PLATINUM HABIB BANK PLC v. MR. OLUWOLE ESAN (2014)

PLATINUM HABIB BANK PLC v. MR. OLUWOLE ESAN

(2014)LCN/7104(CA)

In The Court of Appeal of Nigeria

On Monday, the 24th day of June, 2019

CA/L/771/2014

RATIO

DUTY OF COURT: EVALUATION OF EVIDENCE

It is settled law that the evaluation of evidence and ascription of probative value thereto reside

within the province of the court of trial. Where a trial court has unquestionably evaluated the evidence and justifiably appraised the facts, it is not the business of an appellate court to substitute its own views for that of the trial court. See ARE vs. IPAYE (1990) LPELR (541) 1 at 22, FASIKUN II vs. OLURONKE II (1999) LPELR (1248) 1 at 47-48 and ONI vs. JOHNSON (2015) LPELR (24545) 1 at 11-14.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

JUSTICE

MOHAMMED LAWAL GARBAJustice of The Court of Appeal of Nigeria

UGOCHUKWU ANTHONY OGAKWUJustice of The Court of Appeal of Nigeria

GABRIEL OMONIYI KOLAWOLEJustice of The Court of Appeal of Nigeria

Between

PLATINUM HABIB BANK PLC (NOW, KEYSTONE BANK LTD)Appellant(s)

AND

MR. OLUWOLE ESANRespondent(s)

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The provenance of this appeal is in the overdraft facility which the Appellant granted to one of its customers, Prime Grocers International Limited. As security for the overdraft facility, the said customer presented the title documents in respect of a property belonging to the Respondent. The Appellant found the security acceptable and a Third Party Legal Mortgage was executed on the property. The Respondent was however oblivious of the entire transaction. Upon realising that there was an encumbrance on his property, he instituted proceedings in the High Court of Lagos State in SUIT NO. ID/1730/2009: MR. OLUWOLE ESAN vs. REGISTRAR OF TITLES & ORS. The other defendants in the action were the Appellant as the 2nd Defendant and the Appellants customer, Prime Grocers International Limited, as the 3rd Defendant. The reliefs which the Respondent as Claimant in the lower Court sought against the defendants are as follows:
a) A DECLARATION that the property lying being and known as L.S.D.P.C. Omole Residential Scheme, Block 13, Plot 359 covered by certificate

of occupancy registered as No. 6 on page 6 in Volume 1981H kept in the Lands Registry at Lagos State Secretariat, Alausa, Ikeja belongs to the Claimant.
b) A DECLARATION that the Claimant did not at any time charge his property aforesaid or caused any deed of legal mortgage to be executed between himself and the 3rd defendant, in favour of the 2nd defendant and registered by the 1st defendant as No. 81 on Page 81 in Volume 2011 dated 28th February, 2008 at the Land Registry, Alausa Secretariat, Ikeja.
c) A DECLARATION that the defendants actions in executing a deed of legal mortgage on the property the subject-matter of this action is wrong, unlawful and illegal since they have no such power to do so and on the legal principle of NEMO DAT QUOD NON HABET.
d) A DECLARATION that the aforesaid deed of legal mortgage registered as No.81 on page 81 in Volume 2011 at the Land Registry, Alausa Secretariat, Ikeja, dated 28th February, 2008 by the Defendants is null, void and of no effect having been obtained by fraud.
e) A DECLARATION that the defendants owed the Claimant a duty of care not to injure him or cause damage to his property

registered as Certificate of Occupancy NO.6/6/1981H in the Land Registry Alausa Ikeja Lagos.
f) A DECLARATION that the Defendants breached that duty of care when they mortgaged the Claimants property without his consent, knowledge or approval thereby encumbering it.
g) A DECLARATION that the action of the defendants amounted nothing by FRAUD.
h) AN ORDER directing the 1st Defendant to remove and cancel forthwith from the Deed of Register the aforesaid deed of legal mortgage between the 2nd and 3rd defendants and their so called Oluwole Esan registered as No 81 on page 81 in Volume 2011 dated 28th day of February, 2008 kept at the Land Registry Alausa Secretariat Ikeja, Lagos same having been obtained by fraudulent means to the detriment of the Claimant.
i) ANY OTHER ORDER as may be just in the circumstances.
j) General Damages of N20,000,000.00 (Twenty million naira only) and exemplary damages of N20,000,000.00 (twenty million naira only).
k) Cost of this action.

