KEYSTONE BANK LIMITED v. A. O. S. PRACTICE
(2013)LCN/5992(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of March, 2013
CA/L/165/12
RATIO
AFFIDAVIT: DEFINITION AND NATURE
It is a trite principle, that an affidavit is a statement of fact which the deponent thereof swears to be true to the best of his knowledge, information and belief. An affidavit must thus contain only those facts of which the deponent has personal knowledge, or based on information which he believes to be true: Section 86 of the Evidence Act. In that case, the deponent is required to state the grounds of his belief; the name and full particulars of the informant thereof. See Sections 88 & 89 of the Evidence Act.PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
AFFIDAVIT: AN AFFIDAVIT MUST NOT CONTAIN LEGAL ARGUMENTS
It’s equally the requirement of the law, that an affidavit must be devoid of legal argument, conclusions or other extraneous matters. See Section 87 of the Evidence Act. Thus, as aptly, and rather authoritatively, held by the Supreme Court –
“Any paragraph of an affidavit which offends against any of these provisions may be struck out, but if it is not struck out, then the court should not attach any weight to it.”
Per Kutigi, JSC (as he then was) in JOSIEN HOLDINGS LIMITED & ANR: SC./83/1992: (1995) 1 NWLR (Pt.371) 254; 265; See also BANQUE DE L’ AF-REIQUE OCCIDENTALE VS. ALAHAJI BABA SHARFADI & ORS. (1963) NNLR 21; HORN VS. RICKARD (1963) 2 ALL NLR 41; (1963) NNLR 67.PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
JUSTICE
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
Between
KEYSTONE BANK LIMITED Appellant(s)
AND
A. O. S. PRACTICE Respondent(s)
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment): The present appeal is a fall-out of the ruling of the Lagos State High Court, Lagos Judicial Division, which was delivered on January 24, 2012 by the Hon. Justice A. A. Phillips, J (as the learned trial judge then was) in Suit No: LD/1179/2011. By the ruling in question, the court below granted the Respondent’s (Claimant’s) application seeking to substitute the Appellant for Bank PHB Plc (Defendant), and accordingly dismissed the Appellant’s preliminary objection. Dissatisfied with the said ruling, the Appellant filed the Notice of Appeal thereof on 10/02/12 in the court below. The notice of appeal is predicated upon a total of three grounds, thereby praying the court to allow the appeal, set aside the order of the court substituting the Appellant for Bank PHB, and accordingly dismiss or strike out the Respondent’s application for substitution in question.
BACKGROUND FACTS:
The facts and circumstances surrounding the appeal are certainly not far-fetched. They are deducible from the records of appeal. On June 27, 2011, the Respondent filed the Suit (No: LD/1179/2011) in the court below vide a writ of summons along with a 14 paragraphed statement of claim, seeking various monetary and declaratory reliefs against Bank PHB Plc. The reliefs sought by the Respondent against the said Bank PHB Plc are to the following effect:
(i) The sum of N1,338,777,209.56 (One Billion, three hundred and thirty eight Million, Seven hundred and Seventy Seven thousand, two hundred and nine Naira, fifty six Kobo) being the professional fees for the legal services rendered by the Claimant to the Defendant at the request of the Defendant, the details of which are as pleaded in the statement of claim.
(ii) Interest on the said sum of N1,338,777,209.56 (One Billion three hundred and thirty eight Million, Seven hundred and Seventy seven thousand, two hundred and nine Naira, fifty six kobo) at the rate of 21% per annum till judgment is delivered and thereafter at the rate of 18% per annum till judgment sum is liquidated.
(iii) A declaration that the claimant has a lien on the sum of N3,779,730,126.34 kept with Access Bank Plc. In the name of Mareva injunction obtained by the claimant working as solicitors to the Defendant in Suit Nos: ID/38/2010 and ID/178/2010 until the Defendant pays the Claimant the sum of N1,338,777,209.56 (One Billion three hundred and thirty eight Million, Seven hundred and Seventy seven thousand, two hundred and nine Naira, fifty six Kobo) being its professional fees for the services rendered to the Defendant.
(iv) Cost of this action as assessed at N75,000,000.00 (Seventy five, Million Naira) only.
However on 07/10/11, the Respondent deemed it expedient to file a motion on notice seeking the following reliefs:
1. AN ORDER of this Honourable Court for leave to substitute the name Keystone Bank Limited for Bank PHB sued in this action as Defendant.
2. AN ORDER of Court deeming all processes filed with the Defendant’s name as Bank PHB Plc as being properly filed against Keystone Bank Plc.
