OGUONU v. AMCON
(2020)LCN/15267(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Wednesday, May 27, 2020
CA/L/1113/2018
Before Our Lordships:
Mohammed Lawal Garba Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal
Between
IFEOMA OGUONU APPELANT(S)
And
ASSET MANAGEMENT CORPORATION OF NIGERIA (AMCON) RESPONDENT(S)
RATIO
WHETHER OR NOT FOR A TRIAL COURT TO ALLOW ITSELF TO BE GUIDED BY A DOCUMENTARY EVIDENCE, THE DOCUMENTS MUST BE PROPERLY PLACED BEFORE IT
It must be remembered that it is trite that for a trial Court to allow itself to be guided by a documentary evidence, that documents must be properly placed before it. See FBN Plc v. Tsokwa (2004) 5 NWLR (Pt. 866) 271. Clearly therefore, secondary evidence of a public document; which is not certified, is not properly placed before the Court and the Court cannot be guided by it. Additionally, the contents of such document cannot be brought in through the back door by a deposition in an Affidavit. So, where the original document is not procured, there must be a certified true copy of a public document in proof of its contents as provided by the combined effects of Sections 89 (e), 90 (1) (c), 102, 104 and 105 of the Evidence Act, 2011.
As it is trite law that a Court does not speculate on the contents of documents not “produced” before it – seeOguchi v. Gov. (Imo State) (1995) 9 NWLR (Pt. 417) 53, 94; see also Gbajor v. Ogunburegui (1961) 1 ALL NLR 853 – and as the Writ of Summons and Statement of Claim in a suit once filed in Court become public documents – see Okeke v. AG (Anambra State) (1992) 1 NWLR (Pt. 215) 60, 80 – but they have not been certified in this case as required by law, I find myself unable to ascertain the contents of the claims/reliefs in Suit No. LD/1242/2012 with which to appraise the substratum in the instant action of the Applicant, which is predicated on Suit No. LD/1242/2012.” PER GARBA, J.C.A.
WHAT IS A PRIMARY EVIDENCE?
The primary evidence of a document is the original document itself which is produced as proof of its contents while secondary evidence of a document includes:
“87(a) certified copies given under the provisions hereafter contained in this Bill;
(b) copies made from the original by mechanical or electronic processes which in themselves ensure the accuracy of the copy, and copies compared with such copies;
(c) copies made from or compared with the original;”
See Sections 85, 86(1) and 87 of the Evidence Act, 2011. See also Bamgbose v. Jiaza (1991) 3 NWLR (Pt. 177) 64; Fagbenro v. Arobadi (2006) ALL FWLR (Pt. 310) 1575; Uzor v. D. F. Nig. Ltd (2010) 15 NWLR (Pt. 1217) 553. Sections 89 and 90 of the Act set out the nature of and circumstances in which secondary evidence in proof of the contents of documents may be given and admissible in judicial proceedings of the Court. See Alade v. Olukade (1976) 6 SC, 183; Agagu v. Mimiko (2009) 7 NWLR (Pt. 1140) 342; Edokpolo & Co. Ltd v. Sem-Edo Wire Ind. Ltd (1989) 4 NWLR (Pt. 116) 473; Abi v. CBN (2012) 3 NWLR (Pt. 1286) 1.
CATEGORY OF THE TYPE OF SECONDARY EVIDENCE THAT IS ADMISSIBLE AS PROOF
The law is also now common knowledge that the only type of secondary evidence of a public document admissible in evidence as proof of the contents of the document is a certified true copy thereof in line with the provision of Section 105 of the Act. No other type, kind or category of secondary evidence of a public document is admissible as proof of the contents of such document for the purposes of judicial adjudication by a Court of law. See Fawehinmi v. I.G.P. (2000) FWLR (Pt. 12) 2015; A.C.B., Plc v. Nwodika (1996) 4 NWLR (Pt. 443) 470; Araka v. Egbue (2003) 17 NWLR (Pt. 848) 1; Towoju v. Gov., Kwara State (2005) 18 NWLR (Pt. 975) 324; Balonwu v. Emordi (2010) 1 NWLR (Pt. 1174) 79; Ogunleye v. Aina (2011) 3 NWLR (Pt. 1235) 479; Alamieyeseigha v. FRN (2006) (Pt. 1004) 1. PER GARBA, J.C.A.
WHETHER OR NOT ORIGINATING SUMMONS CAN BE USED TO COMMENCE AN ACTION BEFORE THE LOWER COURT FOR DETERMINATION OF ISSUES ARISING FROM DISPUTED FACT(S) WHICH ARE LIKELY TO BE EDISPUTED
By its nature therefore, originating summons is not and cannot be used to commence an action before the Lower Court for determination of issues or questions arising from disputed facts or facts which are likely to be disputed and under which rights or obligations are claimed. It is not to be used in hostile actions or proceedings, but rather for non-contention actions or proceedings. See Osaugwu v. Emezi (1998) 12 NWLR (Pt. 579) 640); Director, SSS v. Agbakoba (1999) 3 NWLR (Pt. 595) 425, (1999) 1 SCNJ, 1; Bassey v. Min. of Defence (2006) ALL FWLR (Pt. 343) 1799; Amasike v. Reg.; CC (2010) 13 NWLR (Pt. 1211) 337 and Ossai v. Wakwah (2006) 2 SC (Pt. 1) 19, (2006) 4 NWLR (Pt. 969) 208 wherein Oguntade, JSC, succinctly stated that:
“It is in my view, well settled that a civil suit should not be commenced by originating summons where it is a dispute or likelihood of a dispute on the facts.”PER GARBA, J.C.A.
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): The Appellant; as a customer to Fin Bank, Plc (the Bank) was granted a loan for the purchase of some shares of ETI and Dangote Sugar and to be traded at the Stock Exchange by the Bank towards the payment of the loan. Subsequently, the Respondent took over the loan from the Bank as a non-performing loan in the Appellant’s account and by a Letter of 3rd of July, 2014 to the Appellant, demanded the immediate payment of Three Hundred and Seven-Eight Million, Six Thousand, One Hundred and Twenty-Two Naira and Thirty-Five Kobo (₦378, 006,122.35) as the outstanding debt owed by the Appellant on the loan as at 31st of July, 2014.
