FCMB v. OGBUEFI (2021)

FCMB v. OGBUEFI

(2021)LCN/15018(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, February 03, 2021

CA/A/211/2019

RATIO

APPEAL: PRINCIPLES GOVERNING GROUNDS OF APPEAL

This therefore follows that the Grounds of Appeal must not be argumentative or narrative otherwise its validity would be called into question. It offends the principle for an Appellant to argue or narrate what he feels should have been the judgment in his Ground of Appeal. This should be done when arguing the issues raised for determination from any Ground of Appeal.
However, the law is that once the error complained of is identified and properly oriented in the ground of appeal, the fact that particulars to the said grounds are argumentative, repetitive or narratives is not enough for an appellate Court to sidestep from doing justice. See BEST (NIG.) LTD VS. B. H. (NIG.) LTD (2011) 5 NWLR (PT. 1239) 95 SC and OMISORE VS. AREGBESOLA (2015) 15 NWLR (PT. 1482) 205 AT 257, where the Apex Court per Nweze, JSC made the point clear as follows:
“It is not every failure to attend to grounds of appeal with the fastidious details prescribed by the Rules of this Court that would render such a ground incompetent. This is particularly so where sufficient particulars can be gleaned from the grounds of Appeal – and the adversary and the Court are left in no doubt as to the particulars on which the grounds are founded – Even then, Courts are encouraged to make the best they can out of a bad or inelegant ground of appeal in the interest of justice – Put differently since the essence of the particulars is to project the reason for the ground complained of, the inelegance of the said particulars would not invalidate the grounds from which they follow this position: a position shaped by the contemporary shift from technicalities to substantial justices is clearly evidenced in such cases like Aderounmu V Olowu (2000) 4 NWLR (Pt. 652) 253. Indeed, this Court recently stamped its infallible authority on this current posture. Abe V Unilorin (2013) LPELR – 20643; (2013) 16 NWLR (Pt. 1379) 183.”
The current mood of this Court to technicalities has been depicted above. Consistent with this libertarian trend, the position now is that it is not every failure to attend to Grounds of Appeal with the fastidious details prescribed by the rules of this Court that would render such a ground incompetent. This is particularly so where sufficient particulars can be gleaned from the grounds of appeal in question and the adversary and the Court are left in no doubt as to the particulars on which the grounds are founded.
See the cases of UKPONG AND ANOR VS. COMMISSIONER FOR FINANCE AND ECONOMIC DEVELOPMENT & ANOR (2006) LPELR – 3349, citing HAMBE VS. HUEZE 21 (2001) 4 NWLR (PT. 703) 372; (2001) 5 NSCQR 343, 352. Even then, Courts are now encouraged to make the best they can out of a bad or inelegant ground of appeal in the interest of justice. See the case ofDAKOLO & ORS VS. DAKOLO & ORS (2011) LPELR – 915.
This position is clearly shaped by the contemporary shift from technicalities to substantial justice.
Following therefore, this Court has no justification for departing from this wholesome contemporary attitude and it is in this light that this Court will answer the question for determination, in the affirmative having regards to the authorities cited above and also following the lead to do substantial justice. PER MOHAMMED BABA IDRIS, J.C.A.

CONTRACT: ISSUE OF INTERPRETATION OF CONTRACT

In the case of A.B.C. (TRANSPORT CO.) LTD VS. OMOTOYE (2019) LPELR – 47829 (SC), the Apex Court on the issue of interpretation of contract has this to say:
“Parties are bound by the terms of their contract and if any dispute should arise with respect to the contract, the terms in any documents which constitute the contract, are invariably the guide to its interpretation. See Per MOHAMMED, JSC in ONYKWELU V. ELF PETROLEUM (NIG) LTD. (2009) LPELR – 2733 (SC).” PER MOHAMMED BABA IDRIS, J.C.A.

JUDGMENT: WHAT CAN AMOUNT TO A PERVERSE JUDGMENT

A decision or finding or conclusion reached is perverse amongst other grounds if it does not flow from the established facts from the evidence before the Court or it takes into consideration matters extraneous to the issues placed before the Court in evidence by the parties. See OBAJIMI VS. ADEOBI (2008) 3 NWLR (PT. 1075) 1 @ P. 19. See also C. S. S. BOOKSHOPS LTD VS. THE REGD. TRUSTEES OF MUSLIM COMMUNITY IN RIVERS STATE (2006) 4 SCM 310, where it was pointed out succinctly thus:
“A decision of a Court is perverse when it ignores the facts or evidence adduced and admitted before it and when considered as a whole amount to miscarriage of justice. In such a case, an appellate Court is bound to interfere with such a decision and to set it aside.”
The Appellant has made the complaint that the judgment of the trial Court was perverse. A perverse judgment is described as a finding of fact or decision which runs counter to pleadings and evidence on record or where the Court which findings or decision are/is being reviewed is shown to have taken into account irrelevant matters or shut its eyes to the obvious and by its very nature, the finding or decision has occasioned a miscarriage of justice. A decision being reviewed may as well be found to be perverse on account of the trial Court’s wrongful application of the law to correctly ascertained facts. See the cases of YARO VS. AREWA CONSTRUCTION LTD & ORS (2007) 16 NWLR (PT. 1063) 333 AT 374; OLANIYAN & ORS VS. FATOKI (2013) LPELR – 20936 (SC) and ODOM & ORS VS. PDP & ORS (2015) LPELR – 24351 (SC). PER MOHAMMED BABA IDRIS, J.C.A.