During the pre-trial stage an amicable resolution of the matter was reached between the Respondent and Prime Grocers International

Limited. They executed Terms of Settlement, which was, on 5th April 2011, entered as judgment of the Court between the Respondent and the said Prime Grocers International Limited. See pages 209-212 of the Records.

The matter eventually went to trial based on the pleadings filed and exchanged by the Appellant and the Respondent. The Registrar of Titles, which was sued as the 1st Defendant in the lower court did not file any processes and also did not appear at the hearing at the lower court. At the trial, the parties adduced testimonial and documentary evidence. The lower court entered judgment in part for the Respondent. The judgment of the lower court which was delivered on 14th May 2014 is at pages 344-361 of the Records.

The Appellant was dissatisfied with part of the decision of the lower court and filed its Notice of Appeal on 22nd May 2014. The Respondent was equally dissatisfied with part of the decision of the lower court and filed a Notice of Cross Appeal on 18th June 2014. So there is an appeal and a cross appeal. Order 7 Rule 2 (1) of the Court of Appeal Rules, 2016 stipulates as follows:

2 (1) All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called the notice of appeal) to be filed in the registry of the court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for [service] on such parties

Since both the appeal and cross appeal are against part only of the decision of the lower court, the issues in the appeal will necessarily be circumscribed by that part of the decision they complained about and the exact nature of the relief which they have sought on appeal. The part of the decision complained about by the Appellant as set out in paragraph 2 of the Notice of Appeal is as follows:
PART OF THE DECISION OF THE LOWER COURT APPEALED AGAINST:
Part of the decision of the Court, Particularly the part of the decision of the Court that the Appellant was negligent in the handling of

the transaction that led to the use of the Respondents title document for third party legal mortgage and the award of the sum of N5, 000, 000.00 (Five Million Naira) as general damages against the Appellant in favour of the Respondent.

So the Appellants appeal is limited to the finding that it was negligent and the consequential award of N5million as general damages. The exact nature of the relief sought by the Appellant as set out in paragraph 4 of the Notice of Appeal is as follows:
4.0 RELIEF SOUGHT FROM THE COURT:
4.1 AN ORDER of this Honourable Court allowing the appeal and setting aside the part of the Judgement of the High Court of Lagos, Ikeja Division delivered by Hon. Justice A. J. Coker on May 14, 2014 to the effect that the Appellant was negligent in the handling of the transaction that led to the use of the Respondents title document for third party legal mortgage and the award of the sum of N5, 000,000.00 (Five Million Naira) as general damages against the Appellant in favour of the Respondent.

So the relief is for the finding that it was negligent and the damages that were awarded to

be set aside. There is no appeal against or relief claimed with respect to the quantum of damages.

The part of the decision of the lower court complained about in the Cross Appeal is as set out in paragraph 2 of the Cross Appeal. It reads:
2. PART OF THE DECISION OF THE LOWER COURT CROSS APPEALED AGAINST
That since issues of fraud and collusion were not proved, no exemplary damages will be awarded.

The following reliefs are sought in the Cross Appeal as set out in paragraph 4 of the Notice of Cross Appeal:
4. RELIEFS SOUGHT
1. An Order allowing this Cross-Appeal.
2. An Order setting aside the decision of the Hon. Justice Adenike J. Coker (Mrs) sitting at Lagos High Court 20, Ikeja, delivered on 14th May, 2014 in respect only of her refusal to award exemplary damages.
3. An Order awarding exemplary damages of Twenty Million Naira (N 20, 000,000:00k) against the Appellant/Cross-Respondent.
4. Cost, to be paid personally by the Appellant/Cross Respondents Counsel.

The cross appeal is therefore limited to the failure of or refusal by the lower court to award exemplary

damages. The Cross Appeal does not complain against the decision of the lower court that the issue of fraud and collusion were not proved and does not seek a reversal of the decision. The reason why I have gone to this length to identify what the complaints in the appeal and cross appeal are as required by Order 7 Rule 2 (1) of the Court of Appeal Rules will become obvious in the course of this judgment.

