OREDIPE & ORS v. HERITAGE BANK & ANOR
(2020)LCN/15261(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Thursday, May 21, 2020
CA/L/445/2018
Before Our Lordships:
Obande Festus Ogbuinya Justice of the Court of Appeal
Gabriel Omoniyi Kolawole Justice of the Court of Appeal
Balkisu Bello Aliyu Justice of the Court of Appeal
Between
1. MR. AKINLADE OREDIPE 2. ADEWALE ADELEKAN 3. MR. OLALEYE PAUL 4. MR. YAKUBU SALAMI 5. MR. OSENI OWOLABI 6. MR. A. O. ADELEKE 7. MR. Y. B. OMOKAIYE 8. MR. ISMAILA ALOBA 9. MR. ADEWALE GBOYEGA 10. MR. LASISI ODUSOLA 11. MR. K.A. OLUYOMBO 12. MR. S. O. AROWOLO 13. MR. BURAIMOH FALOBI 14. MR. L. ONIPEDE 15. MR. AREMU AKINYEMI 16. MR. MOBOLADE YEMABO 17. MR. AKINWALE LAWSON 18. MR. ADEWOLE OGUNSOLA 19. MR. SAMUEL ADEMOLA 20. MR. K. O. OMOLAJA 21. MR. RAMONI AYEDE 22. MR RASHEED SALAWU 23. MR. NURENI ABIBU 24. MR. NURENI ADIO APPELANT(S)
And
- HERITAGE BANK COMPANY LIMITED (Sued As The Acquirer Of The Assets And Liabilities Of ACB International Bank Plc.) 2. CENTRAL BANK OF NIGERIA (CBN) RESPONDENT(S)
RATIO
WHETHER OR NOT PRELIMINARY OBJECTION MUST BE DETERMINED BEFORE THE SUBSTANTIVE APPEAL
The law is well settled that where preliminary objection is filed challenging the competence of an appeal, the objection must be heard and determined before the substantive appeal perchance, the appeal is terminated at the preliminary stage. See the decision in APC Vs. NDUUL & ORS (2017) LPELR – 42415 (SC); UBA Vs. A.C.B. (NIG.) LTD (2005) 12 NWLR (Pt. 939) 232 NGIGE Vs. OBI (2006) 14 NWLR (Pt. 999) 1. PER ALIYU, J.C.A.
BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): This appeal is against the Judgment of the Federal High Court, Lagos Division (trial Court), delivered on 10th January, 2017, by Hon. Justice A. M. Anka, in respect of an Originating Summons registered as suit No: FHC/L/CS/98/16 and filed on the 27th January, 2016. The Appellants were the Applicants (plaintiffs) while the Respondents (defendants) were described in the Summons as the Respondents.
By the said originating summons, the Appellants sought for a declaration that they are entitled to a refund of the proceeds of 45 bank drafts issued by the 1st Respondent and purchased by them sometimes between December 1980 and February 1981 which were unutilized. They also prayed for an order directing that the proceeds of the said unused bank drafts be returned to them (Appellants), through their solicitors, being the purchasers and owners of same.
The background facts of the case are stated in the Appellants’ affidavit in support of the originating summons (pages 4 to 5 of the record), that sometimes between December 1980 and February 1981, the Appellants purchased 45 (forty-five) unutilized banker’s drafts from African Continental Bank Limited (A.C.B. Ltd), which later metamorphosed into Heritage Bank Company Limited, the 1st Respondent herein. These unused banker’s drafts were endorsed in favour of one Alhaji Taofik Alao, in the sum of £212,310.00 (Two Hundred and Twelve Thousand, Three Hundred and Ten UK Pounds Sterling). The said sums of money along with the accrued interest represented by the banker’s drafts having been unutilized and are presently with the 2nd Respondent, lodged therein pursuant to the order of the Supreme Court made in Appeal No: SC/14/1995.
Upon being served with the Originating Summons of the Appellants, each Respondent filed notice of objection and counter affidavit to the claims of the Appellants. The combine effect of the Respondents’ objection and counter affidavits is that the Supreme Court in Appeal No. SC/14/1995, delivered its judgment on the 27th February, 1998 and reported in ALAO V. A.C.B LTD. (1998) 3 NWLR (Pt. 542) 339, ordered that the proceeds of the unused banker’s drafts claimed by the Appellants herein, be returned by the ACB to the Central Bank of Nigeria, the 2nd Respondent, upon its finding that the transaction underlying the issuance of the said Banker’s drafts was illegal. Further, that by the said Supreme Court’s judgment on the bank drafts, this suit is caught by the doctrine of res judicata and therefore incompetent.
After considering the respective affidavits of the parties, the addresses in support and the grounds of the preliminary objections, the trial Court delivered the vexed judgment (pages 287-308 of the record) to the effect that the Appellants’ claims was statute barred having been commenced about 17 (seventeen) years after the cause of action accrued; and in addition, the suit was caught by the doctrine res judicata in view of Judgment of Supreme Court and that the Appellants also lacked locus standi to maintain the action.
