C.B.N. v. STALLIONAIRE (NIG) LTD (2020)

C.B.N. v. STALLIONAIRE (NIG) LTD

(2020)LCN/14614(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, September 11, 2020

CA/L/879/2017

RATIO

PLEADINGS: RIGHT OF APPEAL OF THE COURT OF APPEAL.

It is pertinent to state as background to the determination of the preliminary objection that the provisions of Sections 241 and 243 of the Constitution of Nigeria 1999 (as amended) confer a right of appeal from the decisions of the Federal High Court and State High Courts to this Court thus:
1) An appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal as a right in the following cases:
a) A final decision in proceedings before the Federal High Court or a High Court sitting at first instance.
b) Where the grounds of appeal involves question of law alone, decisions in any civil or criminal proceedings.
An appeal against an interlocutory decision of the trial Court to this Court can only lie when the grounds of appeal involve questions of law alone. But where a ground of appeal of an interlocutory decision is of mixed law and facts, the Appellant is required to seek and obtain leave of this Court or the trial Court before filing same. This is not disputed being trite position of law. The complaint of the Respondent by his preliminary objection is that the Appellant’s grounds of this interlocutory appeal are not grounds of law alone but of mixed law and fact, for which the Appellant required leave of Court to file.
It is also important to remember that a ground of appeal is the totality of the reason(s) why a decision complained of is considered wrong by the Appellant in the case of Achonu V. Okowobi (2017)(supra) at pages 166 to 167. Galinje JSC speaking for the Apex Court held from paragraph H and A-D that:
“The determining factor in assessing whether or not a ground of appeal is one of law or of mixed law and facts or of facts alone is the complaint for which the ground is employed. The type of complaint an Appellant set out to make is invariably deciphered from an examination of the ground itself. Where the ground of appeal is based on a complaint of errors emanating from a conclusion or undisputed facts, the ground is a ground of law. If the errors complained of are founded on disputed facts and by the complaint, the correctness of the ascertained facts is being challenged, the ground is one of mixed law and fact. Where the trial Court is asked to exercise its discretion and the complaint in the ground of appeal relates to the exercise the Court’s discretionary powers, the ground would be one of mixed law and fact.”
See also U. B. N. Plc. V. Sogunro & Ors. (2006) LPELR 2393 (SC). Ehinlanwo V. Oke (2008) 16 NWLR (pt.1113) 357 (SC) and Prosafe Production Services Ltd V. OSBIR (2018) NWLR (pt. 1650) 86 (CA). Per BALKISU BELLO ALIYU, J.C.A.

RATIO

PLEADINGS: JURISDICTION

This issue questioned the jurisdictional competence of the trial Court to determine the Respondent’s suit, having regards to the provisions of Section 52(1) of the CBN Act 2007. The importance of jurisdiction in adjudication cannot be over emphasized being the authority or power of the Court conferred by law to decide disputes brought before it. The law is now settled that jurisdiction of the Court to determine a matter brought before it is fundamental. It has been described as a lifeline of all trials and indeed the body and soul of every judicial proceedings such that where the Court lacks jurisdiction to determine a suit, it labored in vain for whatever orders emanate from such proceedings amount to nullity. See Utih V. Onoyivwe (1991) 1 NWLR (pt. 166) 206 (SC), Africontinental (Nig.) Ltd & Anor. V. Co-operative Association of Professionals Inc. (2003) LPELR-217 (SC), Katto V. CBN (1991) 9 NWLR (pt. 214) 126. APGA V. Anyanwu & Ors. (2014) LPELR-22182 (SC) and NDIC V. CBN (supra).
Jurisdiction is not conferred to Courts in obscurity, but clearly by the statutes creating them or the Constitution. A Court can determine whether or not it has jurisdiction to entertain a particular matter before it by simply referring to the statement of claim containing the reliefs sought by the plaintiff. In this case, the Appellant’s challenge to the jurisdiction of the trial Court was predicated on Section 52 (1) of the CBN Act, which provides as follows:
Neither the Federal Government nor the Bank nor any officer of that Government or Bank shall be subject to any action, claim or demand by or liability to any person in respect of anything done or omitted to be done in good faith in pursuance or in execution of or in connection with the execution of any power conferred upon that Government, the Bank or such officer by this Act.
The above-reproduced sub-section aims to provide protection to the Central Bank and the Federal Government against adverse claims in respect of any decision the Bank and/or the Federal Government takes or failed to take in connection with the duties/functions conferred by the Act. However, it is not an absolute protection or bar from litigation because any action taken must be shown to be done in good faith. The provisions therefore require that the Appellant exhibits good faith in all its decision, such that where challenged in Court it has to establish that it did not act In bad faith. It is to safeguard against recklessness in taking actions or omission to take actions that may hurt the very public or a part of it that the Act aimed to serve and protect. It is pertinent to note that both counsel to the parties have placed reliance on the Apex Court’s decision in NDIC V. CBN (2002) LPELR-2000 (SC), where it had the opportunity to interpret the provisions of Section 49(1) of the Banks and other Financial Institutions Decree, 1991 which has the exact same provisions as Section 52(1) of the CBN Act reproduced supra. The Apex Court per Uwaifo, J.S.C. held Inter alia that:
In order that the Court may have jurisdiction to entertain the type of action now in question, the plaintiff/respondent has to show or allege bad faith in the way the revocation was done and indicate the elements that constitute the bad faith. This must be done preferably at the threshold of the suit being placed before the Court because the Court is to presume that the act complained of was done in good faith which naturally will deprive it of jurisdiction unless bad faith is positively alleged by way of Its elements.
See also Savanna Bank of Nigeria Plc V. CBN & 2 Ors. (supra). Per BALKISU BELLO ALIYU, J.C.A.

RATIO

PLEADINGS: DETERMINE WHO IS A NECESSARY PARTY TO THE PROCEEDINGS.

The test to be applied to determine who is a necessary party to the proceedings has been settled long ago by plethora of decisions of this Court and the Apex Court. In the case of Azubuike V. PDP & Ors. (2014) LPELR-22258 (SC) Fabiyi, J.S.C. held that:-
“A necessary party is one who, being closely connected to a law suit, should be included in the case if feasible, but whose absence will not require dismissal of the proceedings. (Blacks Law Dictionary, 9th Edition at page 1232). In Green v. Green (2001) FWLR (Pt. 76) 795 at 814, this Court held that: “A necessary party is one who is not only interested in the subject matter of the proceedings but whom in his absence, the proceedings cannot be fairly and judiciously decided. In other words, the question to be settled in the action between the existing parties must be a question which cannot be properly settled unless the necessary party to the particular claim is joined in the action…”
See also FBN Plc V. Ozokwere (2013) LPELR-21897 (SC), Babayeju & Anor. V. Ashamu & Anor. (1998) LPELR-700 (SC) and Lead Merchant Bank Ltd V. Salami & Ors. (2007) LPELR-8600 (CA). The Appellant canvassed the same argument before the trial Court that it is not a necessary party to be sued by the Respondent and the trial Court held the view that:
The Plaintiff is suing the Defendant about the retroactive application of post-floating inter-bank market rates after the establishment of a single forex market by the Defendant. That was the sole act of the Defendant and it has an adverse effect on the plaintiff. I do not agree that the bank(s) should have been joined since the entire process is overseen by the CBN with the commercial banks acting as inter-mediaries. They are called licensed commercial banks because they act under the authority of the CBN who disburses foreign exchange to the ultimate consumer through retail or commercial banks who are for that purpose… The matter is not simply that of contract alone since the decision of the CBN had an effect on the Plaintiff. The action is properly constituted since the plaintiff is complaining about the action of the CBN as an agency of the Federal Government pursuant to Section 251(1) of the 1999 Constitution of the Federal Republic of Nigeria.” Per BALKISU BELLO ALIYU, J.C.A.