The Records of Appeal were compiled and transmitted and the parties filed and exchanged briefs of argument which they adopted and relied upon at the hearing of the appeal. The Appellants Brief was filed on 7th November 2011 but deemed as properly filed on 7th May 2019. The Respondent filed a Cross Appellants Brief on 21st February 2017, but the same was deemed as properly filed on 7th May 2019. The Appellant did not file a Cross Respondents Brief. Even though the Respondents Brief is titled Cross Appellants Brief, it also includes submissions in response to the arguments in the Appellants Brief. So notwithstanding the misleading title, it is actually a Respondent/Cross Appellants Brief.

The Respondent/Cross Appellant filed two Notices of Preliminary Objection on 21st February 2017 and 31st March 2017 respectively. The Notices of Preliminary Objection were not argued in the Cross Appellants Brief and the learned counsel to the Respondent/Cross Appellant did not seek leave to argue the preliminary objection at the hearing of the appeal. The said Notices of Preliminary Objection are deemed as abandoned and are therefore struck out: AGBAREH vs. MIMRA (2008) LPELR (43211) 1 at 47-48, A-G RIVERS STATE vs. UDE (2006) LPELR (626) 1 at 29 and OFORKIRE vs. MADUIKE (2003) 1 SCNJ 440 at 448.

The Appellant distilled two issues for determination as follows:
i. Whether the lower court was correct in holding that the Appellant was negligent in the handling of the transaction that led to the use of the Respondents title document for a third party legal mortgage and that the Appellant was liable in damages to the Respondent (Distilled from Ground one of the Grounds of Appeal).
ii. Whether the lower courts decision to discountenance with the evidence of Mrs. Constance Obi (DW2), the Managing Director of Prime Grocers

Intl Ltd the former 3rd Defendant in the suit did not occasion a miscarriage of justice to the Appellant (Distilled from Ground two of the Grounds of Appeal).

The Respondent/Cross Appellant formulated three issues. Two of the three issues as compartmentalized seem to be in respect of the main appeal while the third issue is in the portion of the brief titled cross appeal. The two issues which seem to be in respect of the main appeal are as follows:
1. Whether or not issues were joined on the state of pleadings in respect of RITADE JOHNSON between the Appellant and the Respondent and whether the Learned Trial Judge was right to have disregarded the evidence of Mrs. Constance Obi (DW2).
2. Whether or not the issue of fraud was proved beyond reasonable doubt. (Ground 2).

The above issue number two does not take its roots from any of the grounds of appeal in the main appeal. There is no complaint in the main appeal in respect of the decision of the lower court on the issue of fraud. It is hornbook law that issues for determination must arise from the grounds of appeal. An issue for determination that does not arise

from the grounds of appeal will be discountenanced. See CEEKAY TRADERS LTD vs. GENERAL MOTORS CO. LTD (1992) LPELR (834) 1 at 22, EZENWA vs. OKO (2008) LPELR (1206) 1 at 10-11 and CSS BOOKSHOPS LTD vs. THE REGISTERED TRUSTEES OF MUSLIM COMMUNITY RIVERS STATE (2006) LPELR (824) 1 at 29-30.
In order to confirm that the Respondent/Cross Appellants issue number two did not emanate from any of the grounds of appeal, I was constrained to examine the grounds in the Notice of Cross Appeal and indeed the said issue seemed to have been distilled from ground two of the Notice of Cross Appeal. So ideally it should be an issue for determination set out in the portion of the Cross Appellants Brief dealing with Cross Appeal. But notwithstanding this peccadillo, the said issue number two is still not a valid issue that can be raised in the cross appeal. I have already examined the part of the decision of the lower court complained about in the cross appeal and it is restricted to the refusal by and failure of the lower court to award exemplary damages. There is no complaint in the Cross Appeal against the decision of the lower court that fraud was not

