ATANDA v. ACCESS BANK & ANOR
(2021)LCN/15148(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Friday, March 05, 2021
CA/L/374/2014
Before Our Lordships:
Theresa Ngolika Orji-Abadua Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
Between
ATANDA APPELANT(S)
And
1. ACCESS BANK PLC 2. ZENITH REGISTRARS LIMITED RESPONDENT(S)
RATIO
POSITION OF THE LAW REGARDING FORMULATION OF GROUND OF APPEAL
… it is now well settled that, while it is correct law that a ground of appeal may arise from the text of the decision appealed from, it may also arise from (ii) the procedure under which the claim appealed against was initiated, (iii) the procedure under which the decision was rendered, (iv) from extrinsic features such as jurisdiction of the lower Court, and from (v) commission or omission by the lower Court in either refusing to do what it ought to do or doing what it ought not to do or vice versa. See Akpan v. Bob & Ors (2010) LPELR- 376 (SC), (2010) 17 NWLR (PT 1223) 421 @ 462. PER BOLOUKUROMO MOSES UGO, J.C.A.
WHAT IS CAUSE OF ACTION
Cause of action, as he also correctly argued in his brief of argument, is the bundle of facts which the law will recognize as giving a claimant a right of action and to seek judicial remedy; it is the entire set of facts or circumstances giving rise to an enforceable action and includes all those things necessary to give rise to a right of action, every fact which is material to be proved to entitle the plaintiff to succeed. A cause of action is the facts or combination of facts which gave the plaintiff the right to sue. Any act on the part of a defendant which gives the plaintiff a cause of complaint is a cause of action. See Attorney General of the Federation v. Abubakar (2007) 10 NWLR (PT 1041) 1 @ 75, Ezeani v. Nigerian Railway Corporation (2015) 3 NWLR (PT 1445) 139 @ 150, Labode v. Otubu (2001) FWLR (PT 43) 207 @ p.232 para G-H (S.C.), Savannah Bank of Nigeria Ltd v. Pan Atlantic Shipping and Transport Agencies Ltd & Anor (1987) 1 S.C. 198 @ 312 -313. PER BOLOUKUROMO MOSES UGO, J.C.A.
WHAT WILL BE CONSIDERED IN DETERMINING WHETHER A CAUSE OF ACTION IS MADE OUT IN A SUIT
In determining whether a cause of action is made out in a suit, the only processes the Court will look at is the statement of claim; affidavits and counter affidavits and any other process for that, even if filed, have no part to play in that exercise. That much is settled beyond dispute. See Union Bank of Nigeria Plc v. Umeoduagu (2004) 13 NWLR (PT 890) 352 (2004) ALL FWLR (PT 221) 1552, (2004) Vol. 121 LRCN 4972 @ 4980 (SC). PER BOLOUKUROMO MOSES UGO, J.C.A.
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the Federal High Court of 28/6/2013 delivered by M.B. Idris, J., (as he then was) striking out second Respondent from appellant’s suit on the grounds that the suit did not disclose a cause of action against second respondent so it was not a necessary party to the action and the suit could be effectually and completely determined without its presence.
Affidavits, unnecessarily, I must say, were exchanged by parties on the said application of second respondent following which the Court, after taking addresses of counsel on it, ruled upholding it thus:
“Does the statement of claim reveal the interest of the 3rd defendant in the case? Certainly, on the facts as pleaded, it does not. There is nothing to show the necessity of making the 3rd defendant a party to the suit or that the suit cannot be effectually and completely determined in its absence.
“One the contrary, the paucity of averment as to the interest of the 3rd defendant in the action is clear indication that the action can be effectively and completely determined in its absence.”
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The background
Appellant as Plaintiff at the trial Federal High Court commenced the action giving rise to this appeal against (1) Access Bank Plc (2) Marina Securities Limited (3) Meristem Registrars Limited (4) Central Securities Clearing System Limited and (5) 2nd respondent, Zenith Registrars Limited, by a writ of summons and statement of claim dated the 23rd of October, 2009. While Marina Securities Limited and Meristem Registrars Limited were struck out subsequently, appellant, pursuant to the order of the trial Court of 26th November, 2012, on the 3rd day of December, 2012, amended his statement of claim a second time before the Court. Appellant’s claims in his further amended statement of claim were:
1. An Order of Declaration that the 1st Defendant is estopped from refusing to be bound by the agreement reached on the suspension of the interest as evidenced by the 1st Defendant’s letter of the 23rd February, 2009.
