ECOBANK v. INYENE & ORS
(2021)LCN/15125(CA)
In The Court Of Appeal
(CALABAR JUDICIAL DIVISION)
On Friday, March 05, 2021
CA/C/361/2016
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
James Shehu Abiriyi Justice of the Court of Appeal
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Between
ECOBANK NIGERIA PLC APPELANT(S)
And
1. CHIEF EDWARD INYENE 2. CHIEF O. U. ANTIGHA 3. CHIEF UKPONG AKANG 4. CHIEF ANDEM UNUNG 5. CHIEF B. E. U. EKPENYONG (For Themselves And As Representing Members Of Okopedi Council Of Chiefs, Okopedi, Okobo Local Government Area) 6. HON. CHRYSANCTUS BRENDAN ETTEH 7. CHIEF PATRICK EYO ENTE 8. CHIEF UMANA ETOR UMANA 9. CHIEF FRANCIS BASSEY EKPENYONG RESPONDENT(S)
RATIO
MEANING OF THE TERM ‘LOCUS STANDI’
Locus standi means the legal capacity to institute proceedings in a Court of law. The fundamental aspect of locus standi is that it focuses on the party seeking to get his complaint laid before the Court. It is the right of a party to appear and be heard on the question before any Court or tribunal. See Ojukwu v. Ojukwu & Anor (2008) LPELR – 2401 and Adetono & Anor v. Zenith International Bank Plc. (2011) LPELR – 8237 SC. PER JAMES SHEHU ABIRIYI, J.C.A.
EFFECT OF THE FAILURE OF A BANKER TO HONOUR A CHEQUE OR TRANSFER MONEY FOR THE CUSTOMER WHO HAS SUFFICIENT AND AVAILABLE FUNDS
It is the duty of a banker to a customer to honour and pay a cheque drawn on it by the customer as long as he has in his possession at the material time sufficient and available funds for the purpose. Refusal to honour the cheque will amount to breach of contract which will render the bank liable to damages. See First African Trust Bank Ltd v. Partnership Investment Co. Ltd. (2003) LPELR – 1280 SC and Union Bank of Nigeria Plc. v. Chimaeze (2014) LPELR – 20699 SC. Nowadays, the banker has an equal duty to transfer money for the customer as long as he has at the material time sufficient and available funds for the purpose. Refusal to transfer the money will amount to breach of contract which will render the bank liable to damages. PER JAMES SHEHU ABIRIYI, J.C.A.
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 1st August, 2016 in the High Court of Akwa Ibom State, holden at Okobo.
In the High Court (the Court below), the Appellant was the 5th Defendant while the 6th to 9th Respondents were the 1st to 4th Defendants. The 1st to 5th Respondents were the plaintiffs and their claim against the 6th – 9th Respondents and the Appellant was for the following:
(a) A declaration of the Honourable Court that the withdrawal of the sum of N42,041,066.75 (Forty Two Million, Forty One Thousand and Sixty Six Naira and Seventy five Kobo) by the defendants from the account of the Okopedi community with the 5th defendant without the consent and/or authority of the plaintiffs amounts to breach of contract between the plaintiffs and the defendants.
(b) A declaration of the Honourable Court that the withdrawal of the sum of N42,041,066.75 (Forty Two Million, Forty One Thousand and Sixty six Naira and Seventy Five Kobo) by the defendants from the account of the Okopedi community with the 5th defendant without the consent and/or authority of the plaintiffs is
1
fraudulent.
(c) A refund of the said sum of N42,041,066.75 (Forty Two Million, Forty One Thousand and Sixty six Naira and Seventy Five Kobo) by the defendants to the plaintiffs.
(d) Interest on the said sum of N42,041,066.75 (Forty Two Million, Forty One Thousand and Sixty Six Naira and Seventy Five Kobo) at the rate of 13% per annum with effect from July 2008 till judgment and final payment.
(e) An order of the Honourable Court on the defendants to render an account of all sums of money excluding the money in paragraphs 2 and 3 immediately above in the account of Okopedi community with the 5th defendant and pay same over to the plaintiffs forthwith.
In summary, the case of the 1st – 5th Respondents against the 6th to 9th Respondents and the Appellant is as follows:
The Akwa Ibom State Government acquired a vast expanse of land from the Okopedi Community for the building of an International Airport. The government paid N44,648,444.00 compensation to the Okopedi Community. The community deposited the money with the Appellant. 6th – 9th Respondents were four out of six signatories to the account. According to the 1st to 5th
2
Respondents, N42,041,066.75 was later “taken out” of the Community account without their approval as contained in a letter (Exhibit A) the application for the opening of the account.