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

FIRST CITY MONUMENT BANK LIMITED APPELANT(S)

And

HON. CHIEF OGBUEFI RESPONDENT(S)

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): By an amended statement of claim filed on the 24th November, 2016, the Respondent as plaintiff at the trial Court instituted an action against the Appellant as defendant at the trial Court and sought for the following reliefs against the Appellant thus:
1. A declaration that the nature of the relationship between the Plaintiff and the Defendant which was predicated on contributory equity of N40,000,000.00 by the Plaintiff and N60,000,000.00 by the defendant for joint trading on stocks of blue chip companies exclusively to be professionally managed by the defendant implies that the plaintiff is not a borrowing customer of the defendant but a business partner of sort with the defendant.
2. A declaration that the entity contributory nature of the business relationship between the Plaintiff and the defendant which was exclusively and professionally managed by the defendant for the mutual benefit of the Plaintiff and defendant implies that the defendant was to partake substantially in the profit and loss arising out of the business of speculation in stocks and blue chips companies.

A declaration that the Plaintiff’s financial dealings with the defendant does not qualify as eligible bank assets capable of being assigned by the defendant to Asset Management Corporation of Nigeria (AMCON) under the Asset Management Corporation of Nigeria (AMCON) Act.
4. A declaration that the Plaintiff was not borrowing customer of the defendant
5. A declaration that the Asset Management Corporation of Nigeria (AMCON) was justified upon representation of counsel to the Plaintiff to have returned the purported indebtedness of the Plaintiff to the defendant as contained in her letters of May 28, 2014 and July 21, 2015 respectively.
6. A declaration that the representation and proposal of the defendant as expert investment bankers and professional portfolio managers of international repute influenced the Plaintiff in contributing and/or investing his hard earned life savings of N40,000,000.00 with the defendant in 2007 as his contribution to N100,000,000.00 the trading purse to be managed exclusively by the Defendant for the mutual benefit of the Plaintiff and the Defendant
7. A declaration that the representation and business

proposal of the defendant as expert investment bankers and professional portfolio managers of international repute that culminated to the Plaintiff contributing and/or investing his hard earned N40,000,000.00 with the Defendant in 2007 as his contribution to the trading purse to be managed exclusively by the defendant for the mutual benefit of the Plaintiff and the defendant implies that the Defendant at all times material to the relationship owes the Plaintiff duty of care to ensure sound Judgment in the choice of stocks, volumes of stocks, mix of stocks, etc to be bought and timing of sell for the attainment of the objective of the Plaintiff in surrendering his hard earned life savings of to the Defendant.
8. A declaration that the refusal, neglect and failure of the Defendant to render account and stewardship of her professional management of the trading purse of N100,000,000.00 and more specifically the contribution and/or investment of the Plaintiff’s hard earned life savings of N40,000,000.00 since 2007 till the Defendant’s letter of May 30, 2014 was wrongful, unconscionable, irregular, illegal and constitute gross dereliction of the standard

expected of professional dealers in stocks of Companies, breach of duty of care and unmitigated negligence by the Defendant.
9. A Declaration that the Plaintiff is entitled to a proper rendering of account by the Defendant of the utilization of the Plaintiff’s hard earned life savings of N40,000,000.00 from 2007 till date.
10. A Declaration that the Plaintiff is entitled to immediate transfer of title of all shares purchased, bonuses plus dividends thereto arising/accruable to the investment of N40,000,000.00 made by the Plaintiff and held in the name of the Defendant on behalf of the Plaintiff with the Central Security Clearing systems (CSCS) from 2007 till date.
11. A Declaration that the purported indebtedness of the Plaintiff in the sum of N58,121,000.00 to the Defendant as contained in the Defendant’s letter of November 17, 2009 is unfounded, baseless, unrealistic, unreasonable, lacking in merit, unlawful, invalid, null and void and ought to be set aside by this Honourable Court.
12. A Declaration that it is wrongful, unlawful and unethical banking practice for the Defendant to willfully refuse to oblige the Plaintiff the statement

of his accounts and investment portfolio domiciled with the Defendant for ease of fair knowledge and scrutiny of entries in his accounts and investment portfolio with the Defendant with respect his relationship/dealings with the Defendant from 2007 till date.
13. A Declaration that the Plaintiff is entitled to compensation by the Defendant for its professional laxity, incompetence, negligence and breach of her duty of care to the Plaintiff, which breaches now occasion threatened loss of a life savings of N40,000,000.00 to the Plaintiff.
14. An Order of this Honourable Court directing the Defendant to render a comprehensive account of the actual utilization and returns on investment over the Plaintiff’s investment of N40,000,000.00 from the year 2007 till date and immediate transfer of title to the Plaintiff all shares and accrued bonuses plus dividends held by the Defendant in trust for the Plaintiff at the Central Security Clearing System (CSCS).
15. A Declaration that the Plaintiff is entitled to be refunded his investible fund of N40,000,000.00 with interest at 18% from 2007 till date as money had and received the defendants having

failed to render account as well as render returns on the Plaintiff’s N40,000,000.00 surrendered to the Defendant for the joint business trading in shares/stocks of blue chips companies between the defendant and plaintiff upon the representations of the Defendant to the Plaintiff that the Defendant is an expert managers and Professionals in the business of shares/stocks trading and speculations.
16. A Declaration that the Plaintiff is entitled to be refunded sums in excess of N30,000,000.00 being debit charges in the form of interest, default penalty etc from 2007 till date on the purported margin finance facility granted to the Plaintiff by the Defendant as money had and received the Defendant having failed to render account as well as render returns on the Plaintiff’s N40,000,000.00 surrendered to the Defendant for the joint business of trading in shares/stocks of blue chips companies between the defendant and the Plaintiff upon the representations of the Defendant to the Plaintiff that the Defendant is expert managers and professionals in the business of shares/Stocks trading and speculations.
17. AN Order of this Honourable Court declaring as