proved beyond reasonable doubt. It is trite law that where there is an appeal on some points only on a decision, the appeal stands or falls on those points appealed against only, while the other points or decision not appealed against remain unchallenged. See MICHAEL vs. THE STATE (2008) LPELR (1874) 1 at 7 and MUTAIRU vs. ATOKE (2011) LPELR (4844) 1 at 14-15. It is equally rudimentary law that issues for determination are formulated from grounds of appeal which must relate to the decision appealed against: IWUOHA vs. NIPOST (2003) 8 NWLR (PT 822) 308 and LAU vs. PDP (2017) LPELR (42800) 1 at 12. Ground two of the Notice of Cross Appeal from which the Respondent/Cross Appellant distilled his issue number two does not relate to the part of the decision appealed against in the cross appeal, id est, the refusal of the lower court to award exemplary damages. In the circumstances, the said issue number two is incompetent. The same is discountenanced and will not play any further part in the consideration and determination of this matter.

A sole issue is nominated for determination in the cross appeal, namely:

Whether or not the Appellant/Cross-Respondent does not fall within the category of the principles enunciated in ROOKES V BARNARD 1964 AC 1129 regarding exemplary damages and whether or not the Respondent/cross-appellant has made out a case for granting it.

The Appellant did not file a Cross Respondents Brief. However, this does not mean that the cross appeal must perforce succeed. The Cross Appellant still has to show, based on the argument in the cross appeal that the part of the decision of the lower court complained about is wrong: CAMEROON AIRLINES vs. OTUTUIZU (2011) LPELR (827) 1, ECHERE vs. EZIRIKE (2006) ALL FWLR (PT 323) 1597 at 1610 and JOHN HOLT VENTURES LTD vs. OPUTA (1996) 9 NWLR (PT 470) 101 at 112.

For purposes of clarity and for the avoidance of doubt, the issues on the basis of which I will presently consider the submissions of learned counsel and resolve this matter are the two issues distilled by the Appellant in the main appeal and the sole valid competent issue formulated by the Respondent/Cross Appellant in the cross appeal. We start with the main appeal.

MAIN APPEAL
ISSUE NUMBER ONE
Whether the lower court was correct

in holding that the Appellant was negligent in the handling of the transaction that led to the use of the Respondents title document for a third party legal mortgage and that the Appellant was liable in damages to the Respondent.

SUBMISSIONS OF THE APPELLANTS COUNSEL
The Appellant submits that the lower court was wrong in holding that it was negligent in the handling of the transaction that led to the use of the Respondents title document for a third party legal mortgage. It was contended that the decision did not flow from the findings of facts, the lower court having found that the Appellant did not have the privilege of sighting the Respondents genuine documents which were in the Respondents possession; thus showing that the Appellant did not have the means or opportunity of verifying the Respondents signature and other documents other than what was submitted by Prime Grocers International Ltd.

It was asserted that the Appellant conducted due diligence search with the Registrar of Titles and Lagos State Property Development Company and then opined that the conclusion of the lower court which was not

borne out by the evidence is perverse and ought to be set aside since it occasioned a miscarriage of justice. The cases of ATOLAGBE vs. SHORUN (1985) 1 NWLR (PT 2) 360, AGBOMEJI vs. BAKARE (1998) 9 NWLR (PT 564) [no page stated] and ODIBA vs. AZEGE (1998) 9 NWLR (PT 566) 370 were referred to.

RESOLUTION OF ISSUE NUMBER ONE
The Respondent/Cross Appellant did not proffer any submissions on this issue as he did not craft a corresponding issue in his Cross Appellants Brief. This notwithstanding, the Appellant still has to succeed on the strength of its submissions: ECHERE vs. EZIRIKE (supra) and JOHN HOLT VENTURES LTD vs. OPUTA (supra).

The facts of this matter which are not disputed disclose that the Appellants customer, Prime Grocers International Ltd, used the documents of title of property belonging to the Respondent as security for an overdraft facility. The said title documents were not genuine. On the strength of the said title documents, a third party legal mortgage was executed and the facility was disbursed by the Appellant. It is settled law that the evaluation of evidence and ascription of probative value thereto reside

In holding that the Appellant was negligent, the lower court identified the crucial question at page 358 of the Records where it stated:
The question then is not whether the former 3rd Defendant owed any duty of care in contract to the Claimant who was unknown to them but whether they were negligent in accepting documents which were not genuine in loaning the 3rd Defendant money and causing loss, inconvenience and damage to the Claimant whose property was thereby illegally encumbered by the registration of the 2nd Defendants interest in same at the Registration of Title Registry a tortious liability.

