ECOBANK (NIG) LTD v. SALEH (2020)

ECOBANK (NIG) LTD v. SALEH

(2020)LCN/14770(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Monday, November 23, 2020

CA/KN/157/2019

RATIO

SERVICE OF PROCESSES: POSITION OF THE LAW ON THE APPLICABILITY OF PROVISIONS DEALING WITH SERVICE OF PROCESSES IN THE SHERIFFS AND CIVIL PROCESS ACT TO ORIGINATING PROCESSES ISSUED OUT OF THE FEDERAL HIGH COURT

The position of the law on the applicability of the provisions of the sections dealing with service of processes in the Sheriffs and Civil Process Act to originating processes issued out of the Federal High Court appears divergent. The Supreme Court has held in the cases of Owners of the MV Arabella Vs Nigerian Agricultural Insurance Corporation (2008) 11 NWLR (Pt. 1097) 182 at 220, Drexel Energy and Natural Resources Ltd Vs Trans International Bank Ltd (2009) All FWLR (Pt 456) 1823, Owners of MV MSC Agata Vs Nestle (Nig) Plc (2014) 1 NWLR (Pt. 1388) 270 at 291, Central Bank of Nigeria Vs Inter Stella Communications Ltd (2018) 7 NWLR (Pt. 1618) 294, 326, Izeze Vs Independent National Electoral Commission (2018) 12 NWLR (Pt. 1629) 110 and Peoples Democratic Party Vs Independent National Electoral Commission (2018) 12 NWLR (Pt. 1634) 533 that the provisions apply to the originating processes issued by the Federal High Court.
However, in the case of Boko Vs Nungwa & Ors (2019) 1 NWLR (Pt 1654) 398, one of the Justices of the Supreme Court, Peter-Odili, JSC, suggested that the provisions do not apply to originating processes issued by the Federal High Court. Counsel to the Respondent has referred this Court to the unreported decision of the Supreme Court in Suit No SC.341/2019 – Biem Vs Social Democratic Party as holding that the provisions do not apply to originating processes issued by the Federal High Court. Counsel to the Respondent did not produce a copy of the said unreported decision for this Court to peruse and he did not state the date the judgment was delivered.
This Court does not intend to get embroiled in the controversy of whether or not the provisions on service in the Sheriffs and Civil Process Act apply to originating processes issued by the Federal High Court. The situation appears to still be in a flux and this Court will leave it to the Supreme Court to clarify and sort out. PER OLUMUYIWA ABIRU, J.C.A.

SERVICE OF PROCESS: EFFECT OF NON-COMPLIANCE WITH THE ENDORSEMENT PROVIDED IN SECTION 97 OF THE SHERIFFS AND CIVIL PROCESS ACT TO SERVICE OF PROCESSES

It will resolve this issue for determination on other grounds. It is not in contest that the writ of summons in this matter was issued in the lower Court, Federal High Court, Kano Judicial Division, and it was for service and was indeed served on the Respondent in Lagos and it did not carry the endorsement as provided for in Section 97 of the Sheriffs and Civil Process Act. The question that this Court will consider for resolution under this issue for determination is – what is the effect of this dereliction?
At a point in time there was so much confusion on the issue and this was brought about by the different decisions of the Supreme Court on the point. These were the decisions in Skenconsult (Nig) Ltd Vs Ukey (1981) 1 SC 6, Ezomo Vs Oyakhire (1985) 1 NWLR (Pt 2) 195, Nwabueze Vs Okoye (1988) 4 NWLR (Pt 91) 664, Adegoke Motors Ltd Vs Adesanya (1989) 3 NWLR (Pt 109) 250 and NEPA Vs Onah (1997) 1 NWLR (Pt 484) 680. However, in Odu’a Investment Co. Ltd Vs Talabi (1997) 10 NWLR (Pt 523) 1, the Supreme Court constituted a full panel of seven Justices to consider the issue and to reconcile its conflicting decisions and the decision of the Court, by a majority of six to one, was read by Ogundare, JSC. The learned Justice streamlined the views of the Supreme Court on the issue at page 52 C-F thus:
“From all I have been saying, my answer to the question set out in this judgment, therefore, is that non-compliance with Section 97 and/or Section 99 of the Sheriffs and Civil Process Act and the rule of Court requiring leave of the Court or a Judge for a writ to be served out of jurisdiction renders the writ and/or service of it voidable and the defendant who complains of such non-compliance is entitled ex debitio justitiae to have same set aside as was done in Skenconsult, Nwabueze and NEPA, provided he has not taken fresh steps in the matter which will amount to a waiver of the irregularity complained of. Where the latter is the case, his application to set aside must be refused. I need point out, for the avoidance of doubt, that the power to set aside is without prejudice to the power of the Court to allow, in appropriate cases, such amendments to be made and to make such order dealing with the proceedings generally as it thinks fit.
Turning to the case on hand, the appellant from the various steps it took in the proceedings after service on it of the writ of summons cannot now be heard to complain of defects in the issue and service of the writ. It is too late in the day to do so. He has waived his right to complain. The trial must go on. Technicalities are a blot upon the administration of the law and the Courts have moved a long way from allowing them to make an ass of it and dent the image of justice.”
In other words, the position taken by the full panel of the Supreme Court was that non-compliance with the provisions of the Federal High Court Rules and the Sheriffs and Civil Process Act is an irregularity which only renders the writ voidable, not void, and that such a writ will be voided at the instance of a defendant who acts timeously and before further steps are taken in the matter. This position was reiterated by the Supreme Court in the cases of Feed and Food Farms (Nig) Vs NNPC (2009) 6 MJSC (Pt 1) 131, Attorney General, Kwara State Vs Adeyemo (2017) 1 NWLR (Pt 1546) 210, Zakirai v Muhammed (2017) 17 NWLR (Pt 1594) 181 and Central Bank of Nigeria V InterStella Communications Ltd (2018) 7 NWLR (Pt. 1618) 294, 326.
It is correct that in Owners of the MV “Arabella” Vs Nigeria Agricultural Insurance Corp (2008) 11 NWLR (Pt 1097) 182, the Supreme Court speaking on the effect of non-compliance with the provisions of Section 97 of the Sheriffs and Civil Process Act said that:
‘By virtue of Section 97 of the Sheriffs and Civil Process Act, every writ of summons for service out of the State in which it was issued must, in addition to any endorsement of notice required by the law of such State, have endorsed thereon, a notice indicating that the summons is to be served out of the State and in which State it is to be served. Failure to endorse the required notice on a writ of summons for service outside of a State where it was issued is not a mere irregularity but a fundamental defect that renders the writ incompetent, and goes to the root of the jurisdiction and affects the competence of the Court.’
This position of law was reiterated by the Supreme Court in the cases of Drexel Energy and Natural Resources Ltd Vs Trans International Bank Ltd (2009) All FWLR (Pt 456) 1823, Izeze Vs Independent National Electoral Commission (2018) 12 NWLR (Pt. 1629) 110 and Peoples Democratic Party Vs Independent National Electoral Commission (2018) 12 NWLR (Pt. 1634) 533. Ordinarily, these later decisions of the Supreme Court should constitute the present position of the law on the subject. The circumstances, in the present instance, are however not ordinary.
Now, the Supreme Court sits in two panels – a panel of five Justices, used for its regular sittings, and a panel of seven Justices, usually referred as the sitting of the Full Court. The sitting of the Full Court of the Supreme Court is equivalent to what is referred to as “en banc” sitting of the appellate Courts in other jurisdictions. The sitting of the Full Court of the Supreme Court takes place where the Court is being asked to depart, or may decide to depart from a previous decision, in cases of high constitutional importance or great public importance, or in cases where conflicts in the decisions of its regular panels have to be reconciled. A decision rendered by the Full Court of the Supreme Court is regarded as the decision of the entire Justices of the Court, and not just the decision of the seven-man panel that sat on the matter. Under the doctrine of stare decisis, a sitting of the Full Court of the Supreme Court can overrule a prior decision of the Court. A decision of the Full Court of the Supreme Court is superior to, and overrides the decision of a regular panel of the Court – Bogoro Local Government Council Vs Kyauta (2017) LPELR 43296(CA), Federal Republic of Nigeria Vs Achida (2018) LPELR 46065(CA).
Thus, jurisprudentially a decision of the five-man panel of the Supreme Court cannot override or supersede the decision of the Full Court of the Supreme Court. The decisions in the cases of Owners of the MV “Arabella” Vs Nigeria Agricultural Insurance Corp supra, Drexel Energy and Natural Resources Ltd Vs Trans International Bank Ltd supra, Izeze Vs Independent National Electoral Commission supra and Peoples Democratic Party Vs Independent National Electoral Commission supra were delivered by five-man panels of the Supreme Court while the decision in Odu’a Investment Co. Ltd Vs Talabi supra was by a seven-man panel of the Supreme Court. The decision in Odu’a Investment Co. Ltd Vs Talabi enjoys the air of superiority and thus still remains the law until it is set aside or overridden by a decision of a panel of seven Justices of the Supreme Court – Gadi Vs Made (2010) 7 NWLR (Pt 1193) 325, Zakirai Vs Muhammad (2015) LPELR 40387(CA), Obasanjo Farms (Nig) Ltd Vs Muhammad (2016) LPELR 40199(CA), Social Democratic Party Vs Biem (2019) LPELR 46871(CA).
In other words, the extant position of the law is that non-compliance with the provision of Section 97 of the Sheriffs and Civil Process Act is a matter of procedural irregularity which renders the process voidable, and not a fundamental defect that renders the process void. It is trite law that matters of procedural irregularity must be raised by a party at the earliest opportunity upon being served with the Court process and before taking any further step in the matter, otherwise he will be deemed to have waived the irregularity and be foreclosed from raising it again- Kwaa Vs Kwakwa 3 WACA 176, Mobil Producing (Nig) Unlimited Vs Lagos State Environmental Protection Agency (2002) 18 NWLR (Pt 798) 1, Ndayako Vs Dantoro (2004) 13 NWLR (Pt 889) 187, F & F Farms (Nig) Ltd Vs Nigeria National Petroleum Corporation (2009) 12 NWLR (Pt 1155) 387, Nagogo Vs Congress for Progressive Change (2013) 2 NWLR (Pt 1339) 448, Udo Vs The Registered Trustees of the Brotherhood of the Cross & Star (2013) 14 NWLR (Pt 1375) 488. It has also been held that filing an unconditional appearance, filing a statement of defence or answer to a claim or anything done with the effect of defending an action amounts to taking steps that will foreclose the right of a party to raise an issue of procedural irregularity – Akintunde Vs Ojo (2002) FWLR (Pt 117) 1067, Ogbaegbe Vs First Bank of Nigeria Plc (2005) 18 NWLR (Pt 957) 357.
It is on record that upon being served with the writ of summons in question in the present case, the Appellant filed a memorandum of unconditional appearance and its statement of defence to the claims of the Respondent and which statement of defence it subsequently amended. The Appellant participated in the full trial of the matter on the merits without once raising the issue of non-compliance with the provision of Section 97 of the Sheriffs and Civil Process Act. Thus, the Appellant effectively waived the issue of non-compliance and the lower Court rightly exercised jurisdiction to entertain the claims of the Respondent – Duke Vs Akpabuyo (2005) 19 NWLR (Pt 959) 130, Obasanjo Farms (Nig) Ltd Vs Muhammad (2016) LPELR 40199(CA). PER OLUMUYIWA ABIRU, J.C.A.

EVIDENCE: REQUIREMENT FOR ADMISSIBILITY OF DOCUMENTARY EVIDENCE

Firstly, it is settled that documentary evidence need not be specifically pleaded in order to be admissible in evidence, so long as the facts and not the evidence by which such document is covered are expressly pleaded – U.A.C. Ltd Vs Saka Owoade 13 WACA 207, Thanni & Another Vs Saibu & Ors (1977) 2 SC 89 at 114, Odunsi Vs Bamgbala (1995) 1 NWLR (Pt 374) 641, Amadi Vs Olumati (1995) 7 NWLR (Pt. 410) 739, Allied Bank of Nigeria Ltd Vs Akubueze(1997) 6 NWLR (Pt 509) 374, Okeke Vs Oruh (1999) 6 NWLR (Pt 606) 175, Aminu Vs Hassan (2014) 5 NWLR (Pt 1400) 287, Sani Vs Kogi State House of Assembly (2019) 4 NWLR (Pt 1661) 172. In Ipinlaiye II Vs Olukotun (1996) 6 NWLR (Pt 453) 148, the Supreme Court, per Iguh, JSC, made the point thus:
“Documentary evidence, however, needs not be specifically pleaded to be admissible in evidence so long as facts and not evidence by which such a document is covered are expressly pleaded … Consequently, where the contents of a document are material, it shall be sufficient in any pleading to aver the effect thereof as briefly as possible without setting out the whole or any part thereof, unless the precise words of the document or any part thereof are material, such as in cases of libel.” PER OLUMUYIWA ABIRU, J.C.A.