excessive, choking, unjustified, oppressive, Contrary to public policy, unlawful, illegal, unconstitutional, null and void the purported application of 30% interest rate to the purported indebtedness of the Plaintiff in the sum of N58,121,000.00 to the Defendant as contained in the defendant’s letter of November 17, 2009.
18. An Order of the Court directing the Defendant to oblige the Plaintiff comprehensive statement of accounts with the Defendant to facilitate forensic analysis by the Plaintiff of entries in his accounts maintained with the Defendant from inception till date.
19. An Order of perpetual Injunction restraining the Defendant either by themselves, agents, privies and/or officers from howsoever exercising any rights connected with, arising from or in respect of the margin finance facility between the Plaintiff and Defendant of which the Plaintiff made contribution/investment of his hard-earned life savings of N40,000,000.00 with the defendant since 2007.
20. An Order of Perpetual Injunction restraining the Defendant either by themselves, agents, privies and/or officers from howsoever taking any steps to realize and/or howsoever

purporting to foreclose, assign, alienate, dispose, sell and/or transfer the title or deal in particular with all stocks, bonuses together with the accrued dividends howsoever arising from the purchases made with the Plaintiff’s hard earned life savings of N40,000,000.00 with the Defendant since 2007.
21. An order of the Court directing the Defendant to refund to the Plaintiff his investible fund of N40,000,000.00 with interest at 18% from 2007 till date as money had and received the defendant having failed to render account as well as render returns on the Plaintiff’s N40,000,000.00 surrendered to the Defendant for the joint business of trading in shares/stocks of blue chips Companies between the Defendant and the Plaintiff upon the representations of the Defendant to the Plaintiff that the Defendant is an expert managers and professionals in the business of shares/stocks trading and speculations.
22. An Order of the Court directing the Defendant to refund sums in excess of N30,000,000.0 to the Plaintiff being debit charges in the form of interest, default penalty etc from 2007 till date on the purported margin finance facility granted to the

Plaintiff by the Defendant as money had and received, the defendant having failed to render account as well as render returns on the Plaintiff’s N40,000,000.00 surrendered to the Defendant for the joint business of trading in shares/stocks of blue chips companies between the Defendant and Plaintiff upon the representations of the Defendant to the Plaintiff that the Defendant is an expert managers and professionals in the business of shares/stocks trading and speculations.
23. The sum of N20,000,000.00 being damage for misrepresentation, breach of trust, breach of duty of care and negligence of the Defendant to the Plaintiff arising out of the unprofessional handling of the Plaintiff’s investment/contribution of the sum of N40,000,000.00 in the business of stock trading exclusively managed by the Defendant.

On the other hand, the Appellant counter-claimed against the Respondent as follows:
1. The sum of N38,744,343.24 (Thirty Eight Million, Seven Hundred and Forty Four Thousand, Three Hundred and Forty Three Naira, Twenty Four Kobo) together with interest at the rate of 18% from 0810.08 till the date of delivery of judgment in this matter.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Post judgment interest at the rate of 10% from the date judgment is delivered until the amount is fully liquidated.Before going into the appeal, I wish to provide hereunder a summary of the facts involved in this appeal.It is the claim of the Respondent that in 2007 upon the representation of the Appellant, he made investment of N40,000,000.00 with the Appellant as equity contribution to a business of trading in stocks of blue chip companies. He further claims that the Appellant was to contribute N60,000,000.00 only to the joint business and the Appellant was to exclusively manage the joint portfolio and take decision on stocks to buy/sale for the mutual benefit of the Respondent and the Appellant under joint ownership arrangement.
The Respondent also claims that under the joint ownership scheme, the Appellant and the Respondent were to share in the profit realized from the N100,000,000.00 joint venture in the ratio of 60% for the Appellant and 40% for the Respondent.

The Respondent claims that since 2007 he made his contribution of N40,000,000.00 to the Appellant, that the Appellant totally failed and neglected to provide the

Respondent with any information howsoever such as acknowledgment of receipt of his N40,000,000.00 equity contribution, record of purchase/sell of stocks, dividends/bonuses earned etc with regard to the joint business.

The Respondent also claims that despite the comatose state of affairs, the Appellant feasted with funds in the account of the Respondent by deducting illegal debit/service charges in excess of N30,000,000.00 aside the initial equity contribution of N40,000,000.00 to the joint ownership arrangement.

The Respondent also claims that several years after with no communication from the Appellant, to the rudest shock of the Respondent, he was served a letter dated 20th day of May, 2011 from the Appellant notifying him that all the Appellant’s rights in connection with the joint business venture has been assigned to Asset Management Corporation (AMCON) and that he subsequently received a letter dated 6th March, 2014 from AMCON demanding payment of outstanding loan obligation of N58,120,388.35 assigned to her by the Appellant.

The Respondent also claims that sequel to the intervention of solicitors to the Respondent, AMCON succumbed to

the agitation of the Respondent’s lawyers and stated that the relationship between the Appellant and the Respondent does not come within the lens of banker-customer relationship but rather a case of joint venturers, thus, AMCON washed its hands off the dispute between the Appellant and the Respondent and by its letters dated 28th May, 2014 and 21st July, 2015 AMCON informed the Respondent that the purported loan portfolio of the Respondent assigned to her by the Appellant had been returned to the Appellant.

On the 8th March, 2017, the Respondent opened his case and called one witness who tendered documents which were admitted and marked as Exhibits 1 – 8. The Respondent then closed his case on the 4th April, 2017 and the matter was adjourned to 16th May, 2017 for the Defence to open its case.

On the 16th May, 2017, the Appellant opened its defence and called one witness who tendered documents which were admitted and marked as Exhibits 9 – 18 and the matter was adjourned to 5th February, 2018 for adoption of final written addresses.

The parties adopted their respective addresses on 5th February, 2018 and the case was adjourned to 20th April, 2018 for judgment.

