D.A. WERBER LTD v. VIRGIN TECH LTD & ORS (2022)

D.A. WERBER LTD v. VIRGIN TECH LTD & ORS

(2022)LCN/16309(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Tuesday, August 02, 2022

CA/L/105/2015(R)

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Peter OyinkenimiemiAffen Justice of the Court of Appeal

Between

D.A. WERBER LIMITED APPELANT(S)

And

1. VIRGIN TECHNOLOGIES LIMITED (IN RECEIVERSHIP) 2. MAINSTREET BANK LIMITED 3. TAMUNO NATHAN GEORGE (RECEIVER, VIRGIN TECHNOLOGIES LIMITED) 4. REGISTRAR OF TITLES, LANDS REGISTRY LAGOS 5. DIRECTOR OF LANDS SERVICES, LANDS BUREAU, LAGOS STATE 6. ATTORNEY-GENERAL OF LAGOS STATE RESPONDENT(S)

RATIO:

THE DIFFERENCE BETWEEN THE LEGAL BURDEN OF PROOF AND THE EVIDENTIAL BURDEN OF PROOF

THE BURDEN OF PROVING A FACT RESTS ON THE PARTY WHO ASSERTS THE AFFIRMATIVE OF THE ISSUE

It is settled that a party who makes a positive/affirmative assertion is laden with the arduous burden of proving it. On the other hand, a party that makes a negative assertion carries no burden of proof. This doctrine, burden of proof on affirmative or negative assertion, is an offspring of the old Roman jurisprudence and encapsulated in the Latin maxim: “incumbitprobatio qui dicit, non quitnegat – the burden of proving of a fact rests on the party who asserts the affirmative of the issue and not upon the party who denies it – for a negative is usually incapable of proof:, see Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205, per Nweze, JSC; Sections 131 – 133 of the Evidence Act, 2011, Elemo v. Omolade(1968) NMLR 356 at 361; Lewis & Peat (NRI) Ltd. v. Akhimein (1976) 10 NSCC 360 at 365;Vulcan Gases Ltd. v. Gesellschaft Fur Ind. (2001) 9 NWLR (Pt. 719) 610; Imana v. Robinson (1979) 3 – 4 SC 1 at 9; Onyenge v. Ebere 18 NSCOR (Pt. 1078); Ewo v. Ani (2004) 3 NWLR (Pt. 861) 610; Olaiya v. Olaiya (2002) 12 NWLR (Pt. 982) 652; Akande v. Adisa (2012) 15 NWLR (Pt. 1324) 538; Okoye v. Nwankwo (supra); Odom v. PDP (2015) 6 NWLR (Pt. 1456) 527; Amadi v. Amadi (2017) 7 NWLR (Pt. 1563) 108. In the glaring presence of this settled position of the law, who has the burden of proof as between the contending parties? OBANDE FESTUS OGBUINYA, J.C.A.

AN APPLICANT IS TO FURNISH THE COURT WITH SUFFICIENT MATERIALS FACTS TO ATTRACT THE FAVOURABLE DISCRETION OF COURT

In any exercise of discretion, the law mandates an applicant, if he must attract the favourable discretion of a Court, to furnish it with sufficient material facts that it will use, as the springboard, to exercise its discretion judicially and judiciously. Indeed, if no excuse is offered, no indulgence should be granted, see Williams v. Hope Rising Voluntary Fund Society (1982) 1-2 SC 145; Dongtoe v. Civil Service Commission, Plateau State (2001) 9 NWLR (Pt. 717) 132; Menakaya v. Menakaya (2001) 16 NWLR (Pt. 738) 203; In Re: Mawa v. NACBCFC Ltd. (2007) 7 NWLR (Pt. 1032) 54; Ebe v. C.O.P. (2008) 4 NWLR (Pt. 1076) 189; Ifekandu v. Uzoegwu (2008) 15 NWLR (Pt. 1111) 58; Ani v. Otu (2017) 12 NWLR (Pt. 1578) 30. Unarguably, the applicants paid due obeisanceto that judicial responsibility, presentation of material facts for use by this Court as the yardstick to gauge the success of its application, when they filed copious affidavits in support of it. OBANDE FESTUS OGBUINYA, J.C.A.