3. AN ORDER of Court directing parties in this Suit to reflect Keystone Bank Limited as the Defendant in the subsequent processes to be filed by parties.
The application was supported by a 9 paragraphed affidavit and a further affidavit. On 18/10/11, the Appellant filed in the court below a notice of preliminary objection as a reaction to the Respondent’s application in question. The notice of preliminary objection is to the following effect:
1. AN ORDER of this Honourable Court striking out the Motion on Notice of the Claimant/Respondent dated 7th October 2011 and the affidavit deposed to by Rasheed Lawal on 7th October 2011 in support of the said Motion on Notice of the Claimant/Respondent dated 7th October 2011 seeking the leave of this Honourable Court to substitute the name Keystone Bank Limited for Bank PHB the Defendant herein on the grounds that the affidavit in support of the said motion offends the provisions of the Evidence Act 2011.
The preliminary objection is predicated upon four grounds, viz:-
(i) The affidavit in support of the said motion on Notice deposed to on 7th October 2011 by Rasheed Lawal violates the provisions of the Evidence Act 2011 in respect of the contents of affidavits.
(ii) The deponent of the said affidavit has not deposed to facts from his personal knowledge neither did he set forth the source of his belief and the particulars of the source of his information.
(iii) The information the deponent deposed to at paragraph 60 of the said affidavit which information which he purported to obtain from Fayokemi Owolabi (“the informant”) are not facts within the knowledge of the information.
(iv) Since the affidavit is defective the motion on Notice filed together with it is incompetent and ought to be struck out by the Honourable Court.
The learned counsel to the respective parties addressed the court below regarding both application and the preliminary objection thereto. On 27/01/12, the court below delivered the vexed ruling to the conclusive effect thus:-
It is therefore clear from the exhibits that annexed to the further Affidavit that the Defendant has been taken over by Keystone Bank Ltd who has also been in direct communication with the Claimant herein, so I really do not see why it should not be substituted as the Defendant in this matter.
I therefore see no reason why I should not accept these depositions as they are perfectly in order.
I therefore overrule the preliminary objection and do hereby accordingly dismiss same. The Claimant’s application for substitution is granted and it is ordered as prayed. Keystone Bank Ltd is accordingly substituted for the Defendant in this action and the Claimant shall serve all the processes filed herein on the said Bank within 7 days from today. The new Defendant in this action shall cause appearance to be entered on its behalf as provided for in the 2004 Rules of this Court and shall file and serve its statement of Defence and other processes within 42 days from the date of service.
I make no order as to cost.
As alluded to above, it’s against the above ruling of the court below that the instant appeal was filed on 10/02/12. The Appellant’s brief of argument was filed on 15/10/12. It spans a total of 28 pages. At page 6 of the brief, the Appellant has formulated two issues for determination, viz:-
i. Whether the two affidavits filed by the Respondent in support of its application dated the 7th day of October 2011 breached the provisions of the Evidence Act. (This issue arises from Grounds 1 and 2 of the Notice of Appeal).
ii. Whether the trial court should have relied on the Exhibits attached to the further Affidavit filed by the Respondent in support of its application, since they were not public documents as acquired by the provisions of the Evidence Act. (This issue arises from Ground 3 of the Notice of Appeal).
On the other hand, the Respondent’s brief was filed on 01/6/12. It spans a total of exactly 29 pages. Pages 1 – 4 of the brief deal with preliminary objection and argument canvassed thereupon. Pages 4 – 27 of the brief relate to the argument on the appeal on the merits. The list of authorities cited is contained at pages 28 – 29. It is most fundamental that the preliminary objection takes precedent over the determination of the appeal on the merits. Thus, I now proceed to deal with the preliminary objection, first and foremost.
THE RESPONDENT’S PRELIMINARY OBJECTION:
Instructively, the Respondent’s notice of preliminary objection raises an objection to, the competence of Grounds 1, 2 & 3 of the Notice of Appeal, dated and filed on 08/02/12. The objection is predicated upon a total of 9 grounds, viz:-
GROUNDS OF OBJECTION
(1) By Section 241 (b) and 242 (1) of the 1999 Constitution, an appeal against an interlocutory decision of the High Court which is on grounds of fact or mixed law and fact requires the leave of the High Court or the Court of Appeal.
(2)Where leave of the High Court or the Court of Appeal is required before an Appellant can file a Notice of Appeal and same is not obtained by the Appellant such appeal is incompetent.
(3) Ruling delivered by the High Court on 27th January, 2012 is an interlocutory decision.