DOCUMENT: ESTABLISHED RULE OF PLEADING OF DOCUMENTS

It is also an established rule of pleading of documents that documents referred to in a pleading forms part of the pleading; reference to a document in a pleading makes the document part of the pleading – Banque Geneviose De Commerce et De Credit Vs CIA Mar Di Isola Spetsai Ltd (1962) LPELR 25038(SC), Lawal Vs G. B. Ollivant (1972) 3 SC 124, Mobil Oil Plc Vs IAL 36 Incorporation (2000) 6 NWLR (Pt 659) 146, Boothia Maritime Inc. Vs Fareast Mercantile Co Ltd (2001) 9 NWLR (Pt 719) 572, Marine Management Associates Inc. Vs National Maritime Authority (2012) 18 NWLR (Pt 1333) 506, Sifax (Nig) Ltd Vs Migfo (Nig) Ltd (2018) 9 NWLR (Pt 1623) 138. In JFS Investment Ltd Vs Brawal Line Ltd (2010) 18 NWLR (Pt 1225) 495, the Supreme Court, per Fabiyi, JSC, explained this principle thus:
“In Day v. Williams Hill (Park Lane) Limited (1949) 1 ALL ER 219 at 221 it was held that ‘it should be made clear that if documents are referred to in a pleading they become part of the pleading and it is open to the Court to look at them without the need of any affidavit exhibiting them’. This pronouncement was duly given stamp of approval by this Court in the case of SGCC v. C. M. I. S. Limited (1962) 1 All NLR 570 at 511. In Lawal v. G. B. Ollivant (1972) 3 S.C. 124 at 130, this Court held that ‘if an agreement in writing is referred to in a pleading, it becomes part of the pleading and it is open to the Court to give the agreement its true legal effect, irrespective of the terms used in the pleadings to indicate such effect.’
The above stance, in my opinion is good law apart from being logical.” PER OLUMUYIWA ABIRU, J.C.A.

Before Our Lordships:

Abubakar Datti Yahaya Justice of the Court of Appeal

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Between

ECOBANK NIGERIA LIMITED APPELANT(S)

And

ALHAJI AMINU SALEH RESPONDENT(S)

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision contained in the judgment of the Federal High Court, Kano Judicial Division in Suit No FHC/KN/CS/123/2015 delivered by Honorable Justice Z. B. Abubakar on the 20th of February, 2019.

The Respondent was the claimant before the lower Court and his claims by an amended statement of claim were for:
i. A declaration that the Appellant was in breach of the Appellant’s terms of the Term Loan contained in the offer letter dated 4th December, 2007 for failure to purchase all the shares of former Bank PHB as at when due during the Initial Public Offer.
ii. A declaration that the Appellant was in breach of the understanding between the Appellant and the Respondent by the Appellant’s failure to purchase the Bank PHB Plc Unit Shares for the Respondent during the public offer.
iii. A declaration that the Appellant was in breach of the contractual agreement between the Appellant and the Respondent for buying 18 Million Units of Bank PHB Plc shares through private placement allotment.
iv. A declaration that the Appellant was in

breach of the contractual agreement with the Respondent having unilaterally purchased some units of shares in other persons names without the consent or knowledge of the Respondent.
v. A declaration that the Appellant did not purchase the shares applied for by the Respondent in line with the Respondent’s instructions and in accordance with the rules, regulations and guidelines guiding the purchase of shares on public offer as it relates to the former Bank PHB shares as contained in the Application for Shares Purchase Form.
vi. A declaration that the Appellant was willfully negligent and in breach of its own unilateral terms and conditions as outlined in the offer letter dated 4th of December, 2007.
vii. A declaration that the Respondent is not liable to the payment of the sum of N360 Million only or any sum whatsoever advanced as loan by the Appellant to the Respondent as well as the interest accrued thereon based on the willful negligence and breach of the terms of the loan.
viii. A declaration that the Respondent is entitled to the full refund of the sum of N150 Million as well as accruing interest thereon on the counterpart funding

deposited with the Appellant by the Respondent due to the willful negligence and breach of the contractual agreement as well as rules and regulations for the purchase of Bank PHB Plc shares.
ix. A declaration that the Respondent is entitled to full refund plus accruing interest thereon of the sum of N10.8 Million being the sum deducted as bank charges by the Appellant from the N150 Million counter funding deposit paid by the Respondent.
x. An order directing the Appellant to pay the sum of N31 Million to the Respondent being the professional legal fees paid to the Solicitors to handle this case.
xi. An order for the payment of the sum of N50 Million by the Appellant to the Respondent as general and exemplary damages.

The transactions leading up to this case took place between the Respondent and Oceanic Bank International Plc and Oceanic Bank International Plc was subsequently acquired by and merged into the Appellant. It was the case of the Respondent that by reason of the persuasion of the staff of the Appellant, he became interested in purchasing 30 Million units of the shares of Bank PHB Plc which was on public offer in 2007 at a total

cost of N510 Million. It was his case that he approached the Appellant for the funding of the purchase of the shares and he was requested to provide the sum of N150 Million and that the Appellant would co-fund the purchase by giving him a Term Loan of N360 Million and that the shares would be the collateral for the loan and that the shares would be sold off in good time to avoid incurring losses. It was his case that he paid the sum of N150 Million into his account and that the Appellant offered him a Term Loan of N360 Million on terms and conditions contained in a letter dated 4th of December, 2007 for the purchase of the shares. It was his case that he accepted the Term Loan and deductions totaling N10.8 Million were made from his account as agreed fees for the grant of the loan.

It was the case of the Respondent that it was the understanding of the parties that the shares were to be purchased during the public offer period, 19th of November, 2007 and 19th of December, 2007 and that the shares were to be purchased in his name in strict compliance with regulations for the purchase of shares contained in the Application for Shares Form and that he signed

a single Application for Shares Form. It was his case that after the close of the Initial Public Offer, he received a letter dated 22nd of July, 2008 from the Appellant informing him that share certificates for 12 Million shares had been received and that they would communicate to him immediately the share certificates for the remaining 18 Million shares were received. It was his case that parties exchanged letters on the outstanding shares and it was until the 26th of November, 2008 that the Appellant addressed a letter to him confirming the receipt of the share certificates for 18 Million shares.

It was his case that upon receiving a letter dated 15th of December, 2008 giving the breakdown of the shares purchased, he discovered that only shares listed as Nos. 7 and 16 on the breakdown were purchased in his name and the rest were purchased in the names of the members of his family without his oral or written instructions contrary to the letter of offer and the instructions guiding shares purchase as contained in the Shares Purchase Application Form. It was his case that he also discovered that the shares listed as No. 16 on the breakdown were not purchased

at the time of the Initial Public Offer, but through private placement without prior notification to, or his oral or written consent. It was his case that, in response to the Appellant’s letter of demand for the outstanding due on the Term Loan, he raised objections to way and manner the shares purchase was carried and he caused his Counsel to write a letter demanding that the Appellant reverse all the financial entries made into his account because of the breaches committed in the shares purchase.

It was the case of the Respondent that he also caused a petition to be addressed to the Central Bank of Nigeria and in response to which the Central Bank of Nigeria wrote a letter to the Appellant confirming that only 12 Million shares were purchased within the allotment period of the public offer while the 18 Million shares were purchased through private placement, outside the allotment period, without notification to, or his oral or written consent and the Central Bank of Nigeria directed the Appellant make reversals in his account in accordance with its findings. The Respondent reiterated that he did not at anytime by any means directly or indirectly,

written or oral give any instructions to anyone whosoever to purchase any share unit in any name other than his name as reflected in the letter of offer of the loan and it was his case that when the Appellant failed to abide the directive of the Central Bank of Nigeria, he was compelled to engage the services of a lawyer whom he paid N50 Million to commence the present action. It was his case that he suffered and is still suffering unquantifiable losses and serious economic distress due to the willful acts of the Appellant.

In its response on the pleadings, the Appellant denied that its staff persuaded the Respondent to do anything and it was its case that the Respondent, by a letter dated the 26th of November, 2007 applied for a Quality Life Scheme facility of N360 Million “as the Bank’s contribution for the cost of 30 Million units of Bank PHB shares worth N510 Million” and he undertook to repay the facility within 18 months in accordance with the Bank’s standard repayment schedule. It was its case that upon the review of the application and after necessary approvals, it, by a letter dated the 4th of December, 2007, offered the

Respondent a share acquisition (Term Loan) facility of N360 Million to finance the acquisition of Bank PHB Plc shares and that the offer did not mention the number of shares to be purchased or the names in which the shares would be purchased as parties had agreed that such names would be made available when required. It was its case that the Respondent willing accepted the terms and conditions of the offer and that the Respondent was not compelled to make a contribution towards the purchase of shares and that it was not contained anywhere in the terms of the offer that it was for purchase of shares at any particular time and that the deductions of N10.8 Million from the account of the Respondent was in accordance with the terms and conditions of the loan agreement.

It was its case that in fulfillment of its obligations to the Respondent under the loan agreement, it, on the 13th of December, 2007, two days after the loan sum was disbursed into the account of the Respondent, debited the account of the Respondent with his cheque and it issued ten banker’s cheques payable to Bank PHB Offer in the sum of N51 Million each, and totaling N510 Million for

the 30 Million shares, and that it forwarded the cheques and the application forms of the Respondent to Bank PHB Plc and that this was within the period of the Initial Public Offer of the shares. It was its case its obligation to the Respondent under the loan agreement was to make payments for and forward the application forms of the Respondent to the Bank PHB Plc and that it had no control over the period it would take Bank PHB Plc to issue the shares or the share certificates. It was its case that on the 22nd of July, 2007, it received ten share certificates covering 1.2 Million shares each, totaling N12 Million units of shares, from First Registrars and it informed the Respondent accordingly and that it did likewise when it received the share certificates for the remaining 18 Million units of shares.

The Appellant admitted exchanging correspondences and holding meetings with the Respondent on the issue of purchase of shares and that the complaint of the Respondent initially was that the Appellant did not purchase the shares and that upon receiving the share certificates confirming the purchase of the shares, the Respondent threw up the issue of the

shares not being purchased in his name. The Appellant reiterated that it made payment for the purchase of the shares within the Initial Public Offer and that this was based on the instructions of the Respondent as to the names the shares were to be purchased and that it was not in position to determine and had no control over how and when Bank PHB Plc would allot the shares and whether it would be by public offer or private placement. It admitted receiving the letter from the Central Bank of Nigeria and it was its case that it made representation to the Central Bank of Nigeria by letters dated 16th of December, 2011 and 15th of December, 2012 requesting the Central Bank to review its stance and notifying it that the matter was being mediated by the Securities and Exchange Commission and to await the outcome of the mediation.

It was the case of the Appellant that it did not breach the terms of contract nor was it negligent in purchasing shares in other names other than those of the Respondent as names were not random but were provided by the Respondent and that it acted within the terms of its agreement with the Respondent. It denied that the Respondent

was entitled to any of his claims and it was its case that the Securities and Exchange Commission was looking into the matter and that the Respondent was present at meetings convened by the Securities and Exchange Commission whereat the Appellant was directed to furnish the share certificates and the Share Application Forms signed by the Respondent and that it had since furnished the documents.

The matter proceeded to trial and in the course of which the Respondent testified as a sole witness in proof of his case and he tendered several documents admitted as Exhibits P, PB to PB13 and PC and his application for a loan was tendered through him under cross examination as Exhibit PD. The Appellant too called only one witness in proof of its defence and he sought to tender nine Bank PHB Share Application Forms in the name of the Respondent and in the names of the family members of the Respondent, which the witness stated were supplied by the Respondent and were duly signed by the Respondent. Counsel to the Respondent objected to the admissibility of the forms and the lower Court tentatively admitted them as Exhibits D, D1 to D8 and deferred Ruling on their

admissibility till judgment. The witness tendered further documents as Exhibits DA to DE and he also sought to tender the photocopies of ten banker’s cheques issued for the purchase of the shares on behalf of the Respondent and Counsel to the Respondent objected thereto and the lower Court again tentatively admitted them as Exhibits DF, DF1 to DF9 and deferred the Ruling on the objection till judgment.

At the conclusion of the trial and after the rendering of final written addresses by Counsel to the parties, the lower Court delivered a considered judgment wherein it found that the documents admitted as Exhibits D, D1 to D8 were inadmissible and it rejected and expunged them, and it found that the documents tendered as Exhibits DF, DF1 to DF9 were properly admitted and it found that the Respondent led cogent evidence to sustain his claims and it granted all the reliefs as claimed except the eleventh relief and in respect of which it awarded the Respondent N10 Million as damages instead of the N50 Million claimed. The Appellant was dissatisfied with the judgment and it caused its Counsel to file a notice of appeal dated the 21st of February, 2019 and

containing six grounds of appeal against it.

