EZSAM (NIG) LTD & ANOR v. FBN
(2020)LCN/14546(CA)
In The Court Of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Friday, August 14, 2020
CA/PH/117/2019
Before Our Lordships:
Ibrahim Mohammed Musa Saulawa Justice of the Court of Appeal
Isaiah Olufemi Akeju Justice of the Court of Appeal
Tunde Oyebanji Awotoye Justice of the Court of Appeal
Between
1. EZSAM NIGERIA LIMITED 2. MR. ACHO OCHONMA APPELANT(S)
And
FIRST BANK OF NIGERIA PLC RESPONDENT(S)
RATIO
THE JUDGEMENTAL PRINCIPLE OF ESTOPPEL
The judgmental principle of estoppel is that where an issue has been determined on the merits by a Court of competent jurisdiction that issue should not be allowed to be re-litigated by different parties. The genesis of this doctrine is traceable to the English Case of DUCHESS OF KINGSTON (177 – 1802) All ER at 623. That principle has over the years been expanded to meet circumstances which call for application of the police law that underlines the doctrine of estoppel per Rem Judicatam that is there must be an end to litigation. See FIDELITUS SHIPPING COY LTD Vs. V/O EXPORT-CHLEB (1965) 4 @ 10; LADEGA Vs. DUROSIMI (1978) NSCC 175 @ 179; BWACHA Vs. IKENYA (2011) LPELR – SC. 39/2010 @ 20 – 21 paragraphs C – G.
In the suit No. PHC/1850/2006, the parties were ACHO OCHONMA TRADING UNDER THE NAME AND STYLE OF ACHO OCHONMA & ASSOCIATES AND FIRST BANK OF NIGERIA PLC. Contrariwise, however, the parties in the instant case (No. PHC/1569/2006) the parties, the FIRST BANK OF NIGERIA PLC AND EZSAM NIG.LTD AND MR. ACHO OCHONMA. PER SAULAWA, J.C.A.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment): The present appeal is consequent upon the judgment of High Court of Rivers State delivered on January 9, 2019 in suit No. PHC/1569/2006. By the judgment in question, the Court below coram S. O. Iragunima, J; declared to the effect, inter alia, that the Respondent was entitled to the total sum of N270,175,829.05 being outstanding overdraft balance in the 1st Appellants’ Account No. 2902030003643 with the Respondent’s Station Road, Port Harcourt.
BACKGROUND FACTS
The suit in question was instituted by the Respondent in the Court below on November 13, 2006. By paragraph 17 of the statement of claim thereof, the Respondent claimed against the Appellants the following reliefs:
i) N270,175,829.05 (Two Hundred and Seventy Million, One Hundred and Seventy-five Thousand, Eight Hundred and Twenty nine Naira, Five kobo) being outstanding overdraft debit balance in the 1st Defendant’s current account No. 2902030003643 with the Claimant’s Station Road Branch Port Harcourt, prompted by value accorded the Defendants’ cheques drawn in excess of their
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pre-existing credit balance.
ii) Pre-Judgment interest at the annual rate prescribed by the Central Bank of Nigeria for overdrafts facilities effective from 12.4.2006 until Judgment is delivered.
iii) Post-Judgment interest at the rate of 10% from the date of Judgment until full liquidation of the Judgment debt.
Contrariwise, the Appellants not only denied the claim in toto, but also counter claimed against the Respondent. By the Further Amended Statement of Defence and Amended Counter claim thereof, the 1st Appellant claimed the following reliefs against the Respondent:
(a) A declaration that the Claimant was negligent when it failed to stop and/or issue and serve caution notice(s) on Platinum Bank Limited in respect of the four (4) cheques totaling the sum of N693,455,000.00 in the face of all express and oral caution notice(s) the Claimant received from Platinum Bank Limited in this matter therefore ought and should reverse the debit entry of the four (4) cheques totaling the sum of N693,455,000.00 posted into the 1st Defendant/Counter-Claimant’s account no 2902030003643.