(4) The three grounds of appeal contained in the Notice of Appeal filed by the Appellant against the ruling of the High Court delivered on 27th January, 2012 are at best grounds of mixed law and facts.
(5) By the provisions of Sections 241 (b) and 242 (i) of the 1999 Constitution, the Appellant required the leave of the High Court or the Court of Appeal to file the Notice of Appeal filed on 8th February, 2012.
(6) Appellant did not obtained leave of the High Court or that of the Court of Appeal before filing his Notice of Appeal in this appeal.
(7) Since Appellant failed to obtain the leave of the High Court or court of Appeal, to appeal against the interlocutory decision of the High Court which grounds of appeal are of mixed law and fact, the Grounds of Appeal are incompetent.
(8) Since the Appellant’s Grounds of Appeal are incompetent, the issues and Brief of Argument formulated from the Grounds of Appeal are incompetent.
(9) Since Appellant’s has no competent Grounds of Appeal and Brief of Argument before the Court, the Appellant’s appeal is liable to be dismissed by this Honourable Court.
In a nutshell, the submission of the Respondent on the objection is to the effect, that the 3 grounds of appeal in question are at best grounds of mixed law and fact, since they complained of the Respondent’s affidavit and exhibits relied upon by the trial court in granting the motion for substitution.
It’s argued, that the appeal, being an interlocutory appeal with grounds of mixed law and facts, the Appellant was required by Sections 241 (b) & 242 (1) of the 1999 Constitution to obtain the leave of either the court below or the court of Appeal before filing the said notice of appeal. The Appellant failed to obtain the required leave, thus rendering the said grounds of appeal incompetent. See ANOGHALU VS. ORAELOSI (1999) 13 NWLR (Pt. 634) 297 @ 307 F – G; UBN VS. SOGUNRO (2006) 16 NWLR (Pt. 1006) 504 @ 519 – 520 E – C; GENERAL ELECTRIC COMPANY VS. AKANDE (2010) 18 NWLR (Pt. 1225) 596 @ 623 C – D; 625 – 626 H – A.
That, having failed to obtain leave of the trial court or this court, as required by Sections 241 (b) & 242 (1) 1999 Constitution, the appeal is rendered incompetent, and cannot be entertained by this court. See UGO VS. UGO (2008) 5 NWLR (Pt.1079) 1 @ 14 F – G. OKWUAGBALA VS. IKWUEME (2010) 19 NWLR (Pt. 1226) 54 @ 64 C – E. Thus, the court has been urged upon to dismiss the appeal, for being incompetent.
The Appellant responded to the preliminary objection vide the reply brief thereof dated and filed on 14/01/13. The reply brief spans a total of 26 pages.Pages 4 – 11 of the reply brief relate to the argument on the preliminary objection. Pages 11 – 25 relate to argument on points of law.
It was submitted, that the objection is misconceived. That, the 3 grounds of appeal are purely grounds of law, as they raise issues regarding the lower courts misapplication of law to the facts, and the misunderstanding of the law to be applied to the facts. And that, by the provision of Section 241 (1) (b) of the 1999 Constitution, an appeal from the decisions of a Federal or State high Court shall lie as of right, and without leave, where the ground of appeal involves questions of law alone. Thus, an interlocutory appeal hinged on only grounds of law will require no leave. See EKWULUGO VS. ACB NIG. LTD. (2006) 6 NWLR (Pt. 975) 30 @ 40 C – D; MADUABUCHUKWU VS. MADUABUCHUWKU (2006) 10 NWLR (Pt. 989) 475 @ 492, G – H; ADETONA VS. EDET (2001) 3 NWLR (Pt. 699) 186; NWABUEZE VS. NWORA (2005) 8 NWLR (Pt. 9326) 1.
It was contended, that the cases relied upon by the Respondent even supported the Appellant’s position on the point. See GENERAL ELECTRIC COMPANY VS. AKANDE (2010) 18 NWLR (Pt. 1225) 596 @ 625 – 626 H – A; OGBECHIE VS. ONOCHIE (1986) 2 NWLR (Pt. 23) 484 @ 491 – 492 G – H, IBIYEYE VS. FOJOLE (2006) 3 NWLR (Pt. 968) 640, 654 E – H; NWADIKE VS. IBEKWE (1987) 4 NWLR (Pt. 67) 718.
It was finally contended, that by the Supreme Court’s decision in OGBECHIE VS. ONOCHIE (supra), the instant case is clearly a ground or question of law. Thus, the Court has been urged to so hold, and accordingly dismiss the preliminary objection.