Before Our Lordships:

Mohammed Lawal Garba Justice of the Court of Appeal

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

CENTRAL BANK OF NIGERIA APPELANT(S)

And

STALLIONAIRE NIGERIA LIMITED RESPONDENT(S)

BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): This appeal is against the interlocutory ruling of the Federal High Court, Lagos Judicial division (trial Court) delivered on the 30th May 2017 by Hon. Justice A. O. Faji in respect of a motion on notice filed by the Respondent in Suit No: FHC/L/CS/1260/2016. The Respondent as the plaintiff commenced the suit via a writ of summons filed on the 14th September 2016 against the Appellant (the Defendant) by which it prayed the trial Court for the following reliefs:
1. A DECLARATION that the Defendant’s power to regulate the Foreign Exchange Market is subject to Rule of Law and Equity, and not at large, capricious, whimsical or oppressive.
2. A DECLARATION that there is no regulation at all, or which can be valid in law and Equity, which empowers the Defendant to sell Foreign Exchange to the Plaintiff at a rate higher than the rates contained in the Defendant’s FORM M and approval letters for establishment of Letters of Credit, which it held out to the plaintiff and which the Plaintiff acted upon to import, fix prices and sell the relevant petroleum products.

AN ORDER OF MANDATORY INJUNCTION directing the Defendant to restore the Plaintiff back to its original position as per Foreign Exchange rates stated in the Defendant’s Form Ms, approval letters and approved letters of Credit in all the transactions, subject-matters of this Suit and accordingly.
4. PAYMENT FORTHWITH of the sum of N2,203,964,065.36 (Two Billion, Two Hundred and Three Million, Nine Hundred and Sixty Four Thousand, Sixty Five Naira, Thirty Six Kobo) by the Defendant to the Plaintiff being the sum representing the deficit caused by the Defendant’s reckless decision.
5. SUCH OTHER ADDITIONAL SUMS established by the Plaintiff as representing bank interests and other financial charges actually paid by the Plaintiff on the loans created by the Plaintiff’s bankers to absorb and mop up the excess costs/deficit caused by the Defendant’s decision.
6. The sum of N100,000,000 (One Hundred Million Naira) as General Damages for all the damage and injury caused the plaintiff by the Defendant’s action.
7. The sum of N10,000,000 (Ten Million Naira) as costs of this suit.

The background facts of the case are stated in the

statement of claim contained in pages 1 to 14 of the record of appeal that, the Respondent is a Nigerian company engaged in the business of importation of all kinds of petroleum products which business it commenced since 2012. The Appellant being the regulator of the Foreign Exchange Market in Nigeria issues Foreign Exchange Manuals and circulars from time to time for the operation and regulation of the market.

The Respondent claimed that it procured loan facilities from three commercial banks in Nigeria, namely, First Bank of Nigeria Plc, Union Bank Plc and Fidelity Bank Plc, and applied to the Appellant to purchase United States of American Dollars (USD) through the three commercial banks, which were authorized by the Appellant to deal in Foreign Exchange. The Respondent claimed that it opened forms M and secured the Defendant’s approval for the Letters of Credits (LCs) that it sent to its foreign suppliers of the petroleum products. The foreign suppliers would only ship the product upon the strength of the Forms M and LCs, and the transactions were consummated for the supply of the products at the rate of N179 to USD1. However, on the 15th June

2016 the Appellant issued a circular titled “Revised Guidelines for the Operation of the Nigerian Inter-Bank Foreign Exchange Market” announcing a deliberate policy of floating of the Naira, by which it established a single market structure through the Inter-Bank Foreign Exchange Market. By the issued new policy, the exchange rate of the Naira to the USD rallied at N280 to USD1 and the Appellant insisted that it would clear old matured transactions at N280 per USD as against N197 per USD that it had earlier approved for the Respondent.

The Respondent further claimed that the Appellant took this deliberate decision to establish a single flexible market and to float the Naira without having the Appellant in contemplation in terms of the huge financial damages the Respondent would suffer in view of the credit imports it made on the strength of USD exchange rates pre-approved by the Defendant at N197. The Appellant insisted that the Respondent could only go to the Inter-Bank market to purchase the FOREX at the new flexible rates ignoring the fact that it had held out to the Respondent that it would sell FOREX to it at already approved rates, which

the Respondent had relied upon in fixing the prices and selling the products before the change of policy. The Respondent contended that the Appellant’s decision not to sell FOREX to it for the already consummated transactions on rates it already approved was in bad faith because the Appellant usually exercised its intervention powers to save such situations, and it gave instances where the Appellant saved such situations. Upon these facts, the Respondent prayed for the reliefs reproduced supra against the Appellant.

In response to the Respondent’s claims, the Appellant entered conditional appearance and filed a statement of defence by which it denied all the claims of the Respondent. In addition, the Appellant filed an application, by way of a motion on notice, on the 7th October 2016 praying the trial Court for an order striking out the Respondent’s suit on the following grounds:
a) That the Honourable Court lacks the jurisdiction to entertain this suit filed by the Plaintiff/Respondent in view of the fact that all the policies of the Defendant/Appellant complained about were made in good faith under

Section 52 of the Central Bank of Nigeria Act, 2007.
b) That the suit constitutes an abuse of Court’s Process to the extent that the main substance of the Plaintiffs/Respondent’s suit which is hinged on the alleged deliberate devaluation policy of the Defendant/Applicant was an issue in SUIT NO: FHC/L/CS/1820/2015 – STATLLIONAIRE NIGERIA LTD V. CENTRAL BANK OF NIGERIA, which was dismissed by the trial Court and which is currently on appeal in Appeal No. CA/L/890/2016 STALLIONAIRE NIGERIA LIMITED V. CENTRAL BANK OF NIGERIA.
c) That the suit of the Plaintiff/Respondent is improperly constituted and the Honourable Court lacks jurisdiction to entertain the Suit.
d) That the Defendant/Applicant was not a party to the transaction between the Plaintiff/Respondent and its bankers – First Bank of Nigeria Plc, Union Bank of Nigeria Plc and Fidelity Bank Plc.
e) That the decision to apply for letters of Credit and obtain Foreign Exchange for same through whatever mode was purely a business decision between the Plaintiff/Respondent and its bankers-First Bank of Nigeria Plc, Union Bank of Nigeria Plc and Fidelity Bank Plc.
f) That any risk or loss arising from same

would have ordinarily been borne by the parties concerned and not transferred to the Defendant/Applicant.
g) That the Defendant/Applicant cannot be sued or joined as a party to this suit as the Defendant/Applicant is not a party to the transaction between the Plaintiff/Respondent and its bankers.