(b) A declaration that the four (4) cheques totaling
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the sum of N693,455,000.00 were payable upon the condition that the nine (9) cheques drawn on Seagulls Records Enterprises account with Platinum Bank (Bank PHB) for the sum of N757,601,250.00 are first paid by Platinum Bank therefore the said four (4) cheques were not stictosensu and ought not to have been treated as cheques as the Claimant appear to have done regardless of non happening of the event.
(c) An order of Court directing the Claimant to reverse the debit entry of the sum of N693,455,000.00 out of the 1st Defendant/Counter-Claimant’s account.
(d) An order of Court directing also the Claimant to reverse the total credit sum of N77,900.000.00 recovered from Mr. Patrick Fernandes, Seagulls Records Enterprises and Petgas Supply away from the 1st Defendant/Counter-Claimant’s account.
(e) An order of Court directing the Claimant to pay over the sum of N451,557,369.48 (being the capital sum of N345,379,170,95 and the accrued interest of N106,178,198.48 as at 12th November, 2006 belonging to the 1st interest of Defendant/Counter-Claimant.
(f) An order of Court directing the Claimant to pay the sum of N10 Million (being the
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profit accrued from the 10,000 metric tons of asphalt) to the 1st Defendant/Counter-Claimant.
(g) An order of Court that the Claimant pay interest at the rate of 29% per annum on the sum of N451,557,369.48 from the 13th November, 2006 until Judgment is entered in this suit and thereafter at the rate of 10% per annum until liquidation.
(h) An order of Court directing the Claimant to issue the 1st Defendant/Counter-Claimant with current cheques book.
(i) Exemplary damages of N100,000,000.00 for denying the 1st Defendant/Counter-Claimant of the use of its funds and thereby stopped it from doing any business since 17/10/05.
(j) An order of Court directing the claimant to release and return to the 1st Defendant/Counter-Claimant the original title deeds the 1st Defendant/Counter-Claimant forwarded to the Claimant as required by the Claimant to support the 1st Defendant/Counter-Claimant’s application for uncleared effect facility, to wit:
(i) Original copy of Power of Attorney dated 10/9/93 and registered as No. 82 at page 82 in Volume 174 of the Lands registry office, Port Harcourt
(ii) Original copy of Certificate of Occupancy
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issued in favour of Eze Emmanuel J. Anachor registered as No. 17 at page 17 in volume 262 of the Lands Registry office, Port Harcourt.
(iii) Original copy of Certificate of Occupancy registered as No.58 at page 58 in Volume 254 in favour of Acho Ochonma, Esq., and
(iv) Original copy of Certificate of Occupancy registered as
(k) A declaration that the fact that the Claimant is aware of the non-performance or likely non-performance of the condition upon which the four (4) cheques were drawn by the 1st Defendant negatives the issue of countermand by the 1st Defendant.
35(ii) The Claimant’s forceful and illegal closure of the 1st Defendant’s Corporate account tantamount to defamation of the 1st Defendant and the 1st Defendant claims general damages of N500,000,000.00 against the Claimant.
With the pleadings having been filed and exchanged by the respective parties, the suit proceeded to trial. At the conclusion of which the vexed judgment was delivered by the Court below on the said January 9, 2006, to the conclusive effect:
On the whole therefore, I hold that the claimant by preponderance of evidence has proved her case
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to entitle claimant to the reliefs herein, sought.
On the other hand, the 1st Defendant/Counter Claimant has failed on the preponderance of evidence to prove its claim against the claimant. The counter claim therefore fails and is dismissed.
…
By the nature of the transaction herein and the evidence on record, the claimant has established that she is entitled to pre-judgment interest also.
Accordingly, judgment is hereby entered in favour of the claimant against the Defendant in the sum of N270,175,829.05 (Two Hundred and Seventy Million, One Hundred And Seventy Five Thousand Eight Hundred And Twenty Nine Naira, Five Kobo) being outstanding overdraft debit balance in the 1st Defendant’s current account No. 2902030003643 with the Claimants Station Road Branch, Port Harcourt, prompted by value accorded the Defendants cheques drawn in excess of their preexisting credit balance.