In reaction, the Appellant’s counsel vide the letter dated 27th of August, 2014 to the Respondent, refuted the debt and indicated that the Appellant had instituted an action before the High Court of Lagos State (High Court) against the Bank on the 13th of August, 2012 in respect of which she had a pending appeal before this Court; when the High Court declined jurisdiction over the matter. Apparently miffed, that inspite of the above position which the Respondent was said to have been notified of, the Respondent still, by the Letter of 24th November, 2014, demanded for the payment of the debt by the Appellant, she approached the Federal High Court, Lagos (Lower Court) by way of an originating summons dated and filed on the 12th of February, 2015 for the determination of the following questions: –
“1. Whether from Section 5 and particularly subsection ‘c’ of the Asset Management Corporation of Nigeria Act 2010, and in view of the Applicant’s suit against Finbank Plc for the latter’s negligence in mismanagement of the loan and consequential claim of ₦23,806,592, of which the Respondent was duly notified, the Respondent can properly regard and demand any amount or balance on the loan transaction from the Applicant as due to warrant the Respondent’s demand letter dated 24th November, 2014.
2. Whether in view of Section 5(c) of the Asset Management Corporation of Nigeria Act 2010 and since from the Applicant’s suit/action against Finbank Plc (of which the Respondent was duly notified), the Court is being called upon to determine the negligence/culpability of the later for the mismanagement of the loan transaction, the purported debt of the Applicant can be regarded as due to warrant the Respondent’s demand letter dated 24th November 2014.”
The reliefs sought from the Lower Court on the summons are: –
“1. A declaration that since from the Applicant’s suit/action against Finbank Plc (which the Respondent is aware of), the Court is being called upon to determine the negligence/culpability of the latter for the mismanagement of the loan transaction, the purported/and or alleged debt of the Applicant conveyed vide the Respondent’s demand letter dated 24th November 2014 cannot be regarded as due to warrant issuance of the said letter by the Respondent.
2. A declaration that the Respondent’s letter dated 24th November 2014 requiring the Applicant to pay up/liquidate the balance of the non-performing loan.
3. An order setting aside the Respondent’s letter dated 24th November, 2014 requiring the Applicant to liquidate the balance of the non performing loan.
4. An order restraining the Respondent from taking any step against the Applicant with respect to or concerning the Finbank Loan transaction with the Applicant until the Court determines the fate of the Applicant’s suit as to whether Finbank is the cause of the non-performing loan and consequently liable in negligence.”
The Respondent opposed the grant of the said reliefs and after a consideration of the cases presented by the parties, the Lower Court, in the Judgement delivered on 30th of May, 2018, found the Appellant’s suit incompetent and struck it out.
Being aggrieved by the judgement, the Appellant brought this appeal by the Notice of Appeal filed on 31st of July, 2018 on three (3) grounds and in the Appellant’s brief filed on the 6th of December, 2018, deemed on 30th of May, 2019 the same number of issues are set out for determination in the appeal. They are as follows: –
“1. Whether the processes of the Appeal Court and Lagos State High Court which the Appellant attached to her affidavit of the Originating Summons dated 12/2/15 were not properly before the Court when the ones not certified were filed as attachments to a letter written to the Respondent which it never replied (GROUND 1).
- Whether the learned trial judge was right when he held that an alleged debtor cannot sue his alleged creditor which was an issue different from the Appellant’s suit before the Court and which the Court raised suo motu without hearing the parties. (GROUND 2).
3. Whether the learned trial Judge did not err in law in holding that the Appellant’s appeal in Appeal No: LD/L/820/2013 is not on the substance of the claim in suit No: LD1242/2012 when it was an appeal challenging a ruling on jurisdiction. (Ground 3).”
For the Respondent, a notice to contend that the decision by the Lower Court to strike out the suit be varied was filed on 4th of December 2018, deemed on the 30th of April, 2020 at the hearing of the appeal, and the Respondent’s brief filed on 27th of June, 2019. The following issues are submitted for decision by the Court: –
“1. Whether the Appellant did not fail to prove that it is entitled to any or all of the reliefs it sought in its Originating Summons. This is distilled from the 3 grounds of the Appellant’s Notice of Appeal.
2. Whether the lower Court ought to have dismissed the Appellant’s suit on the ground that the Appellant failed to prove its claims. This is distilled from the Respondent’s Notice of Appeal.”
An Appellant’s Reply on points of law was filed on the 27th of December, 2019 in response to the Respondent’s Brief.
I intend to consider the submissions by Learned Counsel on the issues together.
Appellant’s Submissions:
It is submitted on Issue 1 that based on the correspondence between the parties on the loan in question, the Respondent was notified and aware of the pendency of the Appellant’s appeal against the Ruling of the High Court in the suit instituted by the Appellant against the Bank, which were placed before the Lower Court as attachments to the Affidavit in support of the summons.
Learned Counsel argues that the copies of the processes of the suit before the High Court and the appeal were admissible since they were attached to the Letter from the Appellant which the Respondent refused or failed to respond to and cannot be severed from the Letter, relying on Iwuoha v. NRC (1997) LPELR-1570 (SC); Northern Assur. Co. Ltd v. Wuraola (1969) NCLR, 4 @ 12 and 14 and Comm. For Land and Housing, Kwara State v. Atanda (2007) 2 NWLR (Pt. 1018) 374. It is also the case of the Learned Counsel that the Lower Court erred to have considered the denial of the existence of the Appellant’s suit and appeal contained in the Written Address of the Respondent’s Counsel in the summons since the Respondent did not deny it in the Counter Affidavit and was wrong to hold that the suit is incompetent because the processes attached by the Appellant to the Letter to the Respondent were not certified. The case of Agbamu v. Ofili (2004) 5 NWLR (Pt. 867) 540 was referred to and the Court is prayed to resolve the issue in favour of the Appellant.