As alluded to above, the three grounds of appeal in question are contained at pages 1127 – 1130 of Volume 2 of the Record. I have deemed it expedient to reproduce the said grounds of appeal, without their particulars, as follows:
GROUND NUMBER 1
The learned judge of the lower court erred in law when she held that the application of the Respondent dated 7 October 2011 did not contravene the provisions of the Evidence Act.
GROUND NUMBER 2
The learned judge of the lower court erred in law when she relied on the statements of the deponents on the basis that he worked in the law firm of the Respondent. The learned judge of the lower court erred when it (sic) held that:
‘In the further Affidavit deposed to by the same deponent, he stated that by virtue of his duties in the chambers of the counsel for the Claimant he is very aware of the daily goings on in the Defendant especially as that chambers has acted for the Defendant in several cases before its banking license was revoked.’
GROUND NUMBER 3
The learned judge of the lower court erred in law when she relied on the Exhibits annexed by the Respondent to its further Affidavit to prove that Bank PHB Plc had been taken over by Keystone Bank Ltd.
It has been postulated upon in paragraphs 22, 23, & 24 of the reply brief, that the point raised in paragraphs 1.01 & 1.02 of the Respondent’s brief delve into the substantive appeal, thereby appealing to sentiments in order to prejudice the mind of this court. I am of the considered view, that submission is highly misconceived, to say the least! It is rather obvious, that the said paragraphs 1.01 & 1.02, at page 2 of the Respondent’s brief, are merely introductory. They are factual representation of the facts that (i) the application in question was indeed filed; and that (ii) the lower court did rule, thereby granting the application, and dismissing the Respondent’s preliminary objection. Thus, in my paramount view, it would be highly preposterous for the Appellant to contend, as it did, that the said paragraphs 1.01 & 1.02 of the Respondent tended to appeal to sentiments in order to prejudice the law of this court. And I so hold!
Instructively, the pertinent question that ought to be posed, at this point in time, is whether or not the instant appeal is interlocutory. And the answer to that pertinent question is most certainly not farfetched! Both parties are ad idem that the appeal is interlocutory. And I have no reason whatsoever not to believe, or hold otherwise.
Secondly, it’s equally pertinent to pose the question as to whether the three grounds in question are grounds of law alone, or of mixed law and facts or facts. By virtue of the unequivocal provisions of Section 241 (1) (b) of the 1999 Constitution, as amended, an appeal shall lie from the decisions of either the Federal High Court, or High Court of a State, to the Court of Appeal, as of right:
“(b) where the ground of appeal involves questions of law alone decisions in any civil or criminal proceedings;”
Conversely, by virtue of Section 242 (1) of the 1999 Constitution (supra), an appeal shall lie from decisions of the Federal or State High Court to the Court of Appeal, with the leave of either the Federal or State High Court or the Court of Appeal.
The vexed issue of whether or not a ground of appeal is one of law or of mixed law and facts has been subject of a plethora of authoritative decisions by both the Apex court and indeed this court. One of the recent authorities on the issue is indeed the case of GENERAL ELECTRIC COMPANY VS. AKANDE (2010) 18 NWLR (Pt. 1225) 596, wherein the Supreme Court was reported to have aptly held, inter alia, thus:
“In deciding whether a ground of appeal is one of law or of fact or of mixed law and fact the grounds must be examined to see whether it is one a misunderstanding by the Court of the law or a misapplication of the law to facts already established. So where the complaint in the ground of appeal is one of misunderstanding, by the court of the law or misapplication of the law to the facts established then the ground of appeal is a ground of law. Where the ground of appeal disputes the evaluation of facts by the court before applying the law, it is a ground of mixed law and fact at 625 – 626 paragraphs H – A.
In the instant case, it’s rather obvious, that none of the three grounds of appeal in question complains about evaluation of fact. Undoubtedly, each of the said three grounds (nay the particulars thereof) complains about misunderstanding by the court of the law and / or misapplication of the law to facts established. Thus, the three grounds of appeal in question have qualified to be so properly characterized as grounds of law, within the contemplation of the provisions of Section 241 (1) (b) of the 1999 Constitution (supra). And I so hold.
Resultantly, the preliminary objection fails, and same is hereby dismissed by me.