…
The claimant is entitled to post judgment interest against the Defendants, at the rate of 10% per annum from the date of judgment until full liquidation of the judgment debt.
The claimant is entitled to N100,000.00 cost against the Defendants.
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The appeal having been entered on March 3, 2019, the learned counsel proceeded to file their respective briefs of argument. Most particularly, the Appellants’ brief was filed on 23/04/2019. It was settled by Kobani Tonbari Mgbo Esq. At page 5 thereof, a total of 4 issues have been raised:
01. Whether the pleading and evidence of the Defendants (now Appellants) did corroborate and support the case of the Claimant (now Respondent)? (Distilled from grounds 1 & 3)
02. Whether the findings and judgment of the trial Court are supported by the pleadings and credible evidence before the trial Court (Distilled from grounds 2, 3, 4, & 7)
03. Whether the evidence before the trial Court bore out that D.W.2 is an expert witness; if so, is the trial Court not bound to rely on Exhibit “T” especially as same is not contradicted? (Distilled from grounds 5 & 7)
04. Whether the findings of the trial Court in Suit No. PHC/1850/2006 constitute issue estoppel against the same issue(s) in Suit No. PHC/1569/2006. (Distilled from ground 6)
The issue 1 is extensively argued at pages 5-16 of the brief. In the main,
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it was submitted that from the pleadings and evidence of the 1st Defendant, it is clear that the Claimant did not grant any of the two applications of the 1st Defendant for uncleared effect facility. And that it is clear Exhibit M was unacceptable to the claimant.
It was argued that the Court below failed to observe that the cause of action in this matter occurred on 14/10/2005 when the claimant failed to serve caution notice on Bank PHB in respect of 4 cheques of N693,455,000.00. and that Exhibit A was received by the Claimant on 17/10/2005.
Further argued to the conclusive effect, that by the Appellant’s analysis, it is well established that the Court below had improperly evaluated the pleadings and evidence of the Defendants and thereby occasioned a miscarriage of justice, when it held thus:
“The pleading and evidence of the Defendants above must say corroborates and supports the position of the claimant, contrary to the assertion of the Defendants.”
The Court is urged to hold that the pleading and evidence of the Appellants do not at all corroborate and/or support the case of the Claimant. Rather, they whole heartedly
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support the Appellants case.
The issue 2 is most extensively argued at pages 16-29 of the brief. It is submitted in a nutshell, that from the analysis (paragraphs 4.43 – 4.46 brief), of the pleadings, evidence and relevant laws the statement (finding) of the Court below (paragraph 4.43) is an improper evaluation of the pleadings and evidence before the Court, and which occasioned a miscarriage of justice in the matter. Conclusively, the Court is urged upon to hold that the decision of the Court below is totally perverse, as it runs counter to the pleadings and proved facts.
The issue 3 is argued at pages 30-31 of the brief, to the conclusive effect that the DW2 was an expert witness, who was not cross examined in respect of Exhibit T. The Claimant being a bank whole heartedly admitted Exhibit T as true and correct. See EMIRATE AIRLINE VS. NGONADI (NO.2) (2014) 9 NWLR (Pt.1413) 506; OBINECHE VS. AKUSOBI (2010) 12 NWLR (Pt.1208) SC 383 @ 418 paragraphs C-D.
Conclusively, the Court is urged to discountenance the perverse decision of the Court below and rely on the uncontroverted and unchallenged evidence of DW2 in this case.
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Lastly, the issue 4 is argued at pages 3-33 of the said brief to the effect that the findings of S.O. Iragunima, J; in the earlier suit No. PHC/1850/2006 constitutes issue estoppel in respect of the same issue that arose in the determined suit No. PHC/1569/2006. SeeKUPOLUYI VS. PHILIPS (2001) 13 NWLR (Pt. 731) 736 @ 770-771 paragraphs H-A; et al.