On Issue 2, the submissions are that, on the authority of A.C.N. v. Lamido (2012) 8 NWLR (Pt. 1303) 592, parties and the Court are bound by and limited to the facts submitted in the pleadings in a case and so cannot go outside them for adjudication. According to Learned Counsel, the issue of whether an alleged debtor can sue his alleged creditor for a declaration of the sum or amount owed was not one presented or submitted to the Lower Court by the parties in the summons as no issue was joined by them on it in the case presented. He said the issue was raised suo motu by the Lower Court and the parties ought to have been invited to address it before resolving it against the Appellant, relying on Dumez Nig. Ltd v. Nwakhoba (2008) 12 SC (Pt. III) 162 and Alims Nig. Ltd v. U. B. A. Plc. (2013) 6 NWLR (Pt. 135) 626.
The Court is urged to resolve the issue in Appellant’s favour.
The arguments on Issue 3 are that the Appellant’s pending appeal against the decision by the High Court declining jurisdiction was for this Court to reverse the decision and not decide the merit of the Appellant’s suit before the High Court. Section 318(sic) of the 1999 Constitution and Jegede v. Akande (2014) 16 NWLR (Pt. 1432) 73 are cited on the Appellant’s right to appeal against the decision by the High Court and it is maintained that the substance of the case before the High Court was not an issue presented to the Lower Court in the summons.Ebba v. Ogodo (1984) NSCC, 255 @ 265, (1984) 1 SCNLR, 372 and T. O. Kuti (Trading as Abusi Odu Transport) v. Jibowu (1972) 6SC, 147 on the right of the parties to be heard when a Court raises an issue suo motu, are referred to and the Court is urged to resolve the issue in favour of the Appellant.
In conclusion, we are prayed to allow the appeal and set aside the decision of the Lower Court.
Respondent’ Submissions:
Learned Counsel submits on Issue 1 that the Lower Court is right that the Appellant failed to adduce credible evidence to prove her case since the uncertified documents presented by the Appellant in support of the summons are inadmissible under the Evidence Act to prove the existence of the suit before the High Court or the appeal before this Court. Sections 88, 89(e), 90(1) (e) and 102 of the Evidence Act, as well as the cases of Onobruchere v. Esegine (1986) 1 NSCC, 343, SPDC Ltd v. Nwoli (1991) 3 NWLR (Pt 180) 496; Dagaci of Dere v. Dagaci of Ebwa (2006) 7 NWLR (Pt. 979) 382 @ 425, 443 and 446 and Abuul v. Bensu (2003) 16 NWLR (P. 845) 59 @ 76 are cited on the law that only a certified copy of a public document is admissible as proof of such document. It is the contention of Learned Counsel that though both the Letter of 27th of August, 2014 and the attachments thereto are admissible in evidence, the attachments cannot be proof of their contents since they are not certified. He submits that the cases of Northern Assur. Co. Ltd v. Wuraola and Iwuoha v. NRC (both supra) dealt with the principle of incorporation of documents and/or evidence by reference in private documents and not admissibility of uncertified public documents in evidence and so do not avail the Appellant here. Learned Counsel further contends that the Lower Court is right not to have considered the 3rd Further Affidavit filed by the Appellant on the 9th of February, 2016 after the Respondent’s had filed its Final Address in the Summon since the Respondent had no opportunity to comment on it in the determination of the Summons.
The Court is urged to dismiss the appeal.
The submissions on the Respondent’s Issue 2 which is distilled from the Respondent’s Notice, are to the effect that the Lower Court erred in adopting an ex post facto, approach to the determination of the existence or otherwise of a good cause of action in the Appellant’s case. Citing the cases of Elabanjo v. Dawodu (2006) 15 NWLR (Pt. 1001) 76 @ 152 and Uwazuruonye v. Gov., Imo State (2013) 8 NWLR (Pt. 1355) 28 @ 56 on the definition of a cause of action, it is argued that there is no requirement in any of the definitions, for evaluation of the quality of evidence to be put forward by a claimant. According to Counsel, the Appellant’s case was simply that the he had commenced a suit at the High Court which created an estoppel against the realization of the debt she owed the Respondent and the justifiability of the estoppel was all the Lower Court ought to have looked at in determining whether a cause of action was disclosed. He contends that since the Appellant failed to place admissible evidence before the Lower Court, the proper order to be made is one dismissing the claims and application.
The Court is urged to make the dismissal order in respect of both the summons before the Lower Court and this appeal.
In the Appellant’s Reply on points of law, it is submitted that the law is that an objection cannot be raised against a document attached to an Affidavit because the question of its admissibility does not arise since it forms part of the evidence before the Court which can be used once it is credible and reliance is placed on Boko v. Nungwa (2018) LPELR-45890(CA) 14-16.
In addition, it is said that the Ruling of the High Court in the Appellant’s suit and processes of the pending appeal against same were duly certified and reference is made to pages 207-209 and 254-311 of the Record of Appeal. The case of Ayabam v. COP, Benue State (2019) LPELR-47283(CA) 138 is cited and it is contended that there was no dispute on the existence of the suit before the High Court and that Section 128(1) of the Evidence Act is inapplicable as it contemplates judgement or other judicial proceedings, etc.
Furthermore, it is submitted that the Appellant was granted leave to file the 3rd Further Affidavit and so the Court is urged to discountenance the Respondent’s argument thereon as its propriety did not arise in the judgement of the Lower Court.
Learned Counsel also argues that the Respondent cannot attack the approach of the Lower Court in the determination of a cause of an action since it has not cross appeal, on the authority of Customary Court of Appeal, Benue State v. Tsegba (2017) LPELR-44027(CA) and so the Court is prayed to strike out the arguments of the Respondent on the point.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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Resolution:
From the round and about arguments of the Learned Counsel for the Appellant, the discernable fulcrum of the complaint against the judgement/decision of the Lower Court is that it was wrong in law to have struck out the summons on the primary ground that the documents annexed to the Affidavit in support of the summons as Exhibits in respect of Court processes before the High Court and this Court, were not certified.