In support of the application was the affidavit of Emmanuel Joes stating facts relied upon by the Appellant. The Appellant averred inter alia, that the trial Court did not have jurisdiction to determine the suit because it was improperly constituted. Also, that the Respondent has not shown that the Appellant’s action of devaluation policy was done in bad faith or was exclusively targeted at the Respondent. The Appellant further contended that the suit constituted an abuse of Court’s process in view of a similar suit No: FHC/L/CS/1820/2015- STALLAINAIRE NIG. LTD V. C.B.N. that was flied by the Respondent in the same trial Court, which was dismissed for being statute barred in a ruling delivered on the 10th June 2016. The Respondent appealed to this Court against the said ruling of the trial Court. The said motion, the supporting affidavits with

documentary exhibits attached and counsel written address in support are all contained in pages 77 to 139 of the record of appeal.

In opposing the application, the Respondent filed counter affidavit by which it contended mainly, that the retroactive decision of the Appellant it complained of, was not taken in good faith, and the particulars of bad faith were specifically pleaded in paragraph 48 of its statement of claim. It attached the Appellant’s letter written to it on the 2nd September 2015, refusing to approve the Respondent’s application for the purchase of FOREX and refund of excess exchange rate cost. The Respondent’s counter affidavit was supported by written address of its counsel. See pages 143 to 158 of the record of appeal.

After considering the affidavits in support and in opposition to the application and the respective written addresses of the learned counsel, the learned trial Judge delivered the Court’s ruling and held that the Appellant was the proper party to be sued in the action and not the three bankers of the Respondent who were mere licensees acting under the authority of the Appellant. Secondly that

the action is properly constituted since the complaint in the suit was against the Appellant, an agency of the Federal Government, and it was filed pursuant to Section 251(1)(r) of the 1999 Constitution of Nigeria as amended. Finally the trial Court found and held that the Respondent pleaded bad faith in paragraphs 30, 31, 37 to 49 of its statement of claim. Consequently, the trial Court dismissed the application/objection of the Appellant.

The Appellant was aggrieved with the ruling of the trial Court and filed its amended notice of appeal on the 28th June 2018 predicated on two grounds of appeal, upon which it prayed for an order allowing this appeal and to set aside the ruling of the trial Court. The Appellant proceeded to file its brief of argument, settled by Augustine Okafor Esq. of Kenna Partners, on the 20th February 2019. The learned counsel distilled and proposed two issues from the two grounds of appeal for the determination of the appeal as follows:
1. Whether in the light of Section 52 of the Central Bank of Nigeria Act, 2007 which borders on bad faith, the trial Court does not lack jurisdiction to entertain the suit filed against the

Appellant. (Distilled from ground one of the amended notice of appeal)
2. Whether the name of the Appellant ought to be struck out and the suit before the trial Court dismissed, the Respondent having sued a non-party to the subject matter of its claim. (Distilled from ground two of appeal)

In response to the appeal, the Respondent filed notice of Preliminary objection on the 28th March 2019 by which it sought for an order striking out the amended notice of appeal dated 28th June 2018 on the following grounds:
1. The appeal is an interlocutory appeal and the two grounds of appeal raise complaint of mixed law and facts.
2. No leave of Court was sought and obtained to appeal on grounds of mixed law and facts from the interlocutory decision.
3. Both grounds of appeal are defective, incompetent and ought to be struck out.

The Respondent argued the preliminary objection in the Respondent’s brief of argument settled by Chijioke O. P. Emeka Esq. and filed on the 28th March 2019, in paragraphs 3.00 to 3.20, pages 4 to 7 thereof. However in the event that the Court overrules its preliminary objection. the Respondent’s learned

counsel proposed the following two issues for the determination of the appeal:
1. Whether in view of Section 52 of the CBN Act 2007, there are sufficient averments in the statement of claim in this suit alleging the absence of good faith in the Appellant’s decision complained about so as to clothe the Honourable Court with Jurisdiction to entertain the suit?
2. Whether the Central Bank of Nigeria is rightly sued as the Defendant in this suit as constituted?

The Appellant’ response to the preliminary objection is contained in paragraphs 2.1 to 2.3, pages 2 to 8 of the Appellant’s Reply brief filed on the 30th April 2019.

The appeal came before the Court for hearing on the 15th June 2020. The learned counsel on both sides adopted their respective briefs of argument in respect of the preliminary objection and the main appeal. The Appellant’s learned counsel urged us to allow the appeal and set aside the ruling of the trial Court while the Respondent’s learned Counsel prayed the Court to dismiss the appeal and to affirm the ruling of the lower Court.

PRELIMINARY OBJECTION
In line with the dictates of the

law and the practice of this Court, I will determine the objection of the Respondent especially as the grounds of the objection touched on the competence of the notice of appeal, which is the backbone of the appeal Itself. Where a notice of appeal is filed without leave of Court if required to do so, it will be invalid and cannot support an appeal. By implication the Court will have no jurisdiction to determine it. The preliminary objection can terminate this appeal in limine. If found meritorious, and therefore it is necessary to determine same to save precious judicial time and energy. See Galadima V. State (2017) LPELR-41911 (SC). LAGA V. Hama & Afar. (2019) LPELR-48140 (CA) and Achonu V. Okuwobi (2017) NWLR (pt. 1584) 142 (SC) among others.

The learned Respondent’s counsel submitted that it is settled law that a ground of appeal challenging an interlocutory decision lies to this Court as of right only where it involves a question of law alone. But leave is required where the ground of appeal is of mixed law and facts. He pointed out that the gravamen of the grounds of appeal of the Appellant is that the trial Court was wrong to have found

and held that the facts averred in the statement of claim disclosed allegations of bad faith against the Appellant, which cleared the claim from the restrictions of Section 52 of the Central Bank of Nigeria Act (CBN Act).