It was further argued that the findings and decision in PHC/1850/2006: MR ACHO OCHONMA VS. FIRST BANK OF NIGERIA PLC were whole heartedly accepted by the Respondent as there was no appeal against same. See UMAR VS. APC (2018) 18 NWLR (Pt. 1650) SC 139 @ 154 paragraphs A-B; WADA VS. BELLO (2016) 17 NWLR (Pt.1542) SC 374 @ 433 paragraphs B-C; the effect that the Court below was bound to follow its findings in the earlier decided suit No. PHC/1850/2006.
On the whole, the Court is urged to allow the appeal, set aside the judgment of the Court below and grant all the reliefs as per the Appellants further Amended Statement of Defence and counter claim.
Contrariwise, the Respondent’s brief filed on 01/07/19 by Donatus N. Ikpeogu Esq., it spans a total of 20 pages. Apparently, the Appellants’ 4 issues have been
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adopted by the Respondent at page 5 of the brief thereof.
The issue 1 is argued at pages 5-11 of the brief to the effect that the pleadings and evidence of the Appellants’ support the case of the Respondent. That from the pleading and evidence of the Appellants, there is no doubt the Appellants issued and drew cheques totaling N693,455,000.00 in excess of their credit balance with the Respondent.
The case of OWOEYE VS. WEMA BANK LTD (2001) 9 NWLR (PT. 717) 1 @ 11 paragraphs A-D was cited and relied upon, in support of that contention.
Further argued, that an overdraft facility can be granted by a banker to her customer even though there is no offer letter and acceptance letter. See IBWA LTD VS. UNAKALAMBA (1998) 9 NWLR (Pt.565) 245 @ 267 paragraphs A-B.
The Court is urged to so hold, that the pleadings and evidence of the Appellants corroborate and support the case of the Respondent.
The issue 2 is argued at pages 11- of the brief. In the main, it is argued that Appellants being so notified of the special caution by Bank PHB, it is the duty of the Appellants to issue countermand instructions to the Respondent stopping value from
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being accorded to the Appellants’ four(4) cheques. See NB LTD VS. SAVOL W.A LTD (1994) 3 NWLR (Pt. 333) @ 455 paragraphs F-G.
Further argued, that in the absence of any countermand instructions by the Appellants, the Respondent took unilateral steps to stop value from being accorded the Appellants four (4) cheques, which were frustrated by a staff of Bank PHB, one Faka Omubo. Allegedly, Exhibit N is a petition written by the Respondent to Bank PHB against their said staff. Thus, it was posited that in the light of the pleadings, evidence and case law cited above, the findings of the Court below are supported by the pleadings and credible evidence before the Court.
The issue 3, is argued at pages 11-17 of the brief, to the conclusive effect that the Court below was right to reject the opinion evidence of the said Expert Witness (DW2), in view of the overwhelming evidence before the Court.
The issue 4 is argued at pages 17 – 18 of the said brief, to the effect that as the parties and subject matter in the two suits (PHC/1850/2006 and PHC/1569/2006) were not the same, the Court below was right to hold that the suit No. PHC/1850/2006 can
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not assist the Appellants.
Further argued, that the findings of the Court below in the said suit No. PHC/1850/2006 do not constitute issue estoppel against same issue in suit No. PHC/1569/2006.
On the whole, the Court is urged upon to uphold the judgment of the Court below and dismiss the appeal.
Having amply considered the nature and circumstances surrounding the instant appeal, the submissions of the learned counsel contained in the respective briefs of argument thereof vis-a-vis the record of appeal, I have deemed it expedient to adopt the Appellants 4 issues for the ultimate determination of the appeal.
ISSUE NO. 1
The first issue raises the vexed question of whether the pleadings and evidence of the Appellants (Defendants) did corroborate and support the case of the Respondent (Claimant). The issue is distilled from grounds 2, 3, 4 and 7 of the notice of appeal.
The second issue raises the vexed question of whether the findings (in) the judgment of the Court below are supported by the pleadings and credible evidence before the Court. The second issue is distilled from grounds 2, 3, 4 and 7 of the notice of appeal.