The reasoning of the Lower Court on the Exhibits attached to the Appellant’s Affidavit in support of the Summons, is inter alia, that:
“Firstly, the matter of certification of documents is a matter of law as regulated by the Evidence Act, 2011. Where documents – such as the Applicant’s Writ and Statement of Claim in Suit No. LD/1242/2012 – which are public documents have not be certified, they would become self-evident.
It must be remembered that it is trite that for a trial Court to allow itself to be guided by a documentary evidence, that documents must be properly placed before it. See FBN Plc v. Tsokwa (2004) 5 NWLR (Pt. 866) 271. Clearly therefore, secondary evidence of a public document; which is not certified, is not properly placed before the Court and the Court cannot be guided by it. Additionally, the contents of such document cannot be brought in through the back door by a deposition in an Affidavit. So, where the original document is not procured, there must be a certified true copy of a public document in proof of its contents as provided by the combined effects of Sections 89 (e), 90 (1) (c), 102, 104 and 105 of the Evidence Act, 2011.
As it is trite law that a Court does not speculate on the contents of documents not “produced” before it – seeOguchi v. Gov. (Imo State) (1995) 9 NWLR (Pt. 417) 53, 94; see also Gbajor v. Ogunburegui (1961) 1 ALL NLR 853 – and as the Writ of Summons and Statement of Claim in a suit once filed in Court become public documents – see Okeke v. AG (Anambra State) (1992) 1 NWLR (Pt. 215) 60, 80 – but they have not been certified in this case as required by law, I find myself unable to ascertain the contents of the claims/reliefs in Suit No. LD/1242/2012 with which to appraise the substratum in the instant action of the Applicant, which is predicated on Suit No. LD/1242/2012.”
I should say at the onset that the Lower Court is on the firm terrain of the law that by virtue of the provisions of the Evidence Act 2011, which regulates the use of evidence generally, in judicial proceedings of the Courts and other Tribunals established by the Constitution and other Statutes, proof of the contents of documents generally, may and can only be by either primary or secondary evidence of such documents. The primary evidence of a document is the original document itself which is produced as proof of its contents while secondary evidence of a document includes:
“87(a) certified copies given under the provisions hereafter contained in this Bill;
(b) copies made from the original by mechanical or electronic processes which in themselves ensure the accuracy of the copy, and copies compared with such copies;
(c) copies made from or compared with the original;”
See Sections 85, 86(1) and 87 of the Evidence Act, 2011. See also Bamgbose v. Jiaza (1991) 3 NWLR (Pt. 177) 64; Fagbenro v. Arobadi (2006) ALL FWLR (Pt. 310) 1575; Uzor v. D. F. Nig. Ltd (2010) 15 NWLR (Pt. 1217) 553. Sections 89 and 90 of the Act set out the nature of and circumstances in which secondary evidence in proof of the contents of documents may be given and admissible in judicial proceedings of the Court. See Alade v. Olukade (1976) 6 SC, 183; Agagu v. Mimiko (2009) 7 NWLR (Pt. 1140) 342; Edokpolo & Co. Ltd v. Sem-Edo Wire Ind. Ltd (1989) 4 NWLR (Pt. 116) 473; Abi v. CBN (2012) 3 NWLR (Pt. 1286) 1.
The law is also now common knowledge that the only type of secondary evidence of a public document admissible in evidence as proof of the contents of the document is a certified true copy thereof in line with the provision of Section 105 of the Act. No other type, kind or category of secondary evidence of a public document is admissible as proof of the contents of such document for the purposes of judicial adjudication by a Court of law. See Fawehinmi v. I.G.P. (2000) FWLR (Pt. 12) 2015; A.C.B., Plc v. Nwodika (1996) 4 NWLR (Pt. 443) 470; Araka v. Egbue (2003) 17 NWLR (Pt. 848) 1; Towoju v. Gov., Kwara State (2005) 18 NWLR (Pt. 975) 324; Balonwu v. Emordi (2010) 1 NWLR (Pt. 1174) 79; Ogunleye v. Aina (2011) 3 NWLR (Pt. 1235) 479; Alamieyeseigha v. FRN (2006) (Pt. 1004) 1.
In the Appellant’s case, the originating summons filed before Lower Court was brought pursuant to Section 5 of the Respondent’s Act, 2010, Order 3, Rule 6 of the Lower Court’s Civil Procedure Rules 2009 (2009 Rules) and the inherent jurisdiction of that Court for determination of whether in view of the Appellant’s suit before the High Court, which Respondent was aware of, the Appellant’s debt could be said to be due to warrant the demand letter of 24th of November, 2014.
Order 3, Rule 6 of the 2019 Rules provides that: –
“6. A person who claims to be interested under a deed, will, enactment or other written instrument may apply by originating summons for the determination of any question of construction arising under the instrument and for a declaration of the right of the person interested.”
These provisions are clear and simply provide for the employment or use of originating summons to apply to the Lower Court for the determination of any question of construction arising under a deed, will, enactment or other written instrument and declaration of rights, by any person interested thereunder. Briefly, originating summons is to be used to commence an action before the Lower Court for determination of question(s) of interpretation of enactment or document(s) for declaration of rights claimed by a claimant/party.
By its nature therefore, originating summons is not and cannot be used to commence an action before the Lower Court for determination of issues or questions arising from disputed facts or facts which are likely to be disputed and under which rights or obligations are claimed. It is not to be used in hostile actions or proceedings, but rather for non-contention actions or proceedings. See Osaugwu v. Emezi (1998) 12 NWLR (Pt. 579) 640); Director, SSS v. Agbakoba (1999) 3 NWLR (Pt. 595) 425, (1999) 1 SCNJ, 1; Bassey v. Min. of Defence (2006) ALL FWLR (Pt. 343) 1799; Amasike v. Reg.; CC (2010) 13 NWLR (Pt. 1211) 337 and Ossai v. Wakwah (2006) 2 SC (Pt. 1) 19, (2006) 4 NWLR (Pt. 969) 208 wherein Oguntade, JSC, succinctly stated that:
“It is in my view, well settled that a civil suit should not be commenced by originating summons where it is a dispute or likelihood of a dispute on the facts.”