After considering the evidence led by the parties, the learned trial judge, Honourable Justice K. N. Ogbonnaya delivered judgment in the Suit No. FCT/HC/CV/19/2015 on the 19th October, 2017 wherein the trial judge dismissed the Appellant’s case and gave judgment in favour of the Respondent.

Dissatisfied with the judgment of the trial Court, the Appellant filed a Notice of Appeal dated 22nd October, 2018 comprising of nine (9) grounds of appeal and another dated 21st January, 2019 comprising of fifteen (15) grounds of appeal. The Appellant is relying on the notice of appeal dated 21st January, 2019.
The parties herein filed their respective Briefs of Argument in this appeal.

In the Appellant’s brief of argument as settled by his counsel Olayinka B. Ogunmuyiwa Esq., dated 3rd May, 2019 and filed on the 3rd May, 2019, the following issues for determination were distilled from the grounds of appeal as follows:
1. Whether the Lower Court was right when it defined “margin finance facility” and “equity contribution”-technical terms of art-without recourse to any source or authority or to be pleaded banking

custom usage of the terms and equated the terms with “Joint venture or joint arrangement relationship and not a lender-borrower relationship.” (Distilled from Grounds 1, 2, 3 and 13 of the Notice of Appeal)
2. Whether the lower Court’s finding that Exhibit 8 documented a Joint-Venture relationship and not a Lender – borrower relationship between the parties is not perverse. (Distilled from Grounds 5, 6, 7 and 12 of the Notice of Appeal)
3. Whether the Lower Court was right when it refused to ascribe probative value to Exhibits 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 or anyone or more of the said Exhibits (Distilled from Grounds 4, 8, 9 and 10 of the Notice of Appeal)
4. Whether the Lower Court was right to have dismissed the Appellant’s counter-claim. (Distilled from Grounds 11 and 15 of the Notice of Appeal)

On the other hand, the Respondent filed his brief of argument dated 14th February, 2020 and filed on the 18th February, 2020 and settled by his Counsel, Uwadiogbu S. Ajala Esq., wherein he raised a sole issue for determination thus:
Whether on the face of the Record of Proceedings, evaluation of facts and evidence

particularly Exhibit 8 relied upon by both parties, the Appellant in its brief has sufficiently demonstrated any substantial miscarriage of justice that renders the decision of the learned Trial Court perverse to warrant interference of this Court with the decision of the Court below delivered on 19/10/2018.

The Respondent had earlier filed a Notice of Motion dated 14th February, 2020 and filed on 18th February, 2020 challenging the competency of some Grounds of Appeal and which was argued in the Respondent’s Brief of Argument particularly at paragraphs 5.0 – 6.27.

In arguing the said Notice of Motion, the Respondent Counsel urged this Court to strike out Grounds 1 – 14 as contained in the Notice of Appeal for want of competence. He has argued that this Court has the powers to strike out a ground of appeal for being vague and that the Court can even exercise the powers suo motu. Counsel referred this Court to Order 7 Rule 3, Court of Appeal Rules, 2016.

The Respondent’s Counsel argued that Ground 1 serves no useful purpose as it failed to attack any wrong contained in the decision of the Court below. Counsel argued also that

Grounds 2 and 3 are bad for duplicity and repetition, he further argued that Ground 4 which alleges both error in law and misdirection of facts at the same time has been regarded by the Court as not only vague but one that failed to disclose any reasonable ground of appeal.

The Respondent’s Counsel also argued that Grounds 5, 6 and 7 are bad for duplicity and repetition of Ground 5 and that Ground 8 and 10 are also bad for duplicity and repetition of one another. Counsel further argued that Ground 9 did not flow from the judgment and the Appellant failed to indicate the portion of the record complained of. Counsel argued that Ground 11 and 12 are a repetition of one another and that Ground 13 is verbose and argumentative and also did not challenge the decision or conclusion of the trial Court.

The Respondent’s Counsel also argued that Ground 14 is more of a narration or prose than legal ground of appeal. It was further submitted that the four issues distilled from the faulty grounds must give way. On this point, counsel cited the case of ADESHINA VS. ADENIRAN (2006) 18 NWLR (PT. 1011) 359 AT 369.

In conclusion, the Respondent’s Counsel urged

this Court to give effect to Order 7 Rule 3 of its Rules and decline jurisdiction to entertain argument on the defective Ground of Appeal.

The Appellant filed a reply on point of law to the Respondent’s Brief of Argument dated 25th February, 2020 and filed on the same date and settled by its Counsel, Ogunmuyiwa Balogun Esq.

In the Appellant’s Reply Brief of Argument, the Appellant’s Counsel argued that Ground 1, 2 and 3 specifically attacked the lower Court’s approach to the definition of the term “Margin Finance Facility” at page 253 of the Record of Appeal.

The Appellant’s Counsel also attacked the argument of the Respondent’s Counsel against Ground 4 and stated that there is no factual element and that it does not allege an error in law and a misdirection in facts at the same time. It was further submitted that while Ground 8 challenged the trial Court’s misunderstanding and erroneous application of Section 87(c) of the Evidence Act and that with reference to Ground 9, the word “the Joint memorandum is a sham” used by the trial judge implied forgery and so it cannot be rightly contended by the Respondent’s Counsel that the ground did not

challenge any finding made by the lower Court.

The Appellant’s Counsel argued that the complaint in Ground 13 is not verbose and can be deduced easily. It was also submitted that the Appellant had earlier communicated its intention to abandon Ground 14 of the Notice of Appeal at paragraph 11 of its Appellant Brief of Argument and so it has become academic.

In conclusion, the Appellant’s Counsel argued that Ground 15 was not challenged by the Respondent’s Counsel and therefore same is competent enough to sustain the appeal.

This Court shall proceed with the determination of the Notice of Motion filed and argued by the Respondent and shall summarize the argument of the Counsel in their respective Briefs of Argument as may be necessary during their consideration by this Court.

