B-LINE COMMUNICATIONS LIMITED & ORS v. ACCESS BANK PLC & ANOR (2013)

B-LINE COMMUNICATIONS LIMITED & ORS v. ACCESS BANK PLC & ANOR

(2013)LCN/6361(CA)

In The Court of Appeal of Nigeria

On Friday, the 28th day of June, 2013

CA/L/07/2011

JUSTICES

AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria

CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

Between

1. B-LINE COMMUNICATIONS LTD
2. MR. DONATUS OKONKWO
3. TETTRAZANI FOODS LTD Appellant(s)

AND

1. ACCESS BANK PLC
2. CORDROS CAPITAL LIMITED Respondent(s)

RATIO

THE MEANING OF THE TERM “FUNCTUS OFFICIO”

Let us take the issue of the lower Court becoming functus officio, for instance.
Functus officio is Latin for – “having performed his or her office…without further authority or legal competence because the duties and function… have been fully accomplished”- see Black’s law Dictionary, 9th Ed. In effect, once an issue(s) has been raised and determined by the Court between the litigating parties, the Court becomes functus officio to either direct or allow the parties to re-open the same issues before it – see John Andy Sons & Co. V. N. C. R. I. (1997) 3 NWLR (Pt. 491) 1 SC and Alor & Anor V. Ngene & Ors (2007) 17 NWLR (Pt. 1062) 163 SC, where the Supreme Court also held as follows –
“A final order envisages that it is a permanent order made by the Court and the parties cannot go back to the same Court to challenge or change that order. That Court, by virtue of the order, is functus officio and the only option open to the parties is by way of Appeal against the Order”. PER AUGIE, J.C.A.

WHETHER OR NOT THE ISSUE OF JURISDICTION CAN BE RAISED AT ANYTIME OF THE COURT PROCEEDINGS

Yes, contrary to the 1st Respondent’s assertion, I do agree with them that the issue of jurisdiction can be raised at anytime and anywhere, even at the Appeal stage – see Ijebu-Ode L.G. V. Adedeji (1991) 1 NWLR (pt. 166) 136 SC and Olutola V. Unilorin (2004) 18 NWLR (Pt. 905) 416 SC, wherein it was held –
“The issue of jurisdiction being a fundamental issue, it can be raised at any stage of the proceedings in the Court of first instance or in the Appeal Courts. This issue can be raised by any of the parties or by the Court itself suo motu. When there are sufficient facts ex facie on the Record establishing a want of competence or jurisdiction in the Court, it is the duty of the Judge or Justices to raise the issue suo motu if the parties fail to draw the Court’s attention to it”. PER AUGIE, J.C.A.

WHETHER OR NOT THE COURT HAS A DUTY TO DECIDE WHETHER GRANTING AN ANCILLARY RELIEF WILL AMOUNT TO DOUBLE COMPENSATION

From the 1st Respondent, comes the ingenious arguments about a “main relief’ and “ancillary or subsidiary relief”, which is baseless and uncalled for, since there is no such distinction in the reliefs it claimed from the lower Court, and even if there was, the law is well settled that a Court has a duty to decide whether granting an ancillary relief will not amount to double compensation – See The M.V. Caroline Maersk & Ors V. Nokoy Investment Ltd. (2002) 12 NWLR (Pt. 782) 472 SC, where the Supreme Court per Ayoola, JSC, held that –
“Where the Plaintiff on a set of facts asks for a relief and a second relief “further” or “in the alternative” to the first, it is for the Court to decide on the facts and on principle whether the grant of the second relief as a further (additional) relief will not amount to double compensation for the same cause of action, in which case, the second relief should not be granted. Where a Plaintiff is uncertain whether the facts he relies on would entitle him to a relief either in addition to a first relief or merely as an alternative, he can claim the subsequent relief as “a further or alternative relief.
Where the first and principal relief is exhaustive of his remedy, there would be no need to grant the subsequent relief claimed as a “further” or “alternative relief”. In effect, an alternative relief cannot succeed unless the main relief fails – see Agidigbi v. Agidigbi (1996) 6 NWLR (Pt. 454) 300 SC, UBN Ltd. V. Penny Mart Ltd. (1992) 2 NWLR (Pt. 240) 228, and UBA Plc. V. Mustapha (2004) 1 NWLR (Pt. 855) 443 where this Court per Nzeako, JCA, so very aptly observed that –
“…After granting the main claim, it is no longer open to the trial Court to consider the alternative claim, not to mention of granting it. It is even more fatal for a trial Court, not only to consider the alternative claim after granting the principal or main claim, but also to grant it and then leave it to the Plaintiff to pick and choose afterwards which of the alternative grants the Court has made he wishes to accept, as the learned trial judge did in this case.” PER AUGIE, J.C.A.

AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment): By a letter dated 25/6/2007, the 1st Appellant requested for an – “I-Margin share loan of One Billion Naira to buy First Bank Plc. Public offer shares” from “Intercontinental Bank Plc.”, and it stated therein that – “we intend to make a 25% Contribution of N250 Million making your own 75% contribution of N750 Million quota to be N1 Billion”. The Bank approved the loan on the terms and conditions set out in its offer letter dated 6/7/2007, which includes -“Purpose – To part finance the purchase of First Bank Shares; – Tenure – 180 days”. However, by a letter dated 2/12/2007, the 1st Appellant asked the Bank “to roll over the facility for another 180 days under the same terms as contained in the offer letter to enable us purchase the Fidelity Bank shares public offer”. It also wrote another letter to the “Vice Chairman/CEO” of the Bank, where it stated –
“…We are aware of the maturity date of January 2008 of the N750 Million Bankers Acceptance facility availed to us in July 2007, which would expire by 16th January 2008. Also, that we have the intention of requesting for a roll-over of the total facility for another 6 months from the above mentioned expiry date”.

