HIGHLAND BANK OF NIGERIA LTD & ANOR v. FRANK ISEH & CO. & ORS (2020)

HIGHLAND BANK OF NIGERIA LTD & ANOR v. FRANK ISEH & CO. & ORS

(2020)LCN/14849(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Friday, December 18, 2020

CA/YL/22/2018

RATIO

APPEAL: WHAT SHOULD ISSUES FOR DETERMINATION BE BASED ON

It is trite law that issues for determination formulated in a brief must be based on the grounds of appeal filed by the parties. If the issues are not related to any ground of appeal, then they become irrelevant and go to no issue. Consequently, any argument in the brief in support of such issues will be discountenanced by the Court. See the decision of the Supreme Court in Ibator v. Barakuro (2007) 9 NWLR (Pt. 1040) 475. PER ABIRIYI, J.C.A.
EVIDENCE: EFFECT OF FAILURE OF AN ADVERSARY TO ADDUCE EVIDENCE TO PUT ON THE OTHER SIDE OF THE IMAGINARY SCALE OF JUSTICE

It is the law that where an adversary fails to adduce evidence to put on the other side of the imaginary scale of justice, a minimum evidence adduced by the other side would be sufficient to prove the case. See Newbreed v. Erhomosele (2006) 2 SCNJ 198 at 215. However, even where the evidence in a case goes one way in that it is not challenged, the trial Court is still expected to examine whether or not the unchallenged evidence is sufficient to establish the claims made by the party in whose favour the unchallenged evidence is given. See Martchem v. M. E. Kent (2005) SCNJ 235 at 243. PER ABIRIYI, J.C.A.

EVIDENCE: EFFECT OF DOCUMENTS ADMITTED IN THE ABSENCE OF ADMISSIBLE ORAL EVIDENCE

Documents admitted in evidence no matter how useful they could be would not be of much assistance to the Court in the absence of admissible oral evidence by persons who can explain their purport. See the decision of the Supreme Court inAlao v. Akano (2005)11 NWLR (Pt. 935) 160. If a person who is not the maker of a document tenders the document, the Court should not attach any probative value to the document as the maker would not be available for cross examination. See the decision of this Court in Lambert v. Nigeria Navy (2006) 7 NWLR (Pt. 980) 525. PER ABIRIYI, J.C.A.

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Between

1. HIGHLAND BANK OF NIG. LIMITED (IN LIQUIDATION) 2. NIGERIA DEPOSIT INSURANCE CORPORATION (NDIC) APPELANT(S)

And

1. FRANK ISEH & CO. 2. MR. IDOWU OYEYEMI 3. DAVID BARAU 4. HOMESTEAD (NIG.) LIMITED RESPONDENT(S)

JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered 9th May, 2007 in the High Court of Adamawa State holden at Yola. In the High Court (the Court below), the 3rd and 4th Respondents were the plaintiffs. The Appellants, 1st and 2nd Respondents were the Defendants.

The claim of the 3rd and 4th Respondents against the Appellants, 1st and 2nd Respondent was for the following:
“1. A declaration that the 1st and 2nd Defendants being in breach of the Contract to extend the loan of N5 million to the Homestead Nigeria Ltd, the Plaintiff/Applicant is discharged from any liability that arises from the said contract and the properties of the Plaintiff deposited with the 2nd Defendant as securities for the loan can no longer be attached and auctioned by the 1st defendant or its agents.
2. (in the alternative to No. 1, above)
A declaration that by virtue of the letter of 7/12/94, the settlement of the overdraft facility granted to Homestead Nigeria Ltd by the 2nd Defendant is not due until on or before 30/11/97.
3. The sum of N2,750,000 for loss of profit at N250,000 per annum from 1994-2005.

An injunction to restrain the defendant (sic) jointly and severally by themselves, their servants, agents, assigns or howsoever from advertising for sale by auction and/or auctioning the landed properties of the plaintiff covered by Certificate of Occupancy Nos. GS/652 and GS/948 situate in Yola, Adamawa State.
5. N2.5Million general damages.
6. Cost of this action to be assessed by the Hon. Court.”