He further argued that the Appellant’s ground one, which complained against the finding of fact of the trial Court made on the basis of paragraphs 30, 31, 37-39 of the Respondent’s Statement of claim is of mixed law and fact, because a ground of appeal is read with its particulars in order to determine its nature, as such ground one of this appeal being of mixed law of facts cannot be converted into a ground of law alone by simply christening it a misdirection of law. He also argued similarly, that ground 2 of appeal is of mixed law and facts because the Appellant contended before the trial Court that the Respondent ought to have sued its bankers with which it had contract. He referred to and relied on the averments in the Respondent’s statement of claim upon which the lower Court relied and found that the suit was not merely a breach of contract, but brought/commenced under

Section 251 of the Constitution of Nigeria, 1999 as amended regarding foreign exchange; and that it was a challenge to the validity of the decision of the Appellant as an agency of the Federal Government. He urged us to strike out the amended notice of appeal based upon his argument. relying for support on the cases of Garuba V. OmokhodIon (2011) 15 NWLR (pt. 1269) 145 at 182. Ehinlanwo V. Oke (2008) 16 NWLR (pt. 1113) 357. Ajuwa V. S. P. D. C. N. Ltd (2011) 113 NWLR (pt. 1279) 797 and N.J.C. V. Agumagu (2015) 10 NWLR (pt. 1467) 365 at 406.

As stated earlier, the Appellant’s reply to the preliminary objection of the Respondent is contained in pages 2 to 8 of the Appellant’s reply brief. The learned Counsel submitted that the Appellant by this appeal challenges the trial Court’s decision to entertain the Respondent’s suit contrary to the expressed provisions of Section 52 of the CBN Act. He referred to the guidelines laid down by this Court and the Apex Court on the classification of grounds of appeal in the cases of Otti & Anor. V. Ogah & Ors. (2017) LPELR – 41986 (SC). Njemanze V. Njemanze (2013) LPELR-19885 (SC). Nwaolisah V. Nwabufoh (2011) 14 NWLR (pt. 1268)

600 and others, and urged the Court to consider the Appellant’s two grounds of appeal in line with the laid down guidelines in the cited cases. He further argued that in ground one, the complaint of the Appellant is that, notwithstanding the obvious violation of Section 52 of the CBN Act by the Respondent, the trial Court proceeded to assume jurisdiction to entertain the suit. He posited that this complaint is not against the appraisal of the facts of the case but the application of the law to those facts. Similarly, the Appellant in its ground two complained that the trial Court misapplied the law regarding the well established principles forming the basis upon which an action is constituted, particularly, regarding the doctrine of privity of contract. He argued that the facts are clear in this case showing that the Respondent’s transaction was with its commercial bankers and the position of the law is that parties cannot bind a third party for the liabilities of their contract. He urged the Court to jettison the argument of the Respondent’s Counsel and hold that the grounds contained in the amended notice of appeal are grounds of law alone

requiring no leave of Court to file them. He relied on the cases of Ogundare & Anor. V. Ogunlowo & Ors. (1997) LPELR-2326 (SC) and Rebold Industries & Ors. V. Magreola & Ors. (2015) LPELR-24612 (SC) in support.

DETERMINATION OF THE PRELIMINARY OBJECTION
It is pertinent to state as background to the determination of the preliminary objection that the provisions of Sections 241 and 243 of the Constitution of Nigeria 1999 (as amended) confer a right of appeal from the decisions of the Federal High Court and State High Courts to this Court thus:
1) An appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal as a right in the following cases:
a) A final decision in proceedings before the Federal High Court or a High Court sitting at first instance.
b) Where the grounds of appeal involves question of law alone, decisions in any civil or criminal proceedings.
An appeal against an interlocutory decision of the trial Court to this Court can only lie when the grounds of appeal involve questions of law alone. But where a ground of appeal of an interlocutory decision is of mixed law

and facts, the Appellant is required to seek and obtain leave of this Court or the trial Court before filing same. This is not disputed being trite position of law. The complaint of the Respondent by his preliminary objection is that the Appellant’s grounds of this interlocutory appeal are not grounds of law alone but of mixed law and fact, for which the Appellant required leave of Court to file.
It is also important to remember that a ground of appeal is the totality of the reason(s) why a decision complained of is considered wrong by the Appellant in the case of Achonu V. Okowobi (2017)(supra) at pages 166 to 167. Galinje JSC speaking for the Apex Court held from paragraph H and A-D that:
“The determining factor in assessing whether or not a ground of appeal is one of law or of mixed law and facts or of facts alone is the complaint for which the ground is employed. The type of complaint an Appellant set out to make is invariably deciphered from an examination of the ground itself. Where the ground of appeal is based on a complaint of errors emanating from a conclusion or undisputed facts, the ground is a ground of law. If the errors

complained of are founded on disputed facts and by the complaint, the correctness of the ascertained facts is being challenged, the ground is one of mixed law and fact. Where the trial Court is asked to exercise its discretion and the complaint in the ground of appeal relates to the exercise the Court’s discretionary powers, the ground would be one of mixed law and fact.”
See also U. B. N. Plc. V. Sogunro & Ors. (2006) LPELR 2393 (SC). Ehinlanwo V. Oke (2008) 16 NWLR (pt.1113) 357 (SC) and Prosafe Production Services Ltd V. OSBIR (2018) NWLR (pt. 1650) 86 (CA).
With the decisions of the Apex Court to guide me, I will now examine the grounds of this appeal together with their particulars in order to determine the preliminary objection. The two grounds are reproduced below:
GROUND 1
1. The Court below misdirected itself in law when it held that:
“At this stage, proof is not required in so far as there are facts in the statement of claim which show bad faith. I am of the view that paragraphs 30, 31, 37-49 show facts which a plea of lack of good faith can be grounded.”
PARTICULARS OF MISDIRECTION

a) The Lower Court’s ruling is inconsistent with the intendment of Section 52 of the Central Bank Act 2007.
b) The lower Court failed to properly consider the submissions of the Appellant that there was no bad faith on the part of the Appellant when the lower Court proceeded to hold that the paragraphs 30, 31, 37-49 of the Statement of Claim show facts which a plea of lack of good faith can be grounded.
GROUND 2
The Court below erred in law when it held that “the action is therefore (properly?) constituted since the plaintiff is complaining about the action of the CBN as an agency of the Federal Government pursuant to Section 251(1)(r) 1999 Constitution of the Federal Republic of Nigeria.”
PARTICULARS
a) The Honourable Court failed to properly consider the arguments of the Appellant on the absence of the privity of contract when it held that the matter is not simply that of contract alone since the decision of the Central Bank of Nigeria (the defendant at the lower Court) had an effect on the Plaintiff.
b) The lower Court failed to properly consider the argument of the Appellant (Defendant at the lower Court) that there was no

relationship between the Appellant and the Respondent and ought not to be sued.
It is clear that in the above grounds of appeal, further elucidated by their particulars, the Appellant complained against errors of the lower Court’s conclusion on the applicability or otherwise of Section 52 of the Central Bank Act (CBN Act) and Section 251 (1) of the 1999 Constitution regarding the functions/decisions of the Appellant complained of by the Respondent in the suit. The facts regarding the issuance of circulars changing the exchange rate of Naira currency against the USD by the Appellant are not in contention. The contest between the parties was whether the decision of the Appellant was done in good or bad faith in view of the provisions of Section 52 of the CBN Act. Moreover, the complaint of the Appellant in this appeal constitutes a challenge to the jurisdiction of the trial Court to determine the suit and jurisdictional issues are issues of law alone.
I am therefore in total agreement with the Appellant’s learned counsel’s argument to the effect that the complaint of the Appellant disclosed by its grounds of appeal is not against the

appraisal of the facts contained in the Respondent’s Statement of claim; but the trial Court’s application of the provisions of Section 52 of the CBN Act and Section 251(1) of the Constitution of Nigeria, 1999 as amended. I am satisfied that the grounds are grounds of law alone and the Appellant needed no leave of this Court to file them. Its right of appeal is unhindered and I so hold. The objection of the Respondent is baseless and it is hereby dismissed. The coast is now clear for me to proceed to determine the appeal on its merit.