Because an action commenced by way of originating summons does not involve substantial disputed facts, it is different from an action initiated or commenced by way of a writ of summons which involves issues of substantial facts disputed by the parties and so pleadings of facts and oral evidence are required in proof of the facts, the sworn affidavit required to accompany same, takes the place of the pleadings and attachments thereto marked as Exhibits, (if any) take the place of evidence. Famfa Oil Ltd. V. A. G. Federation (2003) 18 NWLR (Pt. 852) 453; Kwara Polytechnic Ilorin v. Oyebanji (2007) LPELR-11829 (CA); Agbakoba v. INEC (16 NWLR (Pt. 951) 327; P & S. H. S. Co. Ltd v. Migfo Nig. Ltd (2013) 13 NWLR (Pt. 1119) 489; Govt, Kogi State v. Adavi L. G. C (2005) NWLR (Pt. 1333) 555.
Just like the settled principle of law that pleadings not specifically denied are deemed admitted; see Ajikawo v. Ansaldo Nig. Ltd (1991) 2 NWLR (Pt. 173) 359; J. E. Elukpo & Sons Ltd v. F. H. A. (1991) 3 NWLR (Pt. 179) 322; Oshodi v. Eyifunmi (2000) 13 NWLR (Pt. 684) 298; Eke v. Okwaranyia (2001) FWLR (Pt. 51) 1974; Bamgbehin v. Oriare (2009) 13 NWLR (Pt. 1158) 370; Atuchukwu v. Adindu (2012) 16 NWLR (Pt. 1297) 534, depositions or averments in an affidavit not denied, disputed, challenged and controverted by a party who disputes the fact(s) therein, are deemed to be correct, true, established and admitted by that party. Judicial authorities galore on this principle of law and include Ajomale v. Yaduat (No. 2) (1991) 5 SCNJ, 172, (1991) 5 NWLR (Pt. 191) 266; Odogwu v. Odogwu (1992) 7 NWLR (Pt. 253) 344; UBN v. Odusote Bookshop Nig. Ltd (1994) 3 SCNJ, 1; Badejo v. Minister (1996) 9-1- M. A. C. 118, Long-John v. Blakk (1998) 6 NWLR (pt. 555) 524;Olawoye v. The State (2003) 1 FWLR (Pt. 186) 138; A. G. Plateau State v. A. G., Nasarawa State (2005) ALL FWLR (Pt. 266) 1227; Reg. Trustees, N. A. C. H. P. N. v. M. H. W. U. N (1998) ALL FWLR (Pt. 412) 1013; Uzodinma v. Izunaso (2011) 5 MJSC (Pt. 1) 27; Tukur v. Uba (2012) 2012) 6-7 MJSC (Pt. IV) 156.
I should perhaps, also restate the law that until a party disputes, denies or challenges a fact deposed to by another, no issue would in law be joined by the parties on the fact which will require, warrant or call for proof by way any or further evidence. The question of proof pre-supposes the existence of a dispute or disagreement between the parties on a particular material fact and where no such dispute exists, the question or issue of proof would not arise since the law remains that what is admitted; expressly or by implication or presumption of the law, needs or requires no further proof. See Section 123 of the Act, Akibu v. Oduntan (1992) 2 NWLR (Pt. 222) 210; Nwakama v. Mil. Adm., Abia State (1995) 4 NWLR (Pt. 388) 185; United Nig. Insur. Co. Ltd v. Univ. comm. & Ind. Co. Ltd. (1992) 3 NWLR (Pt. 573) 17; Obmiami, Brick & Stone v. ACB Ltd (1992) 3 NWLR (Pt. 229) 260; Abacha v. Fawehinmi (2000) FWLR (Pt. 4) 533; NNB v. Denclag (2005) 4 NWLR (Pt. 916) 549.
The case presented by the Appellant before the Lower Court on the facts that she had filed an action before the High Court in Suit No. LD/1242/2012 and an appeal in respect of same to this Court, is contained in paragraph 4, of the Initial Affidavit filed on 12th of December 2015, as follows: –
“4. The Applicant on 13/8/12 sued Finbank Plc to Court by a writ of Summons and Statement of Claim based on the following facts:
a. The Applicant as a customer of Finbank Plc maintains a current account number 100433086201 with the bank and applied to the said bank for a loan facility by a letter dated 2/11/07 which was availed to the Applicant vide an offer letter dated 21/12/07.
b. The Bank’s offer letter was for the sum of ₦210,000,000 (Two Hundred and Ten Million Naira) to finance the acquisition of acceptable stocks for the Applicant from the capital market.
c. The repayment source was to be cash flow from operations.
d. The Security for the loan were:
i. Lien on equity contribution of stock.
Ii Lien on the said stock financed through First Inland Securities and Assets Management Limited (hereinafter referred to as “FISAM”)
e. One of the other conditions is that the bank had the right to call-in the facility and dispose of the shares pledged as collateral if at any point in time the value of the shares used as security falls below 20% cover as a result of price fluctuations and after due notice to the borrower and he fails or is not willing to offer additional collateral to augment the existing collateral up to agreed cover within 4 days grace period.
f. The Applicant accepted the offer and in line with the agreement, pledged as security her ETI 422,400 and DANGOTE SUGAR 370,000 units of shares as lien for the facility vide a joint memorandum dated 21st December 2007.
g. The Applicant also forwarded to the bank’s First Inland Securities and Assets Management Limited, a letter of authority to dispose of her shares: purchase order form: Authority to verify/sell her shares (all to be dated/filed by the bank at its will/pleasure) and a letter of consent addressed to the CSCS to sell the Applicant’s Shares.