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgement): By a motion on notice, dated 6th July, 2020 but filed on 10th July, 2020, the appellant, as an applicant, prayed this Court for the following orders:
a. AN ORDER for leave of this Honourable Court to substitute the 2nd Respondent (MAINSTREET BANK LIMITED) with POLARIS BANK LIMITED.
b. ORDER OF LEAVE AMENDING ALL THE PROCESSES (THE RECORD OF APPEAL, APPLICATION FOR DEPARTURE DATED 24TH FEBRUARY, 2015) FILED IN THIS MATTER TO REFLECT THE SUBSTITUTED NAMES.
AND FOR SUCH order or further orders as this Honourable Court may in the circumstances deem fit to make.
GROUNDS FOR ORDERS SOUGHT
1. By an Order of the Federal High Court, in Suit No. FHC/L/737/2004 dated 13th July, 2012 the name of the 2nd Defendant was substituted from Afribank Plc to Mainstreet Bank Limited.
2. In 2014, Skye Bank Plc won the bid to acquire 100 percent ownership sake of Asset Management Corporation of Nigeria (AMCON) in Mainstreet Bank Limited.
3. As a result, Mainstreet Bank’s operations has since been integrated into Skye Bank’s operations and Skye Bank Plc has taken over allthe deposits, liabilities and assets of Mainstreet Bank Limited since 2014.
4. On 21st September, 2018 the Central Bank of Nigeria revoked the license of Skye Bank Plc, and has been taken over by Polaris Bank Limited.
5. That Skye Bank’s operations has since been integrated into Polaris Bank operations and Polaris Bank Ltd has since taken over all the deposits, liabilities and assets of Skye Bank Plc.
6. The Order is seeking to substitute the name of the 2nd Respondent to POLARIS BANK LIMITED to reflect the name of the actual parties before the Court.

The application is predicated on six grounds. It is supported by a 6-paragraph affidavit sworn to by Josephine Zaki, an assistant clerk in the law firm of the applicant’s counsel, M. J. Onigbanjo & Co. In further support of it, on 12th January, 2021, the applicant filed a 5-paragraph further affidavit, deposed to by Akin-Aina Oyeleye, a litigation clerk in the law firm of the applicant’s counsel, with one annexure exhibit MJOI, attached to it. In opposition, the Polaris Bank Limited, the party to be substituted for the second respondent (the Bank) filed a 15-paragraphcounter-affidavit, on 7th September, 2020, sworn to by Wuraola Fasanya, a legal practitioner in the law firm of the respondent’s counsel, with three annexures, exhibits 001 – 003, attached to it. The application was heard on 24th May, 2022. The other respondents filed no processes.

During its hearing, learned applicant’s counsel, C. N. Okakpu-Gwacham, Esq., adopted the applicant’s written address, filed on 18th January, 2022, as representing his arguments for the application. He urged the Court to grant it. Similarly, learned counsel for the Bank, O. Ogunrinde Esq., adopted the respondent’s written address, filed on 16th March, 2022 but deemed properly filed on 24th May, 2022, as forming his reactions against the application. He urge the Court to dismiss it. On the other hand, Loretta Nwokolo, Esq, counsel for the fourth – sixth respondents, have no objection to the application. The first and third respondents had no legal representation.

In the applicant’s written address, learned counsel distilled two issues for determination, to wit:
1. Whether or not Polaris Bank Ltd. assumed all liabilities (or more particularly, the litigation liabilities) of Skye Bank Plc. (a bank in liquidation).
2. Whether or not Polaris Bank Ltd can be substituted for Mainstreet Bank Ltd in this appeal.
Admirably, the learned respondent’s counsel adopted the issues crafted by the learned applicant’s counsel.