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It is note worthy, that both issues 1 and 2 of the Appellants’ brief have evidently been distilled from the same ground 3 inter alia of the notice of appeal. Thus, it is clearly obvious both issues 1 and 2 are symbiotically connected to one another of course, predicating both issues 1 and 2 to ground 3 is prolix, to say the least.
In the instant case, the Respondent (Claimant) had the privilege of calling a witness (CW1) and tendered various documents admitted as Exhibits A, A1-K, M, N, N1, P, P1-P3, Q & Q1, respectively, in proof of the case thereof.
Contrariwise, the Appellants (Defendants) equally had the opportunity to call two witnesses (DW1 & DW2) and tendered various documents admitted as Q2 – Q10, R R and T, respect in defence thereof.
At page 477 lines 23 – 28 of the record of appeal, the Court stated:
The pleading and evidence of the Defendants above must say corroborate and support the position of the claimant contrary to the assertion of the Defendants.
This is because the consistent position of the claimant is that upon receipt of the caution Notices against the nine (9) cheques, issued in favour of
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Defendants the Claimant duly notified the 2nd Defendant. That the Defendants did not give any countermand instructions to the claimant “regarding the four (4) cheques issued by the Defendants in favour of Mr. Patrick Fernandes.
In the course of the vexed judgment, the Court becomes equally made some far readings at page 476 lines 2 – 6 of the records:
This Court therefore believes the evidence of the Claimant that Defendants made numerous applications, including those of 15/9/2005 and 13/10/2005 Exhibits A1 and A for “PAYMENT AGAINST UNCLEARED EFFECT (P.A.U.E.) facilities together with their letter of 20/9/2005 (Exhibit “C”) forwarding the original collateral securities deposited with the Claimant to secure any future or consequent exposure and accrued liabilities.
For ease of reference, I have deemed it expedient to copiously allude to the said Exhibits A1 and A referred to above by the Court below at page 476 lines 2 – 6 of the record:
EXHIBIT A1 (pages 13 – 14 of the Record):
EZSAM NIGERIA LIMITED
Oil and Gas Services
RC.230474 Address: N28 Kaduna Street, D/Line, Port Harcourt<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
</br<>
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Tel; 08032333491, 08036455697
15th September, 2005 Fax: 084 – 239211 E-mail ezsamltd@yahoo.com
The Manager
Customers Relationship,
First Bank of Nigeria PLC,
24/26, Aba Road,
Port Harcourt.
ATTENTION MRS IKEM
Dear Sir/Madam,
APPLICATION FOR UNCLEARED EFFECT FACILITY OF N100 MILLION
We are your customers at station road branch, Port Harcourt and we deal in Oil and Gas business by buying P.M.s. AGO and DPK from Major Marketers such as Oando and Con Oil and at times from Independent Marketers to supply to our ever-ready customers among which is SEAGULLS.
Under one month as we commenced operation of our account with your station Road Branch, Port Harcourt, our turnover has risen to well over N600,000,000.00 (Six Hundred Million Naira).
In order to meet up our supply demand particularly from SEAGULLS, we wish to apply for uncleared effect facility of N100 Million as the demand may arise within the permissible requested limit to accommodate anticipated demand of products about N66 Million daily as against their cheque payments of over N70 Million daily.
There is an understanding between us
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SEAGULLS and their Bankers Platinum Bank of prompt payment of every cheque drawn on Platinum by SEAGULLS in favour of our company EZSAM NIGERIA LIMITED.
We shall in the interim cause to be forwarded to you a comfort letter from Platinum Bank while we pursue a guarantee from them as well. Besides, we shall also cause some collaterals to be deposited with you in respect of this application.
Above all, we assure you that all payments to EZSAM NIGERIA LIMITED from SEAGULLS will be lodged in our account in question.
We thanks you for your understanding and assistance.
Yours faithfully,
ACHO OCHONMA ESQ
(CHAIRMAN).