The notice of appeal was subsequently amended with the leave of this Court and an amended notice of appeal containing seven grounds of appeal and filed on the 29th of March, 2019 was deemed properly filed and served by this Court on the 2nd of May, 2019. In arguing the appeal, Counsel to the Appellant filed a brief of arguments dated the 10th of June, 2019 on the 13th of June, 2019 and the brief of arguments was deemed properly filed and served on the 30th of January, 2020. In response, Counsel to the Respondent filed a brief of arguments dated the 24th of February, 2020 on the 25th of February, 2020. Counsel to the Appellant filed a Reply brief of arguments dated the 4th of March, 2020 on the 6th of March, 2020. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments contained in their respective briefs of arguments as their oral submissions in the appeal.

Counsel to the Appellant distilled six issues for determination in the appeal and these are:
i. Whether the trial Court had jurisdiction to entertain the suit against the Appellant, when in fact the

Respondent’s writ of summons initiating the suit is inherently defective.
ii. Whether the trial Court was right on the facts and in law to have expunged Exhibits D, D1 to D8, tendered by the Appellant, from the judgment of the Court, on the ground that they were not specifically pleaded.
iii. Whether the trial Court was right to have held that though the written contract between the Appellant and the Respondent did not specifically state that the shares be bought for the Respondent at the initial public offer only, the Appellant owes a duty of care to the Respondent to act in his best interest.
iv. Whether the trial Court was right in granting reliefs 1-9, as claimed by the Respondent in his statement of claim thereof, and awarding the sums contained therein when in fact the Respondent did not seek for the award nor discharge his burden of proof to warrant his entitlement to same.
v. Whether the trial Court was right in awarding the sum of N31 Million against the Appellant as professional fees paid by the Respondent to his Counsel, when in fact the amount awarded is excessive, unwarranted and not supported by the pleadings.

Whether the trial Court was right in awarding the sum of N10 Million against the Appellant as general damages when in fact there was no basis or justification for the amount awarded.On his part, Counsel to the Respondent distilled four issues for determination in the appeal and these were:
i. Whether the lower Court was seised with jurisdiction to entertain this matter.
ii. Whether the trial Court was right to expunge Exhibits D, D1 to D8 tendered by the Appellant, from the judgment of the Court, on the ground that they were not specifically pleaded.
iii. Whether the trial Court was right to have held that the Appellant owes the Respondent a duty of care to act in his best interest.
iv. Whether the lower Court was right to award both general and special damages to the Respondent.

Reading through the records of appeal, particularly the pleadings filed by the parties before the lower Court and the records of proceedings before the lower Court, including the notes of evidence and the judgment appealed against, as well as the amended notice of appeal of the Appellant and the arguments contained in the briefs of arguments of the

parties, it is the view of this Court that there are three issues for determination in this appeal.
These are:
i. Whether, in the face of the endorsements on the writ of summons, the lower Court possessed the requisite jurisdiction to entertain the case.
ii. Whether, on the case made out by the parties on their respective pleadings, the lower Court was correct to have expunged Exhibits D, D1 to D8, tendered by the Appellant, on the ground that they were not specifically pleaded.
iii. Whether, on the pleadings and evidence led by the parties, the lower Court was correct when it found that the Respondent led credible evidence to prove his case and his entitlement to the reliefs granted.

This appeal will be resolved on the basis on these three issues for determination and the Court will consider all the arguments canvassed by Counsel to the parties under the three issues for determination. The issues for determination will be resolved seriatim.

Issue One
Whether, in the face of the endorsements on the writ of summons, the lower Court possessed the requisite jurisdiction to entertain the case

In arguing the issue for

determination, learned Senior Counsel to the Appellant stated that a defective writ of summons cannot sustain a suit before the Court and that the proceedings based thereon amount to a nullity. Counsel stated that the writ of summons issued by the Respondent in the instant case in the lower Court, and which was meant for and was served on the Appellant in Lagos, outside the jurisdiction of the lower Court, was defective because it did not carry on its face the required endorsement as laid down in Section 97 of the Sheriffs and Civil Process Act; that “it is to be served out of … State and in … State.” Counsel stated that service of Court processes out of jurisdiction is governed by the provisions of the Sheriffs and Civil Process Act and that any writ of summons for service out of jurisdiction which is not endorsed as required by Section 97 thereof goes to the root and competence of the writ of summons and is not a mere irregularity and he referred to the cases of Bello Vs National Bank of Nigeria Ltd (1992) 6 NWLR (Pt 246), Kida Vs Ogunmola (2006) All FWLR (Pt 327) 402.

Counsel stated that the provision of

Section 97 of the Sheriffs and Civil Process Act is applicable to States High Court and the Federal High Court and that the mandatoriness of the provision to writs of summons meant for service outside jurisdiction issued by the Federal High Court was emphasized by the Supreme Court in the cases Owners of MV “Arabella” Vs Nigeria Agricultural Insurance Corporation (2008) All FWLR (Pt 443) 1208, Drexel Energy and Natural Recourse Ltd Vs Trans International Bank Ltd (2009) All FWLR (Pt 456) 1823 and Izeze Vs INEC (2018) LPELR 44284(SC) and he quoted from the three cases. Counsel stated that in the light of these authorities, the writ of summons of the Respondent, having not been endorsed in compliance with the provision of Section 97 of the Sheriffs and Civil Process Act is incompetent and it thus drained the lower Court of the requisite jurisdiction to entertain the action of the Respondent and that as such all the proceedings conducted thereon amounted to a nullity and he referred to the cases of Kida Vs Ogunmola supra, Labour Party Vs Bello (2017) All FWLR (Pt 905) 1401. Counsel urged the Court to resolve the first issue for determination in favour of the Appellant.

In his response, Counsel to the Respondent stated that the arguments proffered by Counsel to the Appellant were based on an outright misconception of the extant position of the law as it relates to the provision of Section 97 of the Sheriffs and Civil Process Act vis-a-vis the territorial jurisdiction of the Federal High Court on the issue of service of originating processes. Counsel stated that the position of the law on the issue has radically changed and it is that the Federal High Court has jurisdiction throughout the country and that as such service of an originating process issued by the Federal High Court sitting in Kano on a defendant in Lagos is not service outside jurisdiction and does not warrant the endorsement provided for in Section 97 of the Sheriffs and Civil Process Act and he referred to the unreported decision of the Supreme Court in Suit No SC.341/2019 – Biem Vs Social Democratic Party and he quoted extensively therefrom. Counsel stated that the writ of summons as issued in this case without the endorsement provided for in Section 97 of the Sheriffs and Civil Process Act was proper and he urged the Court to resolve the issue

in favour of the Respondent.

The issue of non-endorsement of the writ of summons in line with Section 97 of the Sheriffs and Civil Process Act was not raised and canvassed before the lower Court and it was not pronounced upon by the lower Court. It was raised for this first time in this appeal and it is Ground One on the notice of appeal. The position of the law on the applicability of the provisions of the sections dealing with service of processes in the Sheriffs and Civil Process Act to originating processes issued out of the Federal High Court appears divergent. The Supreme Court has held in the cases of Owners of the MV Arabella Vs Nigerian Agricultural Insurance Corporation (2008) 11 NWLR (Pt. 1097) 182 at 220, Drexel Energy and Natural Resources Ltd Vs Trans International Bank Ltd (2009) All FWLR (Pt 456) 1823, Owners of MV MSC Agata Vs Nestle (Nig) Plc (2014) 1 NWLR (Pt. 1388) 270 at 291, Central Bank of Nigeria Vs Inter Stella Communications Ltd (2018) 7 NWLR (Pt. 1618) 294, 326, Izeze Vs Independent National Electoral Commission (2018) 12 NWLR (Pt. 1629) 110 and Peoples Democratic Party Vs Independent National Electoral Commission (2018) 12 NWLR

(Pt. 1634) 533 that the provisions apply to the originating processes issued by the Federal High Court.
However, in the case of Boko Vs Nungwa & Ors (2019) 1 NWLR (Pt 1654) 398, one of the Justices of the Supreme Court, Peter-Odili, JSC, suggested that the provisions do not apply to originating processes issued by the Federal High Court. Counsel to the Respondent has referred this Court to the unreported decision of the Supreme Court in Suit No SC.341/2019 – Biem Vs Social Democratic Party as holding that the provisions do not apply to originating processes issued by the Federal High Court. Counsel to the Respondent did not produce a copy of the said unreported decision for this Court to peruse and he did not state the date the judgment was delivered.
This Court does not intend to get embroiled in the controversy of whether or not the provisions on service in the Sheriffs and Civil Process Act apply to originating processes issued by the Federal High Court. The situation appears to still be in a flux and this Court will leave it to the Supreme Court to clarify and sort out. It will resolve this issue for determination on other grounds. It is not

in contest that the writ of summons in this matter was issued in the lower Court, Federal High Court, Kano Judicial Division, and it was for service and was indeed served on the Respondent in Lagos and it did not carry the endorsement as provided for in Section 97 of the Sheriffs and Civil Process Act. The question that this Court will consider for resolution under this issue for determination is – what is the effect of this dereliction?
At a point in time there was so much confusion on the issue and this was brought about by the different decisions of the Supreme Court on the point. These were the decisions in Skenconsult (Nig) Ltd Vs Ukey (1981) 1 SC 6, Ezomo Vs Oyakhire (1985) 1 NWLR (Pt 2) 195, Nwabueze Vs Okoye (1988) 4 NWLR (Pt 91) 664, Adegoke Motors Ltd Vs Adesanya (1989) 3 NWLR (Pt 109) 250 and NEPA Vs Onah (1997) 1 NWLR (Pt 484) 680. However, in Odu’a Investment Co. Ltd Vs Talabi (1997) 10 NWLR (Pt 523) 1, the Supreme Court constituted a full panel of seven Justices to consider the issue and to reconcile its conflicting decisions and the decision of the Court, by a majority of six to one, was read by Ogundare, JSC. The learned

Justice streamlined the views of the Supreme Court on the issue at page 52 C-F thus:
“From all I have been saying, my answer to the question set out in this judgment, therefore, is that non-compliance with Section 97 and/or Section 99 of the Sheriffs and Civil Process Act and the rule of Court requiring leave of the Court or a Judge for a writ to be served out of jurisdiction renders the writ and/or service of it voidable and the defendant who complains of such non-compliance is entitled ex debitio justitiae to have same set aside as was done in Skenconsult, Nwabueze and NEPA, provided he has not taken fresh steps in the matter which will amount to a waiver of the irregularity complained of. Where the latter is the case, his application to set aside must be refused. I need point out, for the avoidance of doubt, that the power to set aside is without prejudice to the power of the Court to allow, in appropriate cases, such amendments to be made and to make such order dealing with the proceedings generally as it thinks fit.
Turning to the case on hand, the appellant from the various steps it took in the proceedings after service on it of the writ

of summons cannot now be heard to complain of defects in the issue and service of the writ. It is too late in the day to do so. He has waived his right to complain. The trial must go on. Technicalities are a blot upon the administration of the law and the Courts have moved a long way from allowing them to make an ass of it and dent the image of justice.”
In other words, the position taken by the full panel of the Supreme Court was that non-compliance with the provisions of the Federal High Court Rules and the Sheriffs and Civil Process Act is an irregularity which only renders the writ voidable, not void, and that such a writ will be voided at the instance of a defendant who acts timeously and before further steps are taken in the matter. This position was reiterated by the Supreme Court in the cases of Feed and Food Farms (Nig) Vs NNPC (2009) 6 MJSC (Pt 1) 131, Attorney General, Kwara State Vs Adeyemo (2017) 1 NWLR (Pt 1546) 210, Zakirai v Muhammed (2017) 17 NWLR (Pt 1594) 181 and Central Bank of Nigeria V InterStella Communications Ltd (2018) 7 NWLR (Pt. 1618) 294, 326.
It is correct that in Owners of the MV “Arabella” Vs Nigeria Agricultural Insurance Corp

(2008) 11 NWLR (Pt 1097) 182, the Supreme Court speaking on the effect of non-compliance with the provisions of Section 97 of the Sheriffs and Civil Process Act said that:
‘By virtue of Section 97 of the Sheriffs and Civil Process Act, every writ of summons for service out of the State in which it was issued must, in addition to any endorsement of notice required by the law of such State, have endorsed thereon, a notice indicating that the summons is to be served out of the State and in which State it is to be served. Failure to endorse the required notice on a writ of summons for service outside of a State where it was issued is not a mere irregularity but a fundamental defect that renders the writ incompetent, and goes to the root of the jurisdiction and affects the competence of the Court.’
This position of law was reiterated by the Supreme Court in the cases of Drexel Energy and Natural Resources Ltd Vs Trans International Bank Ltd (2009) All FWLR (Pt 456) 1823, Izeze Vs Independent National Electoral Commission (2018) 12 NWLR (Pt. 1629) 110 and Peoples Democratic Party Vs Independent National Electoral Commission