MAIN APPEAL
I have closely examined the issues formulated by both Appellant and the Respondent and I found that they are substantially the same. I therefore adopt the issues formulated by the Appellant for the determination of the appeal.

ISSUE ONE
In arguing issue one, the learned Appellant’s counsel relied on Section 52 of the CBN Act and submitted that Appellant’s officials are immuned from any action regarding anything they do or omitted to do in the execution of their statutory duties so long as they acted or omitted to act in good faith. In respect of this appeal, the

Appellant’s policy of devaluing the Naira currency against the United States Dollars was as a result of the harsh economic realities of the time and it was done in accordance with the duties vested in it by law and therefore cannot be said to be made in bad faith. He further posited that the measures adopted by the Appellant to, among others, devaluation of Naira policy were not intended as punitive against any one or targeted at the Respondent, but it was done for the overall interest of Nigeria and therefore not made in bad faith. He placed reliance on the Supreme Court’s decision in NDIC V. CBN (2002) 7 NWLR (pt. 766) 272 at 297 where it interpreted Section 49(1) & (2) of the Banks and Other Financial Institutions Act, which is in pari material with the provisions of Section 52 of CBN Act, and held that the Court can only have jurisdiction to entertain this type of action where the plaintiff shows or alleges bad faith and indicates the element that constitutes bad faith.

The learned Appellant’s counsel further argued that the holding of the trial Court to the effect that there are facts deposed in the paragraphs of the statements

of claim that disclosed lack of good faith in the devaluation policy of the Appellant was made in error mainly because the Appellant’s approval of forms M for the Respondent was not binding and that the binding rate was the rate as at the time of purchase of the foreign exchange and not the rate at the application stage. He argued that the Appellant’s approval of Form ‘M’ is not an undertaking to sell forex at the rate in place when the form ‘M’ was approved and the Appellant does not in any way bear the responsibility for the variation on the exchange rates.

On the claim of the Respondent before the trial Court that the Appellant recklessly and unjustly flouted the Naira, the learned Appellant’s counsel referred to and relied on the case of Akaninwo V. Nsirim (2008) ALL FWLR (pt. 410) 610 where the Apex Court defined ‘mala fide’ being opposite of “bona fide”, to submit that the Respondent’s allegations do not in any way exemplify the definition of bad faith expounded by the Apex Court. He contended that before the trial Court could be said to have jurisdiction to entertain the action against the Appellant, the

Respondent must have shown actual bad faith on the part of the Appellant and not a misconceived idea of the alleged duty owed to it by the Appellant.

In concluding his argument on this issue, learned counsel for the Appellant relied on the case of Madukolu V Nkemdilim (1962) 2 NSCC 374 to submit that the case before the trial Court from which this appeal emanated was not initiated by due process of law. The reason being that by the provisions of Section 52 of the CBN Act, the trial Court in order to exercise jurisdiction over the administrative actions of the Appellant, the Respondent must prove bad faith in its claim. He posited that in this case, the Respondent did not prove bad faith by its pleadings, and this, in the learned counsel opinion, means that the Respondent did not fulfill the condition precedent to the exercise of the trial Court’s jurisdiction. He urged this Court to hold that the policies of the Appellant complained of were in line with its statutory mandate and were done in good faith and consequently resolve issue one in favour of the Appellant.

In his argument on issue one, the learned Respondent’s counsel referred us

to paragraph 5(i) of its affidavit in support of the application of the Appellant before the trial Court (from which issue one arose), wherein it averred that the Respondent did not disclose or proved that its action of devaluation policy was done in bad faith or exclusively targeted at the Respondent. He submitted that the Appellant misconceived the complaint of the Respondent before the trial Court because its case was not against the policy itself, whether done bone fide or mala fide: but its suit was a challenge against the Appellant’s decision to the effect that the approvals it gave the Respondent for US Dollars to be sold to the Respondent at particular rates would no longer hold water and that new rates would apply. The Appellant took this decision of the US Dollar/Naira exchange rate after the Respondent had acted on its (Appellant’s) approvals, imported the goods, fixed prices and sold them all based on the representation made to it by the Appellant on the exchange rate. He submitted that this is how documentary credit transactions work.

In an obvious contrast to his above proposition, the learned Respondent’s counsel submitted

that the Appellant in arguing that the Respondent must prove bad faith in its claim, clearly misconceived the provisions of Section 52 of the CBN Act, because there was no burden on the Respondent to “prove” that the action of the Appellant complained of was done in bad faith for the trial Court to assume jurisdiction. He submitted that such proof could only be possible after exchange of pleadings and (conduct of) trial to enable the Court weigh evidence and decide whether bad faith has been proved. That, the burden on the Respondent was not more than alleging in its statement of claim which it did clearly, with sufficient particulars showing that the Appellant acted in bad faith in taking the decision complained about. It had also alleged that the action of the Appellant was done unlawfully, ultra vires. recklessly, oppressively etc. He placed reliance on the decision in the case of NDIC V. CBN (supra) (also cited and relied upon by the Appellant), which he argued is distinguishable with this case. He explained that in the NDIC V. CBN’s case no pleadings were filed showing bad faith but the Appellant filed only a writ of summons and an application for

injunction. The Supreme Court found that in the absence of pleadings, particulars of allegation of lack of good faith were absent and the action failed preliminary. In contrast to that circumstance, both parties filed pleadings in this case. He further placed reliance on this Court’s decision in S. B. N. Plc V. C.B.N. (2009) 6 NWLR (pt. 1137) 237 at 314, where it was held that all that the provisions of Section 52 of CBN Act require is that whoever wants to invoke the power of the Court to look into its grievance must disclose on the face of the process what constitutes lack of good faith.

Further, the learned Respondent’s counsel urged the Court to strike out all argument on form ‘M’ made by the Appellant in its brief on the ground that such argument is on substantive case which the Appellant abandoned before the trial Court in pursuit of this interlocutory appeal. That there is no finding made by the lower Court regarding the scope of forms ‘M’ as such there cannot be an appeal regarding them. He relied for support on the cases of Globe Fishing Industries Ltd V. Coker (1990) 7 NWLR (pt. 162) 265 at 281 and Ebba V Ogodo (1984) 4

SC 84 at 112, and urged the Court to hold that there is no reason to upturn the finding of the lower Court on the issue of bad faith and to resolve issue one in favour of the Respondent.