The request was granted, and by a letter to “Intercontinental Securities Ltd.” dated 6/12/2007, the Bank forwarded “Applications and Relevant Documents to place lien on Fidelity Bank Shares belonging to B-Line Communications Ltd”. Upon confirmation that the documents were enough to retrieve, verify, place lien on the shares, and sell same if the 1st Appellant is unable to repay the loan, a Bank draft for the sum of N689, 881,500 was raised by the 1st Respondent, and forwarded to Intercontinental Securities Ltd. Thereafter, the 2nd Appellant went to the said Intercontinental Securities Ltd., and requested that the Bank Draft and the application form for the purchase of the shares be given to him to enable him submit the Bank Draft and the form directly to First Registrars Ltd., as the offer was almost closing, and to ensure full allotment of the shares. Intercontinental Securities Ltd. released same to the 2nd Appellant, who later got the said shares allotted to the 3rd Appellant, instead of the 1st Appellant.

Apparently, the 1st Respondent did not know about the “substitution” as the following correspondence would indicate. In a letter to Intercontinental Securities Ltd. (ISL), dated 12/5/2008, the said Bank requested as follows –
“Kindly provide us with returned monies due to the above mentioned customer (i.e. 1st Appellant) based on the un-allotted portion of his total application. Taking into consideration the importance of the transaction to the Bank and the need to take an informed decision on the customer’s account position, we therefore implore you to expedite action on securing the returned monies – “.
ISL sent a “Caution Notice” dated 18/8/08 to First Registrars Ltd., which reads –
“Kindly take this as our authority to place caution notice on the verification of the above referenced certificate which was financed by Intercontinental Bank Plc., – – and was to serve as the collateral for the facility. We have information reaching us that the customer has collected the certificate without our knowledge.”
Another Caution Notice from ISL to First Registrars Ltd., dated 28/8/08, reads –
“Please refer to our letter dated August 18, 2008 in respect of the above. We hereby attach a copy of the letter and the other documents to clearly establish that the facility was granted the customer as requested by FBN Registrars. We are by this letter requesting you to invalidate the Fidelity Bank Plc, GDR share certificate collected by the customer and re-issue another certificate to be collected by ISL on behalf of the Bank. Kindly acknowledge receipt and treat as urgent.”

ISL wrote letters dated 1/9/2008 to Central Securities Clearing System (CSCS), and Nigerian Stock Exchange, headed- Request for Caution/Lien on Verified Stock; Fidelity Bank Shares belonging to Tetrazzini Foods Ltd.”, it reads –
“We wish to notify you that the above named company (3rd Appellant) applied for and obtained a facility from Intercontinental Bank Plc, for the purpose of investing in the last Fidelity Bank GDR. The client has collected and converted GDR certificate to Fidelity Bank shares, and verified into CSCS system in CORDROS CAPITAL LTD. (2nd Respondent). The facility was collected in the name of B-LINE Communication Ltd. (1st Appellant) but the GDR was submitted in the name of TETRAZZINI FOODS LTD. We hereby request that the Shares be put on hold pending our letter for lien placement in order to forestall further dealings on the shares as the facility has not been settled. We urge you to further investigate the house where these shares are domiciled and a caution placed accordingly.’
CSCS’s reply to ISL, dated 8/9/2008, reads as follows –
“…We write to confirm that the shares were not placed on lien in CSCS System; we are therefore unable to pledge the shares at your instance. You are advised to report the matter to the Director General, The Nigerian Stock Exchange for their further action. You are also advised to review, complete and perfect the attached lien documents before returning same to us for processing. Kindly do the needful before reverting to CSCS for further action”.
A letter dated 29/9/2008, from the Bank to the 2nd Respondent, reads thus –
“The above mentioned customer, B-Line Communication Limited was granted a facility by Intercontinental Bank Plc, for the purpose of investing in the last Fidelity Bank GDR. The facility was collected in the name of B-Line Communication Limited but the GDR was submitted in the name of Tetrazzini Foods Limited: The GDR certificate was then issued in favour of Tetrazzini Foods Limited and same retrieved by the customer from the Registrar and subsequently verified and converted by the customer. Upon obtaining this information, the bank launched investigation into the sudden disappearance of the GDR Certificate in respect of the shares it had lien over. To our chagrin, the findings revealed that the customer collected and converted the GDR certificate to Fidelity Bank shares and verified same into CSCS system in the name of your esteemed Company. Eased on the above, the Bank wrote letters CSCS and the DG, NSE to place caution/lien on the verified shares to forestall further dealings on the Shares whi1st further investigation is still going on in that regard. In view of the above, you are advised to exercise caution and desist from trading on the said Shares pending the outcome of the on-going investigation by NSE and possible petition to the EFCC. We therefore count on your cooperation and expect your prompt action in that regard. Thank you.”
The 2nd Respondent’s reply to the above letter dated 3/10/2008, reads thus –
“…we had earlier being briefed on this development by officials of the Nigeria Stock Exchange. We will also like to bring to your information the fact that the client is in the know of the present situation and we are willing to exercise caution on the stocks pending the outcome of the on-going investigation by NSE.”
The Bank sent a Demand Letter dated 5/9/08 to the 1st Appellant, which read –
“Please refer to the series of meetings and correspondences on the above subject. We regret to advise you that you have failed and or refused to liquidate your indebtedness to the bank despite our rollover of the facility for a period of 180 days. Consequently, our Management has lost all confidence in your company’s willingness and ability to pay because the N750m facility granted to you which has expired since August 2008 and has remained outstanding to date. As at 29th August 2008, the total balance outstanding on your account stood at N864, 806,640.10. Please note that the above sum is without prejudice to the interest and fees that may accrue on the account between the date of this letter and liquidation of the facility. We hereby formally demand that you liquidate the full outstanding sum on your account within fourteen days from the date of this letter. TAKE NOTICE that if you do not liquidate the facility on or before the deadline above, we shall have no option but to explore all avenues open to the bank for the recovery of the indebtedness. We expect to receive your cheque for the sum of N864, 806.10 DR within the stipulated time frame. Kindly acknowledge receipt”.
The Appellants acknowledged taking the loan but explained that the shares were kept by 2nd Appellant in “trust” for the 1st Respondent and 3rd Appellant. In a letter to the 2nd Respondent dated 25/9/08, the 3rd Appellant wrote that –
“We hereby authorise you to keep in custody the above-mentioned shares (“B-Line Communication Ltd. 87, 360,000 Units of Fidelity Bank Public Offer”) in trust for Intercontinental Bank Plc., and Tetrazinni Foods Ltd. (3rd Appellant). This is to comply with the agreed conditions for the facility with Intercontinental Bank Plc.”
The 2nd Respondent’s reply dated 26/2008 to the above letter, reads thus –
“We refer to your letter of September 25, 2008, and wish to confirm that we will keep in our custody the above-mentioned shares in trust for Intercontinental Bank Plc., and Tetrazzini Foods Ltd. (3rd Appellant). We will comply with the agreed conditions for the facility with Intercontinental Bank Plc.”