The Appellants were dissatisfied with the judgment of the trial Court, and appealed to this Court, through their amended notice of appeal filed on the 21st September, 2018 but deemed properly filed and served by the order of this Court made on the 23rd May, 2019. They relied on the four (4) grounds of appeal contained therein. The record of appeal was transmitted on the 9th April, 2018 and the Appellants filed their brief of argument out of time on the 26th March, 2019, but it was deemed properly filed and served by this Court’s order made on the 23rd May, 2019. The said Appellants’ brief settled by Toyin Bashorun Esq., contained 28 pages of submissions and at pages 3 to 4, the learned Counsel proposed four issues for determination as follows:
1. Whether or not there can be proscription against the repurchase/refund of a bill of exchange for which consideration had failed? (Ground 3 of the Notice of Appeal)
2. Whether or not a judge ought to consider issues extraneous, or decisions already set aside in reaching its own decision on a matter before it? (Ground 2 of the Notice of Appeal)
3. Whether parties who are not party to an earlier suit can be caught by the doctrine of res judicata in a new suit premised on a different cause of action and separate issues different from which the earlier issues were subjected to based? (Ground 4 of the Notice of Appeal)
4. Whether the judgment of a judge who ought not act in terrorem or employ abusive language on counsel and a judge of a superior Court, whilst reaching its decision or making pronouncements in the matter before it has become tainted by reason of the use of this abusive language on the higher Court and indeed counsel in the said matter before it? (Ground 1 of the Notice of Appeal)
Chukwudi Adiukwu, Esq., of Duke Licit Advocates, settled the 1st Respondent’s brief of argument filed on 30th May 2019, containing 15 pages. The 1st Respondent proposed two issues for the determination of this appeal as follows:
1. Whether the lower Court was right in holding that the suit as presently constituted is caught by the doctrine of estoppel per rem judicata?
2. In the unlikely event that ISSUE 1 is answered in the negative, whether the suit as presently constituted discloses any reasonable cause of action against the 1st Respondent?
The 2nd Respondent’s brief settled by Abiodun A. Olatunji Esq., was filedon the 3rd June, 2019, and at page 5 thereof, learned counsel crafted the following three issues for determination:
1. Whether having regards to the circumstances of the case before the trial judge and the decision of the Supreme Court in SC/14/1995 – Alhaji Taofik Alao v. African Continental Bank delivered on 27th February, 1998, the transactions leading to the purchase of bank drafts which is the subject matter of the Appellant’s suit are not illegal and unenforceable? (Grounds 1 & 3)
2. Whether the suit the subject matter of this appeal is not statute barred? (Ground 2)
3. Taken in proper perspective, is the case of the Appellants as constituted not caught by the doctrine of res judicata? (Ground 4)
The Appellants filed two reply briefs in response to each of the Respondent’s brief of argument. The Appellants’ reply brief to the 1st Respondent’s brief of argument incorporating reply to its preliminary objection was filed on the 10th June, 2019, while their reply brief in response to the 2nd Respondent’s brief was filed on the 18th June, 2019.
On the 12th March, 2020, the appeal came up for hearing learned counsel on both sides adopted and relied on their respective briefs of argument. The Appellants’ Counsel urged the Court to allow the appeal and set aside the judgment of the trial Court while the Respondents’ learned counsel each prayed the Court to dismiss the appeal and to affirm the trial Court’s judgment.
1ST RESPONDENT’S PRELIMINARY OBJECTION
The 1st Respondent’s preliminary objection is against the competence of the Amended Notice of Appeal vis-a-vis the issues formulated for determination by the Appellant. It is the 1st Respondent’s contention that by formulating issues 2 and 4 from ground 1 of the Amended Notice of Appeal, the Appellant has proliferated the issues for determination. He relied on OLAJIDE Vs. STATE (2016) LPELR – 41633 in support of his contention.
In response, Appellants’ counsel submits that the Appellants are permitted by law to combine two or more grounds of appeal in formulating an issue for determination. It is the further submission of counsel that the resort to preliminary objections is reserved for more serious issues and not frivolities; that there are no proliferations of issues in this case. Counsel urged this Court to discountenance the preliminary objection.
DETERMINATION OF THE PRELIMINARY OBJECTION
The law is well settled that where preliminary objection is filed challenging the competence of an appeal, the objection must be heard and determined before the substantive appeal perchance, the appeal is terminated at the preliminary stage. See the decision in APC Vs. NDUUL & ORS (2017) LPELR – 42415 (SC); UBA Vs. A.C.B. (NIG.) LTD (2005) 12 NWLR (Pt. 939) 232 NGIGE Vs. OBI (2006) 14 NWLR (Pt. 999) 1.
The 1st Respondent objection is that the Appellants formulated issues 2 and 4 from their ground 1 of appeal, which is not allowed. Both counsel relied on the case of Olajide V. State (supra), to the effect that where two issues are formulated from a single ground of appeal, the issues are incompetent and liable to be struck out. Indeed in the case of Society Bic S.A. &Ors. V. Charzin Ind. Ltd (2014) LPELR – 22256 (SC) Ngwuta, J.S.C. held that:
“It is an established principle of law that the number of grounds of appeal should on no account be less than the issues for determination and framing two issues from one ground of appeal is a violation of the said principle. See Agu v. Ikewibe (1991) 3 NWLR (Pt. 180) 385. A ground of appeal should not be split to raise two issues… The two issues ought to have been ignored or struck out as incompetent as it is not the duty of the Court to make a choice for the appellant between the two issues allegedly framed from one ground of appeal.”