Having thus dismissed the preliminary objection, I now proceed to determine the appeal on the merits upon the two issues raised in the Appellant’s brief of argument. However, before proceeding to determine the appeal on the merits, I have deemed it imperative to deal with the Respondent’s submission from paragraph 3.02, at page 9, to paragraph 4.07, at page 11 of the brief thereof. At paragraph 3.02, page 9 of the said brief thereof, the Respondent submitted, inter alia, thus:-
3.02 … However, it is the contention of the Respondent that issue 3 raised by the Appellant has no basis whatsoever with Ground 2 contained in the Notice of Appeal filed by the Appellant from which the said issue was said to be formulated and Respondent will canvass argument that same be struck out with the argument on it.
The argument on the purported Appellant’s issue No. 3 is entitled:
“4.0 PROPREITY OF ISSUE 3 FORMULATED BY THE APPELLANT AND WHETHER IT CAN BE ENTERTAINED BY THIS HONOURABLE COURT.”
Undoubtedly, the allusion to the purported “issue 3” of the Appellant and the argument canvassed there against is a product of the pigmentation of the Respondent’s own imagination! It’s not at all in doubt, that the Appellant has formulated only two issues in the brief thereof. He equally canvassed argument thereof on only those two issues. Thus, the submission from paragraph 3.02, at page 9, to paragraph 4.07, at page 11 of the Respondent’s brief are highly superfluous, and same is hereby discountenanced.
ISSUE NO. 1:
The issue No.1 raises the vexed question of whether the two affidavits filed by the Respondent in support of the application thereof, dated 07/10/11, have breached the provisions of the Evidence Act. The issue was stated to have been distilled from grounds 1 & 2 of the notice of appeal. The first affidavit (07/10/11), deposed to by Rasheed Lawal could be found at pages 1061 – 1063, of volume 2 of Record of Appeal. It consists of 9 paragraphs. The said deponent thereof (Rasheed Lawal) deposed to the facts, inter alia, that (1) he’s a litigation officer in the law office of the Respondent (Claimant); (2) that he has the authority of the Respondent to so depose to the affidavit, and that-
“3. All the facts deposed to herein are facts either within my person knowledge or as informed me by Miss Fayokemi Owolabi of counsel.”
The second Affidavit (24/10/11) was the further affidavit, equally deposed to by the same Rasheed Lawal. It is contained at pages 1072 – 1076 of volume 2 of the Records. It is comprised of a total of 13 paragraphs. The deponent, inter alia, deposed to the facts that (1) he’s a legal officer in the law office of the Respondent; (2) that he has the authority and consent of the Respondent to depose to the said affidavit; (3) that he deposed to the first affidavit dated 07/10/11; and that –
4. The facts deposed to in paragraph 5 of my affidavit aforesaid are facts within my personal knowledge as a good and current citizen of Nigeria as well as an, active employee of the Claimant/Respondent who acted for the defunct Bank PHB Plc in several suits and other legal issues and have continued the prosecution of those briefs for and on behalf of its successor in title, Keystone Bank Limited.
5. I further stated that the revocation of the banking license of Bank PHB Plc vis-Ã -vis creation of the bridge bank, Keystone Bank Limited to take over its assets and liabilities are so notorious the same having been widely publicized both in print and electronic media.
7. (sic) I am very much aware that all customers of former Bank PHB Plc are now customers of Keystone Bank Limited while all debtors’ of former Bank PHB Plc are now debtors to Keystone Bank Ltd.
The said Rasheed Lawal equally deposed in paragraphs 9 and 11 of the further affidavit (24/10/11), to the following effect –
9. That Keystone Bank Limited has continued to make correspondence with my employer in respect of instructions received from the defunct Bank PHB Plc and as a matter of fact, in its letter dated 5th September, 2011, Keystone Bank Limited referred to itself as the “former Bank PHB Plc.” A copy of Keystone Bank Limited’s letter dated 5th September 2011 as well as that of the Assets Management Corporation of Nigeria (AMCON) dated 1st September 2011 are hereby attached and marked as Exhibit RA and Exhibit RB respectively.
11. Miss Owolabi Fayokemi, of counsel informed me in chambers on 19th October, 2011 at about 6p.m. and I verily believe her that:
(a) The facts deposed to in paragraph 6 of my affidavit dated 7th October 2011, based on her earlier information, are facts within her personal knowledge by virtue of being a barrister and solicitor of the Supreme Court of Nigeria as well as a counsel in chambers.
(b) The Application herein is frivolous and brought in bad faith to frustrate the continued prosecution of his suit.