In its defence, the Appellant stated that signatories to the account instructed it to transfer the sum of N42,041,066.75 from the account to an investment company by name Maven Asset Management Ltd. The bank duly transferred the said sum to the said company. It denied the allegation of fraud or conspiracy with any person to illegally deal with the account of the community.
The 6th to 9th Respondents also put up their defence. The Court below considered the evidence led by all the parties and addresses of counsel representing them. The Court below found the claim of the 1st to 5th Respondents against the 6th to 9th Respondents and the Appellant established and declared the transfer of the money from the Appellant fraudulent. It ordered the return of the money to the 1st to 5th Respondents.
The Appellant immediately proceeded to this Court by a notice of appeal dated 1/8/16 but filed on 3rd August, 2016 and another notice of appeal dated 5th October, 2016
3
but filed on 7th October, 2016. The appeal is predicated on the notice of appeal filed on 7th October, 2016 which contains eighteen (18) grounds of appeal. From the eighteen grounds of appeal, the Appellant presented the following seven issues for determination:
2.1 Whether the 1st – 5th Respondents had locus standi to bring this suit, in the first place, and, consequently, whether the Court Below had jurisdiction to entertain the action. (Framed from Ground 17 of the Notice of Appeal).
2.2 Whether the Appellant breached its contractual or fiduciary duty to any other party in this case when it obeyed the instructions of the 6th – 9th Respondent as lawful signatories to the Okopedi Community account and transferred money upon their instructions. (Framed from Grounds 1, 3, 4, 5, 6, 9 and 10).
2.3 Whether the Appellant is, in the circumstances of this case, liable to refund to the Plaintiffs/1st – 5th Respondent or to anyone else, the sum of N42,041,066.75 (Forty Two Million, Forty One Thousand and Sixty Six Naira and Seventy Five Kobo) transferred out of the Okopedi Community account on the mandated instructions of the 6th
4
– 9th Respondents. (Framed from Grounds 2 and 11 of the Notice of Appeal).
2.4 Whether the Appellant has been proven to be guilty of fraud in its dealings with the Okopedi Community account.
(Framed from Grounds 13 and 14 of the Notice of Appeal).
2.5 Whether the doctrine of constructive trust is applicable in the context and circumstances of this case, and whether the Court Below was right to introduce and apply the said doctrine suo motu and without hearing from the parties thereon. (Framed from Ground 15 of the Notice of Appeal).
2.6 Whether judgment having been recovered by or on behalf of the Okopedi Community in Suit No. HU/382/2010 for the money in issue in this case (N42,041,066.75), from the person in whose custody the money actually was or is, the 1st – 5th Respondents (or indeed the Okopedi Community or anyone purporting to act on its behalf) could also recover the same money from the Appellant in this case. (Framed from Ground 16 of the Notice of Appeal).
2.7 Whether the judgment of the Court Below is, all circumstances and facts considered, against the weight of evidence. (Framed from Grounds 7, 8, 12 and
5
18 of the Notice of Appeal).
The 1st to 5th Respondents adopted the issues formulated by the Appellant.
The 6th to 9th Respondents did not file any brief of argument. Arguing the appeal, learned counsel for the appellant pointed out that it is common ground between the parties that the bank account in issue in the case is in the name of Okopedi Community and the money sought to be recovered belongs to the Okopedi Community. Thus it is only the Okopedi Community that has the locus standi to sue for the money. It was pointed out that the 1st to 5th Respondents sued “for themselves and as representing members of Okopedi Council of Chiefs.” It was submitted that there is a world of difference between the Okopedi Community and members of Okopedi Community and members of Okopedi Council of Chiefs or even the Okopedi Council of Chiefs. The money it was submitted, and the account belonged to the community and not to the council of chiefs. Therefore, the self-acclaimed representatives of the members of the council of chiefs cannot sue for the money which does not belong to them. Therefore, the 1st -5th Respondents did not have the locus standi to
6
sue.
It was contended that to allow the members of the Okopedi Council of Chiefs to sue as a segment of the Okopedi Community would mean that every other group or segment within the community can take their turn in suing on the same subject. It was submitted that any individual or group of individuals from the community would only be entitled to bring such an action if and only if they are authorized to do so on behalf of the community and not a faction or group therein.