2. An order of declaration that the amount outstanding on the facility is ₦50,000,000.00 as at January 2009 as contained in Schedule of the letter of the 1st Defendant dated 7th July, 2008.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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- An Order of Declaration that as between the Claimant and the 1st Defendant, the facility has been agreed is to be repaid over the period of three years.
4. An Order of Declaration that since the 1st Defendant has sold off the Plaintiff’s shares the subject matter of the loan facility no sum is outstanding in favour of the 1st Defendant in respect of the facility.
5. An Order of Declaration that the Plaintiff is not indebted to the 1st Defendant in respect of the loan facility the subject matter of this suit.
6. The sum of ₦25,000,000.00 (Twenty-five Million Naira) being the refund of the equity and repayment of the plaintiff applied in the part purchase of 1,750,000.00 (One Million Seven Hundred and Fifty Thousand) units of Zenith Banks Shares.
7. Interest on the amount of ₦25 Million Naira at the rate of 21% per annum from the 27th October, 2010 until the day judgment is entered by this Honourable Court and thereafter in the amount of 18% till date of this matter.
8. The sum of ₦5,000,000.00 being general damages for breach of agreement.
9. The sum of ₦1,000,000.00 being consequential loss for
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solicitor’s fees incurred in the prosecution of this matter.
Appellant’s case in his said amended statement of claim of thirty six paragraphs is that, sometime in 2007, first Respondent advanced him the sum of ₦80,000,000.00 (Eighty Million Naira) as a margin loan facility for the purchase of shares in blue chip companies. Unfortunately and due to no fault of the parties, he was unable to purchase the shares in blue chip companies. This necessitated appellant proceeding to buy 1,750,000 (One Million Seven Hundred and Fifty) Units of Zenith Bank Plc shares after making an equity contribution of ₦20,000,000.00 (Twenty Million Naira Only). At the expiration of the said facility, appellant’s indebtedness to the 1st respondent stood at ₦50,000,000.00 (Fifty Million Naira) as at January, 2009. First respondent he said asked him to liquidate his loan but parties at his request subsequently reached an agreement to suspend interest on the outstanding sum of ₦50,000,000.00 (Fifty Million Naira). Notwithstanding the agreement, he said 1st Respondent continued to charge interest on his account thus making it to escalate. He further complained
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that the One Million Seven Hundred and Fifty Thousand units of his shares with Zenith Bank Plc that were the subject of his facility were sold during the pendency of the suit by 1st Respondent acting in concert with a firm called Peninsular Asset Management Limited which he says is unknown to him.
It is instructive that 2nd Respondent (3rd Defendant at the trial Court) is only referred to in paragraph 20 of appellant’s 36-paragraph amended statement of claim dated 3rd day of December, 2012. Appellant as plaintiff there averred thus:
20. Those injunctive reliefs are required against the 1st – 3rd Defendants to prevent the 1st defendant from overreaching the Plaintiff.
After explaining further paragraph 21 of his amended statement of claim that he had commenced repayment in line with the terms of their agreement despite the intransigency of 1st Respondent, he referenced again his said ‘injunctive relief’ against 1st to 3rd Respondents and continued his excoriation of 1st Respondent as he had done in every other paragraph of his amended statement of claim thus:
22. That despite the commencement of the repayment of the
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loan and the terms agreed with the 1st defendant and the pendency of this suit with prayers for injunctive relief, the 1st defendant specifically on the 27th day of October, 2010 deliberately utilized the services of a stock broking firm styled PENINSULAR ASSET MANAGEMENT LIMITED of Radmed House, 2nd Floor, Ligali Ayorinde Street, Victoria Island, Lagos to dematerialize the shares contained in the certificate Nos. 1935127 containing 1,750,000.00 (One Million, Seven Hundred and Fifty Thousand) unit of Zenith Bank Shares being the subject matter of the facility.