Curiously, however, for reason best known thereto, the averments contained in both the first and second affidavits of the Respondent were not controverted by the Appellant in any way whatsoever. The Appellant did not deem it fit or even expedient to file any counter affidavit to challenge the averments contained in the two affidavits in question. Instead, the Appellant filed the Notice of Preliminary objection on 18/10/11 praying the lower court to strike out the Respondent’s application (07/10/11) on the simple ground that –
“The affidavit in support of the said motion offends the provisions of the Evidence Act 2011.”
It must be reiterated, at this point in time, for the avoidance of any lingering doubt, that the purported four grounds upon which the notice of preliminary objection was predicated merely serve to expatiate on the above main ground.
It is a trite principle, that an affidavit is a statement of fact which the deponent thereof swears to be true to the best of his knowledge, information and belief. An affidavit must thus contain only those facts of which the deponent has personal knowledge, or based on information which he believes to be true: Section 86 of the Evidence Act. In that case, the deponent is required to state the grounds of his belief; the name and full particulars of the informant thereof. See Sections 88 & 89 of the Evidence Act.
It’s equally the requirement of the law, that an affidavit must be devoid of legal argument, conclusions or other extraneous matters. See Section 87 of the Evidence Act. Thus, as aptly, and rather authoritatively, held by the Supreme Court –
“Any paragraph of an affidavit which offends against any of these provisions may be struck out, but if it is not struck out, then the court should not attach any weight to it.”
Per Kutigi, JSC (as he then was) in JOSIEN HOLDINGS LIMITED & ANR: SC./83/1992: (1995) 1 NWLR (Pt.371) 254; 265; See also BANQUE DE L’ AF-REIQUE OCCIDENTALE VS. ALAHAJI BABA SHARFADI & ORS. (1963) NNLR 21; HORN VS. RICKARD (1963) 2 ALL NLR 41; (1963) NNLR 67.
At page 112, (second to the last lines), and page 1124, (lines 1 – 9), of volume 2 of the Record, the lower court held thus:
I have examined the affidavit in support of the application for substitution filed by the Claimant’s counsel herein and I see nothing therein that contravenes the provisions of the Evidence Act 2011. The deponent has stated therein that the facts deposed to are both within his personal knowledge and from what he has been told by a disclosed informant who is a legal practitioner. In the further affidavit deposed to by this same deponent he stated that by virtue of his duties in the chambers of the counsel for the Claimants he is very well aware of the daily goings on in the Defendant especially as that chambers has acted for the Defendant in several cases before its banking licence was revoked.
I have myself accorded a calm, albeit critical, consideration upon the entire averments, contained in the first affidavit and the further affidavit in question vis-Ã -vis the relevant provisions of the Evidence Act (supra), most especially sections 86, 87, 88 & 89, respectively. Having thus done so, I am of the firm opinion that the above findings of the court below are unassailable, and rather in accord with the provisions of the law. There is every cogent reason for me to hold, that the court below was absolutely right when it declined to lend a credence to the Appellant’s agitation, (vide the preliminary objection thereof), to strike out the paragraphs of the two affidavits in question.
In the instant case, it was highly preposterous for the Appellant to have relied upon preliminary objection (predicated on points of law). Most certainly, the Respondent’s averments alleging, inter alia, that the taking over of the Moribund Bank PHB Plc by the Appellant is a notorious fact ought to have been strongly controverted by the Appellant vide a counter affidavit. The term judicial notice denotes a court’s acceptance of a well-known and indisputable fact, without requiring a proof therefor. Also termed judicial cognizance; judicial knowledge. See BLACK’S LAW DICTIONARY, 9th edition 2009, @ 923.
The trite general principle is that no fact of which the court must take judicial notice need be proved. See Sections 73 & 74 of the Evidence Act. In the case of SARAKI VS. KOTOYE (1990) 4 NWLR (Pt. 143) 144, it was held by the Supreme Court, that: –
Judicial notice is the cognizance taken by the court itself of certain matters which are so notorious, or clearly established, that evidence of their existence is deemed unnecessary; that is facts which need not be proved or facts proved otherwise than by evidence.
However, by virtue of the provision of Section 74 of the Evidence Act:-
(3) If the court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable it to do so.
The fact that Moribund Bank PHB Plc had been taken over by the Appellant in consequence of the revocation of the banking licence thereof by the Central Bank of Nigeria, is not in doubt. It was equally not in doubt, that the Appellant was established by the National Defence Insurance Corporation (NDIC) to take over the assets and liabilities of the Bank in question. And the fact that the NDIC is empowered under the provisions of the NDIC Act to establish the Appellant as a bridge bank has not in any way been disputed by the Appellant. The court has an onerous duty to take judicial notice of that fact.