EXHIBIT A (pages 15 – 16 of the Record):
EZSAM NIGERIA LIMITED
Oil and Gas Services
RC.230474 Address: N28 Kaduna Street, D/Line, Port Harcourt
Tel; 08032333491, 08036455697
13th October, 2005 Fax: 084 – 239211 E-mail ezsamltd@yahoo.com
The Manager
Customers Relationship,
First Bank of Nigeria PLC,
24/26, Aba Road,
Port Harcourt.
ATTENTION MRS IKEM
Dear Sir/Madam,
APPLICATION FOR UNCLEARED EFFECT FACILITY OF N130 MILLION.
We are your
17
customers at station road branch, Port Harcourt and we deal in Oil and Gas business by buying P.M.s. AGO and DPK from Major Marketers such as Oando and Con Oil and at times from Independent Marketers to supply to our ever-ready customers among which is SEAGULLS.
Under one month as we commenced operation of our account with your station Road Branch, Port Harcourt, our turnover has risen to about N2 billion.
In order to meet up our supply demand particularly from SEAGULLS, we wish to apply for uncleared effect facility of N130 Million as the demand may arise within the permissible requested limit to accommodate anticipated demand of products from SEAGULLS to us, though at present our level of supply value to SEAGULLS is about N500 Million daily as against their cheque payments of over N600 Million daily.
There is an understanding between us SEAGULLS and their Bankers Platinum Bank of prompt payment of every cheque drawn on Platinum by SEAGULLS in favour of our company EZSAM NIGERIA LIMITED.
We shall in due course forward to you a comfort letter from Platinum Bank.
Above all, we assure you that all payments to EZSAM NIGERIA LIMITED from
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SEAGULLS will be lodged in our account in question.
We thanks you for your understanding and assistance.
Yours faithfully,
ACHO OCHONMA ESQ
(CHAIRMAN).
By the Appellants pleadings and evidence above, the findings of the Court below are duly corroborated to the effect that the Platinum Bank rent (another) comfort letter dated 20/09/2005 which the respondent duly accepted. See pages 275, line 35 – 39; 462 lines 13 – 14 of the Records.
Most interestingly, the DW1, the Appellants star witness, admitted under cross examination (pages 462 lines 13 – 14 of the Record) thus: –
Q: You are aware that Platinum Bank wrote a comfort letter to the claimant, dated 26/09/2005.
A: Yes.
Q: In that letter of comfort dated 26/09/2005, it is stated that the Defendants confirm all cheques drawn on Platinum cheques. Counsel for Defendant says the said document was not pleaded, listed in the rest of the documents and that because cannot now be referred to. Counsel therefore objects to this question.
COURT: Counsel for claimant does not seem to be ready with his reply. This matter is therefore adjourned to 15/11/16 for reply.
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On the said 15/11/2016, when the matter again came up for continuation of cross examination of the DW1, the Court below recorded at page 462 of the record thus:
DW1 reminded of Oath
Counsel for Claimant says he asked a question on the last adjourned date and counsel for Defendants raised an objection. Counsel for claimant now applies to withdraw the said last question.
Counsel for Defendants has no objection.
COURT: Last question asked by learned counsel for the Claimant is hereby expunged from the record.
As copiously alluded to above the DW1 has admitted to the effect that Platinum Bank had a comfort letter to the Respondent, dated 26/09/2005. Thus, the fact that the said comfort letter was not pleaded by the Respondent notwithstanding, the evidence so far elicited from the DW1 under cross examination is admissible in evidence. See GAJI VS. PAYE (2003) 8 NWLR (Pt. 823) 583 @ 590; NAS LTD VS. UBA PLC (2005) 14 NWLR (Pt. 945) 421 @ 435 paragraphs A-B.
What is more, the DW1 had admitted under cross examination to the effect that the Appellants application for uncleared effect facility was for the Respondent to give
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value to cheques drawn against the 1st Appellant even where the Res no sufficient fund in the account thereof. Hear him:
Q: The uncleared effect the 1st Defendant applied through you was for the Claimant to give value to cheques drawn against the 1st Defendant, even where there is no sufficient fund in the account A. That was the application.