Interestingly, even though appellant had claimed injunctive reliefs in his original statement of claim, he abandoned those reliefs in the two amendments. In other words, contrary to his assertion in paragraphs 20 and 22 of his statement of claim, there was no injunctive reliefs claimed by appellant in his said amended statement of claim. That is also just as he omitted to allege any wrongdoing by 2nd respondent against him that necessitated joining it. It was in the light of all the foregoing that 2nd respondent applied to strike out its name from the action, which the trial Court obliged with its ruling.
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Appellant still insists that he had a cause of action and the trial judge was wrong in holding otherwise hence this appeal. He thus brought this appeal on a single ground and framed from it a single issue as follows:
Whether the conduct of the Respondents in the dissipating the res during the pendency of the suit does not create a cause of action as to make the 2nd respondent a necessary party for the effective and effectual determination of plaintiff’s cause of action.
Adopting the Supreme Court’s definition in Attorney General of the Federation v. Abubakar (2007) 10 NWLR (PT 1041) 1 @ 75 of cause as a bundle of facts which the law will recognize as giving the plaintiff a right of action to seek judicial remedy, appellant went on to give a summary of his action since its institution at the lower Court and submitted, interestingly in paragraph 4.10 of his brief of argument, that his “cause of action did not arise from the pleadings but from the conduct of the Respondent in unlawfully dissipating the res during the pendency of the the Suit No. FHC/L/CS/1189/2009.” He argued in that same brief of argument
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that his cause of action is the dematerialization, transfer and eventual sale of his shares while the matter was pending and in total disregard of the jurisdiction of the Court. It is that action, he submitted, that gave him enforceable right against second respondent and made it a necessary party to his action. Without the involvement of second respondent in the sale of his shares, he submitted, he would not have suffered loss so second respondent is a necessary party to his action and the trial Federal High Court wrong in holding otherwise. It is the duty of the initiator of an action to bring all the necessary parties to his action before the Court to give it jurisdiction; that it will be practically impossible for the Court to effectively adjudicate on all the questions in his matter without the presence of 2nd respondent, he argued. Reproducing his sixth to ninth claims, he submitted that to enable the Court effectively determine the issue of the sale of his shares, avoid multiplicity of suits and ensure that the right person is before the Court so as to be bound by its orders, second respondent is a necessary party and was properly joined. On that note,
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he urged us to allow his appeal and set aside the order of the trial Federal High Court striking out 2nd respondent from the suit.
Besides a preliminary objection raised by only first respondent to the validity of appellant’s sole ground of appeal (I shall address it later in the course of this judgment), the two respondents were in agreement in their submissions in supporting the decision that appellant’s statement of claim did not disclose a cause of action against second respondent so it was not a necessary party to his action. While agreeing with appellant’s definition of cause of action, they both submitted that, in deciding the question of existence of a cause of action, the Court must confine itself to the statement of claim; that it cannot consider any extraneous materials not contained in the statement of claim. They said appellant did not allege anything in his amended statement against second respondent; that all his complaints in his statement of claim were against 1st Respondent who he complained had agreed to suspend interest on his indebtedness to it yet reneged on that agreement before selling his One Million Seven Hundred
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and Fifty Thousand Zenith Bank Plc shares with the assistance of Peninsular Asset Management Limited during the pendency of his action. That, they argued, meant appellant had no cause of action against second respondent, meaning that second respondent is not a necessary party to his suit and was properly struck out by the trial Court.
Resolution of issue
First is the PRELIMINARY OBJECTION of 1st respondent to the sole ground of appellant’s appeal which I alluded to earlier. The sole ground of appeal of appellant against which the objection is brought reads thus:
The learned trial judge erred in law when he held that the 3rd defendant (Zenith Registrars Ltd) is not a necessary party to the determination of the Plaintiff’s claim.
Particulars of error
1. The res in the suit are the 1,750,000 units of Zenith Bank shares.
2. The 3rd defendant is the custodian of the shares.
3. The shares were sold during the pendency of this suit by the 1st defendant to overreach the Plaintiff which act constitutes an affront to the administration of justice.
4. The claim of the plaintiff rests on the shares which is the res in
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the suit and the presence of the 3rd defendant (Zenith Registrars Ltd) is necessary for the plaintiff to establish his claim that the res has also been disposed off by the 1st Defendant and the circumstances surrounding the sale.