RESOLUTION OF THE NOTICE OF MOTION FILED BY THE RESPONDENT ON THE 18TH OF FEBRUARY, 2020 AND ARGUED IN THE RESPONDENT’S BRIEF OF ARGUMENT
Before I continue, it is important to restate that the Appellant had abandoned Ground 14 of its substantive Notice of Appeal. See paragraph 11 of its Appellant Brief of Argument.

Moving ahead and in determining the

application, this Court hereby formulates a sole issue for determination which I feel will deal succinctly with the grouse of the Respondent thus:
Whether the Grounds of Appeal are competent/Whether there exists a competent Ground of Appeal to sustain the Appeal before this Court.

The grounds being attacked by the Respondent are now Grounds 1 – 13. I will now take a look at these grounds having in mind the argument of the Counsel as it relates to them.

I will first take a look at and consider Grounds 1, 2 and 3 of the Notice of Appeal and then the consideration of the other grounds follows subsequently.
Ground 1:
“The lower Court erred in law when it defined “Margin Finance Facility” – a technical term of art specific to the banking industry without recourse to any source or authority (custom, precedent, treatise, monographs, reference works or banking or business dictionaries or any dictionaries at all) howsoever and arrived at an interpretation inconsistent with the common usage of the term in the banking industry, thereby occasioning a miscarriage of justice.

Looking at Ground 1, I am of the view that the said

grounds are narrative. However, looking at page 253 of the Record of Appeal, I can clearly see the error in the judgment complained of by the Appellant.
Ground 2:
“The lower Court erred in law when in defining the terms “Margin Finance Facility” and “equity contribution” both of which are technical terms of art specific to the banking industry, it totally ignored the banking industry meaning of the terms specifically pleaded by the Appellant, and the uncontroverted evidence led thereon by the Appellant’s witness (DW1), thereby occasioning a miscarriage of justice.”
Ground 3:
“The Lower Court erred in law when it gave inconsistent definitions of the term “Margin Finance Facility” and held in one breathe at page 40 of the Judgment that “(i) it is a margin loan or investment which enables one borrower (sic) money to invest in approved shares… It entails borrowing cash to buy shares or other financial instrument… It refers to the buying of securities – shares with the cash borrowed. The security served as collateral for the loan, “and in another breath at the same page that” (t)he parties are more of Joint-Venturers in that

the borrower uses its fund in the bank as its own contribution to the venture,” thereby occasioning a miscarriage of Justice.”

Looking at Grounds 2 and 3, it is clear that Grounds 2 and 3 are merely repetitive of each other; that there might be no need for Ground 3 after drafting Ground 2 or that Ground 3 could be sustained without Ground 2.

Ground 4:
“The lower Court erred in law when it held that Exhibit 10 (Joint Memorandum) is a unilateral agreement, ingenuine and of no probative value.”

In my view and looking clearly at the said Ground 4, I do not agree with the Respondent Counsel that it alleges both error of law and misdirection of facts at the same time. The Ground only complained of error in law.

Ground 5:
“The Lower Court erred in law when it misinterpreted the clear language of Exhibit 8 and thus, erroneously held that the relationship between the Appellant and the Respondent was not one of “Borrower and Lender”, but that of Joint- Venturers.”
Ground 6:
“The Lower Court misdirected itself in facts and law when it inexplicably misquoted the clear provisions of Exhibit 8 and thus,

erroneously held that the document is for a “Joint Venture (Arrangement) business” and not one of “Lender-Borrower”
Ground 7:
“The lower Court erred in law when it held that the Appellant and the Respondent entered a joint venture business wherein the Appellant represented it would deploy its professional expertise to manage the business on behalf of the Respondent.”

Looking at Grounds 5, 6 and 7, it is clear that Grounds 5 and 7 are repetitive while Ground 6 is disjunctive being one alleging error in law and error on the facts.

Ground 8:
“The lower Court erred in law when it refused and failed to attach any probative value to Exhibits 9, 10 11, 12, 13, 14, 15, 16, 17 and 18 being documents tendered and relied upon by the Appellant and duly received in evidence on the basis that they were photocopies and proper foundation was laid by the Appellant for their admissibility in that there was no report to the police on the loss, there was no affidavit of loss and there was no publication of the loss in newspaper.”
Ground 9:
“The Lower Court erred in law when it held that Exhibits 10, 11, 12, 13, 14, 15, 16, 17

and 18 tendered by the Appellant and duly received in evidence were forged by the Appellant and were concocted in anticipation of the suit of the Respondent.”
Ground 10:
“The Lower Court misdirected itself in facts and law when it refused and failed to attach any probative value to Exhibits 17 and 18, being documents tendered and relied upon by the Appellant and duly received in evidence on the basis that the name of the Respondent was misspelt in Exhibits 17 and 18 and the Appellant’s stamp on Exhibit 17 was undated.”

I believe Grounds 8 and 10 are merely repetitive as Ground 8 can deal perfectly with what the Appellant has formed under Ground 10. Therefore, the formulation of Ground 10 could have been unnecessary.

As regards Ground 9, the said ground in my view even though there is a difference in the use of the word “forged” as against the word “sham” used by the trial Court, I can clearly see the error complained of in the judgment of the Court.
Ground 11:
The Lower Court erred in law when it dismissed the Appellant’s counterclaim on the ground that there was no loan agreement between the Appellant and Respondent

evidenced by a formal written loan application.
Ground 12:
“The Lower Court misdirected itself in facts and law when it dismissed the Appellant’s Counterclaim on the basis that there was no loan facility by the Appellant to the Respondent, and that the Appellant was not able to prove the existence of a “Lender and Borrower” relationship between the parties.
Looking at Grounds 11 and 12, it is also clear that Grounds 11 and 12 are repetitive.