(2018) 12 NWLR (Pt. 1634) 533. Ordinarily, these later decisions of the Supreme Court should constitute the present position of the law on the subject. The circumstances, in the present instance, are however not ordinary.
Now, the Supreme Court sits in two panels – a panel of five Justices, used for its regular sittings, and a panel of seven Justices, usually referred as the sitting of the Full Court. The sitting of the Full Court of the Supreme Court is equivalent to what is referred to as “en banc” sitting of the appellate Courts in other jurisdictions. The sitting of the Full Court of the Supreme Court takes place where the Court is being asked to depart, or may decide to depart from a previous decision, in cases of high constitutional importance or great public importance, or in cases where conflicts in the decisions of its regular panels have to be reconciled. A decision rendered by the Full Court of the Supreme Court is regarded as the decision of the entire Justices of the Court, and not just the decision of the seven-man panel that sat on the matter. Under the doctrine of stare decisis, a sitting of the Full Court of

the Supreme Court can overrule a prior decision of the Court. A decision of the Full Court of the Supreme Court is superior to, and overrides the decision of a regular panel of the Court – Bogoro Local Government Council Vs Kyauta (2017) LPELR 43296(CA), Federal Republic of Nigeria Vs Achida (2018) LPELR 46065(CA).
Thus, jurisprudentially a decision of the five-man panel of the Supreme Court cannot override or supersede the decision of the Full Court of the Supreme Court. The decisions in the cases of Owners of the MV “Arabella” Vs Nigeria Agricultural Insurance Corp supra, Drexel Energy and Natural Resources Ltd Vs Trans International Bank Ltd supra, Izeze Vs Independent National Electoral Commission supra and Peoples Democratic Party Vs Independent National Electoral Commission supra were delivered by five-man panels of the Supreme Court while the decision in Odu’a Investment Co. Ltd Vs Talabi supra was by a seven-man panel of the Supreme Court. The decision in Odu’a Investment Co. Ltd Vs Talabi enjoys the air of superiority and thus still remains the law until it is set aside or overridden by a decision of a panel of seven

Justices of the Supreme Court – Gadi Vs Made (2010) 7 NWLR (Pt 1193) 325, Zakirai Vs Muhammad (2015) LPELR 40387(CA), Obasanjo Farms (Nig) Ltd Vs Muhammad (2016) LPELR 40199(CA), Social Democratic Party Vs Biem (2019) LPELR 46871(CA).
In other words, the extant position of the law is that non-compliance with the provision of Section 97 of the Sheriffs and Civil Process Act is a matter of procedural irregularity which renders the process voidable, and not a fundamental defect that renders the process void. It is trite law that matters of procedural irregularity must be raised by a party at the earliest opportunity upon being served with the Court process and before taking any further step in the matter, otherwise he will be deemed to have waived the irregularity and be foreclosed from raising it again- Kwaa Vs Kwakwa 3 WACA 176, Mobil Producing (Nig) Unlimited Vs Lagos State Environmental Protection Agency (2002) 18 NWLR (Pt 798) 1, Ndayako Vs Dantoro (2004) 13 NWLR (Pt 889) 187, F & F Farms (Nig) Ltd Vs Nigeria National Petroleum Corporation (2009) 12 NWLR (Pt 1155) 387, Nagogo Vs Congress for Progressive Change (2013) 2 NWLR (Pt 1339) 448,

Udo Vs The Registered Trustees of the Brotherhood of the Cross & Star (2013) 14 NWLR (Pt 1375) 488. It has also been held that filing an unconditional appearance, filing a statement of defence or answer to a claim or anything done with the effect of defending an action amounts to taking steps that will foreclose the right of a party to raise an issue of procedural irregularity – Akintunde Vs Ojo (2002) FWLR (Pt 117) 1067, Ogbaegbe Vs First Bank of Nigeria Plc (2005) 18 NWLR (Pt 957) 357.
It is on record that upon being served with the writ of summons in question in the present case, the Appellant filed a memorandum of unconditional appearance and its statement of defence to the claims of the Respondent and which statement of defence it subsequently amended. The Appellant participated in the full trial of the matter on the merits without once raising the issue of non-compliance with the provision of Section 97 of the Sheriffs and Civil Process Act. Thus, the Appellant effectively waived the issue of non-compliance and the lower Court rightly exercised jurisdiction to entertain the claims of the Respondent – Duke Vs Akpabuyo (2005) 19 NWLR (Pt 959) 130,

Obasanjo Farms (Nig) Ltd Vs Muhammad (2016) LPELR 40199(CA). The Appellant cannot be heard to raise the issue of non-compliance in this appeal. The first issue for determination is resolved in favour of the Respondent.

Issue Two
Whether, on the case made out by the parties on their respective pleadings, the lower Court was correct to have expunged Exhibits D, D1 to D8, tendered by the Appellant, on the ground that they were not specifically pleaded.

In arguing this issue for determination, Counsel to the Appellant stated that it settled law that for documents to be admissible, facts relating to them must be pleaded by the party seeking to rely on the documents and the documents must be relevant to the facts in issue and that the document itself need not be specifically pleaded and he referred to and quoted from the cases of Omotosho Vs Obadairo (2014) All FWLR (Pt 745) 210 and Sterling Bank Plc Vs Falola (2015) All FWLR (Pt 774) 1. Counsel stated that the Appellant pleaded facts relating to the documents tendered as Exhibits D, D1 to D8 in paragraphs 6, 12, 31 and 34 of the amended statement of defence and that references were made to the documents,

Share Application Forms which were signed by the Respondent, particularly in paragraphs 12 and 34 thereof. Counsel stated that the documents formed the basis of the claims of the Respondent and were thus relevant to the facts in issue and that the documents satisfied all the requirements for their admissibility and he referred to the case of Haruna Vs Attorney General of the Federation (2012) All FWLR (Pt 632) 1617.

Counsel reiterated that documents constitute evidence and thus need not be pleaded and that what was required was pleading material facts relating to a document and he referred to the cases of Asman Man and Meck Co. Ltd Vs Spring Bank Plc (2012) All FWLR (Pt 613) 1864 and Ismaila Vs Mathew (2017) All FWLR (Pt 891) 824. Counsel stated that a conjoint consideration of the averments in the Appellant’s pleadings shows clearly that the lower Court was in error in expunging the documents in the course of its judgment on the ground that they were not pleaded. Counsel stated that the Appellant suffered a miscarriage of justice by reason of the decision as the documents were tendered to prove that it was part of the transaction between the

Appellant and the Respondent that shares be purchased in the names of the other persons mentioned in the documents, other than the name of the Respondent. Counsel urged the Court to resolve the issue for determination in favour of the Appellant.

In his response, Counsel to the Respondent stated that pleadings are meant to give the other party notice of his adversary’s case to eliminate surprise and that for a document to be admissible in civil proceeding facts relating to the documents must be pleaded by the party who intends to rely on same, the document must be relevant to the facts in issue and evidence of a fact not pleaded goes to no issue at the trial and ought to be disregarded and he referred to the case of Apena Vs Aileru (2014) LPELR 23305(SC). Counsel stated that the admissibility of document in evidence is governed by three main criteria; (i) is the document pleaded; (ii) is the document relevant to the inquiry; and (iii) is the document admissible in law and he referred to the case of Okonji Vs Njokanma (1999) 12 SC (Pt 11) 150. Counsel stated that the Appellant did not aver any facts to support and/or plead the documents tendered as

Exhibits D, D1 to D8 and that the closest the Appellant came to doing so was in paragraph 12 of its pleadings where he made reference to the Respondent signing one Share Application Form, and not nine.

Counsel stated that the averment in paragraph 34 of the pleadings of the Appellant did not also amount to the pleading of the Share Application Forms and that what was pleaded in the averment was a letter and he referred to the case of K. R. Textile Allied Product Ltd Vs H. Stephens Ltd (1989) 1 NWLR (Pt 95) 115. Counsel stated that pleadings must not be evasive, and must be cogent and pungent, exact and precise and not give room for speculation and conjecture and that evidence which is contrary to the pleadings must be expunged by the Court when considering a case and he referred to the cases of Abubakar Vs Waziri (2008) 6-7 SC (Pt II) 82, Abubakar Vs Yar’Adua (2008) 12 SC (Pt II) 1, Magnusson Vs Koiki (1993) 12 SCNJ 114 and Aminu Vs Hassan (2014) 5 NWLR (Pt 1400) 287. Counsel stated that assuming that the documents were indeed pleaded, they were still inadmissible because they were photocopies of the originals of the Share Application Forms for Bank

PHB shares and being secondary evidence, it was not averred that the originals were not available and no proper foundation was laid for their admission and he referred to the case of Echo Enterprises Ltd Vs Standard Bank Limited (1989) 4 NWLR (Pt 116) 509. Counsel stated that the lower Court was right in expunging the documents and he urged the Court to resolve the issue for determination in favour of the Respondent.
In expunging the said documents, the lower Court stated in the judgment thus:
“Now, starting with Exhibits D, D1 – D8, as rightly submitted by Counsel for the Plaintiff, there is no paragraph of the statement of defence where Exhibits D, D1 – D8 were mentioned, let alone pleaded. The closest to any pleading made with regards to the share application forms is paragraph 12 of the said Amended Statement of Defence …
As rightly observed by Counsel for the Plaintiff, from the context of the above pleading, the words ‘an’ is correlative to one, which signified that the Plaintiff signed one single share application form. Which means that facts pleaded in paragraph 12 of the Statement of Defence relate

only to one single application share form signed by the Plaintiff. In contrast to this averment, the Defendant tendered 9 application share forms as in Exhibits D, D1 – D8 respectively. This, in my view, negates the principle in the decision of Sterling Bank Plc Vs Falola … because there is no statement of facts relating to the said Exhibits contained in the pleading …
From the foregoing, what is clear is that Exhibits D, D1 – D8 were not pleaded in the Defendant’s Statement of Defence and also facts relating to them were not contained on the said Statement of Defence. Any mention of forms is only in the evidence of DW1. Evidence of DW1 is supposed to substantiate the averments contained on the pleading that is evidence and not to plead facts. Furthermore what it means is that the documents tendered are at variance with what was pleaded in paragraph 12 of the Statement of Defence which means they go to no issue …
Furthermore, contrary to the submissions of Counsel for the Defendant, the issue at hand is not just whether the Plaintiff signed Exhibits D, D1 – D8 but, whether proper procedure has been followed for

admitting them in evidence. When you do not plead a document or facts relating to the said document, even if it is signed by the adverse party it does not ipso facto qualify it for admission in evidence.
Based on the foregoing, this Court is of the view that Exhibits D, D1 – D8 are not admissible in evidence and they are so rejected and expunged from the record of the case. Any evidence led pursuant to those Exhibits is discountenanced by the Court.”

It is obvious from the above reproduced excerpt of the judgment that the lower Court rejected and expunged Exhibits D, D1 to D8 on the sole ground that they were not pleaded. The principles governing the pleading of documents are set and well established. Firstly, it is settled that documentary evidence need not be specifically pleaded in order to be admissible in evidence, so long as the facts and not the evidence by which such document is covered are expressly pleaded – U.A.C. Ltd Vs Saka Owoade 13 WACA 207, Thanni & Another Vs Saibu & Ors (1977) 2 SC 89 at 114, Odunsi Vs Bamgbala (1995) 1 NWLR (Pt 374) 641, Amadi Vs Olumati (1995) 7 NWLR (Pt. 410) 739,

Allied Bank of Nigeria Ltd Vs Akubueze(1997) 6 NWLR (Pt 509) 374, Okeke Vs Oruh (1999) 6 NWLR (Pt 606) 175, Aminu Vs Hassan (2014) 5 NWLR (Pt 1400) 287, Sani Vs Kogi State House of Assembly (2019) 4 NWLR (Pt 1661) 172. In Ipinlaiye II Vs Olukotun (1996) 6 NWLR (Pt 453) 148, the Supreme Court, per Iguh, JSC, made the point thus:
“Documentary evidence, however, needs not be specifically pleaded to be admissible in evidence so long as facts and not evidence by which such a document is covered are expressly pleaded … Consequently, where the contents of a document are material, it shall be sufficient in any pleading to aver the effect thereof as briefly as possible without setting out the whole or any part thereof, unless the precise words of the document or any part thereof are material, such as in cases of libel.”
The documents tendered as Exhibits D, D1 to D8 are Share Application Forms in the names of family members of the Respondent and which the Appellant said were signed by the Respondent in giving it other names, aside the Respondent’s, that the requested Bank PHB Plc shares should be purchased. Reading through the amended statement of

defence of the Appellant, it averred in paragraph 31 that it was not in breach of the agreement for purchasing shares in the other names other than those of the Respondent as it could not have just picked up any random names without the knowledge of the Respondent and that the names were provided by the Respondent. It is clear that this averment contained the facts covered by the documents tendered as Exhibits D, D1 to D8 and it constitutes a sufficient pleading of the documents.
It is also an established rule of pleading of documents that documents referred to in a pleading forms part of the pleading; reference to a document in a pleading makes the document part of the pleading – Banque Geneviose De Commerce et De Credit Vs CIA Mar Di Isola Spetsai Ltd (1962) LPELR 25038(SC), Lawal Vs G. B. Ollivant (1972) 3 SC 124, Mobil Oil Plc Vs IAL 36 Incorporation (2000) 6 NWLR (Pt 659) 146, Boothia Maritime Inc. Vs Fareast Mercantile Co Ltd (2001) 9 NWLR (Pt 719) 572, Marine Management Associates Inc. Vs National Maritime Authority (2012) 18 NWLR (Pt 1333) 506, Sifax (Nig) Ltd Vs Migfo (Nig) Ltd (2018) 9 NWLR (Pt 1623) 138. In JFS Investment Ltd Vs Brawal Line Ltd