h. The Applicant also executed a tripartite agreement involving herself, the bank and the bank’s Securities and Assets management outfit wherein it was agreed inter alia that the Stockbroker shall sell the borrower’s shares held on the account once the borrower’s equity contribution falls below the re-agreed threshold (if the market value of the shares depreciates by 20%) provided the borrower was informed of the depreciation and she fails to provide more equity.
i. Pursuant to the Applicant’s letter dated 11/8/08, the bank extended the Claimant’s facility vide offer letter dated 10/12/08 upon the following new conditions:
i. Amount: ₦166,878,394:21
ii. Tenor: 363 days
iii. Interest rate: 20% per annum, subject to changes in money market conditions.
iv. Processing fee: 0.25% flat (payable upfront)
v. Management fee: 1% flat (payable upfront)
vi. Commitment fee: 0.75% flat (payable upfront)
vii. Security:
i. Lien on stocks financed through FISAM
ii. Lien on shares provided by Mrs. Ifeoma Norah Oguonu as existing equity contribution.
iii. Lien on additional security provided by Mrs. Ifeoma Oguonu.
j. One of the other conditions is that Finbank reserves the right to call-in the facility and dispose of the shares pledged as collateral if at any point in time the value of the shares used as security falls below 130% cover as a result of price of fluctuations and after due notice to the borrower and he fails or is not willing to offer additional collateral to augment the existing collateral up to agreed cover within 4 days grace period.
k. The Applicant stated that the bank was negligent in the way and manner the bank managed its equity contribution of stock i.e, ETI 422,400 and DANGOTE SUGAR 370,000 unit of shares and the Stock financed through the First Inland Securities and Asset Management Limited (FISAM) all kept in the bank’s custody as collateral for the ₦210,000,000 (Two Hundred and Ten Million Naira) facility extended to it based inter alia on the following particulars of negligence:
a. Failure to sell shares on falling below 20% cover:
i. From the offer letter dated 21/12/07, the bank was to sell/dispose of the shares if the value of the shares fall below 20% cover.
ii. From the forensic report dated 28/6.12 prepared by Messrs Ikem Mbanugo of Ikem Mbanugo & Co. (chartered accountants), the shares fell below the said 20% on 23/6/08.
iii. The bank had the Applicant’s letter of authority to dispose of her shares; purchase order form; authority to verify/sell her shares (all to be dated/filled by the bank at its will/pleasure) and a letter of consent addressed to the CSCS to sell the Applicant’s shares and yet neglected/failed to sell/dispose of the said shares as at 23/6/08 (or at least reasonably thereafter) when the shares fell below 20% cover.
iv. If the bank had sold on 23/06/08, in line with the agreement, the sum of ₦186,509,170.10 would have been realized. Total indebtedness as at the said date would have been ₦224,377,119, less 3% commission (₦9,325,458.51) and the outstanding indebtedness would have been ₦47,193,408. Thus, the Applicant’s account would have been in credit of ₦23,806,592 (Twenty three Million, Eight Hundred and Six Thousand, Five Hundred and Ninety Two Naira) on July 2, 2008 when the ₦71 Million was transferred.
l. The Applicant therefore claimed against the bank as follows: ₦23,806,592 (Twenty Three Million, Eight Hundred and Six Thousand, Five Hundred and Ninety Two Naira) as special damages.
m. The Applicant also claim interest at the rate of 25% per annum from 23/6/08 until judgment and thereafter at 20% until final liquidation and One Hundred Million Naira (₦100,000,000) as general damages for negligence.
n. Surprisingly, the Respondent wrote the Applicant by letter dated 3rd July, 2014 asking it to pay for the debt of ₦245,857,640.55 with accrued interest of N132, and 148,481.80 amounting to ₦378,006,122.35 arising from the same transaction for which the Applicant had sued the bank which non-performing loan the Respondent stated that it had acquired. The said letter is herein attached as Exhibit A.
o. The Applicant in a reply letter dated 27/8/14 through her counsel clearly notified the Respondent that it had filed a case in Court against Finbank concerning the loan of which she suffered great loss and hence claiming the sum of ₦23,806,592 (Twenty Three Million, Eight Hundred and Six Thousand, Five Hundred and Ninety Two Naira) as special damages being money which the Applicant would have realized after paying the bank off and that the matter was struck out by the Lagos State High Court but that the Applicant appealed the ruling of the said Court and which appeal is still pending.
p. The said Applicant’s letter dated 27/8/14 (herein attached as Exhibit B) was attached with the following documents:
1. The Applicant’s Writ of Summons and Statement of Claim filed on 13/8/13.
2. The Statement of Defence of the bank filed on 23rd October 2012 with an application challenging the jurisdiction of the Court.
3. The ruling of the Court on 9/5/13 on the bank’s preliminary objection holding that it has no jurisdiction.
4. Applicant’s appeal against the said ruling to the Court of Appeal Lagos as the High Court has jurisdiction under the constitution to determine any dispute between the bank and its customer.
5. The Applicant’s motion to amend the Notice of Appeal with a deeming order dated 9/10/13.
6. The Amended Notice of Appeal dated 9/10/2013.”
Then in paragraph 5 of the Further Affidavit filed on 7th of July, 2015 it was deposed that: –
“5. There is need to further bring the attention of the Court to the Respondent’s Motion on Notice for extension of time (filed on 23/3/15) and the Respondent’s brief of argument (filed on 20/3/15) both dated 20/3/15 and both attached herein as Exhibit E in response to the said Plaintiff’s brief at the Court of Appeal.”
In the 2nd Further Affidavit of the Appellant in support of the summons, it was averred in paragraph 4b that: –
“4. I know as a fact that:
b. Contrary to the Respondent’s paragraphs 6, 7 and 8, the Respondent was still making demand on an alleged indebtedness of the Applicant even after having been informed of the Applicant’s suit against the said bank hinged on a forensic audit of the loan transaction.”
