court, Coram: M.B Idris, J., (as he then was, later JCA and now JSC), in an Originating Moton dated 4th August, 2016 and filed by AMCON against the IGP & 2 Ors, the ruling was delivered on 30th May, 2017, wherein an order was made directing the Inspector General of Police & Ors., the Defendants on record, to jointly and severally assist AMCON, inter alia “… in exercising its rights as a legal mortgagee under the Deeds of Legal Mortgage registered as 32/32/2033; 88/88/2032 and 89/89/2028 …”.
The Deeds of legal mortgage cited in the said ruling are also the subject of the suit that birthed the instant appeal, which the Appellant contests as not being its deed, availing itself the defence of non est factum. I am not unaware that the Appellant was not a party in the application filed by AMCON in the Federal High Court as stated earlier on in this judgment.
My Lords, was the Respondent’s decision, through the then Oceanic Bank, to assign the Appellant’s debt to AMCON, rational in law. I will answer the interrogation in the affirmative. It cannot be over-emphasized that AMCON, itself, a child of necessity was established to checkmate, and thus avoid the total collapse of the Nigerian Financial System and ultimately the Nigerian Economy after the unprecedented Banking crisis of 2009, judicial notice of which is taken by the Court. Its power is as derived from the enabling law, AMCON Act, 2010, as amended. AMCON is best regarded as a special purpose vehicle carefully and thoughtfully designed and birthed by law, this is with the major aim of ensuring wholesomeness of the Nigerian Financial System, and by extension, the Nigerian Economy, by avoiding the pitfall of unregulated debts management regimes resulting into colossal bad banking debts which is capable of collapsing the entire financial system and economy of Nigeria. See: section 49 of AMCON Act, 2010 and the case of AMCON vs. Canvass Farms (Nig) Ltd & Ors (201) LPELR-54651 (CA).
Having stated as in the foregoing, upon the taking over by the Corporation, id est; AMCON, of the Appellant’s debt as assigned by the Respondent, the Corporation became seised with the proprietary rights over the properties involved in the legal mortgage. It becomes the mortgagee to whom the right to the mortgagor’s properties is inured. It is not subject to doubt that by a legal mortgage, the mortgagee becomes the legal owner of the mortgaged property and is entitled to enter into possession of same forthwith upon execution of the mortgage as he has the right to immediate possession. In the instant case, AMCON, to whom the debt was assigned, acquires enormous rights over the mortgaged properties. See Jolimair (Nig) Ltd. & Anor. vs. ECOBANK (2019) LPELR-49880 and National Trucks Manufacturers Ltd vs. BOI & Anor (2021) LPELR-56967 (CA). The Corporation therefore becomes the substituted Mortgagee. I am of the view that any decision that would affect the properties in the Deeds of Legal Mortgage registered as 32/32/2033; 88/88/2032 and 89/89/2028, marked as Exhibits C2, C3 and C4 respectively, assigned to AMCON, as a matter of necessity, must consider the position and interest of the Corporation as a substituted Mortgagee. In view of this, I agree that the Corporation is a necessary party in the suit as filed beforew the lower Court.
The Federal High Court, after the hearing of the application of AMCON in Suit No. FHC/L/CS/1059/16, ruled that:
1. AN ORDER is made directing the Defendants, jointly and severally, whether personally and/or through officers and men under their command and control, to assist the Plaintiff, its officers, agents, and representatives howsoever described in exercising its rights as a legal mortgagee under the Deeds of Legal Mortgage registered as 32/32/2033, 88/88/2032 and 89/89/2028.