In a Reply dated 12/5/09 to a letter received from Nick Oyebuchi Omeye & Co., the 1st Appellant’s Solicitors – Tayo Oyetibo & Co., stated as follows –
“We act for Messrs B-Line Communications Limited who have passed your letter dated 20th April 2009 to us with instructions to reply thereto as follows:
1. Sometime in or about June 2007, they were interested in large scale investments in stocks pursuant to which they approached Messrs Intercontinental Bank Plc (the Bank) for that purpose.
2. The Bank encouraged them to apply for a facility whereupon by their letter dated June 25, 2007, they applied for a Margin share Loan whereby they would contribute N250 Million while the Bank provides N750 million to make up the N1 Billion required for the investments,
3. By a letter dated 6th July 2007, the Bank offered to them a Bankers Acceptance Facility in the sum of N750 Million to purchase First Bank Shares.
4. Our Clients contributed the sum of N250 Million and the total sum of N1 Billion was paid to First Bank of Nigeria Plc for the purpose of purchasing their shares.
5. It is true that the First Bank of Nigeria Shares were not fully allotted and our clients subsequently requested and the Bank approved that the returned money be used to purchase Fidelity Bank Plc Shares.
6. Pursuant to the collateral contract referred to in paragraph 5 above, 87,260,000 units of Fidelity Bank Shares were purchased by our clients.
7. It is however not true as alleged by you that the Shares of Fidelity Bank were to be purchased in the name of B -Line Communications Limited as the First Bank Shares were, to the knowledge of your client, not purchased in the name of B-Line Communications Limited. It was indeed not part of either the original or the collateral contract between our clients and the Bank that the shares to be purchased would be in the name of B-Line Communications Limited.
8. While it is true that the services of Messrs Cordros Capital Limited were used to verify the Fidelity bank Shares into the CSCS account of Messrs Tetrazzini Foods Limited in whose name the Shares were purchased, the Bank had by its letter of September 23, 2008 requested our client to notify Cordros Capital Limited to keep the shares I trust for the Bank as agreed between the bank and our client at a meeting held on the said 23rd September, 2008.
9. In furtherance of the agreement, our client caused Tetrazzini foods Limited to instruct Cordros Capital Limited to keep in custody the Fidelity Bank Shares in trust for the Bank.
10. By a letter dated 25th September, 2008 Tetrazzini Foods Limited wrote to Cordros Capital Limited to keep the said Fidelity Bank Shares in trust for the Bank and Tetrazzini Foods Limited. A copy of the letter was then forwarded to the Bank. By a letter dated September 26, 2008 Messrs Cordros Capital Limited confirmed that they would keep the Fidelity Bank Shares in trust for the Bank and Tetrazzini Foods Ltd and a Copy of the letter was also made available to the Bank.
11. You would see from the foregoing facts that it is not true as alleged in your letter that the Bank has made repeated demands for the return of the shares to intercontinental Securities but that our client failed to do so.
12. With regards to the sum of N807, 922, 245.40 alleged to be outstanding on the facility; our Clients vehemently deny this sum as the amount outstanding. Our clients had repeatedly called for full reconciliation of account between the two parties but the bank has repeatedly defaulted in doing so.
13. Further to the foregoing facts, our clients also wish to let you know that they have a claim against the Bank for its refusal to agree to a sale of the Fidelity Bank Shares as at October, 2008.
In the circumstances of the foregoing facts we have the instruction of our Clients to demand and we do hereby demand for full reconciliation of accounts between the two parties which reconciliation must also take into account the loss incurred as a result of your clients refusal to agree to the sale of the Fidelity Bank Shares as at October, 2008. We trust that you would advise your client accordingly”.
The 1st Respondent then filed an action at the Lagos State High Court wherein it claimed “the sum of N870, 211,717.03 being the amount owed (it) by the 1st and 2nd Defendants as 31st May 2009, on account of the facility granted the 1st Defendant for the purchase of the First Bank Plc., and Fidelity Bank Plc. Shares”.