Not yet done, the Appellant filed a 3rd Further Affidavit in support of the summons on the 13th of February, 2017 and in paragraphs 4-9 thereof deposed that: –
“4. The Application contained inter alia the applicant’s letter to the Respondent (EXHIBIT B) wherein the Applicant mentioned and attached the following documents:
a. Ruling dated 9/5/13 of the High Court of Lagos State per Atilade J on the Applicant’s suit No. LD/1242/2912 filed against Finbank for the bank’s liability in negligence in the management of the Applicant’s stocks (Contained in Exhibit B);
b. Applicant’s Notice of Appeal dated 7/8/2013 against the said ruling the High Court of Lagos State, per Atilade J on the Applicant’s suit No. LD/1242/2012. (Contained in Exhibit B);
c. Amended Notice of Appeal dated 9/10/2013 (Contained in Exhibit B);
5. The Application also contained the Appellants’ brief of argument dated 24/10/14 (as Exhibit C).
6. The Applicant later filed a further affidavit dated 7/7/2015 wherein it inter alia forwarded to the Court, the Respondent’s (Finbank) Brief of Argument dated 20/3/15 (i.e., Exhibit E).
7. All the processes of Court as mentioned above, apart from the ruling dated 9/5/13, are not certified.
8. The Applicant hereby forwards the certified true copy of the said processes to this Honourable Court as follows:
a. Applicant’s Notice of Appeal dated 7/9/2013.
b. Amended Notice of Appeal dated 9/10/2013.
c. Appellant’s brief of argument dated 24/10/14.
d. Respondent’s (Finbank) Brief of Argument dated 20/3/15.
9. All the said processes (certified true copies) referred to in paragraph 7 above are herein attached as Exhibit F1.”
In the only Counter Affidavit filed by the Respondent on the 22nd September, 2015 and deposed to by Olawanle Ajose; a Legal Practitioner in the Chambers of the Respondent’s Counsel, it was deposed in paragraphs 8 and 9 that: –
“8. That the said suit filed against Finbank Plc by the Applicant at the High Court of Lagos State was filed on or about 13th August 2012.
9. That we have conducted a search of all relevant papers in this suit and we have found no Court order served, made or subsisting against AMCON in respect of the loan agreement between the Applicant and Finbank Plc that was assigned to AMCON.”
Without the need to waste verbiage, these averments are an express admission and acknowledgement by the Respondent that it was in fact aware of and had indeed taken active steps in the suit filed by the Appellant on the subject matter, before the High Court by conducting “a search of all relevant papers in this suit.”
The averments of the Respondent constitute an admission and confirmation of the depositions by the Appellant in the Supporting Affidavit of the existence of the Suit No. LD/1242/2012 before the High Court and the knowledge of the Respondent about same.
The parties are therefore one, in agreement and ad idem on the fact that the said suit was filed by the Respondent and so no dispute or disagreement arises or arose between them on the factual existence of the suit to require, call for or warrant any further proof by the Appellant. In law, with the express admission and acknowledgement by the Respondent of the existence of the suit filed by the Appellant before the High Court, there was/is no legal burden on the Appellant beyond the sworn depositions in the Sworn Affidavits, to further prove the existence of the suit by way of the processes used to commence or initiate it before the High Court. Such a burden would have arisen and been borne by the Appellant if the Respondent had directly, frontally, specifically and effectively denied and controverted the avernments of the Appellant on the existence of the suit and knowledge thereof by the Respondent. That would have called for further or other evidence outside of or in addition to the conflicting avernments of the parties, be it documents attached to the Affidavits as Exhibits or oral evidence, as the case may be, to enable the Court resolve the conflict. See Ikpana v. Reg. Trustees, PCN (2006) ALL FWLR (Pt. 310) 1703; AG. Adamawa State v. A. G. Federation (2006) ALLFWLR (Pt. 299) 1450; G. M. O. N & S. Co. Ltd v. Akputa (2010) 9 NWLR (Pt.1200) 443; Eimskip Ltd. V. Exquisite Ind. Ltd (2003) 4 NWLR (Pt. 809) 88; Dana Impex Ltd. V. Awukam (2006) 3 NWLR (Pt. 968) 544; Bawa v. Phenias (2007) 4 NWLR (Pt. 1024) 251.
Like I stated earlier, in the Appellant’s case before Lower Court, the legal need for further proof of the existence of the Suit No. LD/1242/2012 filed by the Appellant before the High Court did not arise in view of the express admission and acknowledgement of that fact by the Respondent in the Counter Affidavit which rendered the copies of the High Court processes used to commence the suit attached to the Appellant’s Affidavits in addition to and as further support of the avernments on the existence of the suit, rather superfluous, otiose, and unnecessary in the circumstances of the case. In that regard, whether the copies of the said processes were certified or not, is non-sequitur for the purpose of the factual existence of the suit to which they related since there is no issue joined by or dispute between the parties on that fact in their respective Affidavits.
As stated before now, the issue of certification of the copies of the said processes would have been relevant and material if there was a dispute between the parties and they joined issue on the existence of the suit in their Affidavits and they were to be used as the hanger for the resolution of the issue or dispute and assessment of the avernments.
In the above premises, the Lower Court was not called upon by the Appellant to speculate, it had no duty to and it was unnecessary for it to have had recourse to the copies of the High Court processes used by the Appellant to commence the Suit No. LD/1242/2012 attached to the Appellant’s Affidavit for the determination of whether the suit and its subject matter was in fact filed by the Appellant since the parties are ad idem thereon from the Affidavit evidence placed before it. Facts which have been expressly admitted and acknowledged to be true and correct by the parties in their sworn depositions are beyond the realm of speculation for the Lower Court to embark on a voyage of discovery in order to place a burden not imposed by the law on the Appellant to further prove such facts.