Applicant’s arguments.
Learned applicant’s counsel submitted that the Bank, being a bridge bank or assuming institution of Skye Bank Plc, assumed all its assets and liabilities including litigation liability. He enumerated the diverse rescue options to save a bank in financial crises. He asserted that the Central Bank of Nigeria (CBN) and Nigeria Deposit Insurance Corporation (NDIC) took purchase and assumption option by incorporation of a bridge bank, the Bank, to save Skye Bank Plc. He relied on paragraph 5 of the CBN Press Release of 21st September, 2018. He explained that the NDIC and CBN derived their power from Section 39 of the NDIC Act, 2006. He stated the meaning of bridge bank as noted in Section 39 of the NDIC Act and NCNB Texas National Bank v. Cowden 895 F. 2d 1488 (5th Cir. 1990). He opined that the extent of assets and liabilities assumed by the Bank are contained in the CBN Press Release. He reasoned that the Bank’s liabilities are not limited as they include litigation liability. He observed that the Bank has the duty to show the extent of its liabilities but failed to do so. He posited that a party who asserts a fact has the burden to prove it. He cited Section 131 and 133 (2) of the Evidence Act, 2011; Maihaja v. Gaidam(2018) 4 NWLR (Pt. 1610) 454. He took the view that the Bank’s failure to produce the purchase and assumption agreement between it and NDIC to support its assertion of limited liabilities amounted to withholding evidence under Section 167 (d) of the Evidence Act and should be invoked against it. He referred to Emeka v. Chuba-Ikpeazu; PML Securities Co. Ltd. v. FRN and Mr. Olajuwon Olaleye v. Polaris Bank (sic: citation not supplied).

The Bank’s submissions
Learned counsel for the Bank contended that exhibit MJO I, attached to the applicant’s further affidavit, is inadmissible because it is an uncertified public document as required by Section 90 (1) (c) of the Evidence Act, 2011. He relied on Udo v. State (2016) LPELR– 40721 (SC); Araka v. Egbue (2003) 17 NWLR (Pt. 848) 1. He stated that the CBN revoked the licence of Skye Bank Plc but that did not affect its corporate personality and right to sue and be sued. He referred to Progress Bank (Nig.) Plc. v. O. K. Contact Point Ltd (2008) 1 NWLR (Pt. 1069) 514, exhibit 003 attached to the counter-affidavit; Oredola Okeya Trading Co. v. Bank of Credit and Commerce International, In Re Amolegbe (2014) 8 NWLR (Pt. 1408) 76.

Learned counsel argued that the Skye Bank Plc has separate legal entity from the bank. He relied on Section 42 of the Companies and Allied Matters Act (CAMA); Salomon v. Salomon & Co. Ltd. (1897) AC 22. He traced the history of the Bank as shown in exhibits 001 and 002. He reasoned that Section 39 of the NDIC Act did not provide for all assets and liabilities and the NDIC could choose the ones to sell to a bridge bank. He cited Section 588 (2) (a) of CAMA. He insisted that the provision of Section 39 of the NDIC Act should be given its ordinary meaning. He referred to Marwa v. Nyako (2012) LPELR – 7837 (SC); Transmission Co. of Nig. Plc. v. Mobank Services Ltd (2021) LPELR – 55723(CA). He opined that exhibit MJO I did not state that the Bank took all the liabilities of Skye Bank Plc. He advocated that the applicant failed to prove its assertion that the Bank assumed litigations liabilities of the Skye Bank. He cited Sections 131 and 133 (2) of the Evidence Act, 2011; Dasuki v. FRN (2018) LPELR – 43897 (SC) Mari v. Nasiru (2021) LPELR – 55069 (CA).

Resolution of the issues.
A clinical audit of issue one, clearly discloses that it is plain and canalised within a narrow compass. It orbits around the Bank’s assumption of liabilities of the erstwhile Skye Bank Plc. The applicant’s agitation is that the Bank assumed all the liabilities including that of litigation. The casus belli, decipherable from the diametrically opposed contentions of the feuding parties, centres on who owns the burden to prove the Bank’s assumption of liabilities of the Skye Bank Plc. In essence, the stubborn issue is a mild summon on this Court to engage in the exploration of the undulating forensic contours of burden of proof within the firmament of adjectival law.