It was further submitted that 1st to 5th Respondents having sued as representatives of the Council of Chiefs and not as of the Community, there is no privity of contract between the 1st to 5th Respondents and the appellant. This, it was submitted also disqualified the 1st – 5th Respondents from maintaining an action against the appellant. The Court was referred to Makwe v. Nwukor (2001) 14 NWLR (pt. 733) 356 at 372 and Agwaramgbo v. Union Bank of Nigeria (2001) 4 NWLR (pt. 702), at 16-17.
On issue 2, it was submitted that Exhibit J was the operative binding mandate on the account but that the Court below held that Exhibit A rather than Exhibit J was meant to regulate the
7
operation of the bank account of the Okopedi Community. It was submitted that the Court below misapprehended the purport and significance of these two exhibits and as a result came to a wrong conclusion and decision. Exhibit A was reproduced fully in the brief.
It was submitted that exhibit A cannot be described as constituting the contract between the Okopedi Community as customer and the appellant as banker. It was submitted that this Court in Ogbonna v. Ogbuji (2014) 6 NWLR (pt. 1403) 205 at 222 refused to hold that a document produced by one party only is an agreement. Exhibit A, it was submitted, was at best excerpts of the internal meeting of certain persons on one side or an application or introduction written by one side alone expressing their interest in opening an account with the appellant for the Okopedi Community. The appellant, it was pointed out, did not sign or co-sign exhibit A. Therefore, exhibit A cannot be a binding contract between the appellant and the Okopedi Community.
Learned counsel for the appellant pointed out that after exhibit A was written as is the practice, the appellant offered the documents now exhibit J to the
8
applicants in blank. The applicants then filled the forms and returned to the appellant and the appellant agreed to maintain the account upon the terms contained in exhibit J. Therefore, it was exhibit J rather than exhibit A that regulated the operation of the Okopedi Community account.
It was submitted that assuming exhibit A formed part of the contract documents, it was incapable of performance for various reasons. That the Council of Chiefs is not a person and could not therefore confirm any cheques or instructions. Secondly, no signature or photograph of the “Council of Chiefs” was supplied to the appellant, whether by way of exhibit A or any other instrument between the parties.
It was further contended that even the phrase “one from each class” contained in paragraph (d) would be meaningless and impossible of performance since there were no “classes” of signatories provided or defined.
It was submitted that the appellant honoured exhibit B because it complied with Exhibit J, but not because of the purported compliance with exhibit A.
It was submitted that the finding of the Court below that exhibit
9
J is “the internal record” of the Appellant and that Exhibit J does not supersede exhibit A cannot be justified as exhibit J in reality contained the contractual terms.
On Issue 3, the appellant, it was submitted, did not act in concert with the 6th – 9th Respondents. That all the appellant did was to obey the instructions of the 6th – 9th Respondents (authorized signatories to the account) and transfer the amount in question to Maven Asset Management Ltd. Banks, it was contended, hate to lose deposits. There was therefore no reason why the appellant would in concert with anyone withdraw money from its own vault.
The performance by the appellant of the terms of the contract by obeying the instructions contained in exhibit J cannot be termed as acting in concert with 6th – 9th Respondents or fraudulent, it was submitted. It follows therefore that there was absolutely no basis for ordering the Appellant to refund the money withdrawn by the community through 6th – 9th Respondents.
On issue 4, it was submitted that there was no evidence on which the Court below would reach the conclusion that the appellant
10
colluded with the 6th – 9th Respondents to transfer the sum of N42,041,066.75 to Maven Asset Management Ltd.
On issue 5, learned counsel for the appellant submitted that the appellant did not wrongfully acquire the transferred sum of money and there is no contention by any party that it did so. Moreover, the appellant is not claiming or asserting either legal title to or beneficial interest in the money. Also that the appellant did not obtain the sum of money from anyone by wrongdoing. The appellant in fact is not in possession of the money a fact upon which the parties are agreed. That the money was transferred out of the appellant’s custody or possession to Maven on the instruction of the signatories to the Okopedi Community account. There is therefore nothing whatsoever on the facts and circumstances of this case justifying the introduction of the doctrine of constructive trust by the Court below to the appellant. The doctrine, it was submitted, is designed for and applies to circumstances exactly opposite to the Appellant’s case.