It also prayed the lower Court for “interest on the amount claimed – – at the rate of 18% per annum (being the agreed interest rate for the facility” from 1st June 2009 till judgment and thereafter at the same rate till the liquidation of the Judgment debt”. In addition to these, the 1st Respondent also prayed for –
“An Order of Court directing the 2nd, 3rd and 4th Defendants (Appellants and 2nd Respondent herein) to return the 87,360,000 units of Fidelity Bank Plc. Shares financed by the Claimant (1st Respondent), which the 4th Respondent (2nd Respondent) claim to be holding in trust for the Claimant (1st Respondent) to Intercontinental Securities Ltd. (ISL) – authorized agent of the Claimant”.

The 1st Respondent also filed a Motion for Summary Judgment dated 10/7/09, and upon service on the Appellants, they filed a Memorandum of Appearance and Statement of Defence dated 17/9/09, wherein they counter-claimed for –
1. A DECLARATION that the Claimant – – to the Counter-Claim has a duty in law to inform the – – Counter-Claimant in writing on the status of the Counter-Claimant’s account in respect of the share loan facility granted vide Claimant- – to Counter – Claimants’ letter dated 6th July 2007 by forwarding to the Counter-Claimant detailed Statements of account either monthly or otherwise regularly.
2. The sum of N462, 134, 000 being damages for the negligence of the Defendant to the Counter-Claim in failing or refusing to approve the sale of the Fidelity Bank Shares as at October 13, 2008.
3. An ORDER of inquiry into all the charges and debits entered into the Counter-Claimant’s account in respect of the share loan by Defendant to the Counter-Claim.
4. An ORDER for reconciliation of account between the Defendant to the Counter-Claim and the Counter-Claimant in respect of the said Share loan facility.
Pleadings closed, and the suit was adjourned for “pre-trial conference, during which the Motion for Summary Judgment was heard, and in his “Judgment” delivered on 29/9/10, the learned trial Judge, K. A. Jose, J., awarded the full sum claimed by the 1st Respondent, including pre and post Judgment interests, and further directed the 2nd & 3rd Appellants and 2nd Respondent to return the 87,360,000 units of Fidelity Bank Shares to Intercontinental Securities Ltd (ISL).

Dissatisfied with that aspect of the decision that ordered them to return the Shares to ISL, the Appellant filed a Notice of Appeal in this Court containing two Grounds of Appeal, and the thrust of their complaint is that returning the said shares to ISL amounts to double compensation for the 1st Respondent.

In line with the Rules of this Court, parties filed their respective Briefs of Argument, and in the Appellants’ own Brief prepared by John Aga, Esq., it was submitted that the sole issue that calls for determination in this appeal is –
“Whether the learned trial judge was right in law in ordering the return of the 87,360,000 Units of Fidelity Bank Plc. Shares to the 1st Respondent after awarding the full amount alleged by the 1st Respondent to be owed by the 1st Appellant with post and pre judgment interest thereon.”

The 1st Respondent, however, distilled the following issue for Determination from the Grounds of Appeal in its own brief prepared by Nick Omeye, Esq. –
“Whether the Court below was right in ordering the Appellants and the 2nd Respondent to return the 87,360,000 units of Fidelity Bank Plc. Shares used as collateral for the facility subject-matter of the suit to Intercontinental Securities Ltd – the stock broking firm with the documents executed by the 1st Appellant for the purpose of realizing the collateral in event of non-liquidation of the loan by the 1st Appellant?
The 2nd Respondent did not participate in the Appeal and did not file any Brief.

Clearly, the issue formulated by the 1st Respondent is quite a mouthful, and much too wordy to qualify as an issue for Determination that is expected “to narrow the issue or issues in controversy in the interest of “accuracy, clarity and brevity” – see Unity Bank Plc. V. Bouari (2008) 7 NWLR (Pt. 1086) 372 SC. At any rate, the same question runs through the issues formulated by parties, and that is whether the lower Court was right to order the Appellants and 2nd Respondent to return the Fidelity Bank Shares to the 1st Respondent’s agent? The Appellants say it was wrong, and the 1st Respondent insists it was right. Our role as an appellate Court is to determine who is right and who is wrong.

The Appellants contend that since the lower Court had awarded the full amount allegedly owed by the 1st Appellant, it should not have ordered that the shares purchased with the said facility be returned to the 1st Respondent, and they made submissions on the following ancillary issues – ” “nature of debt”; “duty of Court to ensure that a litigant did not receive double compensation in the same cause”; and the “attitude of the Court to double compensation”, etc.

On the nature of a debt, they submitted that indebtedness or debt carries with it certainty of sum being owed, and that being so, the jurisdiction of the Court is circumscribed by the amount alleged by the creditor; and whilst it has power to award post and pre-judgment interest, its jurisdiction cannot be extended to awarding a Claimant more than the sum which is due to it.