See page 452 of the Record.
It is trite law, that when a customer of a Bank draws a cheque in excess of the credit thereof, and the Bank honours that cheque, is tantamount to a grant of an over draft facility by the Bank to the said customer thereof. See OWOEYE VS. WEMA BANK LTD (2001) 9 NWLR (Pt. 717) 1 @ 11 paragraphs A-D; IBWA LTD VS. UNAKALAMBA (1998) 9 NWLR (Pt. 565) 245 @ 267 paragraphs A-B.
Most instructively, the fact that a customer such as the Appellants in the instant case has a duty to give specific instruction to the Bank to stop value being accorded to the cheques thereof is not controversial. See NBN LTD VS. SAVOL W.A LTD (1994) 3 NWLR (Pt. 333) @455 paragraphs F – G wherein it was aptly held:
So when a cheque is issued the drawn is entitled to stop payment on it by instructing
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his banker and when the instruction duly gets to the banker he must comply with it irrespective of any other prevailing circumstances known to the banker.
Against the backdrop of the foregoing postulation there is every cogent reason for me to hold that there is no doubt that by the pleadings and evidence Appellants the Respondent honoured the Appellants four cheques totaling N693,455,000.00 when the Appellants had no sufficient fund in their corporate account with the Respondent to meet the cheque in question.
In the circumstances both issues 1 and 2 ought to be argued are hereby resolve against the Appellants.
ISSUE NO. 3
The third issue raises the question of whether the evidence before the Court below bore out that the DW2 was an expert witness thus the Court was bound to rely on Exhibit T especially as same was not contradicted. The third issue is distilled from grounds 5 and 7 of the notice of appeal.
The said DW2 testified at pages 464 – 466 of the Records. He gave out his name as Kenneth Echezona of Onyeteme close Rumuodara, Port Harcourt. As a management consultant. He adopted his statement on oath as ID2.
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Under Cross-Examination by Wifa SAN, the DW2 gave out his qualification as BSC and MBA. He equally admitted thus:
Q: You do not possess any professional qualification. The Banking and Finance or any related field.
A. No.
In the Court of the examination thereof the DW2 had tendered certain document (ID-2), which was admitted by the Court below devoid any objection by the Respondents counsel thus:
COURT: Document produced by Kenneth Echezona titled “EXPER OPINON is admitted in evidence and marked Exhibit T.
Under Cross-examination the DW2 testified:
Q: Are there different procedures for obtaining banking facility from the bank.
A: It depends on the nature of the banking facility but most importantly the customer must do a written application to the bank stating the type of facility and intention and means of repayment.
Q: The procedure in obtaining banking facility must it necessary follow the procedures you stated in Exhibit “T”
A: It must follow those essential ingredients, as stated in Exhibit “T.”
Q: The arrangement whereby the claimant allowed the Defendants to issue 4 cheques, that
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is Exhibit “E”, in favour of one Patrick Fernendez, when the Defendant had insufficient funds in its account to cover those cheques what is it called.
A: The four (4) cheques issued by the defendants were conditional cheques and the conditions were known to the claimant.
Q: This type of arrangement is it called an overdraft facility or uncleared effect facility.
A: There is no banking name given to such transaction, because its not a facility.
Q: How long did you work in the bank before you retired.
A: 21 Years.
Q: Through out your 21 years banking experience did you come across the words “cheque Kitting”.
A: Yes.
Q: Cheque kitting is a fraud.
A: To the best of my knowledge, No. It’s a misapplication of the process that is fraudulent.
Q: What happened in this transaction leading up to this Suit is cheque “kitting” true or false.
A: True.
Q: Are you aware that the bankers committee called this transaction a fraud.
A: I am aware the bankers committee called it “kitting”.
Q: Explain to us what cheque “kitting” is, since you say
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it is not a fraud.
A: Cheque kiting is a process, where a customer lodges cheques into his account and issues his own withdrawal cheques to have value the same day the cheques he lodged in will clear.