(2010) 18 NWLR (Pt 1225) 495, the Supreme Court, per Fabiyi, JSC, explained this principle thus:
“In Day v. Williams Hill (Park Lane) Limited (1949) 1 ALL ER 219 at 221 it was held that ‘it should be made clear that if documents are referred to in a pleading they become part of the pleading and it is open to the Court to look at them without the need of any affidavit exhibiting them’. This pronouncement was duly given stamp of approval by this Court in the case of SGCC v. C. M. I. S. Limited (1962) 1 All NLR 570 at 511. In Lawal v. G. B. Ollivant (1972) 3 S.C. 124 at 130, this Court held that ‘if an agreement in writing is referred to in a pleading, it becomes part of the pleading and it is open to the Court to give the agreement its true legal effect, irrespective of the terms used in the pleadings to indicate such effect.’
The above stance, in my opinion is good law apart from being logical.”
A read through the pleadings of the Appellant shows that in paragraph 34 of the amended statement of defence, the Appellant averred that pursuant to a complaint made by the Respondent to the Securities and Exchange

Commission, it furnished the Share Certificates and the Share Application Forms in respect of the transaction to the Commission. This is a clear reference to the Share Application Forms as forming part of the documents covering the transaction between it and the Respondent. This reference incorporated the documents tendered as Exhibits D, D1 to D8 as part of the pleadings.
The nemesis of the deliberations and the findings made by the lower Court on whether or not the documents admitted as Exhibits D, D1 – D8 were pleaded in the above excerpt of the judgment was its refusal to look beyond the averment in paragraph 12 of the pleadings of the Appellant. The lower Court was fixated on the paragraph 12 wherein the Appellant acknowledged that the Respondent signed one Share Application Form in his name and this was the only paragraph of the pleadings of the Appellant that it referred to throughout the deliberations. It is trite law that in considering the case made out by a party on the pleadings, a Court must read all the paragraphs of the pleadings of the party together to get a flowing story of the party and not a few paragraphs in isolation and it is

the totality of the pleadings that states the case of the party – Okochi Vs Animkwoi (2003) 18 NWLR (Pt 851) 1 and Mobil Oil Plc Vs Drexel Energy and Natural Resources Ltd (2004) 1 NWLR (Pt 853) 142. If the lower Court had abided this principle and had looked beyond paragraph 12 of the pleadings of the Appellant, it would have seen that there were averments therein upon which the admissibility of the exhibits could be hinged. The finding of the lower Court that the documents tendered as Exhibits D, D1 – D8 were not pleaded is perverse.
The Court notes that Counsel to the Respondent canvassed further arguments on the inadmissibility of the documents beyond the finding of non-pleading made by the lower Court. Counsel submitted that the documents were photocopies of the originals of the Share Application Forms for Bank PHB shares and, being secondary evidence, it was not averred in the pleadings that the originals were not available and no proper foundation was laid for their admission. As stated above, the sole reason given by the lower Court for expunging the documents was that they were not pleaded. The arguments of Counsel do not thus arise from the

ratio decidendi in the judgment of the lower Court. The records of appeal show that Counsel to Respondent canvassed these same arguments before the lower Court, but they were discountenanced by the lower Court. The Respondent neither filed a cross-appeal against the refusal of the lower Court to consider the arguments nor did he file a Respondent’s Notice to affirm the decision of the lower Court on other grounds. This Court is handicapped in the circumstances in considering these arguments of Counsel to the Respondent. The Court will thus discountenance the arguments.
The lower Court was clearly in error when it expunged the documents tendered as Exhibits D, D1 – D8 on the ground that they were not pleaded. The decision of the lower Court on the issue is hereby set aside and this Court readmits the nine documents as Exhibits D, D1 – D8. The second issue for determination is resolved in favour of the Appellant.

Issue Three
Whether, on the pleadings and evidence led by the parties, the lower Court was correct when it found that the Respondent led credible evidence to prove his case and his entitlement to the reliefs granted.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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In arguing the issue for determination, Counsel to the Appellant stated that the lower Court was in error when, having held that the written contract between the parties did not state that shares should be purchased for the Respondent at the initial public offer only, it found that the Appellant owed a duty of care to the Respondent to act in his best interest. Counsel stated that this is because parties are bound by the terms of contract expressly written and agreed by them and no extraneous terms are allowed to be imputed therein and the duty of the Courts is to give effect to the contract as entered by the parties and not to rewrite same and he referred to the case of Cannitec International Co. Ltd Vs Solel Boneh Nig Ltd (2017) All FWLR (Pt 891) 900. Counsel stated the documents that governed the transactions between the Appellant and the Respondent were the letter of offer of Term Loan for the purchase of shares dated the 4th of December, 2007 and the Share Application Forms signed by the Respondent, Exhibits D, D1 – D8, and that in none of the documents did the Respondent instruct the Appellant to purchase Bank PHB shares for him at the initial

public offer and that all that the documents requested was purchase of Bank PHB shares, without stipulating whether purchase was at the primary market or secondary market.

Counsel stated that under cross examination, the Respondent admitted that none of the documents indicated the mode of purchase of the shares, whether initial public offer or private placement or secondary market, and that he did not know the difference between primary offer and secondary offer. Counsel stated that having found that there was nothing in the documents that said that the shares should be purchased during the Initial Public Offer only, there was no basis for the lower Court to hold that the Appellant was under an obligation to exercise a duty of care in the buying of the shares for the Respondent in the primary market and that breach of the duty of care amounted to a breach of contract and he referred to the case of Interdrill (Nig) Ltd Vs UBA (2017) All FWLR (Pt 904) 1177. Counsel stated that the question of duty of care was not one of the issues raised by either of the parties and that it was raised suo motu by the lower Court and that, contrary to the dictates of the

law, the lower Court did not give the parties an opportunity to address it on the issue and he referred to the cases of Chitra Knitting and Weaving Manufacturing Co. Ltd Vs Akingbade (2016) All FWLR (Pt 857) 503, Egbuchu Vs Continental Merchant Bank Plc (2016) All FWLR (Pt 832) 1705 and Mabamije Vs Otto (2016) All FWLR (Pt 577) 180.

Counsel referred to the case of Ogbiri Vs NAOC Ltd (2011) All FWLR (Pt 577) 180 in reiterating the meaning of negligence and the ingredients to be prove to sustain a claim in negligence and stated that none of the ingredients was pleaded or proved before the lower Court and that as such the reference made to the concept of duty of care by the lower Court was wrongful. Counsel stated that first nine reliefs claimed by the Respondent were declaratory reliefs and that the Respondent had the sole and exclusive burden to establish them by credible evidence and that they cannot be granted even on the admission of the Appellant and he referred to the cases of Nyesom Vs Peterside (2016) All FWLR (Pt 842) 1573, Attorney General Rivers State Vs Attorney General Bayelsa State (2013) All FWLR (Pt 699) 1087. Counsel traversed through the

case of the Respondent on the pleadings and the unchallenged evidence led by the parties at the trial and stated that the Respondent led no credible evidence to show that the purchase of 18 Million of the Bank PHB shares by private placement amounted to negligence and how and what he suffered by reason of that purchase and he referred to the cases of Hamza Vs Kure (2010) All FWLR (Pt 539) 1070 and Banku Vs Sermatech (Nig) Ltd (2016) All FWLR (Pt 834) 179.

Counsel stated that the eighth and ninth reliefs sought by the Respondent were special damages and that, as such, they must be particularized and strictly proved and he referred to the cases of Union Bank of Nig Plc Vs Ajabule (2012) All FWLR (Pt 611) 1413 and Addeh Vs Onakomaiya (2017) All FWLR (Pt 907) 1690. Counsel traversed through the case of the Respondent on the pleadings and the evidence led and stated that the claims were not all particularized and that they were not all proved by credible evidence and that, in awarding them to the Respondent, the lower Court acted on speculations and conjectures and that these are forbidden for a Court of law and he referred to the case of

Adewale Vs AG & Commissioner of Justice, Ondo State (2015) All FWLR (Pt 786) 402. Counsel stated the Respondent did not provide any basis for the lower Court granting him any of the first to the ninth reliefs claimed.

Counsel stated that the lower Court was also in error in awarding the sum of N31 Million to the Respondent as professional fee he allegedly paid to his Solicitors as facts in support of the claim were neither pleaded nor led in evidence. Counsel referred to the cases of Isheno Vs Julius Berger (Nig) Plc (2008) All FWLR (Pt 415) 1632 and Achonu Vs Okuwobi (2017) All FWLR (Pt 905) 1294 in asserting the established principle that parties are bound by their pleadings and stated that what the Respondent pleaded was that he paid the sum of N50 Million as legal fees to his Counsel and that he would rely on the receipt received in proof thereof and that these were different from the sum claimed in the reliefs, N31 Million, and the receipt tendered, Exhibit PB12. Counsel stated that the evidence led was at variance with the pleadings and the lower Court ought not to have relied on same in granting the claim of the Respondent and he referred to the case of

Alhassan Vs Ishaku (2017) All FWLR (Pt 866) 209. Counsel stated that the sum of N31 Million awarded as Solicitor’s fee was excessive and unwarranted as it was not the Appellant that instructed the Solicitor and that it was not part of the cause of action of the Respondent and was, at best, a claim in special damages that must be particularized and strictly proved and he referred to the cases of Guinness Nigeria Plc Vs Nwoke (2001) FWLR (Pt 36) 981 and Nwanji Vs Coastal Services Ltd (2004) WRN 1. Counsel urged the Court to set aside the award.

It was the further contention of Counsel that the lower Court was again in error in awarding the sum of N10 Million as general damages as a Court cannot awarded special damages and general damages for an alleged breach of contract and that damages in breach of contract cases are determined from the actual loss occasioned to the injured party and are not imagined or inferred and he referred to the cases of GE International Operations (Nig) Ltd Vs Q Oil and Gas Services Limited (2016) All FWLR (Pt 838) 842 and Arisons Trading Vs Military Governor, Ogun State (2009) All FWLR (Pt 496) 1819 amongst others. Counsel stated that

the award of general damages by the lower Court amounted to double compensation and that the law frowns at such an award. Counsel urged the Court to set aside the award.

Counsel concluded his arguments by urging the Court to resolve the issue for determination in favour of the Appellant.

In his response arguments, Counsel to the Respondent referred to the case of Union Bank of Nigeria Plc Vs Ajabule (2012) in asserting that relationship of banker and customer between the Appellant and the Respondent created by the letter of offer of Term Loan, Exhibit PB13, was contractual and stated that the lower Court was correct in holding that the Appellant owes the Respondent a duty of care as bankers owe a general duty of care and skill towards their customers and must exercise the duty in conducting the customers’ affairs and he referred to the cases of Agbanelo Vs Union Bank of Nigeria Ltd (2000) 7 NWLR (Pt 666) 534, Dike Vs African Continental Bank Ltd (2000) 5 NWLR (Pt 657) 441. Counsel stated that the purpose of the Term loan offered by Exhibit PB13 was for the purchase of Bank PHB Shares and that the Respondent had an understanding with the

Appellant that the shares were to be purchased at the Initial Public Offer and not private placement and that the Appellant had a duty to act in the best interest of the Respondent by purchasing the shares during the Initial Public Offer and he referred to the cases of Nwosu Vs Zenith Bank Plc (2015) 9 NWLR (Pt 1464) 314 and Diamond Bank Ltd Vs P.I.C. Ltd (2009) 18 NWLR (Pt 1172) 67.

Counsel stated that the contract between the Appellant and Respondent said specifically that the Bank PHB shares should be bought at the initial public offer and in the name of Respondent as contained in the form Exhibit PB and that the Appellant cannot be said to have acted in the best interest of the Respondent when it woefully failed to purchase the said shares as expected within the initial public offer and in the name of the Respondent and he referred to the cases of Linton Ind. Trading Co. Ltd Vs CBN (2015) 4 NWLR (Pt 1448) 94 and BFI Group Corporation Vs Bureau of Public Enterprises (2012) 7 SC (Pt 111) 1. Counsel stated that the Respondent pleaded that he signed an application form and that he personally entered into the contract with the Appellant for the purchase of

the Bank PHB shares in his name alone but that the Appellant only purchased 12 Million units of shares in the name of Respondent and the remaining 18 Million shares was purchased in other names and the Appellant thus unilaterally varied the terms of the contract and that this was wrongful and amounted to a breach of contract and he referred to the cases of PBNL Vs FBN (2000) 1 SC 71, Central Bank of Nigeria Vs Igwillo (2007) 5 SCNJ 52 and A. G. Gombe State Vs Gadzama (2014) LPELR 23423.