2. An Order is made directing the Defendants, jointly and severally. whether personally and/or through officers and men under their command and control, to assist the Plaintiff, whether acting through its officers, agents and representatives howsoever described in maintaining peace, order and for the protection of ifs exclusive possessory rights and powers over the properties located at No. 86, Opebi Road, Ikeja, Lagos State, No. 12. Reverend Ogunbiyi Street G.R.A., Ikeja, Lagos State and No. 12, Allen Avenue, Ikeja, Lagos State pursuant to and in furtherance of the exercise and/or discharge of the powers, functions and duties as the Legal Mortgagee of the said properties
On the strength of the ruling above, the lower Court, in its judgment stated that:
The extract of the Court order reproduced above recognized the legal rights of AMCON in the 3 deeds of legal mortgage and further empowered the officers of the Nigerian Police Force to take all steps to protect legal rights of AMCON in the respect properties in the legal mortgages. A judgment or order of a court of competent jurisdiction remains valid and binding unless and till it is set aside by an appellate court or by the lower court itself where iT acted without jurisdiction. In OSAKWE V INEC & ORS (2005) ALL FWLR (PE 261) PAGE 325 AT 349 the court held thus …”
I am persuaded that the decision of the Federal High Court in the earlier Suit recognizes the legal right of AMCON, and that right cannot be wished away. The position of AMCON, in the circumstance of the case herein, is that of a person whose presence is essential for the effectual and complete determination of the issues before the Court. AMCON, as a necessary party in the case, is the party, in the absence of whom the claim cannot be effectually and completely determined. See: Lagos State Bulk Purchase Corporation vs. Purification Techniques (Nig.) Ltd (2012) LPELR-20617(SC) (P. 36 Paras. C)
The lower Court added thus “I cannot close my eyes to AMCON's legal right vis a vis exhibit C6. Consequently, I find therefore that the failure to join AMCON to this suit is fatal and renders the suit incompetent”
The finding of the lower Court above is unassailable for the following reasons:
This issue is therefore resolved against the Appellant.
The lower Court, in its judgment, had made an allusion to the Appellant’s suit as being tantamount to querying the decision of the Federal High Court in Suit No. FHC/L/CS/1059/2016, despite being of coordinate jurisdiction.
I am yet to see in any way in which the Appellant’s suit before the lower Court could amount to a call for the judicial review of the order sought and granted in favour of AMCON before the Lagos Division of the Federal High Court. It is not in contention that neither the Appellant nor the Respondent herein was a party in the suit that gave rise to the said ruling of the Federal High Court, which was tendered and marked as Exhibit 6 before the lower Court. I am of the opinion that, though the Deeds of legal mortgages in the said ruling forms a part of the substratum of the Appellant’s suit in the lower Court, yet it could not be reasonably said that the latter suit sought to review the decision of the Federal High Court in the former. It is my view that the order made in the ruling in Suit No. FHC/L/CS/1059/2016, which must have arisen in line with the provision of section 49 of the AMCON Act, was made ex-parte, and has placed AMCON in possession of the property in issue.
Furthermore, I am not convinced by the opinion of the lower Court when it held that the only option opened to the Appellant was to file an appeal against the ruling of the Federal High Court in Suit No. FHC/L/CS/1059/2016. I am rather in agreement with learned counsel for the Appellant that neither was the Appellant a party to the said suit nor was the subject matter in the Appellant's suit the same as decided by that Court. I find as apt the cases of Aribisala vs. Bello supra, and Oyeyemi & Ors vs. Owoeye & Anor, supra, amongst others cited by the Appellant in support of its contention that the Appellant could not have validly exercised any right of appeal against the previous judgment of the Federal High Court. But nothing stops the Appellant from applying to join AMCON as a Co-Defendant to the Suit before the lower Court.
Having found that the Appellant’s Suit before the lower Court was incompetent for non-joinder of a necessary party, I hold that this appeal lacks merit and is hereby dismissed. Judgment of the lower Court striking out Suit No. ID/4424GCMW/2017 for incompetence is accordingly affirmed. No order is made as to cost.
MUHAMMAD IBRAHIM SIRAJO
JUSTICE, COURT OF APPEAL
APPEARANCES:
Bidwell Onyeakosi for the Appellant.
K.I. Marcus for the Respondent.