By the provision of Section 39 of the NDIC Act –
(1) The Corporation, in consultation with the Central Bank of Nigeria, may organize and incorporate, and the Central Bank shall issue a banking licence to one or more banks, to be referred to as bridge banks which shall be insured institutions to assume such deposits and / or liabilities, and shall purchase such assets of a failing insured institution and perform any other function or business as the Corporation may determine.
In the light of the above postulations, the answer to issue No. 1 is in the negative, and same is hereby resolved against the Appellant.
ISSUE NO. 2:
The issue No. 2 raises the vexed question of whether or not the court below should have relied on the exhibits attached to the further affidavit in support of the Respondent’s application, since they were not public documents as required by the provisions of the Evidence Act. The issue has been distilled from ground 3 of the notice of appeal.
The two exhibits complained about by the Appellant are indeed exhibits RA & RB (R1 & R2 as referred to by the Appellant). To begin with, the said Exhibit RA (R1) is a letter addressed to the Respondent by the Appellant on September 5, 2011. I have deemed it expedient to reproduce it hereunder:
KEYSTONE BANK
September 5, 2011
The Managing Partner
AOS Practice
The Professional Place
142 Bamgbose Street
Lagos Island
Lagos.
Dear Sir,
PAYMENT TO DRA ON POST AMCON SALE RECOVERIES – MARLINE MARITIME
We are in receipt of a letter from the Asset Management Corporation of Nigeria, AMCON (copy attached) stating their intention to pay DRA fees on Marline Maritime.
Per the letter, we hereby request for a written confirmation of your account number with Keystone Bank (formerly Bank PHB) to enable AMCON process the referenced payment.
Kindly revert to us with a formal confirmation of your account number to enable us revert to AMCON.
Thank you.
Yours faithfully,
For: Keystone Bank Limited
Ugochukwu Elekwachi Aderemi Kuju
Asset Remedial Management Head Asset Remedial Mgt.
The second exhibit, Exhibit RB (R2) was dated September 1, 2011. It was addressed to the management of the Appellant by the Asset Management Corporation of Nigeria (AMCON). I have equally deemed it expedient to reproduce the said Exhibit RB (R2) thus:
AMCON
Ref: BA/LAG/C/80/11
September 1, 2011
The Managing Director
Keystone Bank Limited
Keystone Crescent
Off Adeyemo Alakija Street
Victoria Island
Lagos.
Attention: Adeyemi Kuju
Dear Sir,
RE: PAYMENT TO DRAs ON POST AMCON SALE RECOVERIES – AOS PRATICE
We have approval to pay AOS Practice DRA fees on Marlin Maritime. However, given that payments are made by transfers, and taking into consideration the need to avoid any future disagreements as to effective delivery of the approved sums, our accounts department has requested that the DRA provide the Corporation with a written confirmation of their account details.
Kindly request the DRA to provide this information to enable us effect the payment.
We apologies for the delay in payment.
Thank you.
Yours faithfully,
For: ASSET MANAGEMENT CORPORATION OF NIGERIA
Blessing Akoko Muhammad N. Suleman
Credit Directorate Head -Credit Resolution & Mgt.
By virtue of the two exhibits in question, it’s rather obvious, that the fact that the Appellant has taken over the assets and liabilities of the moribund Bank PHB Plc is no longer in doubt.
The argument of the Appellant, as outlined above, is that the two exhibits in question are not certified documents. They are also not official Records of NDIC or AMCON or CBN. Thus, they cannot prove the actions of any of these official bodies. The Appellant cited and relied on sections 89 (e) & (f) and 90 of the Evidence Act, for the above argument. See also MIN. OF LANDS WN VS. NNAMDI AZIKWE & ORS. (Supra) @ 57 – 58.
Ironically, however, the Respondent did not specifically respond to this issue of certification of secondary documentary evidence. By virtue of the provision of section 109 of the Evidence Act, the following documents are characterized as public documents:
(a) Documents forming the acts or record of the acts –
(i) Of the sovereign authority;
(ii) Of Official bodies and tribunals; and
(iii) Of public officers, legislative, judicial and executive, whether of Nigeria or elsewhere.
(b) Public records kept in Nigeria of private documents.
Thus, there is no gainsaying the fact, that any document that does not positively come within the am-bit of the above characterization (definition) under section 109 of the Evidence Act, it must be considered as a private document. See Section 110 of the Evidence Act; See also R. Vs LAWANI (1959) LLR 97; ACB LTD & ORS. VS. APOGU (1995) 6 NWLR 65.