Upon close examination of the amended notice of appeal deemed as properly filed and served on the 23rd May, 2019, it is observed that it contained four grounds of appeal clearly spelt out and numbered in words. The Appellants’ proposed issues for determination are contained in pages 4 to 5 of their brief, which I stated supra. Issue (i) is distilled from ground 3; issue (ii) initially stated to be distilled from grounds 1 and 2 was amended in Court during the hearing of the appeal when Appellant’s counsel with the leave of Court deleted the figure 1, (she said it was a typographical error), signed and dated the correction on the 12/3/20. With that correction, issue (ii) is distilled from only ground 2, while issue (iii) was stated to be distilled from ground 4 and issue (iv) is distilled from ground 1. There were therefore no two issues that are formulated from a single ground of appeal with the correction effected on the 12/3/2020 in the Appellants’ brief. Consequently, the objection has no merit and it is dismissed. I will proceed to the determination of the appeal on the merits.
SUBSTANTIVE APPEAL
APPELLANTS’ SUBMISSIONS
In arguing the Appellants’ first issue, their learned counsel referred to and relied on Section 55(1) of the Bills of Exchange Act, Cap B8 of the Laws of the Federation of Nigeria, 2010, to submit that the subject matter of this appeal relates to the quest of the Appellants to retrieve their refunds or ensure that the 1st Respondent repurchases from them the unused banker’s draft obtained from the 1st Respondent at the material times. She referred to the Affidavit in support of the Originating Summons to argue that the suit warranting the transfer of the proceeds of the banker’s drafts to the 2nd Respondent did not concern the Appellants and by the combined effect of the decision of the Supreme Court in AGBANELO Vs. UNION BANK OF NIGERIA (2000) 7 NWLR (Pt. 666) 534 at 550 – 551 and Sections 47, 48 and 57 of the Bills of Exchange Act, the Appellants are entitled to a refund of the amount of the unutilized drafts inclusive of the interest accrued thereon.
It was further submitted that the Bill of Exchange Act and the other extant laws in Nigeria recognize that the transactions between the bank (issuer of bank draft) and the customer (purchaser of bank drafts) are separate and distinct from the transaction between the bank and endorsee of the draft. Learned counsel also submitted that the lower Court incorrectly construed the purport of the decision of the Supreme Court in SC/14/1995, because the issues regarding the effect of the Bill of Exchange Act on issuance of bankers draft was never canvassed before the Supreme Court. Further that it is apparent that the loan transaction which necessitated the endorsement of the bank drafts to the Appellant in that case – Alhaji Taofik Alao, was what the Supreme Court regarded as illegal and not the purchase of the bank drafts by the Appellants from their bankers. Relying on several decisions of the Apex Court including ONWUCHEKWA Vs. NDIC (2002) 2 SC (Pt. II) 28; APC Vs. INEC & ORS. (2015) 8 NWLR (Pt. 1462) 531 at 583 paras D – H; and Section 1 of the Exchange Control Act (Anti-Sabotage) Act, 1984 and Exchange Control Act (Delegation of Powers) Notice of 1962, Appellants’ learned counsel posited that the contract of purchase and refund of bankers drafts are clearly legal, and the Appellants are entitled to a refund of the monies utilized for the purchase of the 45 (forty-five) bankers drafts.
On the Appellants’ second issue, it was submitted that the Appellants’ complaint in this appeal is that the lower Court erred when it relied on the decision of ABANG, J. in Suit No. FHC/L/CS/969/2011 – Adelekan v. Central Bank of Nigeria, which was set aside by this Court in Appeal No: CA/L/664/2013, which was to the effect that the Appellants lacked locus standi to sue the 2nd Respondent. It is the Appellants’ position that there is nowhere in the said decision where this Court held the Appellants’ suit as being statute barred, rather this Court did not go into the substantive issue in the case at all. Learned Counsel relied in support of her argument on the cases of NIGERIAN AIRWAYS Vs. LAPITE (1990) 7 NWLR (Pt. 163) 392; (1990) 11 – 12 SC 60; ABACHA Vs. FAWEHINMI (2000) 4 SC (Pt. II) 95; (2000) 6 NWLR (Pt. 660) 228 at 317; OMOKOYA Vs. OGBERE (2018) 39 WRN 96 at 115 – 116, lines 40 – 15; PDP & ORS Vs. EZEONWUKA & ANOR (2018) 3 NWLR (Pt. 1606) 187 at 259 – 260, paras G – C and UAC Vs. McFOY (1962) AC 152.
In arguing the Appellants’ issue three, the Court was referred to the elements of the principle of res judicata as enunciated in the case of MICHAEL OGBOLOSINGHA & ANOR. Vs. BAYELSA STATE INDEPENDENT ELECTORAL COMMISSION & ORS.(2015) 6 NWLR (Pt. 1455) 311 at 333 – 334, paras. F – C, to reiterate that the judgment in Suit No: FHC/L/CS/969/2011 relied upon by the lower Court was not valid neither was it subsisting, as at the time of the decision of the trial Court, the subject of this appeal. In fact, the Supreme Court in ONWUCHEKWA Vs. NDIC (2002) 2 S.C. (pt. II) 28, upturned its own decision in Alhaji Taofik Alao V. ACB (1998) 2 NWLR (pt. 542) which the Respondents relied on to support their claim that the Appellants’ suit is res judicata, hence that decision is no longer valid and subsisting as at the time of the decision appealed against.
Moreover, the Supreme Court’s Suit No: SC/14/1995 (which counsel posited supra, has been overturned), related to the justiciability of a loan transaction that was declared illegal and upon which the claims of the Appellants to compel payment of the endorsed bank drafts to it be paid to him was premised. While the case canvassed before the trial Court leading to this appeal is totally different, in addition to the fact that the parties herein and the parties in the Supreme Court’s case No: SC/14/1995 are not the same. The Court was therefore invited to resolve this issue in favour of the Appellants, because all the elements required for the invocation of estoppel per rem judicata are not present in this case and cannot be sustained.