Having so identified the question, the lower court proceeded to consider the evidence and found and held as follows:

The only determination the Court is called upon to make now is if there was any reason from the documents presented to the 2nd Defendant Bank to call them to caution which they did not heed. Indeed, in the Supreme Court case of INTERNATIONAL MESSENGERS NIG. LTD V. ENGR. DAVID NWACHUKWU (2004) 18 NSCQR 877, this negligence is said to be the breach of duty to take care.
It is to the Defendants evidence and documents that this Court must have recourse. This is so because at the time of the transaction and as rightly testified by DW1, the 2nd Defendant did not have the privilege of sighting the Claimants genuine documents said to still be in his possession. This Court so finds and holds.
On a close perusal of all the Defendants documents, even to the naked eye, there is a discrepancy between the signatures on Exhibits D2 & D7 – the purported letter of authorization of the Claimant and the application for the Certified True Copy of the Certificate of Occupancy used. It is pertinent to note that all other documents used were issued and/or signed by the former 3rd Defendant, Prime Grocers, or the 2nd Defendant herein.<br< p=””>

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This Court must agree with Counsel for the Claimant, Mr. Adegbite that the essence of production of these documents by a customer of the Bank is for the Bank to ensure their genuineness for purpose. DW1 admitted that they did not pay a visit to the property in question as described in Exhibit D1; neither is there any evidence to show that the Claimant, whose documents were to be used, was contracted.
To this Courts mind, these are elementary and minimal factors of due diligence. This Court so finds and holds. To find otherwise or to accept the 2nd Defendants position that whatever documents a customer brings to obtain a loan, especially using a 3rd partys documents, is to be accepted without such investigative verification is clearly untenable in law and/or good conscience. This Court therefore further finds that the 2nd Defendant did not observe due diligence in respect of the Claimants title documents used.
In the light of the above finding that the necessary due diligence was not conducted, this Court has no difficulty or option but to find the 2nd Defendant clearly negligent in the handling of the transaction which

resulted in loss for which the 2nd Defendant clearly admitted through DW1 they took benefit & are thus liable in damages.

I have insightfully considered the evidence on the cold printed records. As rightly stated by the lower Court in the above excerpt, there were manifest discrepancies evident in the documents which Prime Grocers International Limited submitted to the Appellant. The said discrepancies ought to have set off alarm bells ringing for the Appellant to verify, not just the authenticity of the documents, but to also visit the property and even request to see the owner of the title documents that was sought to be used as security. The Appellant however was content to accept the documents given to it, as are, by the said Prime Grocers International Limited. The only concern of the Appellant seemed to be that the amount written on the Valuation Report was sufficient to cover its exposure. A little circumspection would have exposed that the Valuation Report could not have been in respect of the property which title documents were given to it as the size of the property covered by the Valuation Report was far less than the size in the

title document. The law remains that an appellate Court can only intervene with the evaluation of evidence done by a trial Court where there is insufficient evidence to sustain the judgment or where the trial Court fails to make proper use of the opportunity of seeing, hearing and observing the witnesses or where the findings of fact made by the trial Court cannot be regarded as resulting from the evidence or where the trial Court has drawn wrong conclusion from accepted evidence or has taken an erroneous view of the evidence adduced before it or its findings are perverse in the sense that they do not flow from the accepted evidence or are not supported by the evidence before the Court. See EDJEKPO vs. OSIA (2007) LPELR (1014) 1 at 46-47 and WOLUCHEM vs. GUDI (1981) 5 SC 291 at 320.
The lower Court unquestionably evaluated the evidence and justifiably appraised the facts. The decision reached is supported by the evidence on record and the findings of fact are not perverse. It is therefore not for this Court to embark on a fresh appraisal of the evidence in order merely to arrive at a different conclusion from that reached by the lower Court:

AYANWALE vs. ATANDA (1988) LPELR (671) 1 at 21 and BOARD OF CUSTOMS & EXCISE vs. BARAU (1982) LPELR (786) 1 at 47. There is no basis on which to interfere with the correct decision of the lower Court that the Appellant was negligent. This issue number one is resolved in favour of the Respondent.