5. The issue to be determined by the Court relates to the 1,750,000 units of Zenith Bank shares the res in the suit.
6. The Court cannot determine whether its integrity and jurisdiction have been violated by the sale of the shares during the pendency of the suit without the 3rd defendant’s presence in Court to explain the circumstances surrounding the sale of the shares.
First respondent’s objection to it is in two folds. First, it argues that a ground of appeal must be rooted in the pronouncement or holding of the Court in the decision appealed from else it will be struck out. It insists that that was not the case in this sole ground of appellant, as, according to it, appellant’s complaint there that the trial Court erred in holding that second Respondent is not a necessary party to his action cannot be located in the ruling questioned by appellant. For that reason, it argues appellant’s sole
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ground of appeal is incompetent and liable to be struck out.
On a second wicket, it argues that the requirement of the law is that particulars of grounds of appeal cannot deviate from the complaint in the ground; that particulars only elucidate the complaint in the ground so if the particulars or even just some of them deviate from the ground, it is liable to be struck out as the Court cannot help an appellant separate unrelated particulars from related ones to sustain a ground of appeal, in support of which it cited a dictum of Ogunbiyi, J.S.C., in Abe v. University of Ilorin (2013) ALL FWLR (PT 697) 682 @ 699-670. It argued that even though the complaint of appellant in his sole ground of appeal is that the trial Court wrongly held that 2nd Respondent was not a necessary party to his action, particulars 3, 4 and 5 of that ground are talking about unrelated issues like the ruling being an affront to administration of justice and the integrity and jurisdiction of that Court, so the ground is incompetent and ought to be struck out even on this ground.
I am not in any way persuaded by these arguments of 1st respondent. I rather find more persuasive,
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the response of appellant as adumbrated in his reply brief. As regards the first limb of the objection, it is now well settled that, while it is correct law that a ground of appeal may arise from the text of the decision appealed from, it may also arise from (ii) the procedure under which the claim appealed against was initiated, (iii) the procedure under which the decision was rendered, (iv) from extrinsic features such as jurisdiction of the lower Court, and from (v) commission or omission by the lower Court in either refusing to do what it ought to do or doing what it ought not to do or vice versa. See Akpan v. Bob & Ors (2010) LPELR- 376 (SC), (2010) 17 NWLR (PT 1223) 421 @ 462. Here, the main complaint of appellant in his sole ground of appeal is that the lower Court in upholding second respondent’s motion on notice and striking its name out wrongly held that second respondent was not a necessary party to his suit. That is the exact reason that Court gave in upholding the application of second respondent when it said: “There is nothing to show the necessity of making the 3rd defendant a party to the suit or that the suit cannot be
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effectually and completely determined in its absence. On the contrary, the paucity of averment as to the interest of the 3rd defendant in the action is clear indication that the action can be effectively and completely determined in its absence.” This limb of the objection is therefore undoubtedly ill-founded.
And coming to the second limb of the objection about the particulars of the sole ground of appeal having no relationship with the aforementioned complaint of appellant in the said ground of appeal, while one may understand that complaint as it relates to the particulars therein of violation and integrity of the Court by reason of the sale of his shares by second respondent with others as he claims, there are at least some particulars embedded therein, even if inelegantly drafted, that second respondent was a necessary party, he having been involved in the sale of his shares, and so ought not to have been struck out. That in my opinion relates to his complaint in his ground of appeal. Whether that complaint can be made out is an entirely different matter which can only be addressed when considering the merits of the appeal. Here, I find
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apposite the dictum of Nweze, J.S.C., in Omisore & Anor v. Aregbesola & Ors (2015) LPELR-24803 (S.C) 21 -23 that:
“The current mood of this Court to technicalities has been depicted above. Consistent with this liberalization 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…”
That is the current mood of our Courts which I have also on several occasions pressed home. In this case, appellant made the point very clearly in his ground of appeal that second respondent is a necessary party to his action and the lower Court was wrong in deciding otherwise. That complaint, despite appellant’s inelegance in drafting his particulars, is clear to this Court and even 2nd respondent whose striking out by the lower Court is the cause of this appeal. It is instructive that
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second respondent who is the beneficiary of that ruling has not complained that he did not understand appellant’s complaint here. He has rather attacked the appeal on its merits. I am not even sure that first respondent, despite its preliminary objection, has any real problem comprehending the grievance of appellant as expressed in his ground of appeal, itself having also responded very intelligently to the appeal on its merit. For all these reasons, I hereby overrule this preliminary objection.