On the fourth issue, Appellants’ counsel quoted excerpts from the judgment of the lower Court, and submitted that the language used by the learned trial Judge in his judgment is not the language of a superior Court and there is nothing in the transmitted record of appeal showing that the trial judge was provoked, angered or disrespected in any manner to justify the said outburst. That to employ words such as “diabolical” which means devilish in his judgment against the counsel of the Appellants for no reason at all, makes his judgment tainted with real likelihood of bias. To support this argument, learned counsel referred to and relied on the cases of FRN Vs. AKUBUEZE (2010) 17 NWLR (Pt. 1223) 523 at 539 – 540, paras H – A; DEDUWA & ORS Vs. OKORODUDU (1976) 9 – 10 SC 329; H.R.H. CHIEF F.C.B. ISAMADE Vs. CHIEF J. U. OKEI & 4 ORS. (1998) 2 NWLR (Pt. 538) 455 at 468, paras B – C; METROPOLITAN PROPERTIES Vs. LANNON (1969) 1 QBD 577 and MOHAMMED Vs. KANO NATIVE AUTHORITY (1983) 1 ALL NLR 424 at 426; ARIORI Vs. ELEMO (1983) 1 SCNLR. In conclusion, the Court was urged upon to resolve all the four issues in favor of the Appellants.
1st RESPONDENT’S SUBMISSIONS
In arguing the 1st Respondent’s issue one, its learned counsel relied on the decisions in ADESINA & ANOR Vs. COMMISSIONER IFON-ILOBU BOUNDARY COMMISSION, OSHOGBO & ANOR (1996) LPELR – 148 (SC); DAKOLO & ORS Vs. REWANE-DAKOLO & ORS (2011) LPELR – 915 (SC); ABUBAKAR Vs. BEBEJI OIL & ALLIED PRODUCTS LIMITED & ORS (2007) LPELR – 55 (SC), regarding the principle of the law on the defence of res judicata. He urged upon this Court to consider the facts and decision of the Supreme Court in SC/14/1995, contending that the Appellants are seeking to achieve the same purpose that Alhaji Taofik Alao, the Appellant in the Supreme Court’s case (supra), tried to achieve, because they all endorsed the 45 bankers drafts in favour of said Alhaji Taofik Alao.
On the elements of a plea of res judicata, the learned counsel referred to and relied on the decisions in the cases of CHIEF URIAH AKPANA ADOMBA & ORS Vs. BENJAMIN ODIESE & ORS (1990) LPELR – 190 (SC); ODUTOLA Vs. ODERINDE & ORS (2004) LPELR – 2258 (SC). He submitted that the Appellants herein are privies to Alhaji Taofik Alao because the common interest between them is the payment of the proceeds of the bankers’ drafts borne out of the contract they entered. That the subject matter of both suits giving rise to this appeal and the one decided by the Supreme Court is the same, to wit – the recovery of the proceeds of the 45 (forty-five) bankers’ drafts issued by the 1st Respondent. As to the third element of res judicata, he posited that there is no doubt that the decision in suit No: SC/14/1995 was decided by a Court of competent jurisdiction and it completely and finally determined the issues between the parties. He placed reliance on the case of UKAEGBU & ORS. Vs. UGOJI & ORS (1991) LPELR – 3338 (SC), to the effect that res judicatam operates against both the party bringing the suit and against the jurisdiction of the Court before which it was brought. He urged upon the Court to affirm the decision of the lower Court to the effect that the present suit is caught up by the principle of res judicata.
On the 1st Respondent’s issue 2, it was submitted, on the authority of the decisions in ROCKSSHELL INTERNATIONAL LIMITED Vs. B.Q.S. LIMITED (2009) 12 NWLR (Pt. 1156) 665, paras F – H; BELOXXI & CO. LTD Vs. SOUTHTRUST BANK (2012) 2 NWLR (Pt. 1285) 616, paras C – D; BEBEJI OIL ALIED PROD. LTD Vs. PANCOSTA LTD (2007) Vol. 31 WRN 163 at 198, that no reasonable cause of action was disclosed against the 1st Respondent in the Appellants’ Affidavit in Support of the Originating Summons. That paragraphs 11 and 12 of the Appellants’ affidavit in support of their originating summons, showed that the 1st Respondent has no role to play in the determination of this appeal having only complied with the order of the Court and paid the proceeds of the 45 bank drafts to the 2nd Respondent (CBN). That there was no claim of any wrong against the 1st Respondent in the Appellants’ originating summons. That all it did was to acquire the ACB, the issuer of the bankers’ drafts in issue. We were urged to strike out the name of the 1st Respondent from this suit on the ground that no reasonable cause of action is disclosed against it. Conclusively, the learned counsel urged us to discountenance the argument of the Appellants as they apply to the 1st Respondent and dismiss the appeal on the ground that same is res judicata.
In response to the Appellants’ counsel argument to the effect that it was this Court in Appeal No: CA/L/664/13 that held the 1st Respondent ought to be made a party, it was argued that Appellants failed to name the parties in the suit nor exhibited the said judgment of this Court which will enable this Court examine the ratio behind the said order if any. The Court was therefore urged upon to discountenance the fictitious decision for the purpose of determining whether a reasonable cause of action exists against the 1st Respondent in this appeal, more so that the Courts have held in several decisions that it is the pleadings of the Appellants, in this case their affidavits in support of their claims that must be considered to make a finding on the point. In conclusion, the 1st Respondent urged upon the Court to discountenance the argument of the Appellant as it apply to the 1st Respondent and dismiss the appeal on the ground of it being res judicata and cannot be re-litigated or in the alternative, strike out the name of the 1st Respondent from the suit.