Ground 13:
The Lower Court erred in law when it wholly relied and adopted the reasoning of the Honourable Justice Muslim Hassan of the Federal High Court, Lagos in Olisa Agbakoba v First Bank of Nigeria Limited – Suit No: FHC/L/CS/699/2013 (Unreported) as a basis for its decision that the Margin Finance Facility between the Respondent and the Appellant is a Joint Venture transaction and a loan transaction without first ascertaining that the facts of the case are similar to the facts of the instant case.”

Looking at Ground 13, it is not argumentative neither is it narrative.

Order 7 Rule 2(3) of the Court of Appeal Rules, 2016 provides that:
“The notice of appeal

shall set forth concisely and under distinct heads the grounds upon which the Appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.”
This therefore follows that the Grounds of Appeal must not be argumentative or narrative otherwise its validity would be called into question. It offends the principle for an Appellant to argue or narrate what he feels should have been the judgment in his Ground of Appeal. This should be done when arguing the issues raised for determination from any Ground of Appeal.
However, the law is that once the error complained of is identified and properly oriented in the ground of appeal, the fact that particulars to the said grounds are argumentative, repetitive or narratives is not enough for an appellate Court to sidestep from doing justice. See BEST (NIG.) LTD VS. B. H. (NIG.) LTD (2011) 5 NWLR (PT. 1239) 95 SC and OMISORE VS. AREGBESOLA (2015) 15 NWLR (PT. 1482) 205 AT 257, where the Apex Court per Nweze, JSC made the point clear as follows:
“It is not every failure to attend to grounds of appeal with the fastidious details prescribed by

the Rules of this Court that would render such a ground incompetent. This is particularly so where sufficient particulars can be gleaned from the grounds of Appeal – and the adversary and the Court are left in no doubt as to the particulars on which the grounds are founded – Even then, Courts are encouraged to make the best they can out of a bad or inelegant ground of appeal in the interest of justice – Put differently since the essence of the particulars is to project the reason for the ground complained of, the inelegance of the said particulars would not invalidate the grounds from which they follow this position: a position shaped by the contemporary shift from technicalities to substantial justices is clearly evidenced in such cases like Aderounmu V Olowu (2000) 4 NWLR (Pt. 652) 253. Indeed, this Court recently stamped its infallible authority on this current posture. Abe V Unilorin (2013) LPELR – 20643; (2013) 16 NWLR (Pt. 1379) 183.”
The current mood of this Court to technicalities has been depicted above. Consistent with this libertarian trend, the position now is that it is not every failure to attend to Grounds of Appeal with the fastidious

details prescribed by the rules of this Court that would render such a ground incompetent. This is particularly so where sufficient particulars can be gleaned from the grounds of appeal in question and the adversary and the Court are left in no doubt as to the particulars on which the grounds are founded.
See the cases of UKPONG AND ANOR VS. COMMISSIONER FOR FINANCE AND ECONOMIC DEVELOPMENT & ANOR (2006) LPELR – 3349, citing HAMBE VS. HUEZE 21 (2001) 4 NWLR (PT. 703) 372; (2001) 5 NSCQR 343, 352. Even then, Courts are now encouraged to make the best they can out of a bad or inelegant ground of appeal in the interest of justice. See the case ofDAKOLO & ORS VS. DAKOLO & ORS (2011) LPELR – 915.
This position is clearly shaped by the contemporary shift from technicalities to substantial justice.
Following therefore, this Court has no justification for departing from this wholesome contemporary attitude and it is in this light that this Court will answer the question for determination, in the affirmative having regards to the authorities cited above and also following the lead to do substantial justice. Having said that, I am of the

well considered view that this Court can now proceed to determine the appeal. The said Notice of Motion by the Respondent is hereby dismissed.

RESOLUTION OF THE ISSUES
ISSUE ONE
The argument of the Appellant’s Counsel basically is that the trial Court erred in defining the term “margin finance facility” and “equity contribution” without recourse to any source or authority and otherwise than in accordance with their technical meaning.

Looking at the case at the trial Court, it is not farfetched that the case of the Respondent before the trial Court was that the Margin Finance Facility agreement between the Appellant and the Respondent is a joint venture agreement under which the Respondent made an equity contribution to the tune of N40,000,000 and the Appellant an equity contribution in the sum of N60,000,000 for the business of speculating in stocks of blue chips company under the management of the Appellant for the mutual benefit of the parties.

On the other hand, the Appellant’s case is that the Respondent sought to purchase shares of N100,000,000 and the Appellant provided him with a margin finance facility of while the Respondent was required to

part-finance the acquisition of the shares with his own funds in the sum of N40,000,000.

In resolving the dispute, the trial Court gave definition to what a Margin Finance Facility is.

I do not want to concern myself with whether the term is an ordinary, English or a technical term. One thing that is in agreement between the Appellant and Respondent is that there is a Margin Finance Facility agreement between them and in designing what the said agreement means to the parties, resort should be had to the said agreement.

The trial judge gave a definition of what the term “Margin Finance Facility” means even though it is now argued by the Appellant that he did not say how he came by that definition. I am of the humble view that it is also evident from the judgment of the trial Court that the Court did not forget to retrace his step back to the issue at hand, on whether the relationship between the Appellant and Respondent is one of joint venture or joint arrangement relationship and not a lender – Borrower relationship and in doing so, the Court did not fail to examine the document (Exhibit 8) titled “Offer/acceptance of Finance facility” and

went further to state thus:
“it is the humble view of this Court that this document is for a joint venture (Arrangement) business and not Lender- Borrower. It is also in a photocopy form but that is notwithstanding. A closer look at the document shows that it is for “…Procurement of FCMB (Defendant – Emphasis Mine) Marginable shares”

That means that it is for the procurement of shares purchased with Margin Finance Facility contributed by the parties therein. In this same document, under “Contribution”, it states that the customer plaintiff shall make “Equity Contribution”.