The 1st and 2nd Appellants counterclaimed against the 3rd and 4th Respondents for the following:
“(a) The sum of N3,751,400.44 being amount taken and accrued interest on loan as at 26th September 1997.
(b) Alternatively an order of Court to dispose of the said mortgaged properties by public auction.
(c) 21% bank interest on the loan from 27th September 1997 till judgment.
(d) 10% Court’s interest rate till liquidation.
(e) Cost of this suit including cost incurred when the matter was before the Failed Bank Tribunal before it was dissolved.”

The case of the 3rd and 4th Respondents in summary is as follows: In 1994, the 3rd Respondent made an offer for the lease of Yola Motel

by the Adamawa State Government. He won the bid. The 1st Appellant advanced the sum of N1,203,000 to the 3rd Respondent through the 4th Respondent’s account to enable the 3rd Respondent pay N1,703,000 rent to the Adamawa State Government for the Motel. The 1st Appellant also advanced a total sum of N450,000 in three instalments to the 3rd Respondent to enable him renovate the Motel. The 3rd Respondent provided security for a loan of N5million. The loan of N5million was not granted by the 1st Appellant but an overdraft of N1,428,000 through Exhibit P was granted instead. The 1st Appellant proceeded to take an insurance and charged it on the 3rd and 4th Respondents’ account.

Thereafter, the 3rd and 4th Respondents received a letter Exhibit (exhibit R) from the 1st Respondent telling them that the collateral they gave for the N5million loan was being offered for sale.

According to the 3rd Respondent, when the 1st Appellant refused to grant the loan, he could not renew the lease and the Motel reverted to the Adamawa State Government.

In the meantime, the 3rd and 4th Respondents got an expert to assess the profit they would have made in

one year in running the motel. The expert produced a document exhibit S indicating that the 3rd and 4th Respondents would have made a profit of N250,000 annually.
According to the 3rd Respondent, one of the two houses used as collateral got burnt and he was not paid any insurance money.
His only indebtedness to the Appellants is N1,653,000, he said.

The Appellants, 1st and 2nd Respondents did not defend the suit. The Court below entered judgment in favour of the 3rd and 4th Respondents but ordered them to pay N1,653,000 overdraft which they admitted owing the Appellants.

Ten years after the delivery of the judgment of the Court below, the Appellants sought for and were granted extension of time within which to appeal by this Court on 5th July 2017. Consequently, the Appellants filed a notice of appeal on 10th July 2017. The notice of appeal contains three grounds of appeal.

In their brief of argument filed on 18th February, 2019 but deemed duly filed and served on 23rd September, 2019 the Appellants presented the following issues for determination:
Issue No. 1
Whether the trial Court was right in solely relying on exhibit

‘S’ to order the Appellants to pay the respondents the total sum of N2.500,000.00 as loss for profits from 1995-2005 (Ground One).
Issue No. 2
Whether having regard to the combined effect of Section 41(2) of Banks and Other Financial Institutions Act. (BOFIA). 2004 and Section 417 of Companies and Allied Matter Act (CAMA), the action against the 1st appellant was competent (Ground Two).
Issue No. 3
Whether the 2nd appellant was privy to the contract or transaction regarding the award of a loan of N5 Million by the 1st appellant to the 4th respondent (Ground Three).

The 3rd and 4th Respondents on the other hand presented the following two issues for determination:
(i) Whether the action of the plaintiffs which was commenced on the 4th day of April, 1997 was incompetent? (Distilled from ground 2).
(ii) Whether on the preponderance of evidence the trial Court was right in entering judgment in favour of the Plaintiffs/Respondent and against the Defendants/Appellants? (Distilled from grounds 1 & 3).