2ND RESPONDENT’S SUBMISSIONS
On the first issue nominated by the 2nd Respondent, learned counsel referred to the antecedents leading to the decision of the Supreme Court’ decision in Suit NO: SC/14/1995, and submitted that the Appellants’ argument to the effect that they are entitled to a refund because the contract for the purchase of the bankers’ drafts between them and the 1st Respondent was not in itself illegal, has no basis in law. It was submitted that the law is trite that where the object of either the promise or the consideration or the intention of the parties in a contract is to promote the committal of an illegal act or the doing of something contrary to the public policy, the contract is itself illegal and cannot be enforced. For support on this submission, reliance was placed on the decisions in the cases of CHIEF ONYUIKE III Vs. OKEKE (1976) 1 ALL NLR (Pt. 1) 181; SODIPO Vs. LEMMINKAINEN OY (No. 2) (1986) NWLR (Pt. 15) 220.
Further submitted that in the discharge of a banker’s duty in relation to a bank draft, it must be shown that the draft is properly issued and honoured. That the materials before this Court show that the 45 (forty-five) drafts were not presented for payment according to their tenor and were also not properly issued, contrary to the provisions of Section 55 of the Bills of Exchange Act. That the Supreme Court found the 45 bank drafts were neither properly issued nor presented for payment according to their tenure. It was the further submission of counsel that the depositions contained in the Affidavit in support of the Originating Summons cannot supplant the crucial findings made by this Court and the Supreme Court in the suit constituted in SC/14/1995. It was further found that there was no evidence as to the person(s) who made the application for the 45 (forty-five) drafts, and indeed, the Appellants herein also failed to exhibit the application they made to their bankers for the issuance of the said 45 bank drafts.
That contrary to the Appellants’ contention, the Supreme Court held the actions of the faceless Nigerians (who turned out to be the Appellants herein) to repay loans through their bank, i.e. the application for the 45 bank drafts made to ACB Ltd and the request to effect payment to Alhaji Taofik Alao was illegal and criminal. It was further submitted that it is the same transaction, which the Apex Court declared illegal, fraudulent and unenforceable that the Appellants now seek to enforce in this case. That the decision in ONWUCHEKWA Vs. NDIC (supra), relied upon by the Appellants does not support their case because the Supreme Court rightly held in that case that a Plaintiff’s claim under a lawful contract will not fail by reason of illegality of another contract if the Plaintiff can establish his case without reference to the illegal contract to which he is not a party.
With regards to the Appellants’ contention that the issue of illegality of the contract for the purchase of the 45 (forty-five) bank drafts was not open to the 2nd Respondent, being a stranger to the transaction, the Court was referred to its decision and that of the Supreme Court in SC/14/1995, including the additional order made by the Supreme Court effectively escheat the proceeds of the 45 drafts to the Nigerian State, upon the finding that the transactions involving the bank drafts were fraught with fraud and illegality, which the Court will not aid. See ONAMADE Vs. ACB (1997) 1 NWLR (Pt. 480) 123 at 146 – 147, to the effect that none of the parties in an illegal contract is entitled to any remedy or relief from a Court of law. The Court was urged upon to resolve the 2nd Respondent’s issue 1 in its favour and to hold that the trial Court was right to dismiss their originating summons.
With regards to the 2nd Respondent’s issue 2, learned counsel submitted that in view of Section 12(2) of the Limitation Laws of Lagos State (Limitation Law), the Appellants’ action commenced on 27th August, 2016 and predicated on the judgment of the Supreme Court delivered on 27th February, 1998 is statute barred, since it was commenced after the 12 (twelve) years prescribed by the Limitation Law. Citing Section 235 of the Constitution of the Federal Republic of Nigeria, (as amended), learned counsel submitted that judgment of a Court becomes enforceable immediately it is delivered and no appeal shall lie to any other body from any determination made by the Supreme Court.
On the principles to be considered in determining whether an action is statute barred, learned counsel referred to and relied on the decisions in the cases of in MRS ADEKOYA Vs. FEDERAL HOUSING AUTHORITY (2008) 11 NWLR (Pt. 1099) 539 at 556; INDUSTRIAL TRAINING FUND Vs. NIGERIAN RAILWAY CORPORATION (2007) 3 NWLR (Pt. 1020) 28, to the effect that in order to determine whether an action is statute barred the Court must engage in an arithmetic exercise to calculate the years, months and days to the minutest detail. Further reliance was placed on the cases of SAVANNAH BANK OF NIGERIA LTD Vs. PAN ATLANTIC SHIPPING TRANSPORT AGENCIES LTD (1987) 1 NWLR (Pt. 45) 212; DAGAZAU Vs. BOKIR INTERNATIONAL CO.LTD (2011) 14 NWLR (Pt. 1267) 361; NWOSU Vs. IMO STATE ENVIRONMENTAL SANITATION AUTHORITY & ORS (1990) 2 NWLR (Pt. 135) 688 at 718 to submit that the 2nd Respondent as the defendant was able to establish that the cause of action which the Appellants alleged accrued on 27th February, 1998 vide Exhibit TAA 46, but they only approached the Court after more than 12 years to seek for a declaration of their perceived rights, make their suit statute barred, and the proper order to be made in the circumstances is to dismiss the Appellants’ suit. He relied on EGBE Vs. ADEFARASIN (1987) 1 NWLR (Pt. 47) 1; M.V. ARABELLA Vs. N.A.I.C. (2008) 11 NWLR (Pt. 1097) 182, for support, both to the effect that a statute of limitation, where applicable, removes the right of action and any right of relief, leaving the plaintiff with an empty cause of action that cannot be enforced. The Court was urged to so hold and dismiss this appeal.