That means that the other party has to also make its own equity contribution too. Of interest also is the column on “Distribution” where it was clearly stated that:
“…The shares shall be purchased on behalf of the subscribers – (Plaintiff) by the lender (Emphasis Mine) under Joint Ownership arrangement.”

The trial Court did not fail to go further to state his findings and concluded based on the findings that the relationship of the parties in this case is Joint Ownership Venture Arrangement. I therefore will not fail to

conclude here, that in giving meaning to the relationship between parties, the Court had resort to the Exhibit 8, which envisaged the agreement between the parties which is the most important and this was what eventually led the trial Court to make a conclusion on what the relationship between the parties clearly is. In the case of A.B.C. (TRANSPORT CO.) LTD VS. OMOTOYE (2019) LPELR – 47829 (SC), the Apex Court on the issue of interpretation of contract has this to say:
“Parties are bound by the terms of their contract and if any dispute should arise with respect to the contract, the terms in any documents which constitute the contract, are invariably the guide to its interpretation. See Per MOHAMMED, JSC in ONYKWELU V. ELF PETROLEUM (NIG) LTD. (2009) LPELR – 2733 (SC).”

Considering the above authority and my finding on the Issue one, I am of the firm view that the trial Court was right when it defined “margin finance facility” and “equity contribution” and also determined the relationship between the parties with recourse to Exhibit 8 which evidenced the agreement between the parties and the term contained therein, This issue is hereby resolved in favour of the Respondent.

ISSUE TWO
The Appellant’s argument is that there was misquoting of key provisions of Exhibit 8 which clearly shows that a loan is what the parties contemplated and ignoring other exhibits referred to in Exhibit 8. The Appellant’s Counsel further argues that out of some errors made by the trial Court, is the fact that the trial Court at page 257 of the Record of Appeal stated that Exhibit 8 was tendered by the Appellant when from the record of proceedings, it was clear that even though the document was pleaded by both parties, it was the Respondent that tendered Exhibit 8 in evidence. Counsel further argued that resolving the issue of the nature of the relationship between the Appellant and the Respondent turned on a proper interpretation of the Exhibit 8 which the Court failed to do.

The Appellant’s Counsel also argued that the trial Court in interpreting Exhibit 8, adopted a piece meal approach.

Before I proceed, it is important to see what can amount to a perverse judgment.

A decision or finding or conclusion reached is perverse amongst other grounds if it does not flow from the established facts

from the evidence before the Court or it takes into consideration matters extraneous to the issues placed before the Court in evidence by the parties. See OBAJIMI VS. ADEOBI (2008) 3 NWLR (PT. 1075) 1 @ P. 19. See also C. S. S. BOOKSHOPS LTD VS. THE REGD. TRUSTEES OF MUSLIM COMMUNITY IN RIVERS STATE (2006) 4 SCM 310, where it was pointed out succinctly thus:
“A decision of a Court is perverse when it ignores the facts or evidence adduced and admitted before it and when considered as a whole amount to miscarriage of justice. In such a case, an appellate Court is bound to interfere with such a decision and to set it aside.”
The Appellant has made the complaint that the judgment of the trial Court was perverse. A perverse judgment is described as a finding of fact or decision which runs counter to pleadings and evidence on record or where the Court which findings or decision are/is being reviewed is shown to have taken into account irrelevant matters or shut its eyes to the obvious and by its very nature, the finding or decision has occasioned a miscarriage of justice. A decision being reviewed may as well be found to be perverse on account of

the trial Court’s wrongful application of the law to correctly ascertained facts. See the cases of YARO VS. AREWA CONSTRUCTION LTD & ORS (2007) 16 NWLR (PT. 1063) 333 AT 374; OLANIYAN & ORS VS. FATOKI (2013) LPELR – 20936 (SC) and ODOM & ORS VS. PDP & ORS (2015) LPELR – 24351 (SC).
The Appellant is expected to identify also in specific terms the element of perversity in the judgment appealed against. It cannot just be a blanket allegation. What is it that the trial judge took into account that it should not? What is the aspect of the evidence that was disregarded to arrive at the decision appealed against and what did the trial Court shut its eyes against to arrive at the judgment?

I have seen the argument of the Appellant’s Counsel and also seen the decision of the Court especially as contained at pages 258 – 260 of the Record of Appeal where it made its findings that Exhibit 8 documented a joint-venture relationship and not a lender-borrower relationship between the parties. I am of the firm view that what the trial Court did in interpreting the said Exhibit 8 was to highlight wordings in the Exhibit 8 to explain clearly the

extent of relationship between the Appellant and the Respondent and nothing more.

An appellate Court is not so much concerned with the reasons adduced in reaching a conclusion by a trial Court but rather with the correctness or otherwise of the conclusion reached. In law therefore, once the conclusion reached is correct on the evidence before the trial Court, even if the reason or ground relied upon is wrong, the appellate Court will not interfere with the correct conclusion of the trial Court. Very sound logic one may say! Judicial authorities on this position of the law are legion. In ALHAJI NDAYAKO & ORS VS. ALHAJI DANTORO & ORS (2004) 13 NWLR (PT. 889) 187 @ P. 198, Edozie, JSC pronounced with finality on this vexed issue thus:
“An appellate Court is only concerned with whether the judgment appealed against is right or wrong not whether the reasons given are right or wrong. Where the judgment is right but the reasons given are wrong, the appellate Court does not interfere. It is only where the misdirection has caused the Court to come to a wrong conclusion that the appellate Court will interfere…”

See also the case of ALHAJI DAHIRU ADAMU VS. ASHAKA CEMENT CO. PLC (2015) LPELR – 25610 (CA).