By way of prefatory remarks, the term burden of proof, which is ubiquitous in adjudication, signifies: the duty which lies on one or other of the parties, either to establish a case or to establish the facts upon a particular issue, see Okoye v. Nwankwo (2014) 15 NWLR (Pt. 1429) 93 at 133, per Muhammad, JSC. The law divides it into two categories: the legal burden of proof and the evidential burden of proof. The former, which bears other appellations: persuasive burden, probate burden, ultimate burden, the burden of proof on pleadings or the risk of non-persuasion, propounded by Phipson on Evidence, 11th Edition (Sweet and Maxwell) page 125, rests on party who asserts the existence of facts. In Latin days of the law, it was couched: qui affimatnon a qui negatincumatprobat, see C.P.C. v. INEC (2011) 18 NWLR (Pt. 1279) 493 at 540. The latter oscillates between parties in a case depending on the assertion in the pleading. It is settled that a party who makes a positive/affirmative assertion is laden with the arduous burden of proving it. On the other hand, a party that makes a negative assertion carries no burden of proof. This doctrine, burden of proof on affirmative or negative assertion, is an offspring of the old Roman jurisprudence and encapsulated in the Latin maxim: “incumbitprobatio qui dicit, non quitnegat – the burden of proving of a fact rests on the party who asserts the affirmative of the issue and not upon the party who denies it – for a negative is usually incapable of proof:, see Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205, per Nweze, JSC; Sections 131 – 133 of the Evidence Act, 2011, Elemo v. Omolade(1968) NMLR 356 at 361; Lewis & Peat (NRI) Ltd. v. Akhimein (1976) 10 NSCC 360 at 365;Vulcan Gases Ltd. v. Gesellschaft Fur Ind. (2001) 9 NWLR (Pt. 719) 610; Imana v. Robinson (1979) 3 – 4 SC 1 at 9; Onyenge v. Ebere 18 NSCOR (Pt. 1078); Ewo v. Ani (2004) 3 NWLR (Pt. 861) 610; Olaiya v. Olaiya (2002) 12 NWLR (Pt. 982) 652; Akande v. Adisa (2012) 15 NWLR (Pt. 1324) 538; Okoye v. Nwankwo (supra); Odom v. PDP (2015) 6 NWLR (Pt. 1456) 527; Amadi v. Amadi (2017) 7 NWLR (Pt. 1563) 108. In the glaring presence of this settled position of the law, who has the burden of proof as between the contending parties?

This being an application, it is my view that the incongruent affidavits of all parties are the proper barometer to measure the location of the burden of proof of the parties. To this end, I have given a global examination to the incompatible affidavits with the finery of a toothcomb. Interestingly, the affidavits are comprehension-friendly. The main thrust of the applicant’s assertion is that the Bank assumed all the liabilities, inclusive of litigation liability of the distressed Skye Bank Plc. Per contra, the marrow of the Bank’s assertion is that it did not assume all the liabilities of the Skye Bank Plc. Specifically, the applicant claims that the Bank inherited the litigation liability of the Skye Bank Plc while the Bank’s disclaims/contests its inheritance of it. To vindicate and consolidate its stance, the applicant alleged that there is a purchase and assumption agreement between NDIC and the Bank.

It admits of no argument that the applicant’s claim is a classic exemplification of a positive assertion. Contrariwise, the Bank’s stand falls within the slim perimeter of negative assertion. It stems from the hallowed principle of law, which is displayed supra, that the onus probandi resides in the applicant who made the positive/affirmative assertion. Negative assertion does not magnet any burden of prove as decreed by the ex cathedra authorities catalogued above. It flows that the law in its wisdom, has made it incumbent on the applicant to prove/show to this Court that the Bank inherited litigation liability of the ailing Skye Bank Plc. In the premises, the learned applicant’s dazzling argument, with the mission to apportion the burden of proof to the Bank, flies in the face of the law. I endorse in toto the sterling argument of the learned counsel for the Bank as it is in total alignment with the letter and spirit of the law. In effect, the applicant’s enticing invitation to this Court to employ the doctrine of withholding evidence, enshrined in Section 167(d) of the Evidence Act, 2011, against the Bank is drowned by the law as chronicled supra.

That is not all. There is no gainsaying the fact that this applicant’s specie of application, like every other application is propagated firmly in the Court’s inherent jurisdiction which is erected on judicial discretion. Discretion signifies: the right or power of a Judex toact according to the dictates of his personal judgment and conscience uninfluenced by the judgment or conscience of other persons, see Suleman v. C.O.P., Plateau State (2008) 8 NWLR (Pt. 1089) 298, Ajuwa v. S.P.D.C.N. Ltd. (2011) 18 NWLR (Pt. 1279) 797; NJC v. Dakwang (2019) 7 NWLR (Pt. 1672) 532; Nzekwe v. Anaekwenegbu (2019) 8 NWLR (Pt. 1674) 235; Adeniyi v. Tina George Ind. Ltd (2019) 16 NWLR (Pt.1699) 560.