Counsel stated that it was incorrect that the lower Court raised the issue of duty of care suo motu and that a Judge exists to determine dispute and examine with due care and microscopic senses all matters before him in his pursuit of justice and that the fact that the relationship between the Appellant and the Respondent was one of banker and customer imposed a duty of care on the Appellant towards the Respondent and that the lower Court determined the matter in the light of the facts. Counsel reiterated that the Appellant owed the Respondent a duty of care to act in his best interest and to act in accordance with the instructions of the Respondent as contained in the

terms of agreement and to also protect his money.

In counteracting the contention of Counsel to the Appellant against the grant of the reliefs of the Respondent, Counsel referred to the case of Standard Trust Bank Ltd Vs Interdrill Nig Ltd (2006) LPELR 9848(CA) in reiterating the principle that the standard of proof in civil cases in on a balance of probabilities and stated that the primary object for an award of damages is to compensate a claimant for the harm done to him and, secondarily, to punish a defendant for injury inflicted on a claimant and he referred to the cases of Eliochin Nigeria Ltd Vs Mbadiwe (1986) 1 SC 105 and Cameroon Airlines Vs Otutuizu (2011) 1 – 2 SC (Pt III) 200. Counsel referred to the cases of Ahmed Vs CBN (2012) 7 MJSC 1 and Union Bank Plc Vs Ajabule (2011) 12 SC (Pt IV) 1 in defining what constitutes general damages and stated that the Respondent pleaded facts to warrant the grant of special and general damages and that the law is that award of special damages will only debar the award of general damages where the injury to a respondent are quantifiable, but not when they are not quantifiable and he referred to the

cases of Diamond Bank Plc Vs Wellcare Alliance Ltd (2015) LPELR 40762(CA) and Emeghara Vs Sterling Bank (2018) LPELR 45147(CA).

Counsel stated that going by the pleadings of the Respondent, he suffered immeasurable damages and the premise for the entitlement of the Respondent to the reliefs claimed was the duty of care owed by the Appellant by reason of the Respondent being its customer. Counsel stated that the Appellant breached the terms of the contract between it and the Respondent when it failed to purchase the shares in the initial public offer and in the name of the Respondent as agreed and the Appellant failed to inform the Respondent until he was made to incur expenses by writing letters, engaging numerous lawyers, attending various meetings at the Central Bank of Nigeria and Securities and Exchange Commission and instituting an action in Court, thus necessitating the incurring of huge additional costs. Counsel stated that the expenses incurred by the Respondent due to the negligent acts of the Appellant was beyond special damages and amounted to exceptional circumstances to warrant the award of special damages and general damages, as was rightly

done by the lower Court, and he referred to the cases G. E. International Limited Vs Q Oil & Gas Services (2015) 1 NWLR (Pt 1440) 244 and Mekwunye Vs Emirates Airlines (2019) LPELR 46553(SC).

Counsel concluded his arguments by urging the Court to resolve the issue for determination in favour of the Respondent.

In deliberating on the claims of the Respondent, the lower Court stated in the judgment thus:
“… Based on the Banker/Customer relationship, the Plaintiff applied for a loan of N360,000,000.00 … from the Defendant vide Exhibit PD. The loan was required as part of N510,000,000.00 … needed by the Plaintiff to purchase 30,000,000 … Units of Bank PHB shares. The Plaintiff was to bring up the sum of N150,000,000.00 … as equity contribution counterpart funding to make up for the outstanding amount. Pursuant to Exhibit PD, the Defendant granted the facility, that is the loan of N360,000,000.00 … to the Plaintiff vide Exhibit PB13… Now, based on Exhibits PD and PB13 there is a valid contract/agreement to which the Plaintiff and the Defendant are bound …
Now, the grouse of the

Plaintiff is that the Defendant did not comply with the terms of the agreement (Exhibit PB13) for the reason that the Bank PHB shares were not bought as instructed by the Plaintiff. … the Plaintiff averred that he entered into the agreement (Exhibit PB13) with the Defendant with a view that the shares will be purchased in his own name. He also averred … that he did not give instructions to the Defendant oral or written to purchase any Unit(s) of shares in any other name other than his own name. The Defendant … averred that it bought shares based on the Plaintiff’s instructions as to the names in which the shares were to be purchased. Indeed by Exhibit PB8, bulk of the shares were purchased in names other than that of the Plaintiff.
As I have observed and found above, by Exhibit PB13, the Plaintiff solely entered into the agreement with the Defendant and by the terms of the contract the share acquisition was solely for him. Thus, the shares ought to have been bought in his own name only. Secondly, pursuant to its averment …, the Defendant has not placed any evidence before this Court by which the Plaintiff so instructed it

to purchase the shares in other names other than his own. … By purchasing the shares in other names other than that of the Plaintiff the Defendant had in my view altered the terms of the agreement, Exhibit PB13. In any case, verbal instruction from the Plaintiff cannot alter the agreement in Exhibit PB13…
Therefore, Exhibit PB13 that is very clear as to who the Bank PHB shares are to be purchased for cannot be altered by any instructions of the Plaintiff, more so, when the instruction is not before the Court. For this reason, I agree with the submissions of Counsel for the Plaintiff in this regard that the Defendant did not comply with the terms of Exhibit PB13 when it purchased some of the Bank PHB shares in names other than that of the Plaintiff and I so hold.”
The lower Court thereafter continued thus:
“Further on the non-compliance with the terms of the contract (Exhibit PB13), the Plaintiff had averred … that the understanding between him and the Defendant was that the shares would be bought during Initial Public Offer between 19th November, 2007 and 19th December, 2007. That however, the bulk of the shares

were purchased by the Defendant unilaterally through Private Placement without prior notification or consent of the Plaintiff. … the Defendant had denied this allegation of the Plaintiff and stated that it made payment for the shares to Bank PHB on the 13th of December, 2007 within the period of the Initial Public Offer.
Now, paragraph 4 of Exhibit DD tendered by the Defendant has confirmed that at the close of the Initial Public Offer, only 12 Million Units of Shares were bought for the Plaintiff by the Defendant which he was advised of by the Defendant vide Exhibit PB. … Now, Exhibit DD and the testimony of DW1 under cross examination … are, in my view, conclusive proof that some of the shares were indeed purchased under Private Placement as alleged by the Plaintiff and without his knowledge and/or consent. Furthermore, since it has been confirmed by Exhibits PB and DD that only 12 Million Units of Shares were bought by the Defendant during the Initial Public Offer, it means the remaining 18 Million shares were purchased through Private Placement.
Now, apart from the fact that the Plaintiff had stated … that they had an

understanding for the shares to be purchased during the Initial Public Offer, and although that understanding is not part of Exhibit PB13, the Defendant owes the Plaintiff that duty of care in carrying out its obligations in the agreement with respect to the purchase of the shares. The understanding that the shares be bought during Initial Public Offer cannot negate, change or affect the terms of the contract/agreement in Exhibit PB13. By virtue of Exhibit PB13, as found above, the relationship between the Plaintiff and Defendant remains contractual which carries with it some obligations on either side not necessarily contained in Exhibit PB13. …
Therefore, when the Defendant failed to ensure the purchase of the whole 30,000,000 … Units of Shares from the Initial Public Offer, it has, in my view, failed to exercise reasonable care and skill in carrying out its part of the contract, particularly in view of the fact that it purchased 18 Million of the shares through private placement without recourse to the Plaintiff. By its said action, the Defendant has certainly failed in its obligation to the Plaintiff with respect to the contract…”

Reading through the claims of the Respondent against the Appellant in the lower Court, his pleaded causes of action were breach of contract and negligence. The Court will consider the causes of action separately.

Now, a breach of contract is said to be committed when a party, without lawful excuse fails, neglects or refuses to perform an obligation he undertook in the contract or performs the obligation defectively or incapacitates himself from performing the contract or by wrongfully repudiating the contract –Pan Bisbilder Nigeria Ltd Vs First Bank of Nigeria Ltd (2000) 1 NWLR (Pt. 642) 684, Kemtas Nigeria Ltd Vs Fab Anieh Nigeria Ltd (2007) All FWLR (Pt 384) 320, Obajinmi Vs Adedeji (2008) 3 NWLR (Pt 1073) 1. Therefore, where a party claims in breach of contract, he has a fundamental duty to establish certain things; namely, he must plead and establish by evidence, the existence and subsistence of a valid contract as well as its terms and particularly, the term that has been breached and in what manner it was breached –Haido Vs Usman (2003) LPELR 5249(CA), Best (Nigeria) Ltd Vs Blackwood Hodge (Nigeria) Ltd

(2011) LPELR 776(SC), Bikay Engineering Ltd Vs Governor of Ondo State (2013) LPELR-20890 (CA), KLM Royal Dutch Airlines Vs Idehen (2017) LPELR 43575(CA), Dangote Cement Plc Vs Ekeson Salins Oil & Gas Ltd (2019) LPELR 47259(CA).

It was an agreed fact in the present case that the Respondent was desirous of purchasing 30 Million Bank PHB Shares at a total cost of N510 Million and he had N150 Million and needed additional N360 Million to make up the sum. The Respondent approached the Appellant for assistance and he was requested to pay his N150 Million into his account with the Appellant and to apply for a loan N360 Million as the Appellant’s contribution towards the purchase of the shares. The Respondent paid the N150 Million into his account and he applied for the loan by a letter dated the 26th of November, 2007. The letter was admitted as Exhibit PD and it read, in part, thus:
“APPLICATION FOR QUALITY LIFE SCHEME FACILITY
I hereby use this medium to apply for a QLS Loan of N360,000,000.00 (Three Hundred & Sixty Million Naira only) being the Bank’s contribution for the cost of 30,000,000 units of Bank PHB Plc shares

worth N510,000,000.00 (Five Hundred & Ten Million Naira only)
The facility will be repaid over 18 months, in accordance with your standard repayment schedule.
I hope my application is given due consideration.”

The Appellant approved the application of the Respondent and it conveyed the terms and conditions for the loan by a letter dated the 4th of December, 2007. The letter read thus:
“RE: REQUEST FOR A N360,000,000.00 SHARE ACQUISITION (TERM LOAN) FACILITY
Further to your request for a share acquisition (Term Loan) Facility, we are pleased to inform you that the Management of Oceanic Bank International Plc has offered you a share acquisition (Term Loan) Facility of N360,000,000.00 under the following terms and conditions:
Borrower: Alhaji Aminu Saleh (The Customer)
Lender: Oceanic Bank International Plc (The Bank)
Facility Type: (Share Acquisition) Term Loan
Amount: N360,000,000.00
Purpose: To finance the acquisition of Bank PHB Plc shares
Tenor: 18 months
Effective date: Date of disbursement
Maturity date: 18 months after disbursement
Pricing: Interest Rate @ 17.5% per annum

Management fee 1.75% flat
Commitment fee 1.00% flat
Processing fee 0.25% flat
COT @ N1.00k per/mile
Repayment: Proceeds from normal business operation.”

The letter proceeded thereafter to state the collateral for the loan, the events that will occur in case of default by the Respondent, the conditions precedent to drawdown of the facility, the operating conditions of the loan and it made provisions for expenses. The operating conditions were:
“In consideration for providing the credit facility, Oceanic Bank International Ltd would expect to receive ancillary business from Alhaji Aminu Saleh.
1. No further facility should be obtained without prior approval of the Bank.
2. The Bank reserves the right to review the interest rate in accordance with prevailing money market conditions and shall notify the customer accordingly.
3. The review shall be effective if the customer does NOT, in writing, reject the new rate within seven (7) days from date of notice.
4. A rejection by the customer of the new rate shall make the facility immediately repayable notwithstanding anything to the contrary in

this offer letter or any other agreement.
5. The facility will be available specifically to accommodate payments to suppliers (as the case may be).
6. Alhaji Aminu Saleh is expected to do a minimum turnover twice the facility monthly.
7. At maturity, Alhaji Aminu Saleh is bound to liquidate its total liability to the Bank including fees, charges, interest, etc, which in total will always remain a liability of Alhaji Aminu Saleh until its final liquidation.
8. The Bank reserves the right to recall this facility before its expiration in the event of a violation of any of the Terms and Conditions or in the event of default.
9. Upon expiration a 1% flat monthly penalty charge will be applied upon the total outstanding balance.”

The Respondent accepted the terms and conditions of the loan by signing every page of the letter of offer. This letter was tendered as Exhibit PB13. In the above excerpt of the judgment, the lower Court found that the letter, Exhibit PB13 constituted the contract between the Appellant and Respondent on the issue of the loan and the purchase of the Bank PHB Plc shares. This finding has not been challenged

by either of the parties in this appeal and it thus binds the parties and this Court and cannot be revisited –Daniel Vs Federal Republic of Nigeria (2015) 13 NWLR (Pt 1475) 119, Offodile Vs Offodile (2019) LPELR 47851(SC), Jato Vs State (2019) LPELR 49310(SC).