It was submitted that the Court below suo motu raised the issue of constructive trust and resolved
11
it without inviting the parties to address the Court on the issue.
In doing so, it was argued, the Court below thereby descended into the arena of conflict and assisted the 1st – 5th Respondents in securing victory over the appellant.
On issue 6, learned counsel for the appellant contended that the Court below failed to properly evaluate and take into account the effect of the unchallenged and uncontroverted pleading and evidence of 6th – 9th Respondents to the effect that they had on behalf of the Okopedi Community got judgment in Suit No. HU/382/2010. Rt. Hon. Chrisanctus Etteh & 3 Ors v. Maven Management Limited. It was submitted that if the Court below had properly evaluated exhibits D and E in the context of the pleading of the 6th – 9th Respondents particularly paragraphs 7 – 18 of the amended statement of defence of the 6th – 9th Respondents, its conclusion would have been totally different. That the Okopedi Community had already obtained judgment in suit No. HU/382/2010 for the same sum of money plus interest for which the 1st – 5th Respondents sued again in the present case. That the exhibits also exonerated
12
the appellant from the allegation of connivance and fraud made against it by the 1st to 5th Respondents.
It was submitted that credible evidence that is not challenged or discredited such as exhibits D and E as well as exhibits F and G should be accepted and relied upon.
After the money was shown to have been recovered by the community through their lawful representatives or signatories from the custody of the appellant, it would not be fair, it was argued, to order the appellant to return the money that was no longer in its hands.
On issue 7, learned counsel for the Appellants submitted that the DW2 was telling the truth.
It was submitted that the judgment of the Court below was against the evidence adduced before it.
On issue 1, learned counsel for the 1st to 5th Respondents submitted that 1st to 5th Respondents who signed Exhibit A with the 6th to 9th Respondents did so on behalf of the Okopedi Community. That when 1st – 5th Respondents signed Exhibit B before N2 million was paid by the appellant from the Okopedi Community account they did so on behalf of the Okopedi Community.
It was submitted that upon the facts of this
13
case, it was the 1st to 5th Respondents that appointed the 6th to 9th Respondents to manage the account of Okopedi Community on their behalf and on the condition that they did not withdraw any money from the account without their approval in writing.
It was submitted that notwithstanding the agreement between the 1st to 5th Respondents on the management of the Okopedi Community account, the 6th to 9th Respondents connived with the appellant and withdrew the sum of N42,041,066.75 from the account of Okopedi Community without the knowledge of the 1st to 5th Respondents and against the established practice by all the parties as in Exhibit B. It follows, it was contended, that the 1st to 5th Respondents rightly invoked the judicial power entrenched in Section 6(6) (b) of the 1999 Constitution FRN (as amended) when they commenced action against the appellant and the 6th to 9th Respondents over their conduct at the trial Court.
It was submitted that the 1st to 5th Respondents being the stakeholders in Okopedi Community and upon whose platform Okopedi Community is administered obviously have sufficient interest in the action they took against the appellant
14
and the 6th to 9th Respondents in the trial Court.
It was submitted that there must always be a confirmation from the Council of Chiefs (1st to 5th Respondents) tendered to the bank before each withdrawal. It was submitted that the 6th to 9th Respondents did not enjoy absolute power to manage the account of Okopedi Community with the appellant without the participation of the 1st to 5th Respondents for the purpose of the withdrawal of the money from the account.
It was submitted that from the cross examination of the DW2, the appellant, 1st to 5th Respondents and 6th to 9th Respondents had agreed on the procedure for the withdrawal of the money from the Okopedi Community account and that the parties were bound by that agreement.
It was submitted that a Court should not determine issues on the basis of one document only when the contract is contained in a series of documents or letters. The Court, it was submitted, is under a duty to consider the whole of what has passed between the parties and their conduct. The Court was referred to Leyland Nigeria Limited v. Dizengoff (1990) 2 NWLR (pt. 134) 610. The Court, it was submitted, should not in this
15
case limit itself to the mandate document exhibit J as the only basis to establish a valid contract between the 1st to 5th Respondents on one hand and the appellant and the 6th to 9th Respondents on the other.
On issue 3, it was argued that the 1st to 5th Respondents pleaded particulars of fraud in paragraph 24 (a), (b) and (c) of the statement of claim and that the appellant did not deny paragraph 24 (b) (b) and (c) frontally. The Court was referred to paragraph 18 of the appellant’s statement of defence at page 131 of the record.