As to the Court’s duty to ensure that a litigant does not receive double compensation in the same cause, they submitted that the reliefs sought by the 1st Respondent amounted to asking the lower Court for double compensation in the same cause of action; that it is settled that a Court does not grant a relief merely because it is asked for, citing INEC V. AC (2009) 2 NWLR (PT. 1126) 524; that the lower Court had a duty to carefully consider all the 1st Respondent’s claims to ascertain whether it was asking for compensation more than once in the same cause of action, citing FHA V. Sommer (1986) 1 NWLR (PT. 17) 533, Ezeani V. Ejidike (1964) 1 ALL NLR 402; that the rationale behind this principle “is to avoid a situation where litigants will convert litigation into gold mine and receive double compensation on the same cause from the Court”; and relying on Assam V. D.F.S. Ltd. (2007) 16 NWLR (PT 1060) 234 and Tsokwa Motors (Nig.) Ltd. V. UBA Plc. (2008) 2 NWLR (Pt. 1071) 347 SC, that the order for the transfer of the shares to the 1st Respondent amounts to double compensation.

On the attitude of a Court to double compensation, they referred us to the decisions in Imo Concorde Hotel Ltd. V. Anya (1992) 4 NWLR (PT. 234) 210, Tsokwa Motors (Nig.) Ltd. V. UBA Plc. (supra), Olaniyan V. Adeniyi (2007) 3 NWLR (Pt 1020) 1, SPDC Nig. V. Okunedo (2008) 9 NWLR (1091) 85 which is to the effect that the law frowns at double compensation, and submitted that the order of the lower Court for the return of the shares to the 1st Respondent after awarding the full amount claimed with pre and post Judgment interests, certainly amounted to double compensation, which the law frowns at.

They also argued that the decision exposes the 1st Appellant to double jeopardy as it will repay the loan facility with interest and lose the shares to the 1st Respondent; that the order is not only prejudicial but perverse to the 1st Appellant who, “is not averse to paying the judgment sum with the interest and consequently has not appealed against that aspect of the judgment”; that it will be most inequitable and unconscionable for the 1st Respondent to take the shares after obtaining Judgment for the facility used to purchase the shares with post and pre Judgment interests thereon; and that where, as in this case, the Court’s Judgment is prejudicial and perverse thereby occasioning grave injustice, such a Judgment is liable to be set aside, citing Daggash V. Bulama (2004) 14 NWLR (Pt. 892) 144, FGN V. Zebra Energy Ltd, (2002) 18 NWLR (Pt. 789) 162, and Awudu v. Daniel (2006) 2 NWLR (Pt. 909) 199.

They also contend that the lower Court lacked jurisdiction to make any other award in the 1st Respondent’s favour after it awarded the full amount allegedly owed by the 1st Appellant and compensated the 1st Respondent with pre and post Judgment interest thereon. They submitted that the jurisdiction of a Court is circumscribed by the award of reliefs within the ambit of the law, so, where the relief awarded is beyond the scope of the reliefs allowed by law, it goes to its jurisdiction, and such relief ought not be allowed to stand in law; that the order for the return of the shares is not cognisable in law since it was made without jurisdiction; and that it is settled law that where a Court makes an order without jurisdiction, that order is invalid and liable to be set aside on Appeal, citing Govt. C.B.S V. Assam (2008) 5 NWLR 658 @ 671. It is also their contention that having made the earlier order, the lower Court had become functus officio and was, therefore, incompetent to make any further order in favour of the 1st Respondent, citing Buhari V. INEC (2008) 19 NWLR (Pt. 1120) 246 SC and Nigerian Army v. Iyela (2008) 18 NWLR (PT. 1118) 115 SC.

The 1st Respondent, however, submitted that the Appellant’s argument is misconceived because the lower Court’s order was not for the shares to be returned to the 1st Respondent but to ISL – the stock broking firm in possession of the instruments executed by the 1st Appellant for the purpose of selling the shares used as collateral for the facility, subject-matter of the suit, and because the parties agreed that the shares is the collateral for the facility; that the main prayer in the suit is for N870.2 Million, which is the debt owed by the 1st Appellant on account of the facility for which the shares were mortgaged; and that the ancillary prayer for the return of the said shares to ISL for the purpose of selling the shares to liquidate the debt follows the main prayer, and it must definitely succeed once it is established that the loan remained un-liquidated.

Furthermore, that all that the lower Court did was to enter Judgment for the amount due on the facility with interest, and direct that the shares used as security be moved to the stock broking firm that was instructed to sell them; that the proceeds of the shares go to the liquidation of the judgment debt; that the 1st Appellant expressly instructed it and ISL in writing to sell the shares in the event of default and apply the proceeds to liquidate the debt; and that entering Judgment for the amount owed and directing that the shares standing as collateral for the shares that were unlawfully diverted to the 2nd Respondent be returned to ISL for the shares to be sold and the proceeds of the sale used to liquidate the judgment debt does not amount to double compensation.

It referred us to the law relating to mortgage of shares, and the book –
Nigerian Law of Secured Credit by Professor I. O. Smith, and submitted that it has a charge over the shares; that the 1st Appellant appropriated its interests in the shares and executed instruments charging the shares purchased with the facility granted the 1st Appellant by it; and that the order to return the shares for the purpose of selling them does not amount to double compensation to it.

It also argued that the Appellants misconceived the effect of the lower Court’s Judgment because the security for the loan it granted the 1st Appellant is the shares to be purchased with the facility and having admitted that fact, the Appellants cannot turn around and claim that the shares should not be moved to ISL as the 1st Appellant had already executed all the instruments necessary for the sale of the shares and the instruments are with the said ISL.

In answer to the Appellants’ argument that the lower Court’s decision will expose the 1st Appellant to double jeopardy, the 1st Respondent argued –
“The Appellants misconceived the purport of the judgment of the court below, or are intentionally reading a different meaning into the judgment. The Court below entered judgment for the debt owed the 1st Respondent by the 1st Applicant on account of the loan granted the 1st Appellant by the 1st Respondent, and proceeded to grant the ancillary prayer for an order directing the 87,360,000 Fidelity Bank Shares purchased with the facility, which was unlawfully diverted by the Appellants, to be moved to the stocking broking firm that had been instructed in writing by the 1st Appellant to sell the shares. The proceeds of the sale are to be applied to the liquidation of the debt as agreed by the parties in the loan contract”.