ISSUE NUMBER TWO
Whether the lower Courts decision to discountenance with the evidence of Mrs. Constance Obi (DW2), the Managing Director of Prime Grocers Intl Ltd the former 3rd Defendant in the suit did not occasion a miscarriage of justice to the Appellant.

SUBMISSIONS OF THE APPELLANTS COUNSEL
The Appellant contends that the decision of the lower Court to discountenance with the evidence of the DW2, the Managing Director of Prime Grocers International Limited, occasioned a miscarriage of justice. It was opined that the said witness came on a subpoena ad testificandum and that even though Prime Grocers International Limited had settled with the Respondents, the processes they filed were not struck out and still formed part of the Records of the lower Court.

It was maintained that a Court has a duty to consider all material evidence

and issues raised during trial and that the evidence of a witness which is cogent, credible and convincing ought to be acted upon vide KOPEK CONSTRUCTION LTD vs. EKISOLA (2010) 3 NWLR (PT 1182) 618 at 655. It was conclusively submitted that if the evidence of the DW2 had been considered the lower Court would have arrived at a different decision.

SUBMISSIONS OF THE RESPONDENT/CROSS APPELLANTS COUNSEL
This issue is argued as issue number one in the Cross Appellants Brief. It was submitted that the purpose of pleadings was for parties to clearly set out the facts they rely upon in order not to spring a surprise on the opponent and that evidence given in respect of a matter which is not pleaded goes to no issue. The cases of USMAN vs. GARKE (1999) 1 NWLR (PT 587) 466, ODUMOSU vs. ACB LTD (1976) 1 SC 261, GEORGE vs. DOMINION FLOUR MILLS LTD (1963) 1 ANLR 71 and NIPC vs. THOMPSON ORGANISATION LTD (1969) NMLR 99 at 104 were referred to. It was maintained that the testimony of the DW2 was in respect of matters which were not pleaded and on which no issues were joined and was consequently inadmissible vide SHAIBU vs. BAKARE (1984) 12 SC 187 at

194-196, OKWEJIMINOR vs. GBAKEJI (2008) 2 FWLR (PT 417) 2013.

It was contended that the Appellant did not list the DW2 as a witness and that the witness statement on oath filed by the DW2 was exclusively for Prime Grocers International Limited, the original 3rd Defendant in the action, and that upon the consent judgment it ceased to be a party and its processes were no longer of any relevance in the determination of the suit.

RESOLUTION OF ISSUE NUMBER TWO
The Appellants grouse in this issue is that the lower Court was wrong to have discountenanced with the evidence of the DW2. It is an established principle of law arising from the logic of reasoning that where there is a misconception as to the nature of finding or order made by a Court, then in all probability a wrong conclusion will invariably be arrived at as a result of the said misconception. See UDENGWU vs. UZUEGBU (2003) 13 NWLR (PT 836) 136 at 152, LADEJOBI vs. OGUNTAYO (2004) 7 SC (PT I) 159 at 169 and EFCC vs. AFOLABI (2018) LPELR (43565) 1 at 27. The Appellant has premised its contention on the misconception that the lower Court discountenanced with the evidence of the DW2.

No. It did not. The decision of the lower Court was to discountenance with any evidence adduced by the DW2 which was not within the pleadings of the Appellant and Respondent and on the basis of which they had joined the issues that went to trial. It is correct as stated by the Appellants counsel that the processes filed by Prime Grocers International Limited, the erstwhile 3rd Defendant still formed part of the records of Court; but the joinder of issues on the pleadings filed by the said 3rd Defendant were between it and the Respondent. Upon consent judgment being entered, the Respondent and the erstwhile 3rd Defendant, Prime Grocers International Limited, were no longer at issue and what went to trial were the issues joined on the pleadings filed by the Appellant and the Respondent. The lower Court was restricted in the hearing and determination of the matter to the pleadings of the Appellant and the Respondent and the issues joined thereon. Any testimony that did not emanate from the pleadings which were taken to trial was correctly discountenanced as going to no issue. Now, this is what the lower Court said with regard to the testimony of the DW2 at