The reply of the Appellant on points of law on issue one is essentially a re-argument of the Issue, whereby the Appellant’s learned counsel insisted that from the totality of the Respondent’s pleadings, the Respondent has not stated facts which remotely suggested that the Appellant in the exercise of its statutory powers to ensure monetary and price stability as well as to promote a sound financial system, acted outside the purpose for which such powers were conferred, and in a manner that was malicious or reckless with the intent to prejudice the interest of the Respondent.

RESOLUTION OF ISSUE ONE
This issue questioned the jurisdictional competence of the trial Court to determine the Respondent’s suit, having regards to the provisions of Section 52(1) of the CBN Act 2007. The importance of jurisdiction in adjudication cannot be over emphasized being the authority or power of the Court conferred by law to decide disputes brought before it. The

law is now settled that jurisdiction of the Court to determine a matter brought before it is fundamental. It has been described as a lifeline of all trials and indeed the body and soul of every judicial proceedings such that where the Court lacks jurisdiction to determine a suit, it labored in vain for whatever orders emanate from such proceedings amount to nullity. See Utih V. Onoyivwe (1991) 1 NWLR (pt. 166) 206 (SC), Africontinental (Nig.) Ltd & Anor. V. Co-operative Association of Professionals Inc. (2003) LPELR-217 (SC), Katto V. CBN (1991) 9 NWLR (pt. 214) 126. APGA V. Anyanwu & Ors. (2014) LPELR-22182 (SC) and NDIC V. CBN (supra).
Jurisdiction is not conferred to Courts in obscurity, but clearly by the statutes creating them or the Constitution. A Court can determine whether or not it has jurisdiction to entertain a particular matter before it by simply referring to the statement of claim containing the reliefs sought by the plaintiff.

In this case, the Appellant’s challenge to the jurisdiction of the trial Court was predicated on Section 52 (1) of the CBN Act, which provides as follows:
Neither the Federal Government nor the

Bank nor any officer of that Government or Bank shall be subject to any action, claim or demand by or liability to any person in respect of anything done or omitted to be done in good faith in pursuance or in execution of or in connection with the execution of any power conferred upon that Government, the Bank or such officer by this Act.
The above-reproduced sub-section aims to provide protection to the Central Bank and the Federal Government against adverse claims in respect of any decision the Bank and/or the Federal Government takes or failed to take in connection with the duties/functions conferred by the Act. However, it is not an absolute protection or bar from litigation because any action taken must be shown to be done in good faith. The provisions therefore require that the Appellant exhibits good faith in all its decision, such that where challenged in Court it has to establish that it did not act In bad faith. It is to safeguard against recklessness in taking actions or omission to take actions that may hurt the very public or a part of it that the Act aimed to serve and protect. It is pertinent to note that both counsel to the parties have

placed reliance on the Apex Court’s decision in NDIC V. CBN (2002) LPELR-2000 (SC), where it had the opportunity to interpret the provisions of Section 49(1) of the Banks and other Financial Institutions Decree, 1991 which has the exact same provisions as Section 52(1) of the CBN Act reproduced supra. The Apex Court per Uwaifo, J.S.C. held Inter alia that:
In order that the Court may have jurisdiction to entertain the type of action now in question, the plaintiff/respondent has to show or allege bad faith in the way the revocation was done and indicate the elements that constitute the bad faith. This must be done preferably at the threshold of the suit being placed before the Court because the Court is to presume that the act complained of was done in good faith which naturally will deprive it of jurisdiction unless bad faith is positively alleged by way of Its elements.
See also Savanna Bank of Nigeria Plc V. CBN & 2 Ors. (supra).

In this case, the learned trial Judge held at page 281 of the record of appeal that:
On the issue of good faith, again it is to the statement of claim that resort must be had. The statement of claim

must on its face disclose what constituted lack of good faith. At this stage, proof is not required in so far as there are facts in the statement of claim which showed bad faith. I am of the view that paragraphs 30, 31, 37-49 show facts upon which a plea of lack of good faith can be grounded.

To determine the correctness of the learned trial Judge’s holding. I carefully and diligently read paragraphs 30, 31, 37-49 of the statement of claim contained at pages 8 to 12 of the record of appeal. In paragraphs 30 and 31, the Respondent alleged that:
30. The defendant took the deliberate decision to establish a single flexible market and float the Naira without having the Plaintiff in contemplation in terms of the huge financial damage the plaintiff would suffer in view of the credit imports it made on the strength of USD exchange rates pre-approved by the Defendant at N197. The Defendant now insists that the Plaintiff can only go to the Inter-Bank market to purchase the FOREX at the new flexible rates ignoring the fact that it had held out to the plaintiff that it would sell FOREX to the Plaintiff at already approved rates, which the Plaintiff had

relied on in fixing prices and selling the products before the change of policy.
31. The Plaintiff shall contend that currency depreciation and currency floating are not the same. Depreciation is the lowering of the value of currency owing to interplay of market forces swinging slightly down over-time. Depreciation is factored in using + or – 1% in profit and loss computation and is well accounted for in books. Currency floating is a conscious decision or policy of the Defendant to free the value of Naira in relation to a foreign currency, in this case the US Dollar. It is a well-thought out and planned decision. Yet the Defendant embarked on it without notice to the Plaintiff or any plan for the plaintiff and in a retroactive manner resulting in loss of value of the Naira by N83 to USD1. This deliberate decision caused serious financial damage to the Plaintiff. The Plaintiff shall rely on the evidence of experts in Economics and International Commercial Financial System.

The Respondent further claimed and pleaded in paragraphs 37 to 49 of the statement of claim that the Appellant acted ultra vires its regulatory powers in taking the decision to

float the Naira currency against the US Dollars. It then concluded by alleging in paragraph 47 that:
The Plaintiff does not challenge the power of the Defendant to float the Naira or issue policy guideline it finds necessary under the CBN Act. The Plaintiff rather challenges the power of the Defendant to apply the floating policy retroactively to transactions it dosed at N197 per USD1, imported, sold and awaiting sale of FOREX. The retroactive application is an action taken in utmost bad faith. (underlining supplied).

In paragraph 48, the Respondent enumerated the particulars of bad faith in the Appellants decision not to sell FOREX to it for the already consummated transaction. It showed the alleged situations where the Appellant exempted past transactions from its new policies and Respondent then concluded in paragraph 49 that:
The Plaintiff shall contend that the Defendant owes it a duty of care to have in contemplation approvals it made for the Plaintiff to open LCs at N197 per USD1 and to sell FOREX to the Plaintiff from CBN source, to ensure that the Plaintiff is not financially injured by having to liquidate the established LCs thereon at

N280 per USD1, otherwise the Defendant is liable to restore the Plaintiff to the position held out by the Defendant at the time of documentation.