I am of the firm and unshaken view therefore, that the trial Court in interpreting Exhibit 8 not only made reference to the terms contained therein, it also brought out the salient terms that would reveal the true relationship of the Appellant and Respondent. It is on this note that I sustain the findings of the trial Court to be a reflection of the true relationship between the Appellant and Respondent. I hereby hold that the finding of the lower Court that Exhibit 8 documented a joint-venture relationship and not a lender- borrower relationship between the parties is not perverse. This issue is therefore resolved against the Appellant.

ISSUES THREE AND FOUR
Issues three and four will be considered together as I am of the view that the findings made on issue three will affect the determination of issue four.

The Appellant has argued that the same trial judge who overruled the objection of the Respondent to the tendering of Exhibits 9, 10, 11, 12, 13, 14, 16, 17 and 18 and proceeded to admit same went ahead in his judgment to now say that the said documents have no probative value.

Before moving on, it is important to note that the admissibility of documents is one thing and the weight to be attached to the documents is another entirely.

It is trite law that admitting a document in evidence whether wrongly or rightly is quite different from its proper valuation. See FADLALLAH VS. AREWA TEXTILES LTD (1997) 7 SCNJ 202 and COMPTOIR COMMERCIAL & IND. S. P. R. LTD VS. OGUN STATE WATER CORPORATION AND ANOR (2002) 4 SCNJ 342; (2002) 9 NWLR (PT. 773) 629.

The above authorities have adequately catered for the argument of the Appellant’s Counsel as contained in paragraphs 68 – 81 of the Appellant’s Brief of Argument.

The trial Court has a duty to evaluate the evidence before it and in doing so, the trial Court can consider each set of evidence given by the parties, the determination of the credibility of the respective witnesses and the ascription of probative value to the evidence evaluated. In short, before a judge before whom evidence is adduced by the parties before him in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects he should first

of all put the totality of the testimony adduced by both parties on that imaginary scale. He will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side and weigh them together. He will then see which is heavier not by the number of witnesses called by each party but by the quality or the probative value of the testimony of those witnesses. This is what is meant when it is said that a civil case is decided on the balance of probabilities. Therefore, in determining which is heavier, the judge will naturally have regard to the following:-
a. Whether the evidence is admissible.
b. Whether it is relevant.
c. Whether it is credible.
d. Whether it is conclusive and
e. Whether it is more probable than that given by the other party.
Finally, after invoking the law, if any, that is applicable to the case, the trial judge will then come to his final conclusion based on the evidence which he has accepted.
The same principle governing the evaluation of evidence was also applied in the case of LAGGA VS. SARHUNA (2008) 16 NWLR (PT. 1114) 427 for instance, where this Court at

page 460 had the following to say:-
“Now in evaluating any piece of evidence placed before it by parties, a Court of law is bound to consider the totality of the evidence led by each of the parties. It shall then place it on the imaginary scale of justice to see which of the two sides weighs more creditably than the other. Thus, evaluation of evidence entails the assessment of same so as to give value or quality to it. Evaluation of evidence by a trial Court should necessarily involve a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other, In stressing the point further, I seek to emphasize that the very direction in which the pendulum tilts is the course of justice. Therefore, the onus is on the judge, as an adjudicator and umpire to act objectively in the process of arriving at a just evaluation of the evidence for purpose of achieving the ultimate end result. The determinant factor as to which evidence a Court accepts or rejects is not dependent on the quantum or quantity of witnesses called but rather by the quality or probative value of the evidence by the

witnesses. See the case of SHA (JNR) V. KWAN (2000) 8 NWLR (PT. 670) 685 AT 705.”

I have taken a look at the said evaluation of the Exhibits 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 by the trial Court.

The Appellant had argued that the lower Court suo motu raised a case of forgery against the Appellant when it found at page 273 – 274 of the Record of Appeal that the documents were all concocted. This finding of the Court was not on forgery per se but a conclusion arrived at after evaluating the evidence of the parties in these exhibits as contained at pages 265 – 273 of the Record of Appeal. Therefore, the argument of the Appellant Counsel as contained at paragraphs 98 – 103 of the Appellant’s brief does not suffice.

In the final result, the trial judge from the consideration and findings made by this Court and based on the above authorities cited above, it is my view that this Court has no other option than to allow the judgment of the trial Court to stand because the learned trial judge adequately considered the evidence placed before him and also followed the fundamental principles of evaluation of evidence in the case.

I hereby adopt the argument of the Respondent’s Counsel and the finding of the trial judge in holding that the trial judge was right when it refused to ascribe probative value to Exhibits 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 or anyone or more of the said Exhibits. This issue is hereby resolved in favour of the Respondent.

Consequent upon the above findings, it follows that if there is no probative value attached to the said documents, it then follows and I agree with the decision of the trial Court at page 269 of the Record of Appeal that all that goes to show that the Appellant was not able to defend the suit of the Respondent. The trial Court also went further to evaluate the evidence at the trial Court in his decision contained at pages 269 – 274 of the Record of Appeal and I do not seem to disagree with his findings contained therein.

Consequently, the appeal lacks merit and is hereby dismissed. I make no further order as to cost.

STEPHEN JONAH ADAH, J.C.A.: I have had the benefit of reading in draft, the judgment just delivered by my learned brother, Mohammed Baba Idris, JCA.

I agree in full with the reasoning and the

conclusion that this appeal is lacking in merit. For the same reasons, I do dismiss the appeal. I abide by the order as to costs as made therein.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the Judgment just delivered by my learned brother, MOHAMMED BABA IDRIS, JCA and I am in agreement with his reasoning and conclusion arrived at therein.

Appearances:

BALOGUN, ESQ., with him, G. IWUAZOKU, ESQ. For Appellant(s)

AJALA, ESQ., with him, N. OKA, ESQ. For Respondent(s)