The case of the Respondent before the lower Court on breach of contract was that by the terms of agreement on the purchase of the Bank PHB Plc shares, the shares were to be purchased only in the name of the Respondent and the shares were to be purchased within the period of the Initial Public Offer, 19th of November, 2007 to 19th of December, 2007 and that Appellant breached these terms by purchasing the shares in other names different from the Respondent’s and that 18 Million of the shares were purchased by private placement, and not in the Initial Public Offer. The lower Court found that it was a term of Exhibit PB13 that the share acquisition was solely to be in the name of the Respondent and that by purchasing the shares in other names other than that of the Respondent, the Appellant altered the terms of the agreement, Exhibit PB13. The lower Court concluded that Exhibit PB13 which

is very clear as to who the Bank PHB shares are to be purchased for cannot be altered and that, by doing so, the Appellant did not comply with the terms of Exhibit PB13 and thus committed a breach of contract.

Now, one of the most firmly established principles of commercial litigation is that parties are bound by the terms of their contract and are not expected to read into the contract what is not in it, either by subtraction or addition. Where a contract has been reduced into writing it is that document that constitutes the guide for its interpretation and the Court has no power to restructure the agreement of the parties reduced into written form – Nneji Vs Zakhem Construction (Nig) Ltd (2006) LPELR 2059(SC), Nika Fishing Ltd Vs Lavina Corporation (2008) 16 NWLR (Pt 1114) 509, ABC (Transport Company) Limited Vs Omotoye (2019) LPELR 47829(SC), Mekwunye Vs Imoukhuede (2019) LPELR 48996(SC). In Julius Berger (Nig) Plc Vs Toki Rainbow Community Bank Ltd (2019) 5 NWLR (Pt 1665) 219, the Supreme Court expounded the principle thus:
‘Parties to an agreement retain the commercial freedom to determine their own terms in construing documents.

The question is not what the parties to the document may have intended to do by entering into that document but the meanings of the words used in the document. While a contract must be strictly construed in accordance with well-known rules of construction, such strict construction cannot be a ground for departing from the terms agreed by both parties to the contract. No other person, not even the Court, can determine the term of contract between the parties thereto. The duty of the Court is to strictly interpret the terms of the agreement on its clear wordings. It is not the function of a Court either to make agreements for parties or change their agreements as made. So where there is a contract regulating an arrangement between the parties, the main duty of the Court is to interpret that contract and give effect to the wishes of the parties, as expressed therein.’
Additionally, it is trite law that in the construction of documents, the primary rule is that effect should be given to the literal contents in their ordinary way as they appear on the documents and that anything which does not appear ex facie on such documents should not be imported into them

– The Northern Assurance Co. Ltd Vs Wuraola (1969) LPELR 25562(SC), Ogbunyiya Vs Okudo (1979) 6-9 SC 32, Union Bank of Nigeria Plc Vs Ozigi (1994) 3 NWLR (Pt 333) 385, Lewis Vs United Bank for Africa Plc (2016) 6 NWLR (Pt. 1508) 329.

Applying these principles to the contents of Exhibit PB13, the document found by the lower Court as constituting the contract between the parties on the purchase of the Bank PHB shares, nowhere therein was it stated, agreed or consented to by the parties that the Appellant was to purchase the shares only in the name of the Respondent, and not in any other name, and neither was it part of the agreement that the shares were to be purchased within the period of the Initial Public Offer, 19th of November, 2007 to 19th of December, 2007, and not by private placement. These terms were imported into the contents of the letter, Exhibit PB13, by the Respondent. The finding of the lower Court that there was a term in Exhibit PB13 that mandated the Appellant to purchase the shares solely in the name of the Respondent and that by purchasing the shares in other names other than that of the Respondent, the Appellant altered the terms

of the agreement, Exhibit PB13, was based on speculation, conjecture and imagination. It is elementary that a judicial inquiry is allergic to speculations and conjectures and they cannot be relied upon by a Court of law – Long-John Vs Blakk (1998) 5 SCNJ 68, Orhue Vs NEPA (1998) 7 NWLR (Pt 577) 187. In Ivienagbor Vs Bazuaye (1999) 9 NWLR (Pt 620) 555, Uwaifo, JSC made the point that “… speculation is a mere variant of imaginative guess which, even where it appears plausible, should never be allowed by a Court of law to fill any hiatus in the evidence before it.”

Contrary to the assertion of the Respondent that the 30 Million Bank PHB Plc shares were to be purchased only his name, the Appellant averred that the names in which the shares were purchased were not random and that they were the names given to it by the Respondent. In proof of the averment, the Appellant tendered Share Application Forms in the said names, and which forms it said the Respondent signed, as Exhibits D, D1 – D8. The names on the forms are Rabi Aminu, Saleh Garba Aminu, Saleh Aminu, Hajo Aminu, Saleh Abubakar Aminu, Mohammed Aminu, Amina Aminu, Abubakar

Bashir Aminu and Garba Aminu Saleh. The signature on all the forms is the same. It is trite law that this Court is empowered under the provision of Section 101(1) of the Evidence Act to compare signatures on documents before it and this power has be given judicial imprimatur by the Courts in the cases of Ndoma-Egba Vs ACB Plc (2005) 14, NWLR (Pt 944) 79, Tomtec Nigeria Ltd Vs FHA (2009) LPELR 3256(SC), Odutola Vs Mabogunje (2013) 7 NWLR (Pt 1354) 52, Akpan Vs Obot (2019) LPELR 47150(CA), Iyua Vs Paul (2019) LPELR 47266(CA). Drawing on this power and looking at the signature of the Respondent on his letter of application for loan, Exhibit PD, and on Exhibit PB13, the agreement between the parties, and comparing them to the signature on the Share Application Forms, it is obvious that it was the Respondent that signed all the forms.

The Share Application Forms were dated the 13th of December, 2007 and each application was for 3 Million Bank PHB Plc shares valued at N51 Million. The Appellant pleaded and led evidence to show that it issued ten (10) number Banker’s cheques in the sum of N51 Million each in favour of Bank PHB Plc on the 13th of December, 2007,

totaling N510 Million, in payment for the shares and that it forwarded the Share Application Forms and the cheques to Bank PHB Plc on the same 13th of December, 2007. This assertion of the Appellant was not challenged, debunked or contradicted by the Respondent. Copies of the Banker’s cheques were tendered and admitted as Exhibits DF, DF1 – DF9. It was an agreed fact that the Bank PHB Plc shares were allotted in two tranches. The first tranche of 1.2 Million shares each in the names on the Share Application Forms and in the name of the Respondent, making 12 Million shares, was confirmed to the Respondent by the Appellant in its letter of 22nd of July, 2008, Exhibit PB. The second tranche of 1.8 Million shares each in the names on the Share Application Forms and in the name of the Respondent, making 18 Million shares, was confirmed to the Respondent by the Appellant in its letter of 26th November, 2008, Exhibit PB6.

The records show that, at the request of the Respondent, the Appellant by a letter dated the 15th of December, 2008, Exhibit PB8, gave a breakdown of the 30 Million Bank PHB Plc shares allotted to the Respondent, stating the

names they were allotted and the quantity allotted against each name. The records show that in none of the letters exchanged by the Respondent with the Appellant dated 7th of August, 2008 (Exhibit PB2), 15th of August, 2008 (Exhibit PB4), and 5th of November, 2008 (Exhibit PB5), and not even in the petition written on his behalf to the Central Bank of Nigeria on the 29th of December, 2010 (Exhibit PB10), did the Respondent complain about the purchase of the shares in other names different from his name. The complaint was clearly an afterthought. The Respondent admitted that the names are those of his family members and the only logical deduction is that the names were supplied by the Respondent. Further, the Respondent admitted under cross examination that he did not know the difference between primary market and secondary market for purchase of shares; how then could he have insisted, as claimed, that the Bank PHB Plc shares must only be bought from the primary market, the Initial Public Offer and not at the secondary market, private placement?

The evidence before the lower Court showed that the Appellant applied the sum of N360 Million it lent the

Respondent, together with the sum of N150 Million paid by the Respondent into his account, for the purpose of acquiring 30 Million Bank PHB Plc shares, in line with the desire of the Respondent, and as stated in the terms of the loan, Exhibit PB13, and that 30 Million Bank PHB Plc shares were allotted to the Respondent in his name and in the names of persons he supplied to the Appellant at the rate of 3 Million shares per person. Where then is the breach of contract alleged against the Appellant? In Pan Bisbilder Nigeria Ltd Vs First Bank of Nigeria Ltd (2000) 1 NWLR (Pt. 642) 684, the Supreme Court held that where parties to a contract have agreed to terms of the contract, performance of the contract by one of the parties in line with what the parties have agreed to does not amount to breach of contract. The finding of the lower Court that the Appellant breached the terms of its contract with the Respondent on the purchase of 30 Million Bank PHB Plc shares is not supported by the evidence. It is perverse and it is hereby set aside.

This takes us to the second cause of action of the Respondent, negligence. It was on this basis that the lower Court found

that the Appellant breached its duty of care to the Respondent. Negligence is the omission to do something, which a reasonable man guided upon those considerations that ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do. It means lack of proper care and attention; careless behavior or conduct; a state of mind which is opposed to intention and the breach of a duty of care imposed by common law and statute resulting in damage to the complainant. Negligence is the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation. It is also any conduct that falls below the legal standard established to protect others against unreasonable risk of harm – Universal Trust Bank of Nigeria Plc Vs Ozoemena (2007) 3 NWLR (Pt 1022) 448, Okwejiminor Vs Gbakeji (2008) 5 NWLR (Pt 1079) 172 and Diamond Bank Plc Vs Partnership Investment Co Ltd (2009) 18 NWLR (Pt 1172) 67, Kabo Air Ltd Vs Mohammed (2015) 5 NWLR (Pt 1451) 38.
Negligence is a tort and it is complete and actionable when three conditions are satisfied, these are (i) the

defendant owed a duty of care to the claimant; (ii) the duty of care was breached; and (iii) the claimant suffered damages arising from the breach. A claimant must prove the three conditions by preponderance of evidence or on balance of probabilities to succeed in an action rooted in negligence and once these requirements are satisfied, the defendant in law will be held liable in negligence – Abubakar Vs Joseph (2008) 13 NWLR (Pt 1104) 307, Iyere Vs Bendel Feeds and Flour Mills Ltd (2008) 18 NWLR (Pt 1119) 300, GKF Investment Nigeria Ltd Vs Nigerian Telecommunications Plc (2009) 15 NWLR (Pt 1164) 344, Diamond Bank Plc Vs Partnership Investment Co. Ltd supra, ABC Transport Co Ltd Vs Omotoye (2019) 14 NWLR (Pt 1692) 197.
Negligence is a question of fact and not law and so each case must be decided in the light of the facts pleaded and proved. A claimant in an action in negligence is required to state or give particulars of negligence alleged. It is not sufficient for a claimant to make a blanket allegation of negligence against a defendant in a claim of negligence without giving full particulars of the items of negligence relied on as well as the duty

of care owed him by the defendant – Machine Umudje and Anor Vs Shell-BP Petroleum Development Company of Nigeria Ltd. (1975) 9-11 S.C 155 at 166-167, Universal Trust Bank of Nigeria Plc Vs Ozoemena supra, Dare Vs Fagbamila (2009) 14 NWLR (Pt 1160) 177, Diamond Bank Plc Vs Partnership Investment Co Ltd supra. A claimant must also lead credible and cogent evidence on the specific acts of negligence alleged – Ojo Vs Gharoro (2006) 10 NWLR (Pt 987) 173, New Improved Manibannc Ventures Ltd Vs First Bank of Nigeria Plc(2009) 16 NWLR (Pt 1167) 411. In Koya Vs United Bank for Africa Plc (1997) LPELR 1711(SC) or (1997) 1 NWLR (Pt 481) 251, the Supreme Court explained the point thus:
“The one issue that ought to be stressed is that a plaintiff, as a matter of law, is required, in an action on negligence, to state or give particulars of negligence alleged and to recover on the negligence pleaded in those particulars. It is not sufficient for a plaintiff to make a blanket allegation of negligence against a defendant in a claim on negligence without giving full particulars of the items of negligence relied on as well as the duty of care owed to him by

the defendant … As was explained, quite rightly, by Willes, J. in Gautret v. Egerton (1867) L.R. 2 CP. 371 at 374 –
‘The plaintiff must, in his declaration, give the defendant notice of what his complaint is. He must recover secundum allegata et probata. What is it that a declaration of this sought (i.e. of negligence) should state in order to fulfill those conditions. It ought to state the facts upon which the supposed duty is founded, and the duty to the plaintiff with the breach of which the defendant is charged. It is not enough to show that the defendant has been guilty of negligence without showing in what respect he was negligent, and how he became bound to use care to prevent injuries to others.’
Accordingly, in an action on negligence, a plaintiff, to succeed, must in addition to pleading and establishing the particulars of negligence relied on, he must also state and establish the duty of care owed to him by the defendant, the facts upon which that duty is founded and the breach of that duty by the defendant.”
Reading through the amended statement of claim of the Respondent before the lower Court, apart from a

blanket allegation of willful negligence made in the sixth, seventh and eight reliefs sought by the Respondent, nowhere therein did the Respondent give the particulars of the negligence alleged and of the duty of care owed him by the Appellant and how the Appellant breached the duty of care. This omission is fatal to the case of the Respondent on negligence and the case must fail – Koya Vs United Bank for Africa Plc supra, Onagoruwa Vs Joint Admission & Matriculation Board (2001) 10 NWLR (Pt 722) 742, Anyah Vs Imo Concorde Hotels Ltd (2002) 18 NWLR (Pt 799) 377, Abdul-Rahman Vs Kadiri (2012) LPELR 8001(CA), N.D.I.C. Vs Mohammed (2018) LPELR 44744(CA). There was nothing before the lower Court to base its finding that the Appellant breached its duty of care to the Respondent. It is elementary that Court should not set up for a party a case different from the one set up in the pleadings – Skye Bank Plc Vs Akinpelu (2010) 9 NWLR (Pt 1198) 179 and Baliol (Nig) Ltd Vs Navcon (Nig) Ltd (2010) 16 NWLR (Pt 1220) 619.