It was submitted that the Court below rightly believed the case of the 1st to 5th Respondents that the 6th to 9th Respondents and the appellant agreed to improperly deal with the account of Okopedi Community.
On issue 4, it was submitted that the 6th to 9th Respondents colluded with the appellant to defraud the Okopedi Community. That both, the appellant and the 6th to 9th Respondents intended to gain material advantage by transferring money in the account of Okopedi Community into the account of Maven Asset Management Limited “to grow the money.”
It was submitted that the 1st to 5th Respondents
16
pleaded and proved the allegation of fraud against the appellant and 6th to 9th Respondents in relation to the fraudulent withdrawal of the sum of N42,041,066.75 from the account of Okopedi Community with the appellant and which money has not been returned.
On issue 5, it was submitted that the appellant and 6th to 9th Respondents dealt with the money wrongfully with a view to deriving beneficial interest in the money.
It was submitted that the Court below rightly applied the doctrine of constructive trust to the case before it.
It was submitted that the Court below did not need to invite the parties to address it on its finding of a constructive trust because the issue was merely a consequential order.
On issue 6, it was submitted that the parties to the two suits are not the same and the claims are different. It was submitted that the judgment in suit No. HU/380/2010 was not binding on Okopedi Community because the 6th to 9th Respondents did not obtain the consent of the Council of Chiefs which runs the affairs of Okopedi Community.
On issue 7, it was submitted that the Court below meticulously evaluated the evidence and attached
17
more weight to the evidence of the 1st to 5th Respondents. That the Court below rightly held that the conduct of the appellant and 6th to 9th Respondents was fraudulent.
In an appellant’s reply brief, which is more or less a re-argument, learned counsel for the appellant submitted that the 6th to 9th Respondents were appointed by the Okopedi Community and not by the 1st to 5th Respondents whether in their individual capacities or collectively or in the capacity in which they sued namely “as representing members of Okopedi Council of Chiefs”.
It was submitted that the appellant’s challenge is as to the locus of the 1st to 5th Respondents to sue the appellant bank and not as to their right or lack thereof to sue the 6th to 9th Respondents which is not the concern of the appellant.
Learned counsel for the appellant pointed out that the DW2 under cross examination also said that the N2 Million Naira was withdrawn because four out of the six signatories to the account signed in compliance with the mandate form Exhibit J. It was submitted that the entire point of having the mandate form Exhibit J was so that any four of the six
18
signatories could operate the account. This included withdrawing from the account as was done in respect of the N2 Million.
It was contended that the Respondents in their argument have not been able to say what the appellant falsely represented, or what it materially gained or sought to gain from a misrepresentation.
In the instant case, it was argued, the 6th to 9th Respondents as signatories to the account transferred the funds to Maven and the money left the Appellant’s vault. Learned counsel for the appellant asked how the appellant gained material advantage thereby. It is clear it was further argued that no sort of gain can be imputed on the appellant in the transaction except the Respondents mean that the appellant deliberately committed fraud against itself and interest.
Locus standi means the legal capacity to institute proceedings in a Court of law. The fundamental aspect of locus standi is that it focuses on the party seeking to get his complaint laid before the Court. It is the right of a party to appear and be heard on the question before any Court or tribunal. See Ojukwu v. Ojukwu & Anor (2008) LPELR – 2401 and
19
Adetono & Anor v. Zenith International Bank Plc. (2011) LPELR – 8237 SC. In the instant case, the bank account, was opened in the appellant bank in the name of Okopedi Community. The money belonged to the Okopedi Community. I agree entirely with learned counsel for the appellant that only the owners of the money in the appellant’s bank could institute an action in respect of the money against the appellant bank. As the owners of the money seem not to be a legal entity, any persons seeking to institute an action in respect of the money in the appellant bank can only do so on behalf or as representatives of the Okopedi Community that deposited the money with the appellant bank. The 1st to 5th Respondents sued for the money as representatives of Okopedi Council of chiefs, Okopedi. I agree entirely with learned counsel for the appellant that there is a difference between Okopedi Community and members of Okopedi Council of Chief, Okopedi. Members of the Okopedi Council of Chiefs are only a segment of the Okopedi Community. To allow them to sue for the money may open a floodgate of litigations from other segments of the community. Each segment will
20
be included in any action if the action is taken on behalf of the entire Okopedi Community.