With that, I now proceed to the merits of the appeal. Here, I must say right away that I have no difficulty agreeing with the lower Court and respondents that appellant did not disclose its cause of action against 2nd respondent and how his suit before the lower Court cannot be determined effectively and effectually unless second respondent was made a party to it. For appellant to be able to keep second respondent in the suit as a necessary party, he must make out a cause of action against it in his pleadings. Cause of action, as he also correctly argued in his brief of argument, is the bundle of facts which the law will recognize as giving a claimant a right
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of action and to seek judicial remedy; it is the entire set of facts or circumstances giving rise to an enforceable action and includes all those things necessary to give rise to a right of action, every fact which is material to be proved to entitle the plaintiff to succeed. A cause of action is the facts or combination of facts which gave the plaintiff the right to sue. Any act on the part of a defendant which gives the plaintiff a cause of complaint is a cause of action. See Attorney General of the Federation v. Abubakar (2007) 10 NWLR (PT 1041) 1 @ 75, Ezeani v. Nigerian Railway Corporation (2015) 3 NWLR (PT 1445) 139 @ 150, Labode v. Otubu (2001) FWLR (PT 43) 207 @ p.232 para G-H (S.C.), Savannah Bank of Nigeria Ltd v. Pan Atlantic Shipping and Transport Agencies Ltd & Anor (1987) 1 S.C. 198 @ 312 -313.
In determining whether a cause of action is made out in a suit, the only processes the Court will look at is the statement of claim; affidavits and counter affidavits and any other process for that, even if filed, have no part to play in that exercise. That much is settled beyond dispute. See Union Bank of Nigeria Plc v. Umeoduagu (2004) 13 NWLR
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(PT 890) 352 (2004) ALL FWLR (PT 221) 1552, (2004) Vol. 121 LRCN 4972 @ 4980 (SC). In this case even appellant admitted the very obvious fact in his brief of argument that his pleadings did not disclose his cause of action against second respondent. Hear him at paragraph 4.10 of his brief of argument:
“The appellant respectfully submits that the cause of action did not arise from the pleadings…”
That settles the issue, for if appellant did not make out a cause of action against second Respondent in his statement of claim, second Respondent has no business with his action and so ought to be struck out of it as the lower Court ordered.
What is more, as shown earlier, even the claims for injunction, appellant in paragraphs 20 and 22 of his statement maintains he made against 2nd Respondent and others were dropped by appellant in his amendments. It may be that he did that in error, but that was the state of his pleadings at the point second Respondent applied to have its name struck out of his action.
In the light of all the foregoing, I have no hesitation in agreeing with the ruling of the trial Court that second
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respondent was not a necessary party to appellant’s action. In the event, I dismiss this appeal and affirm the ruling of the Federal High Court striking out second respondent from appellant’s action.
Costs of this appeal are assessed at ₦100,000.00 apiece in favour of each respondent against appellant.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.
JAMES GAMBO ABUNDAGA, J.C.A.: I have read the draft of the judgment delivered by my learned brother, Boloukuromo Moses Ugo, JCA.
I agree with his Lordship that the preliminary objection to the competence of the sole ground of appeal brought by the 1st Respondent lacks merit, and was deservedly overruled. His Lordship is also on sound footing in holding that the appeal lacks merit. Therefore, I too dismiss it with cost assessed at N100,000.00 in favour of each of the Respondents.
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Appearances:
P. Emeh, Esq., with him, C.E. Obielozie, Esq. For Appellant(s)
Chukwudi Enebeli, Esq., with him, Damilore Olukoya, Esq. – for 1st Respondent
Charles Nwabulu, Esq., with him, Emeka Opara, Esq. and Ifunanya Nwodigwe, Esq. – for 2nd Respondent For Respondent(s)