Regarding certification of public document, section III of the Evidence Act is very much instructive. And by virtue of the said section III:-
(1) Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees thereof, together with a certificate written at the foot of such copy that it is a true copy of such document or pact thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, when ever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.
(2) Any officer who, by the ordinary course of official duty, is authorized to deliver such copies shall be deemed to have custody of such documents within the meaning of this section.
The term ‘proper custody’, as couched in section III of the Evidence Act, denotes the custody of any official who in the ordinary course of the official duties or functions thereof is authorized to deliver certified copies of the public document to any member of the public. Thus, the legal appointment of the official certifying the copy of the public document is needless or immaterial. It’s sufficient to merely show that the official is defecto the custodian of the document. See R. VS. PARSONS (1866) L.R.I. CCR 24; 10 COX 243.
I am mindful of the decision of the Supreme Court in the case of MINISTER OF LANDS WESTERN NIGERIA VS. NNAMDI AZIKWE (supra), to the effect that the only type of secondary evidence (of public document) permissible is a certified true copy of the document and none other.
In the instant case, however exhibit RA (R1), most especially, was written by the Appellant to the Respondent. And it’s rather obvious that neither the Appellant, nor the Respondent could properly fit into the characterization of “Public Officer” within the purview of the section 109 of the Evidence Act. Exhibit RA (R1) is at best a private document within the purview of section 110 of the Evidence Act. Indeed, it’s a trite principle, that with particular regard to private documents, it lies within the unfetted discretionary power of the court to decide on whether or not a document has been produced from proper custody. See REES VS. WALTERS (1838) 3 M & W 527: 150 ER. 1254; DOE d. THOMAS VS. BEYNON (1840) 12 AD. & EL. 431; THOMPSON VS. PERRYMAN (1832) 159 ER 1130.
Most particularly, the case of THOMAS VS. BEYNON (supra), is very much instructive. This was a case in which the Defendant produced letters thirty years old purporting to be addressed to her deceased mother. She established that all along she was living with her mother. That at the time of her mother’s demise, her papers and keys were handed over to her. The court held that the papers came from proper custody.
In the instant case, Exhibit RA (R1), was addressed to the Respondent. It’s for all intents and purposes a private document. Undoubtedly, it cannot for any stretch of imagination to described as a public document. Thus there is every cogent reason for me to hold that Exhibit RA (R1) came from proper custody.
In the circumstance, issue No. 2 is answered in the affirmative, and same is hereby resolved against the Appellant.
Hence, having resolved both issues 1 & 2 against the Appellant, there is no gainsaying the fact, that the instant appeal is devoid of merits, and it’s hereby dismissed by me. The ruling of the court below delivered on January 24, 2012 in suit No. LD/1179/2011 is hereby affirmed.
There shall be no order as to costs.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the ample opportunity of a preview of the judgment just pronounced by my learned brother, Saulawa, J.C.A., in which I concur with these few words.
The grounds of appeal In the notice of appeal complain about misunderstanding by the court below of issues of law and misapplication of law to settled facts, which are grounds of law – See Metal Construction (West Africa) Ltd. v. Migliore (1990) 1 NWLR (pt.126) 299, Diamond Bank Ltd. v. P.I.C. Ltd. (2009) 18 NWLR (pt.1172) 67 at 89, Ononuju v. Attorney General of Anambra State (2009) 5 SCNJ 31 at 45 – 46. The Appellant did not therefore require the leave of court to file an appeal on the said grounds of appeal.
The fact that the former Bank PHB Plc was succeeded by Appellant bank is a matter of common knowledge requiring no further proof under section 124(1) of the Evidence Act, 2011.
For these reasons and the more elaborate reasons contained in the judgment of my learned brother, Saulawa, J.C.A., I too find no merit in the appeal and hereby dismiss it. No Order on costs.
RITA NOSAKHARE PEMU, J.C.A.: I had read the draft and in advance, the judgment just delivered by my brother IBRAHIM MOHAMMED MUSA SAULAWA JCA, and I agree with his opinion and conclusion.
The Appeal is devoid of merit and I adopt the opinions expressed in the Judgment as mine.
I abide by the consequential order made that there shall be no order as to costs.
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Appearances
A. A. ADEGBONMIRE WITH F. C. ANAJEFor Appellant
AND
CHIEF WOLE OLANIPEKUN (SAN) WITH MR. DIPO OKPEBI (SAN), JACOB LADIPO, O. ONUONJI, C. O. ADONYE, M.A. AJABI SALA, UKIEZE, AYO ADESANI, O. NIYI AKANYEFor Respondent