Q: Look at Exhibit “Q”, see paragraph 3. Shown to witness. Read it out.
A: Reads.
Q: Do you now agree with me that by virtue of that paragraph 3, that the transaction was a fraud.
A: No I do not agree with you.
Q: Where you present when the alleged telephone conversation between Bank PHB and the Claimant took place, in respect of Caustion Notices on Exhibit “E”.
I agree with the submission of the Respondent’ learned counsel to the effect that the report of the purported expert witness, Exhibit “T” does not state anything new other than the facts already contained in the pleadings and evidence of the Appellants before the Court below. In any event, the DW2 has admitted to the fact that he is not an expert at in banking, thus it is an anomaly to call him ‘an expert. Indeed the law is well settled that an opinion evidence given by an expert is not by any stretch of imagination
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conclusive in regard to the point upon which the expert witness testified. Thus, a Court must not abdicate its independent decision on point to the expert. The Court has an unfetted discretion to reject such an expert opinion where there is a cogent reason or cause for it to do so. See OGIALE Vs. SPDC NIG LTD (1997) 7 NWLR {Pt. 480} 154.
In the circumstances, the third issue ought to be and same is hereby resolved against the Appellant.
ISSUE NO. 4
The last and fourth issue raises the question of whether the findings of the Court below in Suit No. PHC/1850/2006 has constituted an estoppel against the same issue in instant suit No. PHC/1569/2006. The issue is distilled from ground 6 of the notice of appeal.
The judgmental principle of estoppel is that where an issue has been determined on the merits by a Court of competent jurisdiction that issue should not be allowed to be re-litigated by different parties. The genesis of this doctrine is traceable to the English Case of DUCHESS OF KINGSTON (177 – 1802) All ER at 623. That principle has over the years been expanded to meet circumstances which call for application of the police law
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that underlines the doctrine of estoppel per Rem Judicatam that is there must be an end to litigation. See FIDELITUS SHIPPING COY LTD Vs. V/O EXPORT-CHLEB (1965) 4 @ 10; LADEGA Vs. DUROSIMI (1978) NSCC 175 @ 179; BWACHA Vs. IKENYA (2011) LPELR – SC. 39/2010 @ 20 – 21 paragraphs C – G.
In the suit No. PHC/1850/2006, the parties were ACHO OCHONMA TRADING UNDER THE NAME AND STYLE OF ACHO OCHONMA & ASSOCIATES AND FIRST BANK OF NIGERIA PLC. Contrariwise, however, the parties in the instant case (No. PHC/1569/2006) the parties, the FIRST BANK OF NIGERIA PLC AND EZSAM NIG.LTD AND MR. ACHO OCHONMA.
Again, in the said suit NO. PHC/1850/2006, the subject matter is a claim for payment of professional and defamation. Where as in the instant suit (PHC/1569/2006) the subject matter is for recovery of debt.
Thus, as aptly postulated by the Respondent, the findings of the Court below in the suit No. PHC/1850/2006 can not by any stretch of imagination constitute estoppel against the issues in the instant case (PHC/156/2006).
In the circumstances, the fourth issue is equally hereby resolved against the Appellants.
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Hence, having effectively resolved all the four issues against the Appellants, the appeal resultantly fails, and it is hereby dismissed by me. The judgment of the Rivers State High Court, delivered on January 9, 2019 in suit No. PHC/1569/2006 by S.O. Iragunima, J; is hereby affirmed.
There shall be no order in regard to costs.
ISAIAH OLUFEMI AKEJU, J.C.A.: I have read the Judgment of my learned brother, IBRAHIM MOHAMMED MUSA SAULAWA, JCA and I agree with the reasoning and conclusion therein consequent upon which I dismiss the appeal and abide by the consequential order.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I entirely agree.
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Appearances:
Alikor, Esquire, with him, Emeka Ejerenwa, Esquire and C.N. Nwokorie, Esquire of counsel For Appellant(s)
Respondent served on the 11/6/2020 For Respondent(s)