In response to the Appellants’ statement that the 1st Appellant is not averse to paying the judgment sum with the interest, which is why they did not appeal against that aspect of the Judgment, the 1st Respondent submitted as follows –
“If the 1st Appellant pays the judgment sum with interest immediately, there will be no need to realise the collateral but until the payment of the judgment debt is made, the 1st Respondent is entitled to realise the collateral and apply the proceeds to the liquidation of the loan”.

In reaction to the issue of “jurisdiction”, the 1st Respondent submitted that –
“The jurisdiction of a Court is statutory and that the Lagos State High Court has the jurisdiction to entertain (its) claim in the Court below. The Appellants never raised the issue of jurisdiction in the Court below, and never made issue of jurisdiction their ground of appeal. The argument, therefore, goes to no issue and should be discountenanced. We also submit that what determine Jurisdiction of a Court is the main relief, and not the ancillary or subsidiary relief. Thus, once the Court has powers to grant the main relief, the Court will naturally have the powers to grant the ancillary reliefs to give effect to the main claim. In the instant case, the Order of Court directing the 87,360,000 units of Fidelity Bank Plc, shares returned to the stock brokers who had already been given instructions by the 1st Appellant to sell the shares in event of default in liquidating the loan was made to give effect to the main relief granted by the Court. The shares are to be sold to liquidate the judgment debt”.

On the issue of the lower Court becoming functus officio, it referred us to the meaning of functus officio in Black’s Law Dictionary, 8th Ed., and submitted that this issue does not arise because the lower Court delivered one Judgment in respect of the main claim for the outstanding loan and the ancillary claim of interests and order directing the shares to be returned to the stock brokers that was instructed by the 1st Appellant to sell the shares in event of default; that the issue would only have arisen if the Court is being asked to review the Judgment already given; and that in any event, their argument goes to no issue as it does not arise from the Notice of Appeal or the issues arising there from.

It further submitted that they admitted in their Pleadings that the shares are the collateral for the loan it granted the 1st Appellant, and the law is that where shares or property is mortgaged to a lender as collateral, the lender is entitled to hold the shares or property and has the right to sell the shares or the property unless the loan is repaid, citing B. O. N. Ltd. V. Akintoye (1999) 12 NWLR (pt. 631) 403; that the 1st Appellant had the right to redeem the shares by repaying the loan but failed and refused to repay the loan; that the time fixed for repayment has already lapsed; and that the lower Court was, therefore, right in giving Judgment for the amount owed on account of the loan and in making the “ancillary order” that the shares be returned to ISL.

The Appellants filed a Reply Brief wherein they countered that the 1st Respondent failed to appreciate the point that ISL is the authorized agent of the 1st Respondent. They submitted that the distinction sought to be drawn between ISL and the 1st Respondent “is a distinction without a difference”; that the attempt to categorize the prayers sought from the lower Court into main prayers and ancillary prayers is “not only misconceived but misleading in law” because page 9 of the Record shows that it sought for 3 cumulative prayers from the lower Court and none of the prayers was sought in the alternative.

They further argued that relief 4, which sought a transfer of the shares to the Agent of the 1st Respondent, ISL, was not sought in the alternative to reliefs 1 and/or 2, and it is, therefore, misleading for the 1st Respondent to have submitted that relief 3 is ancillary; that there is nothing ancillary to relief 4 because a disjunctive award by the lower Court of relief 1 and 2 or 3 would have satisfied the 1st Respondent’s claims as averred in its Pleadings; and that-

“To the extent that the learned trial Judge awarded the reliefs cumulatively in favour of the 1st Respondent amounts to double compensation because the Court has awarded to the 1st Respondent more than the amount due to it by reason of which the 1st Appellant has been exposed to double jeopardy. (And) herein lies the error of the learned trial judge and the misconception of the 1st Respondent”.

On the 1st Respondent’s argument that the said Judgment is for the shares to be sold so as to apply the proceeds of the sale to liquidate the Judgment debt, they submitted that this is an erroneous conclusion from the said Judgment, and a subtle invitation to speculate on the term of the lower Court’s Order; that it is clear from its Order that the lower Court’s Judgment did not direct that the proceeds be applied to liquidate the judgment debt; and it is wrong in law for a Court or parties to speculate on an order, the term of which is clear, citing UTB (Nig.) V. Ozoemena (2007) 3 NWLR (PT. 1022) 487. Furthermore, that the 1st Respondent’s response to the issue of jurisdiction is misleading and misconceived in law because it is settled that the issue of jurisdiction can be raised at any time even for the first time in Court of Appeal or Supreme Court, citing Ladoja V. INEC (2007) 12 NWLR (Pt. 1017) 97. They also argued that the case of B.O.N. Ltd. V. Akintoye (supra) is not helpful to the 1st Respondent because Judgment was given in the alternative and not cumulatively, and this Court ought not to rely on that case because a case is only an authority for what it decides and a case with dissimilar facts cannot be called in aid or used in another case as an authority where facts and laws are completely different, citing Fawehinmi V. NBA (NO. 2) (1989) 2 NWLR (PT. 105) 558 @ 650.