Even if the 1st to 5th Respondents signed Exhibits A and B to which the appellant was not a party that by itself does not clothe the 1st and 5th Respondents with the locus standi to sue as representatives of Okopedi Council of Chiefs. Exhibit A was an excerpt of minutes of a meeting with which the community approached the appellant for the purpose of opening the account. Exhibit B was a letter for the withdrawal of N2 million from the deposit account. As DW2 under cross examination said, the N2 million was withdrawn because four out of six signatories to the account signed for the money. The money was not withdrawn on account of exhibit B. Exhibit B is not evidence that the money belongs to the four village heads that signed it.
It is not correct as learned counsel for the 1st to 5th Respondents stated that 6th to 9th Respondents were appointed by the 1st to 5th Respondents to manage the account of the Okopedi Community. This is not borne out by Exhibit A. Rather Exhibit A shows that the six signatories to the account including the 6th to 9th Respondents were
21
appointed at a meeting of Okopedi Group of villages. It is also not true as learned counsel for the Respondents stated that Exhibit A was signed by the 1st to 9th Respondents.
As the 1st and 5th Respondents had no locus to sue the appellant for the money deposited in the name of Okopedi Community as representing only the members of Okopedi Council of Chiefs, Section 6 (6) (b) of the 1999 Constitution FRN which they have dangled before this Court cannot give them the locus standi to institute the action against the appellant.
Issue 1 is therefore resolved against the Respondents and in favour of the Appellant.
It is the duty of a banker to a customer to honour and pay a cheque drawn on it by the customer as long as he has in his possession at the material time sufficient and available funds for the purpose. Refusal to honour the cheque will amount to breach of contract which will render the bank liable to damages. See First African Trust Bank Ltd v. Partnership Investment Co. Ltd. (2003) LPELR – 1280 SC and Union Bank of Nigeria Plc. v. Chimaeze (2014) LPELR – 20699 SC. Nowadays, the banker has an equal duty to transfer money for the
22
customer as long as he has at the material time sufficient and available funds for the purpose. Refusal to transfer the money will amount to breach of contract which will render the bank liable to damages. Learned counsel for the 1st to 5th Respondents contended that the 6th to 9th Respondents did not have absolute power to manage the account. That the contract was governed by exhibits A and J. Exhibit A as learned counsel for the appellant rightly pointed out contains excerpts of a meeting and resolutions of the Okopedi group of villages conveying their interest to open the account with the appellant bank. The appellant was not at that meeting. It is nowhere shown that the bank accepted all the contents of Exhibit A. Apart from this as learned counsel for the appellant rightly pointed out, Exhibit A was not capable of performance, for example, the phrase in exhibit A “one from each class” is not defined. It is not surprising therefore that the appellant gave a mandate form to the six signatories to the account to sign. I agree entirely with the appellant’s witness DW2 that the N2 million was withdrawn because four out of six signatories to
23
the account signed. The money could not have been withdrawn on the basis of the letter exhibit B as the appellant did not know the signatories to the letter Exhibit B. The bank accepted the six signatories presented to it by the community. To this end, the six signatories were given the mandate form to sign. The parties agreed that four out of the six signatories could sign for the withdrawal of money from the account. I agree with learned counsel for the appellant that exhibit J governed that relationship and not exhibit A which contains only excerpts of a meeting by a group of villages. Confronted with the request to transfer the money, the appellant could not refuse, since four out of the six signatories that signed the mandate form endorsed the request. The funds requested were sufficient and available for the purpose of transfer. Refusal to honour the request would have amounted to a breach of the contract which would render the bank liable to damages.
Issue 2 is resolved in favour of the appellant and against the Respondents.
There is no evidence that the appellant acted in concert with the 6th to 9th Respondents to deprive the Okopedi Community
24
of its funds. The 6th to 9th Respondents on whose instruction the money was transferred nowhere stated that the appellant acted in concert with them. All the appellant did was to obey the instructions of the 6th to 9th Respondents who were four out of six signatories to the account.
Issue 3 is also resolved in favour of the appellant and against the Respondents.
The allegation of fraud being a criminal allegation must be proved beyond reasonable doubt. There is no evidence adduced by the 1st to 5th Respondents to establish fraud against the appellant in respect of this transaction in which it merely complied with the directive of the 6th to 9th Respondents to transfer the money. There was also no evidence to establish collusion between the appellant and the 6th to 9th Respondents. I do not agree with learned counsel for the 1st to 5th Respondents that the appellant intended to gain material advantage. No material advantage could be gained when it was losing a huge deposit to another financial institution.