On the 2nd Respondent’s issue three, learned counsel made similar submissions as those made by the 1st Respondent’s counsel earlier referred. He relied on the pre-conditions for a successful plea of res judicata as laid down in the cases of HONDA PLACE LTD Vs. GLOBE MOTOR HOLDINGS NIG. LTD (2005) LPELR – 3180 (SC) and ADAMS & ANOR Vs. FASASI & ORS (2018) LPELR – 44379 (CA), to submit that the Appellants herein are privies in estate to the Appellant in the Supreme Court’s case No: SC/14/1995 and as such they are bound by the decision of the Supreme Court.
In concluding his argument, the learned 2nd Respondent’s counsel submitted that the subject matter of this appeal and the appeal decided by the Apex Court in Alao V. ACB (supra) is the same, being the 45 bank drafts, which were declared to be the object of an illegal transaction. That all the conditions necessary for the principle of res judicata to apply are present in this appeal and the trial Court was right to so hold. The Court was urged to dismiss the appeal with substantial cost against the Appellants’ counsel personally for wasting the time of the Court.
APPELLANTS’ REPLY BRIEFS
As stated earlier, the Appellants filed reply brief to each of the 1st and 2nd Respondent’s brief of argument. In reply to the 1st Respondent’s submission to the effect that no cause of action was disclosed in this case against it, the Appellants relied on the case of NDIC V. Union Bank (2015) 12 NWLR (pt. 1473) 246 and submitted the ACB having metamorphosed into the 1st Respondent made it a necessary party to this appeal. That by the provisions of Sections 47(2) and 55(1) of the Bills of Exchange Law, (Act?) Cap. 88, LFN 2010, the Appellants are entitled to return to the issuer of the bank drafts for refund since the consideration for which they were issued failed. That a banker’s draft when endorsed to a third party creates a separate contractual relationship with the issuer of the draft, and that relationship is distinct from the one that exists between the purchaser of the drafts and the issuing bank. That the doctrine of res judicatam does not apply to this case because all that the Supreme Court decided in Suit No SC/14/1995-Alao V. ACB was that the Appellant in that case was not entitled to benefit from an illegal transaction. That the Apex Court did not have the opportunity to decide whether the Appellants herein are entitled to the refund of the money they used to purchase the drafts from the 1st Respondent. We were urged upon to so hold and allow this appeal.
In response to the 2nd Respondent’s brief of argument, the learned Appellant’s counsel pointed out that this appeal arose from the decision of the Federal High Court in Suit No: FHC/L/CS/98/16. She then referred to this Court’s decision in the appeal of Adelekan & 23 Ors. V. CBN, from which she copiously quoted, to the effect inter alia, that the Appellants therein lacked locus standi to institute the action and it was struck out. That it was because of that Court’s order that the present suit was filed before the trial Court. That there is a clear distinction between the Adelekan’s appeal and this appeal because the issue of illegality and criminality raised by the 2nd respondent did not concern the present Appellants she posited.
In response to the argument of the 2nd Respondent on its issue one, Appellants argued that the provision relating to the Bankers draft being a contract encompassing a bill of exchange and promissory notes makes the contract between the drawer and the purchaser binding. She relied on Section 30 of the Bills of Exchange Act and the cases of UBA LTD Vs. IBHAFIDON (1994) 1 NWLR (Pt. 318) 90; LAGRICOM CO. LTD Vs. UNION BANK OF NIGERIA LTD (1996) 4 NWLR (Pt. 441) 185; FIRST AFRICAN TRUST BANK LIMITED Vs. PARTNERSHIP INVESTMENT COMPANY PLC (2004) 2 MJSC 101 at 107, 114 – 116 in support.
Further argued that the 2nd Respondent was not able to refer to any judgment or Court pronouncement where the Appellants were pronounced as criminals in this matter, nor was the 1st Respondent indicted for having issued a Bankers’ draft fraudulently. Reliance was placed on Sections 135 to 139 of the Evidence Act, 2011 and a host of cases to drive home the point that the 2nd Respondent’s argument on this issue be disregarded.
Responding to the 2nd Respondent’s argument on its issue two, the learned Appellant’s counsel maintained that the issue of statute of limitation is not open to the 2nd Respondent to agitate by virtue of the provisions of Section 58 and 59 of the Limitation Law. Further contended that there cannot be a proscription against refunds or repayment of unused bank drafts. See the decision of the Supreme Court in ESTATE OF LATE GENERAL SANNI ABACHA Vs. EKE SPIFF (2009) 2 MJSC (Pt. II) 61 at 92,paras A – D, in support.
In response to the 2nd Respondent’s argument on its issue 3, it was the submission of the Appellants’ learned counsel that the present suit not only involves different parties, the issues set down for hearing are also different. Counsel submitted further that the Appellants are not privies to the Appellant in SC/14/1995, as such the decision relied upon by the 2nd Respondents cannot avail it.