Without hesitating, I will quickly say that this Appeal is easily resolved because it turns on the narrow issue of double compensation, and nothing else – all the other issues canvassed by the parties have no bearing on this Appeal.
Let us take the issue of the lower Court becoming functus officio, for instance.
Functus officio is Latin for – “having performed his or her office…without further authority or legal competence because the duties and function… have been fully accomplished”- see Black’s law Dictionary, 9th Ed. In effect, once an issue(s) has been raised and determined by the Court between the litigating parties, the Court becomes functus officio to either direct or allow the parties to re-open the same issues before it – see John Andy Sons & Co. V. N. C. R. I. (1997) 3 NWLR (Pt. 491) 1 SC and Alor & Anor V. Ngene & Ors (2007) 17 NWLR (Pt. 1062) 163 SC, where the Supreme Court also held as follows –
“A final order envisages that it is a permanent order made by the Court and the parties cannot go back to the same Court to challenge or change that order. That Court, by virtue of the order, is functus officio and the only option open to the parties is by way of Appeal against the Order”.

In this case, the 1st Respondent is right; the issue of the lower Court becoming functus officio would only arise if it was being asked to review its Judgment; but as it is, the Appellants are challenging its Judgment, and not re-visiting it. The Appellants also canvassed the issue of lack of jurisdiction on its part, which in my view is a very long shot indeed, and is stretching matters too far.
Yes, contrary to the 1st Respondent’s assertion, I do agree with them that the issue of jurisdiction can be raised at anytime and anywhere, even at the Appeal stage – see Ijebu-Ode L.G. V. Adedeji (1991) 1 NWLR (pt. 166) 136 SC and Olutola V. Unilorin (2004) 18 NWLR (Pt. 905) 416 SC, wherein it was held –
“The issue of jurisdiction being a fundamental issue, it can be raised at any stage of the proceedings in the Court of first instance or in the Appeal Courts. This issue can be raised by any of the parties or by the Court itself suo motu. When there are sufficient facts ex facie on the Record establishing a want of competence or jurisdiction in the Court, it is the duty of the Judge or Justices to raise the issue suo motu if the parties fail to draw the Court’s attention to it”.
In this case, it will be taking matters a bit too far to consider this Appeal from the angle of lack of jurisdiction on the part of the lower Court because it has jurisdiction to grant or refuse each of the reliefs sought by the 1st Respondent, and the bone of contention in the Appeal is whether it was right to order the return of the said shares after entering Judgment against the 1st Appellant for the full amount it owed on account of the loan facility used to buy the shares.

So, the 1st Respondent’s argument that the lower Court’s Order directing the return of the said shares to ISL was made to give effect to the main relief which is the award of the full amount used to buy the shares, is preposterous.
By arguing that “the shares are to be sold to liquidate the Judgment debt”, after the lower Court had awarded the full amount owed plus all the interest, the 1st Respondent is confirming exactly what the Appellants are crying about – the order to return the shares offends the rule against “double compensation”, which prevents a party from claiming under two heads using different names – see Armels Transport V. Transco (Nig.) Ltd. (1974) 11 SC 237 and Tsokwa Motors (Nig.) Ltd. V. UBA Plc. (supra) wherein the Supreme Court held that –
“The award of the trial Court of the sum of N100,000 – – as nominal Damages having regard to the award earlier made to the Appellant of its claim for unauthorized transfer and unreturned cheques is definitely double compensation.
The trial Judge had earlier held that:
“The sum of N617, 659.43 is hereby to be re-credited by the Defendant with all the interest charged on the same amount to the Plaintiff’s account – –
The trial Judge had also held:-
“Consequently, the Defendant is to re-credit the total sum of N28, 253 to the Plaintiff’s account – as the value to its 8 dishonoured and unreturned cheques”.
It has been repeatedly held by this Court that where a victim of an injury has been fully compensated under one head of Damages, it is improper to award him damages in respect of the same injury under another head…”
See also Wole Soyinka V. Inaolaji Builders Ltd. (1991) 3 NWLR (Pt. 177) 21, where the Appellant, who had been awarded N7000 for his shot gun, etc., that was accidentally damaged by the Respondent, objected to the Respondent’s Application to have the shot gun, etc., released to it. Akpabio, JCA, held that –
“The Appellant at the trial Court had misled the Court into believing that all his properties accidentally damaged by the Respondent…were damaged beyond repairs, or at least could not be repaired in this Country. He therefore claimed the market value of those properties instead of claiming the cost of repairing them. – -The learned trial Judge proceeded to assess the then market value of those properties – – and arrived at the handsome sum of N7000, which he awarded to the Appellant on a total loss basis. Appellant duly accepted without complaint. To allow the Appellant to turn around now and say he wants to repair the shot gun for which he had received full payment would appear to me to allow the Appellant “to eat his cake and have it”. The Court will lean against any form of double compensation”.

In this case, the 1st Respondent averred as follows in its Statement of Claim –
“…As at 31st May, 2009, the amount owed the Claimant by the 1st Defendant on account of the loan granted to the 1st Defendant by the Claimant stood at N870, 211,717.03 comprising the principal interests and charges. The Claimant shall rely on the Statement of Account of the 1st Defendant.” (See paragraph 48)
Consequently, the 1st Respondent claimed as follows in its Statement of Claim –
1. The Sum of N870, 211,717.03 against the 1st and 2nd Defendants being the amount owed the Claimant by the 1st and 2nd Defendants as at 31st May, 2009, on account of the loan facility granted the 1st Defendant by the Claimant for the purchase of First Bank Plc and Fidelity Plc shares.
2. Interest on the amount claimed in “1” above at the rate of 18% per annum (being the agreed interest rate for the facility) from 1st June, 2009 till Judgment and thereafter at the same rate till the liquidation of the judgment debt.
3. Order of Court directing the 2nd, 3rd, and 4th Defendants to return the 87,360,000 units of Fidelity Bank Plc. shares financed by the Claimant which the 4th Defendant claim to be holding in trust for the Claimant to Intercontinental Securities Limited – the authorized agent of the Claimant.