Issue 4 is also resolved in favour of the appellant and against the Respondents.
In Ibekwe v. Nwosu (2011) LPELR – 1391 SC page
25
6-7 Fabiyi JSC stated that:
“…a constructive trust is a remedy that a Court imposes against one who has obtained property by wrong doing. It is imposed to prevent unjust enrichment and creates a fiduciary relation. It is also an implied trust, involuntary trust, trust ex delicto, trust maleficio, remedial trust, trust in invitum, trust de son tort. A constructive trust is the formula through which the conscience of equity finds expression. When property has been acquired in circumstances that the holders of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee.”
After referring to the above case and one other decision, the Court below found thus:
“This clearly is the position in this case by the defendants acting in concert to deprive the Okopedi Community of the sum of N42,041,066.75.”
It has been shown earlier in the judgment that the appellant did not act in concert with the 6th to 9th Respondents other than transferring at the request of the 6th to 9th Respondents who were signatories to the account, the money to another financial institution Maven
26
Asset Management Limited as it was bound to do. It is therefore evident that the appellant did not obtain any money by wrong doing. As learned counsel for the appellant rightly pointed out, the appellant did not wrongfully acquire the money which was transferred out at the request of the 6th to 9th Respondents. Appellant did not lay any claim to the money.
The Court below therefore erred when it imported into the action the principle of constructive trust which did not arise in the case.
Issue 5 is resolved in favour of the appellant and against the Respondents.
I agree entirely with the learned counsel for the appellant that had the Court below taken into consideration exhibits D and E which are an amended statement of claim and an enrolled order of Court in suit No. HU/382/2010 and the evidence of 6th to 9th Respondents that they had on behalf of Okopedi Community earlier instituted an action against Maven Management Limited and got judgment for the same sum of money plus interest it would have arrived at a different conclusion. This evidence was not challenged by the 1st to 5th Respondents. The Court below ought to have found that the money
27
which the 1st to 5th Respondents wanted the appellant to return had been litigated upon in suit No. HU/382/2010 and Maven Management Limited to which the money had been transferred, had been ordered to pay the said sum of money plus interest. The Court below should therefore not have ordered the appellant to return the same sum of money.
Issue 6 is resolved in favour of the appellant and against the Respondents.
In his evidence, the DW2 said that the six signatories mandated by the community endorsed their signatures on and attached passport photographs in furtherance of the letter to open a deposit account with the appellant. That the mandate of the community was that any four of the signatories could authorize withdrawals from the Court. That it is a known fact that banks only deal with known signatories as reflected in the mandate card and passport photographs identifying the owner of each such signature. That in 2008, the signatories to the account instructed the bank to transfer the sum of N42,041,066.75 from the account to an investment company by name Maven Asset Management Limited. Upon the instruction, the appellant duly transferred the said
28
sum to the said company to the knowledge of the community. That the appellant did not conspire with anybody to illegally deal with the money.
The DW2’s evidence was not destroyed under cross examination.
I agree with learned counsel for the appellant that the DW2 was a credible witness.
Issue 7 is resolved in favour of the appellant and against the Respondents.
All seven issues having been resolved in favour of the appellant and against the Respondents, the appeal should be allowed. It is allowed by me.
The judgment of the Court below against the appellant is hereby set aside. Appellant is awarded N100,000.00 costs which shall be paid by the 1st to 5th Respondents.
MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother J. S. Abiriyi, JCA.
My learned brother has carefully dealt with all the seven (7) issues nominated for the resolution of this appeal.
I agree with the reasoning and the conclusion reached in the judgment.
I also agree that the appeal is meritorious and ought to be allowed.
I also allow the appeal.
I abide by the
29
consequential order and the order as to costs.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother, James S. Abiriyi, JCA. I am in complete agreement that the appeal is meritorious and should be allowed.
I also allow the appeal and abide by all the consequential orders including the Order as to costs.
30
Appearances:
Bassey B. Anwanane, Esq. For Appellant(s)
1.Emmanuel Ekpenyong, Esq. – for 1st to 5th Respondents.
2. 6th to 9th Respondents not represented. None of them filed any brief or attend Court. For Respondent(s)