Conclusively, the learned Appellant’s counsel contended that the 2nd Respondent’s brief was based on extraneous matters not related to this appeal. The Court was therefore urged to discountenance the brief of the 2nd Respondent, allow this appeal and to “enter judgment for the appellant.”
DETERMINATION OF THE APPEAL
Upon a calm and dispassionate consideration of the grounds of appeal, the record of appeal including the vexed judgment, and the briefs of argument of the parties; it is observed that this appeal revolves around the question whether in view of the decision of the Supreme Court in Alao V. ACB Ltd (1998) 3 NWLR (pt. 542) 339, the transaction involving the 45 bankers drafts, the subject of this appeal is illegal and therefore unenforceable; and whether the said Apex Court’s judgment renders the suit that gave rise to this appeal res judicata. It is also observed that the Appellants’ issues 1 and 2 are the same in context with the 2nd Respondent’s issue 1. Similarly, Appellants’ issue 3 is the same with the 1st Respondent’ issue 1 and the 2nd Respondent’s issue 3. It means parties are in substantial agreement with the central question in dispute. However, for brevity I will adopt and be guided by the 2nd Respondent’s proposed three issues for determination. But issues 1 and 3 will be resolved together being interrelated, before the resolution of issue 2 if necessary.
RESOLUTIONS OF ISSUES 1 AND 3
These two issues distilled from grounds 1, 3 and 4 of appeal questioned the legality of the transaction leading to the purchase and issuance of the 45 bank drafts claimed by the Appellants through the 1st Respondent, in view of the above cited Supreme Court’s judgment. The complaint of the Appellants under these issues, and indeed the foundation of this entire appeal is on the trial Court’s holding in pages 307 to 308 of the record of appeal, part of which was quoted at page 10 of the Appellants’ brief of argument. The learned trial Judge held that:
“This is the third time the action in respect of the 45 bank drafts came up before the Courts for adjudication. The Supreme Court declared illegal the said transaction ab initio. That the transaction is shrouded in secrecy. The Federal Ministry of Justice was ordered to be intimated of the said transactions and the said bank drafts be forwarded to the same Ministry saddled with the responsibility of prosecution of alleged offenders on behalf of the Federal Government. Where items are said to be impounded as ordered by the Supreme Court, it is said to be subject of illegal activity especially where prosecution is imminent…. In the circumstances of this case, I do agree with the decision of Abang J., in his judgment of 18th February, 2013 that the suit is meant to defeat the effect of the Supreme Court judgment dated 27th February, 1998 to the effect that the earlier transaction from the pleading and evidence of the plaintiff is illegal and unenforceable and that the obligations arising out of procurement of the banker’s draft are equally illegal and unenforceable. Whether as far as banker’s draft is concerned there are usually three (3) parties, i.e. the issuer, the holder for value and the holder in due course which can be an endorsee as the Applicants’ counsel puts it. the facts still remains that such transaction remains illegal. I do not therefore have the capacity nor audacity to sit here and review the judgment of either the Court of Appeal or the apex Court of the land as regards the non enforceability of the transaction or any ancillary matters thereto regarding the said drafts. The invitation to do so is certainly diabolical…” Was the learned trial Judge right to so hold is the question that must be determined under the two issues. The Supreme Court’s decision in Alao V. ACB Ltd (supra), no doubt was in respect of the 45 bank drafts issued by some customers (now the Appellants) in favour of Alao, the Appellant in that case. There is no dispute even from the learned Appellants’ counsel on this point. Thus, in the determination of these two issues and indeed this appeal, we need look no further than that case.
It is clear that in its judgment, the Apex Court found and held from page 355 to 356 of the NWLR (pt. 542), that the transaction involving the procurement of the 45 bank drafts, which was for the purpose of paying Alao a debt in foreign currency was illegal and therefore unenforceable because it was done in contravention of Sections 3(1) and 7(c) of the Exchange Control Act in force at the time material to the transaction. His Lordship Kutigi J.S.C. (of blessed memory) was categorical in stating from page 355 to 356 that:
“Clearly, the transactions herein show that offences have been committed against Sections 3(1), 7(c) and 8 of the Exchange Control Act. They are therefore illegal transactions which law Courts will not enforce.”
The Apex Court further observed in page 356 paragraph B-C inter alia, that Appellant Alao did not name nor called as witness any of his Nigerian customers who borrowed the foreign currency from him and that:
“The 45 bank drafts were issued in the names of various institutions of Britain, and each draft was especially and restrictively crossed and marked “Account Payee Only Not Negotiable”, but nevertheless the drafts were each endorsed by the business associate to the plaintiff. How come?”
From the entire decision of the Apex Court, there is no doubt that the issue of the fraudulent procurement of the 45 bank drafts that the present Appellants made the subject of their claims before the trial Court and in this appeal were declared illegal and unenforceable, by the Supreme Court of Nigeria. There is no Court in this Country, which can legalize that transaction.
The Appellants learned counsel argued, rather vehemently, that it was the contract between the Appellants and Alao that the Supreme Court declared illegal and not the procurement of the 45 bank drafts. This argument is not only totally misconceived, but a deliberate misrepresentation of the clear pronouncement of the Apex Court, which was made in precise and clear simple language. In any event, the Apex Court observed that the Appellant Alao did not tender any agreement between him and the issuers/purchasers of the 45 bank drafts. Infact the purchasers were described as faceless by the Apex Court and to us too, they must remain forever so, because it (Supreme Court) said so. Their appearance in this suit from oblivion is of no consequences in view of their being pronounced faceless by the highest Court of the land.