The Appellant’s learned counsel argued, particularly in paragraph 4.20 of the Appellant’s brief, that by the provisions of Section 52(1) of the CBN Act, for the Court to exercise jurisdiction over administration action of the Appellant, the Respondent must prove bad faith. The question now arises at what stage will the plaintiff/Respondent be required to prove bad faith. Certainly not at the threshold of the proceedings, but during trial as posited by the learned Respondent’s counsel. I am in total agreement with the argument of the Respondent’s counsel which I uphold to the effect that all what is required of a plaintiff who alleges the Appellant’s decision was made in bad faith was to allege same with particulars that disclosed bad faith. In this case, the Respondent as the Plaintiff sufficiently alleged particulars of bad faith in the paragraphs referred to supra, which is enough to activate the jurisdiction of the trial Court to look into its grievances. The learned trial Judge

was therefore right to hold that at the stage of the pleadings proof was not required but the pleading of facts showing lack of good faith in the action of the Appellant was sufficient to enable the Court assume jurisdiction. I cannot fault that finding in view of the pleading of the Respondent. I have no hesitation in resolving issue one against the Appellant and it is so resolved against it.

ISSUE TWO
In arguing this issue, the learned Appellant’s counsel contended that the proper and necessary parties to this suit are the First Bank of Nigeria Plc., Union Bank of Nigeria Plc. and the Fidelity Bank Plc. but the Respondent commenced this action against the Appellant alone. He submitted that the crux of the Respondent’s case is that it applied for letters of credit through the three banks aforementioned, which were purportedly approved at a particular foreign exchange rate by the Appellant. He posited that the Appellant as a bankers’ bank does not interface with individuals or corporations other than with licensed commercial banks. The Appellant, which was never involved in any negotiations with the Respondent and had never had any

dealing, directly or indirectly with the Respondent cannot be a party to the business decisions between the Respondent and the three commercial banks He further argued that in this case, there is no privity of contract between the Appellant and the Respondent He relied for support on the decisions of the Apex Court and this Court in the cases of Ogundare & Anor. V. Ogunlowo & Ors. (1997) LPELR-2326 (SC) and Mediterranean Shipping Co. SA & Anor. V. Enemaku & Anor.(2012) LPELR-9253 (CA), where the principle of privity of contract was expounded.

He further contended that the Appellant is not a proper, desirable or even a nominal party in the transactions between the Respondent and its three bankers. That the Respondent is only chasing shadows and leaving the object by suing the Appellant instead of the three banks with which it entered into contract, and that there is no legal basis for suing the Appellant in this case. Learned Counsel urged the Court to hold that the trial Court has no jurisdiction to try this case in the absence of proper parties and to strike out the name of the Appellant from the suit. He relied for support on the cases of

Ibrahim V. Ajonye (2012) 3 NWLR (pt. 1286) 108 at 131. Mbanefo V. Molokwu (2014) 6 NWLR (pt. 1403) 377 at 421 B-C. Post Master General & Ors. V. Agbasi (2006) LPELR-11926 and Jemide V. Nwanne & Ors. (2008) LPELR 3941 (CA).

For the Respondent, its learned Counsel argued issue two in paragraphs 5.33 to 5.47 in pages 15 to 19 of the Respondent’s brief, to the effect that issue two is based on the Appellant’s misconception of the Respondent’s case before the trial Court. That the case of the Respondent was mainly a challenge on the validity of the decision of the Appellant as an agency of the Federal Government as was rightly found and held by the lower Court. He posited that the case of the Respondent was not against the decision of the Appellant to flout the Naira currency as also misconceived by the Appellant, but a challenge to the Appellant’s decision to jettison its approvals given to the Respondent to buy USD for its imports on stated exchange rate in favour of a new exchange rate after the Respondent had consummated the transactions in letters of credit opened at the approved rates and the goods sold. That the Respondent did not complain of the Appellant’s decision to flout

the Naira, but its grouse is against the decision of the Appellant that was directly communicated to it informing the Respondent that the Appellant would no longer sell FOREX to it at the rate it earlier approved and upon which the Respondent had already acted. This is the reason it sought for redress against the Appellant.

Learned Respondent’s counsel further argued that there was no need for the Respondent to sue the three bankers because they did nothing that would enable the Respondent claim any relief against them. He submitted that the trial Court rightly found that the action was not based on contract to make the three banks necessary parties, and that it is premature for a defendant to an action to seek to be struck out from the suit in limine on the ground that the allegation against it is false, without trial for it to debunk the allegations. He relied on the cases of A.G. Rivers State V. A. C. Akwa Ibom State (2011) 8 NWLR (pt. 1248) 31 at 85-87 and Olawoye V. Jimoh (2013) 13 NWLR (pt. 1371) 362, to submit that a plaintiff is entitled to choose his defendant against whom he conceives that he has a cause of action. He urged the Court to

resolve issue two against the Appellant.

By way of reply on points of law, the Appellant argued in paragraph 4.12 of the Appellant’s reply brief that the Respondent has not been able to draw any nexus, contractual or otherwise between itself and the Appellant. That assuming any contract existed in relation to the Respondent’s claims, it is between it and the three commercial banks and certainly not between it and the Appellant. The learned Appellant’s counsel submitted that the Appellant is not in any way suggesting that its actions are outside the scrutiny of the Court such that it is rendered incapable of being sued by virtue of Section 52 of the CBN Act as suggested by the Respondent’s counsel. But rather, his submission is that frivolous claims, indicative of ill-considered business decisions ought to not to be visited on the Appellant as the Respondent has sought to do in this instant case. He urged the Court to hold that that the trial Court lacks jurisdiction to entertain the Respondent’s suit and to resolve issue two in favour of the Appellant.

RESOLUTION OF ISSUE TWO
The complaint of the Appellant

under this issue is that the Respondent sued the wrong party, the CBN which is not privy to the contract for the purchase of FOREX between it (Respondent) and its bankers. In other words, the Appellant is not a proper party to be sued by the Respondent, which in effect takes away the jurisdiction of the trial Court to determine the suit. The test to be applied to determine who is a necessary party to the proceedings has been settled long ago by plethora of decisions of this Court and the Apex Court. In the case of Azubuike V. PDP & Ors. (2014) LPELR-22258 (SC) Fabiyi, J.S.C. held that:-
“A necessary party is one who, being closely connected to a law suit, should be included in the case if feasible, but whose absence will not require dismissal of the proceedings. (Blacks Law Dictionary, 9th Edition at page 1232). In Green v. Green (2001) FWLR (Pt. 76) 795 at 814, this Court held that: “A necessary party is one who is not only interested in the subject matter of the proceedings but whom in his absence, the proceedings cannot be fairly and judiciously decided. In other words, the question to be settled in the action between the existing

parties must be a question which cannot be properly settled unless the necessary party to the particular claim is joined in the action…”
See also FBN Plc V. Ozokwere (2013) LPELR-21897 (SC), Babayeju & Anor. V. Ashamu & Anor. (1998) LPELR-700 (SC) and Lead Merchant Bank Ltd V. Salami & Ors. (2007) LPELR-8600 (CA).