Going forward and assuming that the Respondent did make out a case for consideration on negligence, the lower Court found that the

Appellant breached its duty of care to the Respondent by failing to exercise reasonable care and skill to ensure the purchase of the whole 30,000,000 Bank PHB Shares from the Initial Public Offer. Now, the word “care” means serious attention or heed. Under the law of negligence or of obligation, it means the conduct demanded of a person in a given situation. Typically, this involves a person’s giving attention both to possible dangers, mistakes and pitfalls and to ways of minimizing those risks –Nigerian Ports Plc Vs Beecham Pharmaceutical PTE Ltd (2013) 3 NWLR (Pt 1333) 454. The standard of a banker’s duty towards his customer is to see that reasonable care is taken – Agbanelo Vs Union Bank of Nigeria Plc (2000) 7 NWLR (Pt 666) 534, Agi Vs Access Bank Plc (2014) 9 NWLR (Pt 1411) 121. Reasonable care is that degree of care which a person of ordinary prudence would exercise in the same or similar circumstances – Kabo Air Ltd Vs Mohammed (2015) 5 NWLR (Pt 1451) 38.
The lower Court damnified the Appellant for failing to exercise reasonable care and skill to ensure the purchase of the whole 30,000,000 Bank PHB Shares from

the Initial Public Offer. The word “purchase” is defined in the All English Dictionaries to mean “to acquire by the payment of money or its equivalent.” The period of Initial Public Offer was agreed to be 19th of November, 2007 to 19th of December, 2007. The case of the Appellant before the lower Court, both on the pleadings and in the evidence, was that the N360 Million Term loan granted to the Respondent was disbursed into his account on the 11th of December, 2007 and that on the 13th of December, 2007, it issued ten (10) number Banker’s cheques in the sum of N51 Million each in favour of Bank PHB Plc, Exhibits DF, DF1 – DF9, totaling N510 Million, in payment for the 30 Million shares and that it forwarded the cheques to Bank PHB Plc on the same 13th of December, 2007. These assertions of the Appellant was not challenged, debunked or contradicted by the Respondent.
In other words, there was unchallenged evidence before the lower Court that the Appellant did purchase the 30 Million Bank PHB Plc shares within the period of Initial Public Offer. It was also the case of the Appellant both on the pleadings and in the

evidence of its witness that there is a difference between purchasing of shares and the issuing of the shares and that it had absolutely no control over the period it would take Bank PHB Plc to issue the shares or the Share Certificates or from which source the shares will be issued and Bank PHB Plc was only entity able to determine these. Again, these assertions of the Appellant were not challenged, debunked or contradicted by the Respondent. In the face of these unchallenged pieces of evidence from the Appellant, the finding of the lower Court that the Appellant failed to exercise reasonable care and skill to ensure the purchase of the whole 30,000,000 Bank PHB Shares from the Initial Public Offer has no basis and it is unsupportable. So, every which way, the finding is perverse and it hereby also set aside.

This Court considers it pertinent to comment on the award of N31 Million made by the lower Court in favour of the Respondent as Solicitors fees. A claim by a claimant for legal fees he paid to his Solicitor is not one that is ordinarily granted by a Court – Ihekwoaba Vs African Continental Bank Ltd (1998) 10 NWLR (Pt 571) 590 at 610-611,

Nwanji Vs Coastal Services (Nig) Ltd (2004) 11 NWLR (Pt 885) 552. In fact there is a decision that suggests that such a claim was unknown to our law – Guinness (Nig) Plc Vs Nwoke (2000) 15 NWLR (Pt 689) 135. To succeed on such a claim it must be specifically pleaded as special damages and must be proved by credible and cogent evidence – Divine Ideas Ltd Vs Umoru (2007) All FWLR (Pt 380) 1468, Shell Petroleum Development Company Nigeria Ltd Vs Okonedo (2008) 9 NWLR (Pt 1091) 85, Intercontinental Bank Ltd Vs Brifina Ltd (2012) 13 NWLR (Pt 1316) 1, Obasanjo Farms (Nig) Ltd Vs Muhammad (2016) LPELR 40199(CA), Agbalugo Vs Izuakor (2017) LPELR 43289(CA).
The quality of the pleadings and evidence required to support a claim for Solicitors will necessarily depend on the amount claimed as Solicitors’ fees. Under our laws expenses incurred on services of counsel are reasonably compensated. This point was made by the Supreme Court in Rewane Vs Okotie-Eboh (1960) SCNLR 461, when it stated that “costs will therefore be awarded on the ordinary principles of genuine and reasonable out of pocket expenses and normal counsel cost usually awarded for a

leader and one or two juniors.” Thus, where the amount claimed is reasonable and can be subsumed under the heading of costs of the action, mere pleading payment of the fees and the tendering of receipt of payment should be sufficient – International Offshore Construction Ltd Vs Shoreline Liftboats Nig Ltd (2003) 15 NWLR (Pt 845) 157, Naude Vs Simon (2013) LPELR 20491(CA), Ajibola Vs Anisere (2019) LPELR 48204(CA).
Where, however, the amount claimed is high, and borders on the excessive, it cannot qualify as costs of the action and the quality of pleadings and evidence required to succeed in the claim will be higher. This will require more particularized pleading, giving a breakdown of the bill of the Counsel, the mode of payment – whether it was by bank transfer, banker’s cheque or cash, the receipt and any other fact to support the claim. This must be supported by the Bill of Charges of the Solicitor particularizing the items of charges and sum charged per item, evidence in proof of the payment and of the mode of payment, the receipt issued and other evidence in proof of the bill and payment. These are to enable the trial Court

ascertain whether the sum claimed is reasonable and grantable in the light of the cause of action litigated by the party claiming it – Michael Vs Access Bank Plc (2017) LPELR 41981(CA), Ibe Vs Bonum (Nig) Ltd (2019) LPELR 46452(CA), United Bank for Africa Plc Vs Vertex Agro Ltd (2019) LPELR 48742(CA).

In the instant case, the amount claimed, N31 Million, as Solicitor’s fees was very high and cannot be subsumed as reasonable cost of the action. The Respondent neither gave particulars of the claim in the pleadings nor did he tender the bill of charges or any other cogent evidence, apart from a mere receipt issued by the Solicitor. The amount claimed is unreasonable and not grantable in the light of the Respondent’s causes of action before the lower Court. The award of the sum by the lower Court was baseless and same is hereby set aside.

The lower Court also awarded the Respondent the sum of N10 Million as general damages. General damages means such as the law itself implies or presumes to have accrued from the wrong complained of, for the reason that they are its immediate, direct and proximate result or such as necessarily results

from the injury, or such as did in fact result from the wrong, directly and proximately and without reference to the special character, condition or circumstances of the claimant. General damages are such as the Court may give when the judge cannot point out any measure by which they are to be assessed, except the opinion and judgment of a reasonable man. General damages is quantified or calculated by relying on what would be the opinion and judgment of a reasonable man in the circumstances of the case and since general damages is always at large, the trial Court may also take into account the motive and conduct of the defendant where they aggravate the claimant’s injury – Akinfosile Vs Mobil Oil (Nig) Ltd (1969) NCLR 253, Ijebu Ode Local Government Area Vs Adedeji Balogun & Co Ltd (1991) 1 NWLR (Pt 166) 136, Orient Bank (Nig) Plc Vs Bilante International Ltd (1997) 8 NWLR (Pt 515) 37, Rockonoh Property Co. Ltd Vs NITEL Plc (2001) 14 NWLR (Pt. 733) 468, GKF Investments Ltd Vs Nigeria Telecommunications Plc (2009) 15 NWLR (Pt 1164) 344, Tanko Vs Mai-Waka (2010) 1 NWLR (Pt 1176) 468, Kopek Construction Ltd Vs Ekisola (2010) 3 NWLR (Pt 1182) 61,

Aluminium Manufacturing Co. Nigeria Ltd Vs Volkswagen of Nigeria Ltd (2010) 7 NWLR (Pt 1192) 97.
General damages is the same thing as compensatory damages and it is damages recovered in payment for actual injury or economic loss; it is a sum of money awarded in a civil action by a Court to indemnify a person for a particular loss, detriment or injury suffered as a result of the unlawful conduct of another. It provides a plaintiff with a monetary amount necessary to replace what was lost. Damages is calculated on the basis of loss sustained by the injured party. Thus, what is required of a plaintiff or claimant to qualify for the award of general damages is to prove that he or she suffered a legally recognizable loss or detriment that is compensable by a known amount of money that would be objectively determined by a Judge – MTN Nigeria Communications Ltd Vs Aquaculture Cooperative Farmers Society Ltd (2016) 1 NWLR (Pt 1493) 339 Mekwunye Vs Emirate Airlines (2019) 9 NWLR (Pt 1677) 191 at 224-225.

Reading through the pleadings of the Respondent in the lower Court nowhere therein did he plead any particular loss, detriment or injury that he

suffered by reason of the alleged failure of the Appellant to purchase the Bank PHB Plc shares only his name and within the period of Initial Public Offer. All that the Respondent averred in the pleading was a general statement that he has suffered and was still suffering unquantifiable losses and was presently in serious economic distress, without stating the nature of the losses and economic distress. This was exactly what the Respondent stated in his evidence as well. Without pleadings and evidence of the particular loss, detriment or injury that he suffered by reason of the alleged wrongful acts of the Appellant, there was no basis for the award of general damages of N10 Million in favour of the Respondent. The award of N10 Million as general damages made the lower Court was unproven and it is hereby set aside.

In conclusion, this Court finds merit in this appeal and it is hereby allowed. The judgment of the Federal High Court, Kano Judicial Division, in Suit No FHC/KN/CS/123/2015 delivered by Honorable Justice Z. B. Abubakar on the 20th of February, 2019 is set aside in its entirety. The claims of the Respondent before the lower Court are dismissed.

The Appellant is awarded this cost of the appeal assessed at N50,000.00. These shall be the orders of the Court.

ABUBAKAR DATTI YAHAYA, J.C.A.: I had the privilege of reading before now, the leading Judgment of my learned brother Abiru JCA just delivered. I agree with his reasoning and conclusion. It is obvious, that the Respondent as claimant, did not make a sufficient case in his pleadings to enable him lead evidence of the losses he allegedly suffered. Unless facts sufficient enough to prove a case are pleaded, evidence on non-pleaded facts can not be led. The pleadings therefore must be exact and precise, so that the parties and the Court are not in doubt as to what the case is all about – ATIKU ABUBAKAR VS. UMARU YAR’ADUA & ORS. (2008) LPELR – 51 (SC) AT 131 – 132. In the instant appeal, the Respondent did not give particulars of what he lost or the injury he suffered as a result of the act of the Appellants, in his pleadings and so could not lead evidence in that vein. He swims or sinks with his pleadings. As I also find merit in the appeal, I allow it and set aside the Judgment of the trial Federal High Court Kano delivered on 20th February, 2019 in Suit No. FHC/KN/CS/123/2015. I abide by the Order as to costs.

AMINA AUDI WAMBAI, J.C.A.: I have read the lead judgment of my learned brother, Habeeb Adewale Olumuyiwa Abiru, JCA, with whom I am in agreement that this appeal deserves to be allowed. I adopt his Lordship’s reasoning as mine in allowing the appeal and abide by the consequential order therein.

Appearances:

Sir Steve Adehi, SAN, with him, M. U. Namtar and Lynda Onye Abari For Appellant(s)

H. Garun-Gabbas, SAN, with him, T. A. O. Funsho, H. M. Maruf, Elizabeth Jonathan, Fatima Ahmed, and Farha Aminu For Respondent(s)