Another contention of the learned Appellants’ counsel made in page 12 to 13, paragraphs 4.13 of the Appellants’ brief of argument is that:
“….The loan transaction which is the basis of the interaction between the parties in the case is what was pronounced as illegal because the consent of the Minister was not sought at the time not for any other reason whatsoever. But Kutigi CJN (as he was then) was quick to note even at that, that the law they (Supreme Court referred to as “they”) relied upon to declare the loan transaction at the time of their (Supreme Court as “they”) decision was no longer law. More recently and importantly, the Supreme Court itself not long thereafter has had course to review and overrule itself on this issue as the law stands presently. The Honourable Court did so in the case of Onwuchekwa V. NDIC (2002) 2 SC (pt. II) 28, wherein the scenario in Alao’s case replayed itself and was re-visited and overruled.
The case of Onwuchuckwa V. NDIC & Anor which the learned Appellants’ counsel referred to in her argument supra is also reported in (2002) 5 NWLR (pt. 760) 371. A close examination of that case revealed that it was decided on completely different circumstances with that of Alao V. ACB Ltd and the Apex Court never even referred to its decision of Alao V. ACB Ltd., let alone reversed and overruled itself. The argument of the counsel of the Appellants is glaringly incorrect and deceptive meant to mislead this Court. It is most unfortunate, regrettable and unbecoming of a counsel to deliberately mislead the Court. I leave it at that.
It is also strange that the same Appellants who relied on the order of the Supreme Court directing the proceeds of the 45 bank drafts to be returned to the Central Bank, because the intention for which they were procured by the faceless purchasers was illegal and amounted to an offence under the extant law, would turn around to argue (even falsely) that the decision in which the order was made was overruled since 2002. Let me be categorical here, that order of the Supreme Court remained static like the rock of Gibraltar and the proceeds of the illegally obtained 45 bank drafts shall remain with the 2nd Respondent forever, because the Supreme Court said so. The fate of the 45 illegally procured bank drafts is sealed forever.
It is for all the above stated reasons that I find no fault whatsoever with the above quoted finding and conclusion of the learned trial Judge and I have no hesitation in affirming same. Consequently, the Appellant’s suit leading to this appeal is certainly, without any iota of doubt caught up by the principle of res judicata. Issues one and three are resolved against the Appellants.
ISSUE TWO
This issue raises the question whether the subject matter of this appeal is not statute barred in view of the provisions of Section 12 of the Limitation Law of Lagos State, which provides that an action should not be brought upon a judgment after the expiration of twelve years from the date of the judgment. The judgment of the Supreme Court in Alao V. ACB Ltd that determined the fate of the 45 bank drafts was delivered on the 27th February, 1995. The hitherto faceless Appellants filed their originating summons leading to this appeal before the trial Court on the 27th January, 2016, a period of twenty one years after the Apex Court finally determined the fate of the 45 bank drafts. Clearly, the suit is caught up by the statute of limitation cited.
In any event, my determination of issues 1 and 3 supra to the effect that the Appellants’ suit is caught up by the principle of res judicata made the determination of this issue otiose. Nevertheless, it is hereby resolved against the Appellants.
The Appellants also complained against the trial judge’s use of the word ‘diabolical’ to describe their apparent request through their originating summons for him to interpret the Supreme Court’s decision, which he rightly said he lacked the capacity to so do. Having regards to the circumstances of this case, His Lordship was only expressing his opinion on the attitude of the Appellants in filing this suit 21 years after the issue relating to the 45 bank drafts was settled by the Apex Court. He observed that this is the third time the case involving the 45 illegally procured bank drafts was coming up for adjudication.
I therefore hold that the observation or the remarks of learned trial Judge did not operate in terrorem by using the said word. His observation flows directly from his correct finding of facts in this case. The argument of the learned counsel on this complaint is discountenanced.
Finally, having resolved the three issues that arose for determination in this appeal against the Appellants, this appeal failed and it is hereby dismissed by me. The judgment of the Federal High Court in Suit No: FHC/L/CS/98/16 delivered on the 10th January, 2017 by Hon. Justice A. M. Anka is hereby affirmed by me. The Cost of one hundred thousand Naira (N100, 000) only is awarded against the Appellants in favour of the Respondents jointly.
OBANDE FESTUS OGBUINYA, J.C.A.: I had the privilege to peruse in advance, the succinct the leading judgment delivered by my learned brother: BALKISU BELLO ALIYU, JCA. I endorse, in toto, the reasoning and conclusion in it. I, too, dismiss the appeal. I abide by the consequential decreed in it.
GABRIEL OMONIYI KOLAWOLE, J.C.A.: My learned brother, BALKISU BELLO ALIYU, JCA obliged me with the draft of the leading judgment which he has just delivered in which the instant appeal was dismissed.
I agree with the analysis and resolution of the issues set down for determination and the conclusion reached that the appeal lacked merit, and was accordingly dismissed.
I subscribe to the consequential order made as to costs.
Appeal is dismissed by me too.
Appearances:
TOYIN BASHORUN ESQ., with him, FABIAN AGEKECHEMO ESQ and T. A. AJAYI ESQ For Appellant(s)
A. OLATUNJI SAN, with him, JESSICA A. OYEYIPO ESQ. and OLAMIDE E. FALADE ESQ. – for 1st Respondent
A. A. OYEYIPO SAN, with him, O. E. BALADE ESQ – for 2nd Respondent For Respondent(s)