In any exercise of discretion, the law mandates an applicant, if he must attract the favourable discretion of a Court, to furnish it with sufficient material facts that it will use, as the springboard, to exercise its discretion judicially and judiciously. Indeed, if no excuse is offered, no indulgence should be granted, see Williams v. Hope Rising Voluntary Fund Society (1982) 1-2 SC 145; Dongtoe v. Civil Service Commission, Plateatu State (2001) 9 NWLR (Pt. 717) 132; Menakaya v. Menakaya (2001) 16 NWLR (Pt. 738) 203; In Re: Mawa v. NACBCFC Ltd. (2007) 7 NWLR (Pt. 1032) 54; Ebe v. C.O.P. (2008) 4 NWLR (Pt. 1076) 189; Ifekandu v. Uzoegwu (2008) 15 NWLR (Pt. 1111) 58; Ani v. Otu (2017) 12 NWLR (Pt. 1578) 30. Unarguably, the applicants paid due obeisanceto that judicial responsibility, presentation of material facts for use by this Court as the yardstick to gauge the success of its application, when they filed copious affidavits in support of it.

However, as already observed, at the cradle of this resolution, the applicant claimed that there is a purchase and assumption agreement between the NDIC, the provisional liquidator of the Skye Bank Plc, and the Bank. Curiously, the applicant upon whom the burden of proof rests on in its infinite wisdom, failed/neglected to furnish this Court with the claimed existential document. Perhaps, the document warehouses the litigation liability of the Bank vis-a -vis the Skye Bank Plc. The neglect is a costly failure with far-reaching consequences on the applicant’s case. The net effect is that the applicant failed to avail this Court with the essential material, which is sine qua non for is exercise of judicial discretion in its favour. It is an elementary law that a Court, whether trial or appellate, does not dish out its discretion in vacuo as material facts are the desiderata for such judicial exercise. It will constitute a judicial sacrilege and flagrant defilement of the adjectival law to favour the applicant with an indulgence in the glaring absence of material fact. In the end, I have no option than to resolve the issue one against the applicant and in favour of the Bank.

Having dispensed with issue one, I proceed to settle issue two. The kernel of the issue is simple. It appertains to the legality or otherwise of the substitution of the Bank for the second respondent, Mainstreet Bank Limited in the appeal. I have given a microscopic examination to the applicant’s unpagenated written address. Incidentally, I am unable to find, even with the prying eagle-eye of an appellate Court, where the learned applicant’s counsel proferred arguments in support of the issue. In other words, the learned counsel for reason best known to him, nominated the critical issue which qualifies as the cynosure of the application, without any corresponding/accompanying arguments to buttress it. An issue for determination is not self-executory. A party who frames an issue must, if it must be enjoy any efficacy, offer submissions to shore it up. The applicant’s issue, in the absence of arguments in support, is a barren issue and falls into the detestable landscape of abandonment with the penalty of striking out hanging over it.

The written address houses other unwarranted lacunae. The applicant’s written address is unpagenated. Some legal authorities were referred to without any citations. The Bank’s allegation that exhibit MJOI was an inadmissible document for being an uncertified public document was never greeted with any scintilla of response by the applicant. Due diligence and dexterity were unjustifiably treated with disdain and contempt. In all, in due fidelity to the dictate of the law, the applicant’s issue two is struck out for being abandoned.

In the light of the foregoing, the destiny of the application is obvious. It is bereft of any morsel of merit and deserves the penalty of dismissal. Consequently, I dismiss the application. The parties shall bear the respective costs they incurred in the prosecution and defence of the doomed application.

ONYEKACHI AJA OTISI, J.C.A.: I read in advance, a copy of the Ruling just delivered by my learned brother, Obande Festus Ogbuinya, JCA, in which this application was dismissed. I completely agree with and adopt as mine the reasoning and conclusions therein, as presented by my learned brother. I also see no merit in this application, and dismiss the same.

PETER OYINKENIMIEMI AFFEN, J.C.A.: I have had the benefit of a preview of the Ruling delivered by my learned brother, OBANDE FESTUS OGBUINYA, JCA wherein the facts and issues in contention are set out, and I hereby give my concurrence to it. I equally abide by the consequential orders therein contained.

Appearances:

C. N. Okakpu-Gwacham, Esq, with him, J. C. Abba, Esq. For Appellant(s)

O. Ogunrinde, Esq., with him, D. Akindolire, Esq. – for 2nd Respondent

Loretta Nwokolo, Esq, – for 4th – 6th Respondents

No legal representation for the 1st and 3rd Respondents For Respondent(s)