On issue 1, learned counsel for the Appellants submitted that a claim for anticipated profit must be

established by evidence. The Court was referred to A.G. Oyo State & Ors v. Fair Lakes Hotels Ltd & Anor (No.2) (1989), Odumosu v. ACB (1976) 11 SC 55 and Uwa printers Ltd v. Investment Trust Ltd (1988) 5 NWLR (Pt. 92)110. The Court was referred to the judgment of the Court below at pages 149 and 150 on the finding that the 3rd and 4th Respondents were entitled to N2,500,000 being loss of profit as shown by Exhibit “S”. Exhibit “S”, it was submitted, carries little or no weight since the makers were not called to testify and no reason was given by the 3rd and 4th Respondents for failure to call its makers. It was submitted that documentary evidence admitted in the absence of the maker has to be considered before coming to a conclusion as to whether or not it establishes the fact stated therein. The Court was referred to Kayili v. Yilbuk (2015) 244 LRLN 108 at 123. It was submitted that the Court below was in error when it held that since there was no challenge to exhibit “S”, it must be accepted as establishing the facts stated therein. It was further submitted that a party who did not make a document is not competent

to give evidence on it. The Court was referred to Ikpeazu v. Otti & Ors. (2016) LRCN 1 at 11 and Buhari v. I.N.E.C. & Ors (2009) 167 LRCN 1 at 38. Exhibit “S”, it was submitted, lacks probative value and the Court below acted in error when it used it as a basis for its judgment to award N2,500,000 against the Appellants.

On issue 2, it was submitted that no proceedings shall be instituted against a bank whose affairs have been taken over by the Nigeria Deposit Insurance Corporation (NDIC) without the leave of Court. The Court was referred to Atoju v. Triumph Bank Plc. (2016) 5 NWLR (Pt. 1505) 252, Section 41(1) and (2) of Bofia 2004 and Section 417 of CAMA. It was submitted that obtaining leave of the Court below was a condition precedent to the exercise of the Court’s jurisdiction. The Court was referred to A.G. Kano v. A.G. Federation (2007)3 SCNJ 1 at 3.

On issue 3, it was submitted that the 2nd Appellant was not a party to the transaction that led to the loan of N5million. It was submitted that pleadings and evidence of the 3rd and 4th Respondents have not disclosed the involvement of the 2nd Appellant in the transaction

for the grant of a loan of N5million to the 3rd and 4th Respondents by the 1st Appellant.

Respondents, it was argued, have not complied with the provision of Section 55(2) of the NDIC Act, 2006 which requires that the 2nd Appellant must be served with a written notice of one month before any action could be commenced against it. It was submitted that failure to serve this pre-action notice on the Appellant has rendered the entire suit against the 2nd Appellant incompetent.

The 1st and 2nd Respondent did not file any brief. Although they were served hearing notice against 5th October, 2020 when the appeal was heard, none of them attended Court or excused his absence.

Arguing 3rd and 4th Respondents’ issue 1, it was submitted that at the time the suit was instituted against the 1st Appellant, the 1st Appellant had not been taken over by the 2nd Appellant therefore, the 3rd and 4th Respondents did not require any leave of the Court before filing the action.

It was submitted that assuming but not conceding that the 3rd and 4th Respondents required the leave of the Court below before instituting the action that is only a procedural

jurisdiction which can be waived by the Appellants. It was submitted that 1st Appellant having participated fully in the trial of the case and without raising any objection as to the issue of leave, he is deemed to have waived it and cannot benefit from it on appeal. We were referred to A.G. Kwara State v. Adeyemo (2017) All FWLR (Pt. 868) 616 and Heritage Bank Ltd v. Bentworth Finance Nig. Ltd (2019) All FWLR (Pt. 997) 1.

On issue 2, learned counsel for the 3rd and 4th Respondents argued that the exhibit “S” having been admitted in evidence without objection, the Court below had to use it for the purpose for which it was tendered. The Appellant, it was pointed out, did not adduce evidence. Therefore it was submitted that the evidence adduced by the 3rd and 4th Respondents if put on an imaginary scale of justice would preponderate against the empty evidence of the Appellant. The Court below was therefore right when it entered judgment for the Respondents, it was submitted. The Appellants having decided not to call evidence cannot now complain, it was submitted.

It was submitted that issue of pre-action is not from any of the grounds of

appeal. Assuming it was, the Appellants had waived their right to any pre-action notice having participated in the trial.