page 357 of the Records:
Before going into the submissions of the 2nd Defendant Counsel in his Final Written Address, and taking this last point first, as rightly submitted by Counsel for the Claimant Mr. Adegbite, this issue of one Ritade Johnson is not joined on the pleadings of the Claimant and the 2nd Defendant. The former 3rd Defendant as earlier stated having settled its case with the Claimant upon terms. This Court so finds and holds. As such this Court has no option but to discountenance any evidence led in this regard especially that of DW2 not based [on] any pleadings before the Court.
So what the lower Court discountenanced was evidence that was not in line with the pleadings which it was correct to do: AKOMOLAFE vs. GUARDIAN PRESS LTD (2010) 3 NWLR (PT 1181) 338 at 351, ADEJUMO vs. AYANTEGBE(1989) 3 NWLR (PT 108) 417 andOYEWUSI vs. OLAGBAMI(2018) LPELR (44906) 1 at 27-28.
To underscore the fact that the lower Court did not discountenance the evidence of the DW2 in its entirety; it was based on the testimony of the DW2 that the lower Court felt unable to hold that there was collusion between the staff of the Appellant

and Prime Grocers International Limited. This is what the lower Court held at page 360 of the Records:
On whether there was collusion between the staff of the 2nd Defendant and the former 3rd Defendant, this is a probability but the Court is unable to speculate on this, especially in absence of the former 3rd Defendant from the suit, whose evidence as DW2 is that she honestly believed that the Claimants consent was obtained at the time of the disputed transaction.
Doubtless, the decision of the lower Court to discountenance the testimony of the DW2 which was outside the pleadings filed is the correct decision. It could not have occasioned a miscarriage of justice. Indubitably, this issue number two is resolved against the Appellant.
We segue to the cross appeal.

THE CROSS APPEAL
The sole issue for determination in the cross appeal is
Whether or not the Appellant/Cross Respondent does not fall within the category of the principles enunciated in ROOKES V BARNARD 1964 AC 1129 regarding exemplary damages and whether or not the Respondent/Cross Appellant has made out a case for granting it.

SUBMISSIONS OF THE CROSS APPELLANTS COUNSEL
The quiddity of the Cross Appellants contention is that the principles governing award of exemplary damages as laid down in ROOKES vs. BARNARD (1964) AC 1129 were applicable, as exemplary damages can be awarded where the conduct of the defendant had been calculated to make a profit for himself. The rationale for awarding exemplary damages it was stated was where the defendants conduct was sufficiently outrageous to merit punishment as where it disclosed malice, fraud, cruelty, insolence, flagrant disregard of the law and the like. The cases of ELIOCHIN vs. MBADIWE (1986) 10 SC 99 at 106 and DRANE vs. EVAGELOU (1978) 1 WLR 455 at 457 were cited in support. It was asserted that the Appellant committed blatant fraud from which it profited financially and that its conduct in the case has been outrageous, insolent and without any remorse. It was conclusively submitted that the lower Court was wrong when it held that since the onus of fraud and collusion was not satisfactorily discharged, the issue of exemplary damages was no longer relevant.

RESOLUTION
I iterate that the Appellant did not file any

Cross Respondents Brief. Howbeit, the Cross Appellant still has to succeed on the strength of his argument and not by default of the failure of the Appellant to file a Cross Respondents Brief. The crux of the sole issue in this cross appeal is whether the lower Court should have awarded exemplary damages against the Appellant upon holding that it was negligent in not carrying out due diligence before it used the Respondents property as security for the facility it granted Prime Grocers International Limited.
In SONUGA vs. THE MINISTER, FCT (2010) LPELR (19789) 1 at 33-35, Garba, JCA, dealing with the guiding principles for award of exemplary damages stated as follows:
“Exemplary damages are damages on an increased scale over general damages that will barely compensate a Plaintiff for the loss that he suffered where the wrong done to him was aggravated by circumstances of acts such as violence, oppression, malice, fraud or wanton or wicked conduct of the Defendant. Exemplary damages are such that they are usually awarded whenever the Defendant’s conduct in the wrongful act committed against the Plaintiff, is sufficiently