It is also pertinent to point out that the Respondent did not challenge, deny or controvert any of the material facts deposed to in the matter of the Suit No. LD/1242/2012 but only made avernments denying liability under the AMCON Act, as if the suit was for trial before the Lower Court in the summons and that it was not aware of any pending suit at the time of the purchase and assignment of the loan owed by the Appellant paragraph 10(iv) of the Counter Affidavit. As a reminder, the material and relevant facts of the Appellant’s summons are that Respondent in spite of being aware of the Appellant’s Suit No. LD/1242/2012 and Appeal still wrote the letter of 24th of November, 2014 demanding for the payment of an alleged debt which was subject of the suit, to the Appellant. The Lower Court therefore misconceived the Appellant’s case when it stated in the judgement at page 294, of the Record of Appeal that: –
“It is clear from the reliefs/claims of the Applicant that this action is solely predicated and dependent on the success or failure of Suit No. LD/1242/2012 – pure and simple.”
Once again, the Suit No. LD/1242/2012 was not on trial before the Lower Court and its success or failure was not submitted for determination by it in the summons on the reliefs sought therein. The questions or issues submitted to the Lower Court in the summons for answers and determination are precisely on the existence of Suit No. LD/1242/2012 and the propriety and validity of the letter of 24th of November, 2014 during the pendency of the suit and the appeal therefrom: “pure and simple”.
The summons did not call for or warrant a determination of the Appellant’s cause of action in the suit before the High Court, the fact of which the Lower Court said and found was not properly before it, and so it veered off in a vain sojourn of determining that the Appellant, as debtor, cannot sue her creditor for a declaration as to the amount owed and so has no cause of action in the suit which was not properly before it. What a summersault! In the first instance, because the copies of the processes used to commence the suit at the High Court were not certified, they were not properly before the Lower Court to enable it look at and consider the contents thereof in order to determine the existence of the suit. In the second instance, the Lower Court looked into the same processes, considered and determined that the same Appellant’s suit/case did not disclose a cause of action against the Respondent and so was incompetent. The law still remains that a Court should be consistent in its decisions/findings in a case and should be limited or confined in so doing, to the issues or case presented before it by the parties. See Akpan v. Utim (1996) 7 NWLR (Pt. 463) 834; Ogbu v. Ani (1994) 7 NWLR (Pt. 355) 761; Kasimu v. NNPC (2008) 3 NWLR (Pt. 1075) 569; Odekilekun v. Hassan (1997) 12 NWLR (Pt. 531) 56; Orizu v. Anyaegbunam (1978) 5 SC, 21; Overseas Constr. Co. Ltd v. Creek Ent. Nig. Ltd. (1985) 3 NWLR (Pt. 13) 407; Okpanum v. S. G. E. Nig. Ltd (1998) 7 NWLR (Pt. 559) 537.
The above apart, if indeed the Appellant’s Affidavit evidence before Lower Court did not satisfactorily prove that she was entitled to the reliefs sought on the summons on any cognizable ground, the proper order for the Lower Court to have made was to dismiss the summons since the reliefs are declaratory in nature, the grant of which is in law, predicated on proof of such entitlement by a claimant. Alao v. Akano (2005) 4 SC, 25; Kwajaffa v. Bank of the North (2004) 5 SC (Pt. 1) 103; Akinyele v. Afribank (2010) 8 NWLR (Pt. 305) 722; Orlu v. Gogo-Abite (2010) 8 NWLR (Pt. 1196) 307. If it was right in the finding that the Appellant’s evidence did not show the entitlement to relief 1; which the Lower Court described as “the primary or main claim of the Applicant, and the gravamen or pivot on which the Applicant’s action revolves” (see page 293 of the Record of Appeal), the Respondent would have been right in asking for the variation of the order striking out to that of an order of dismissal of the summons. But as demonstrated earlier, the Lower Court was in gross error of law in the finding that the Affidavit evidence placed before it by the Appellant did not prove the existence of the suit before the High Court and the appeal before this Court at the time the letter of 24th of November, 2014 was written by the Respondent.
Again, I have shown earlier that the issue or question of the Appellant’s cause of action in the suit before the High Court was not one presented before the Lower Court for determination in the summons and it has no vires and requisite competence to raise and decide an issue outside the case placed before it by the parties. So the order to strike out the summons for allegedly being incompetent on the ground that no cause of action was disclosed is itself incompetent, ultra vires and cannot be allowed to stand.
In the result, for the reasons aforementioned, I find that the finding and decision by the Lower Court to strike out the Appellant’s summons on the ground that the Affidavit evidence placed it did not show or prove the existence of the Suit No: LD/1242/2012 and that no cause of action was disclosed by the Appellant in the said suit, are grossly erroneous in law.
This position has effectively overtaken the Respondent’s Notice for the variation of striking out order since the order is not supported by or supportable in law, there is no longer a valid order to be varied by the Court.
In the final result, this appeal is meritorious and allowed.
Consequently, the decision by the Lower Court contained in the judgement delivered on 30th of May, 2018 striking out the Appellant’s originating Summons, is set aside, as prayed in the relief sought on the Notice of Appeal.
In further consequence, from the Affidavit evidence before the Lower Court, the Appellant is entitled to the grant of the reliefs sought in the summons, but only pending the determination of the pending appeal before the Court in respect of the Suit NO. LD/1242/2012.
Parties shall bear their respective costs of prosecuting the appeal.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the privilege and opportunity to read in draft the lead judgment delivered by my learned brother Mohammed Lawal Garba JCA. I agree entirely with the reasoning and conclusion reached therein.
In consequence, I equally find this Appeal meritorious, and allow same.
I abide by the orders made therein.
I make no order as to costs.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother MOHAMMED LAWAL GARBA, JCA and I totally endorse the reasoning and conclusion therein.
It is trite that what is admitted needs no proof and once parties by the processes filed before the Court are seen to be ad idem on an issue, it is needless and unjustifiable for a Court to place the burden of proof in respect thereof on one of them. See DIN V. AFRICAN NEWSPAPERS OF (NIG) LTD (1990) LPELR-947(SC).
For the more detailed consideration in the lead judgment of my learned brother, I equally hold that the appeal has merit and it is accordingly allowed.
I adopt the consequential orders in the lead judgment as mine.
Appearances:
Emmanuel Uwadoka For Appellant(s)
Adebanjo Oyagbola For Respondent(s)