In its Judgment at pages 336-337 of the Record, the lower Court clearly stated-
“In sum, based on the findings above, the Court makes the following orders vis-a-vis the reliefs sought in the Claimant’s Motion for Summary judgment –
1. An Order entering final Judgment for the Claimant in the sum of N870, 211,717.03 is made against the 1st Defendant being the amount owed the Claimant by the 1st and 2nd defendants as at 31st May, 2009 on account of the loan facility granted the 1st Defendant by the Claimant for the purchase of First Bank Plc. and Fidelity Bank Plc. shares.
2. Interest on the amount claimed in “1” above is granted at the rate of 18% per annum from 1st June, 2009 till Judgment and thereafter at the same rate till the liquidation of the Judgment debt.
3. Order of Court directing the 2nd, 3rd, and 4th Defendants to return the 87,360,000 units of Fidelity Bank Plc. shares financed by the Claimant which the 4th Defendant claims to be holding in trust for the Claimant to Intercontinental Securities Limited – the authorised agent of the Claimant”.

The Appellants have every right to cry foul and scream about double jeopardy. They were not only ordered to repay the loan facility with interest, they were also ordered to return the shares that had been bought with the loan facility.

The 1st Respondent argued that entering Judgment for the amount owed and directing that the shares that were unlawfully diverted be returned to ISL does not amount to double compensation. But the Appellants countered that the allegation that the shares were unlawfully diverted “was not borne out by the Judgment of the trial Court and is indeed contrary to (its) specific finding.

I agree entirely; there is nowhere in the Judgment of the lower Court where it found or made mention that the said shares were unlawfully diverted, and it goes without saying that this Court cannot comment on that allegation – there cannot be an appeal against what has not been decided against a party.
The 1st Respondent also quarrelled with the Appellants’ assertion, as follows –
“It is important to note that the 1st Appellant is not averse to paying the judgment sum with the interest and consequently has not appealed against that aspect of the judgment. It will therefore be most inequitable and unconscionable for the 1st Respondent to take the shares after having obtained judgment for the facility used to purchase the shares with post and pre-judgment interests thereon”. (Highlight theirs)

In response, the 1st Respondent submitted as follows at page 8 of its brief –
“If the 1st Appellant pays the judgment sum with interest immediately, there will be no need to realize the collateral but, until the payment of the judgment debt is made, the 1st Respondent is entitled to realize the collateral and apply the proceeds to the liquidation of the loan”.

Apparently, the 1st Respondent was very ready to pick and choose which grant the lower court made that it would accept – see UBA Plc. v. Mustapha (supra).
But it has no choice in the matter; the lower Court had granted its first prayer for the full amount owed by the 1st Appellant plus interest, and the order to return the shares amounts to double compensation, which must be set aside – see Z. P. Industries Ltd. v. Samotech Ltd. (2007) 16 NWLR (pt. 1060) 315 SC.

The 1st Respondent may prefer “to realize the collateral and apply the proceeds to the liquidation of the loan”, but it cannot eat its cake and have it. The appeal succeeds and is allowed. The order of the lower Court directing the Appellants to return the shares to ISL is hereby set aside. No order as to costs.

CHIMA CENTUS NWEZE, J.C.A.: My noble Lord, Augie JCA, obliged me with the draft of the leading judgment just delivered now. I agree with the reasoning and conclusion. I abide by the consequential Orders in the said leading judgment.

CHINWE EUGENIA IYIZOBA J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother, Amina Adamu Augie JCA. I agree with him that the Appeal has merit and should be allowed.

It is not in doubt that the lower court by entering judgment for the 1st Respondent in the full amount owed with pre and post interest of 18% per annum and at the same time ordering the return of 87,360,000 units of Fidelity Bank PLC shares has placed the Appellant in double jeopardy – to repay the loan with interest and at the same time return the shares purchased with the loan. The 1st Respondent appears to understand the situation hence its argument that the intention is that the shares will be sold to repay the loan. That might be their intention but is certainly not the outcome of the judgment. I think that the 1st Respondent has created a self imposed difficulty for itself. Having judgment entered in its favour for the full amount owed with interest is a far cry from actual payment. The chances of getting the loan paid down somewhat is surer with the sale of the Fidelity Bank shares. The bottom line is that there was an error in the drafting of the claim. The 1st Respondent would have to live with the error or take further action outside the present judgment. The two awards cannot stand for they surely translate to double compensation in favour of the 1st Respondent. Although the order is that the shares be returned to Intercontinental Securities Limited – the authorized agent of the Claimant (1st Respondent), there was no indication that the shares were to be held as security pending the liquidation of the judgment debt or something to that effect. The open-endedness of the return of the shares to ISL meant that the 1st Respondent would keep the shares as well as the judgment debt. I also allow the Appeal. I abide by the consequential orders in the lead judgment including the order as to costs.

Appearances

Mr. Tayo Oyetibo (SAN) with John Aga, Esq.,
Tomilade Shodimu, Esq., and C. E. Kema, Esq.For Appellant

AND

Nick Omeye, Esq., with Emeka Kalu, Esq. for the 1st RespondentFor Respondent