outrageous to merit punishment, such as where it discloses malice, fraud, cruelty, insolence, flagrant disregard of the law etc. In this con therefore, before exemplary damages can properly be awarded by a trial Court, there must be evidence in proof of the facts and circumstances which on the balance of probabilities, satisfy it that there is prima facie justification for such an award. In other words, the claim for exemplary damages must be pleaded and proved before it can be awarded. In the case of ODOGU v. A.G. FEDERATION (1996) 6 NWLR (456) 508 at 519-20. The Supreme Court had held thus:-
Before aggravated and exemplary damages can be awarded, it must be specifically claimed and proved
See also ELIOCHIN v. MBADIWE (1986) 1 NWLR (14) 47 cited in that decision and ONAGORUWA v. I.G.P. (1991) 5 NWLR (193) at 647. The principles guiding the award of exemplary damages are that they should be awarded when there is proof that:-
(i) the acts of the Defendant was oppressive, arbitrary and wilful disregard of the law,
(ii) the Defendant’s conduct had been calculated by him to make a profit or benefit himself which might exceed

the compensation payable to the Plaintiff, and
(iii) the award would serve to assuage or as solace to the Plaintiff for the aggravated wrong done to him.
See: EZEANI v. EJIDIKE (1964) 1 ALL NLR, 402 ONAGORUWA v. I.G.P. (1991) 5 NWLR (193) 647 (supra); FBN PLC. V. IBENNAH (1996) 5 NWLR (451) 725 at 742-3. For the foregoing reasons, exemplary damages fall within the class of special damages that calls for specific pleading and proof by evidence before they can be granted or awarded. In the premise, they also fall within the exception to the general principle of law that what is admitted needs no further proof as explained earlier in this contribution.”
The important consideration is whether there was evidence in proof of facts which provide justification for award of exemplary damages. From the pleadings, the basis on which the Cross Appellant claimed exemplary damages was that the Appellants action amounted to fraud. It was not predicated on the Appellants conduct having been calculated to make profit or benefit that might exceed the compensation payable. The declaration sought in paragraph 16 (h) of the Statement of Claim that the

Appellants action amounted to fraud was dismissed by the lower Court. The concomitance is that the facts and circumstances which would have afforded justification for award of exemplary damages were not proved: SONUGA vs. THE MINISTER, FCT (supra).
At the risk of prolixity, let me restate that the part of the decision complained about in the cross appeal did not challenge the decision of the lower Court that fraud was not proved beyond reasonable doubt. The said finding therefore remains subsisting and binding. See OGUNYADE vs. OSHUNKEYE (2007) ALL FWLR (PT 389) 1175 at 1206-1207, UNITY BANK vs. BOUARI (2008) 7 NWLR (PT 1086) 373 at 400, IDIOK vs. THE STATE (2008) LPELR (1423) 1 at 10-11 and ANYANWU vs. OGUNEWE (2014) LPELR (22184) 1 at 47. The lower Court was therefore right in its decision that the Respondent/Cross Appellant did not make out a good case for the award of exemplary damages against the Appellant. Inexorably, the sole issue distilled for determination in the cross appeal is resolved against the Respondent/Cross Appellant.

DENOUEMENT
In the course of this judgment, I have considered the main appeal and the cross appeal. The

issues for determination were resolved against the Appellant in the main appeal, just as the issue for determination in the cross appeal was resolved against the Respondent/Cross Appellant. The ineluctable conclusion is that both the appeal and cross appeal are entirely devoid of any merit whatsoever. They both fail and are hereby dismissed. The decision of the lower Court, Coram: Coker, J. is hereby affirmed. The parties are to bear their respective costs of this appeal.

MOHAMMED LAWAL GARBA, J.C.A.: I agree.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have had the privilege to read the draft of the lead judgment of my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA wherein he found both the main appeal and the cross appeal to lack merit, and has consequently dismissed

I agree with the said judgment and I too dismiss the appeal, and I abide with the consequential Order made that both parties shall bear their respective costs.
Appeal and cross appeal are dismissed.

Appearances:

L. O. Onwukwe, Esq.For Appellant(s)

Ademola Adegbite, Esq.For Respondent(s)

Appearances

L. O. Onwukwe, Esq.For Appellant

AND

Ademola Adegbite, Esq.For Respondent