Grounds 2 and 3 of the Appellants’ Notice of Appeal without their particulars reproduced immediately hereunder read as follows:
“Ground Two
The learned trial Judge erred in law and occasioned miscarriage of justice when he stated as follows:
“I therefore have no hesitation whatsoever in holding that the plaintiffs have proved their case against the defendants as required by the law”
“Ground Three
The learned trial Judge erred in law when he held that “The 1st and 2nd defendants being in breach of the contract to extend a loan of N5 Million to the Homestead Ltd. the plaintiffs/applicants is (sic) discharge (sic) from any liability that arises from the said contract and the properties of the plaintiff deposited with the 2nd defendant as securities for the loan can no longer be attached and conditioned (sic) by the 1st defendant or agents.”

Issues 2 and 3 formulated by the Appellants at the risk of being repetitive reproduced again immediately hereunder read as follows:

Issue No. 2
Whether having regard to the combined effect of Section 41(2) of Banks and Other Financial Institutions Act. (BOFIA). 2004 and Section 417 of Companies and Allied Matters Act (CAMA), the action against the 1st appellant was competent (Ground Two).
Issue No. 3
Whether the 2nd appellant was privy to the contract or transaction regarding the award of a loan of N5 Million by the 1st appellant to the 4th respondent (Ground Three).

It is trite law that issues for determination formulated in a brief must be based on the grounds of appeal filed by the parties. If the issues are not related to any ground of appeal, then they become irrelevant and go to no issue. Consequently, any argument in the brief in support of such issues will be discountenanced by the Court. See the decision of the Supreme Court in Ibator v. Barakuro (2007) 9 NWLR (Pt. 1040) 475.
A cursory look at grounds 2 and 3 side by side with issues 2 and 3 formulated by the Appellants reveals clearly that these issues were not based on the grounds of appeal. Therefore the arguments in support of issues 2 and 3 are hereby discountenanced by the Court.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The only issue for determination in my view therefore, is issue 1 presented for determination by the Appellants already reproduced above.

be available for cross examination. See the decision of this Court in Lambert v. Nigeria Navy (2006) 7 NWLR (Pt. 980) 525. At page 150 of the record, the Court below awarded N2,500,000, being loss of profit from 1995-2005 as contained in Exhibit “S”. The award in the language of the Court below reads as follows:
“The defendants are to pay the plaintiffs the sum of N250,000 per annum being loss of profit as borne out by Exhibit “S” from 1995-2005 totaling N2,500,000 (Two Million Five Hundred Thousand Naira Only).”

The award as learned counsel for the Appellant rightly pointed out was for anticipated profit. The claim for anticipated profit is a special one which must be strictly proved. See A.G. of Oyo State & Anor v. Fair Lakes Hotels Limited & Anor (1989) LPELR 625 SC. In the instant case, the 3rd and 4th Respondents who were plaintiffs had the burden of proving the accuracy of Exhibit “S” tendered to prove the claim for anticipated profit. In my view they failed to do so as exhibit “S” which is a twenty-one (21) page document was not tendered through the maker who ought to have

demonstrated in Court how the 3rd and 4th Respondents were entitled to N250,000 profit annually for ten years. The Court below in my view erred when it relied on exhibit “S” which was not tendered through the maker to grant the claim of the 3rd and 4th Respondents for anticipated profits of N2,500,0000.

The lone issue for determination is resolved against the 3rd and 4th Respondents.
The appeal succeeds in part.
The award of N2,500,000 as loss of profit from 1995-2005 to the 3rd and 4th Respondents is hereby set aside.
Appellants are awarded N50,000 costs which shall be paid by the 3rd and 4th Respondents.

CHIDI NWAOMA UWA, J.C.A.: I read before now the draft copy of the judgment delivered by my learned brother JAMES SHEHU ABIRIYI, JCA. I agree with his reasoning and conclusion in resolving the lone issue for determination against the 3rd and 4th Respondents. I also hold that the appeal succeeds in part.
I abide by the order made as to cots in the leading judgment.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.

Appearances:

M.M. DANJI, ESQ. For Appellant(s)

A.B. BUWA, ESQ. – for 3rd and 4th Respondents
1st and 2nd Respondents absent though served For Respondent(s)