The Appellant canvassed the same argument before the trial Court that it is not a necessary party to be sued by the Respondent and the trial Court held the view that:
The Plaintiff is suing the Defendant about the retroactive application of post-floating inter-bank market rates after the establishment of a single forex market by the Defendant. That was the sole act of the Defendant and it has an adverse effect on the plaintiff. I do not agree that the bank(s) should have been joined since the entire process is overseen by the CBN with the commercial banks acting as inter-mediaries. They are called licensed commercial banks because they act under the authority of the CBN who disburses foreign exchange to the ultimate consumer through retail or commercial banks who are for that purpose… The matter is not simply that of

contract alone since the decision of the CBN had an effect on the Plaintiff. The action is properly constituted since the plaintiff is complaining about the action of the CBN as an agency of the Federal Government pursuant to Section 251(1) of the 1999 Constitution of the Federal Republic of Nigeria.”

The Appellant grouse against the above finding of the learned trial Judge is that the claim of the Respondent is predicated on a contract of purchase of FOREX between it and the three commercial banks: namely First Bank, Union Bank and Fidelity Bank contrary to the view held by the trial Judge. On the other hand, the Respondent’s learned counsel argued that there was no need for it to sue the three commercial banks because they did nothing wrong to the Respondent. But its complaint is against the Appellant alone as disclosed by its paragraphs 3 to 5 and 25 of the statement of claim in which it pleaded the Appellant’s forms Ms and the letters of credits (LCs) it approved and issued to the Respondent.

Again in order to determine this complaint of the Appellant, I must return to and consider the facts pleaded in the statement of claim and

the reliefs claimed by the Respondent predicated on the pleaded facts. I have already stated the background facts of this case at the beginning of this judgment. The reliefs sought by the Respondent against the Appellant are endorsed in the writ of summons commencing the suit copied at pages 2 of the record of appeal and have also been reproduced supra. However, at risk of repetition but for guidance. I will again reproduce the reliefs sought by the Respondent below:
1. A DECLARATION that the Defendant’s power to regulate the Foreign Exchange Market is subject to Rule of Law and Equity, and not at large, capricious, whimsical and oppressive.
2. A DECLARATION that there is no regulation at all, or which can be valid in Law and Equity which empowers the Defendant to sell Foreign Exchange to the Plaintiff at a rate higher than the rates contained in the Defendant’s FORM M and approval letters for establishment of Letters of Credit, which it held out the Plaintiff and which the Plaintiff acted upon to import, fix prices and sell the relevant petroleum products.
3. AN ORDER OF MANDATORY INJUNCTION directing the Defendant to restore the

Plaintiff back to its original position as per Foreign Exchange rates stated in the Defendant’s FORM Ms, approval letters and approved Letters of Credit in all the transactions, the subject-matter of this suit and accordingly;
4. PAYMENT FORTHWITH of the sum of N2,203,964,065.36 (Two Billion, Two Hundred and Three Million, Nine Hundred and Sixty Four Thousand, Sixty Five Naira, Thirty Six Kobo) by the Defendant to the Plaintiff being the sum representing the deficit caused by the Defendant’s reckless decision.
5. SUCH OTHER ADDITIONAL SUMS established by the Plaintiff as representing bank interests and other financial charges actually paid by the Plaintiff on the loans created by the Plaintiffs bankers to absorb and mop up the excess costs/deficit caused by the Defendant’s decision.
6. The sum of N100,000,000 (One hundred Million Naira) as General Damages for all the damage and injury caused the plaintiff by the Defendant’s action.
7. The sum of N10,000,000 (Ten Million Naira) as costs of this suit. (underlining supplied).

It is clear that the main reliefs 1- 3 sought by the Respondent are declaratory and

directed at the Appellant regarding its power to regulate foreign exchange market and the alleged approvals issued to the Respondent upon which it acted in its transaction. Reliefs 4 to 7 are ancillary reliefs sought by the Respondent for payment of damages allegedly suffered by the Respondent as a result of the alleged “whimsical and oppressive” actions taken by the Appellant. There is no claim against the three Commercial Banks to necessitate their joinder as parties to the suit.

Going by the guidance on the test to be applied in identifying a necessary party to a civil proceedings, the reliefs sought are squarely directed at the Appellant, being a challenge to its regulatory powers of the foreign exchange market and the approvals it issued the Respondent upon which the latter acted. The proceedings cannot be successfully or even fairly conducted in the absence of the Appellant which fact makes it a necessary party and indeed the only party to be sued in the proceedings. It is for this reason that I am unable to fault the holding of the learned trial judge quoted supra to the effect that the Appellant is the only necessary party to the suit in view of

the pleadings. I resolve issue two against the Appellant.

Having resolved the two issues against the Appellant, it is obvious that the appeal fails and it is hereby dismissed by me. The ruling of the trial Court delivered on the 30th May 2017 by Hon. justice F. A. Faji in relation to a motion of notice filed in suit NO: FHC/L/CS/1260/2016 is hereby affirmed by me. Cost of One Hundred Thousand Naira (N100,000) only awarded to the Respondent.

MOHAMMED LAWAL GARBA, J.C.A.: My learned brother Balkisu Bello Aliyu, JCA has fully considered the two issues submitted for decision by the Court in the lead judgement, a draft of which I read before now, and I am in complete agreement with the conclusion that the appeal is wanting in merit.

I would like to emphasize that all that the law requires of a party challenging the decision; action or omission of the Appellant in exercise of the powers under Section 52 of the CBN Act, is to show plausible facts in its pleadings which, prima facie, show elements of bad faith in the exercise that directedly affected the party detrimentally.
Once this requirement was met, the Court would be clothed with the

requisite jurisdiction to enquire into the complaint and the issue of proof of the pleadings on the bad faith would be a matter of evidence to be adduced at the trial.

In addition, the complaint by the Respondent transcends the mere contractual relationship between the Respondent and its Bankers as it involves a challenge to an administrative decision of the Appellant which directly affected the Respondent and so the general principle of privity of contracts applicable to ordinary contracts between parties is not applicable to the Respondent’s action. In the premises, the action was/is properly constituted as to parties to be competent for adjudication by the Lower Court since there is at least a competent claimant and a competent defendant. Ataguba & Co. Limited vs. Gura Nigeria Limited (2005) 2 SCNJ, 139 (2005) ALL FWLR (Pt. 265) 1219.
The appeal is dismissed by me too in terms of the lead judgement.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the thorough judgment prepared by my learned brother, Balkisu Bello Aliyu, J.C.A.

Appearances:

AUGUSTINE OKAFOR, ESQ. For Appellant(s)

O. P. EMEKA, ESQ., with him, OLUWAKEMI ONI, ESQ. For Respondent(s)