LEAD CAPITAL LTD v. ONOKURHEFE (2021)

LEAD CAPITAL LTD v. ONOKURHEFE

(2021)LCN/15085(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, March 05, 2021

CA/L/689/2018

Before Our Lordships:

Theresa Ngolika Orji-Abadua Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

LEAD CAPITAL LIMITED APPELANT(S)

And

BENSON ONOKURHEFE RESPONDENT(S)

RATIO

CONDITION THAT MUST BE SHOWN BY AN APPELLANT TO SUCCEED IN UPTURNING A JUDGMENT ON APPEAL

Judgments are not upturned on appeal simply because an appellant was able to identify an error in them. To succeed in upturning a judgment on appeal the appellant must go further to show that the error was substantial and a miscarriage of justice was occasioned by it. See Irolo v. Uka (2002) 14 NWLR (PT 786) 145 @ 339 (SC); Etajata v. Ologbo (2007) 16 NWLR (PT 1061) 554 @ 584 and Owners of M.V. Arabella v. N.A.I.C. (2008) 11 NWLR (PT 1097) 182 @ 219). PER BOLOUKUROMO MOSES UGO, J.C.A.

EFFECT OF UNCHALLENGED AVERMENTS

Averments that are not disputed are deemed admitted and established. See Godwin Ugwuanyi v. NICON Insurance Plc (2017) 10 ACELR 1 @ 28-29 (S.C). It is the same point that was made by Oputa, J.S.C. in Debs v. Cenico Ltd (1986) 3 NWLR (PT 32) 846 @ 850, 853 when he said that:
“…by the rules of pleadings, any matter not specifically denied or stated not to be admitted should be regarded as established. Messrs Lewis & Peat (N.R.I.) Ltd v. A.E. Akhimien (1976) 7 S.C. 157 @ 163/164.” In Taiwo v. Adegboro (2011) ALL FWLR (PT 584) 52, (2011) 5 SCNJ 125, (2011) 11 NWLR (PT 1259) 562 @ 584, it again was stated by the apex Court that: “Judicial admissions are conclusive. That is so where a party agrees to a fact in issue; it is no longer necessary to prove that fact. In effect, after an admission, no further dispute should be entertained by the Court. This is the strongest proof of that fact in issue.” That is also the clear prescription of Section 123 of the Evidence Act 2011. In any case, the purpose of pleadings is to give notice of a party’s case to his opponent and the Court (Abubakar v. Joseph (2008) LPELR-48 (SC) p.53-54, Apostolic Church v. Olowolemi (1999) 3 NSCC 316 @ 324), so where an issue is admitted on the pleadings or deemed to be admitted and therefore not in issue between parties even the rejection by the Court of a document tendered to further support such undisputed averment (as is now sought by appellant) has no adverse effect on such averment that is fact not challenged; the averment remains proved. See Atolagbe v. Shorun (1985) 1 NWLR (PT 2) 360 @ 370 Para. C, (1985) LPELR-592 (SC) p. 18, 19, 21, 26-27. PER BOLOUKUROMO MOSES UGO, J.C.A.

EFFECT OF INADMISSIBLE EVIDENCE EVEN WHEN NO OBJECTION WAS RAISED AT THE TIME IT WAS TENDERED

… it is true and a correct statement of the law that evidence which is inadmissible in every circumstance remains inadmissible even when no objection is raised to them at the time it was tendered, but that position only seems to be as regards documents made expressly inadmissible in every circumstance by the law. See Yassin v. Barclays Bank D.C.O (1968) 1 ALL NLR 171 @ 177 (Lewis, J.S.C.). It has to be also pointed out that the rationale for not attaching weight to unsigned document is that such document has no origin in terms of its maker and so attracts no weight. It is not an issue that affects admissibility as such. See Jinadu v. Esurombi-Aro (2009)14 NWLR (PT 949) 142 @ 188, (2009) LPELR-1614 (SC) P. 31-32; Omega Bank (Nig.) Plc v. OBC Ltd (2005) 8 NWLR (PT 928) 547 (Tobi, J.S.C.), Ashakacem Plc v. Mubashshurun Inv. Ltd (2018) 77 NSCQR 109, (2019) LPELR-4654 (SC) p. 27-29, Ogungbele v. Oladele (2004) 27 WRN 153 @ 163, 1665-166, S.P.D.C. (Nig) Ltd v. Olarewaju (2002) 16 NWLR (PT 792) 38 @ 69 (C.A). PER BOLOUKUROMO MOSES UGO, J.C.A.

WHETHER PARTIES CAN ARGUE ISSUES NOT RAISED IN THEIR PLEADINGS

Now, the case in the trial Investment and Securities Tribunal having been fought by parties on pleadings exchanged by them, it follows that parties and even the Court are bound by those pleadings and any issue not raised in them cannot be agitated by parties either at the trial or at any further stage of the proceeding including appeal. In fact any issue not raised by parties in their pleadings is bound to be ignored by the Court even if it was allowed in evidence. See Emegokwue v. Okadigbo (1973) 4 S.C. 113; Buhari & Anor v. Obasanjo (2005) LPELR-815 (SC) 258, Agboola v. U.B.A. Plc (2011) 11 NWLR (PT 1258) 2375 @ 397-398(S.C.), Agboola v. U.B.A. Plc (2011) 11 NWLR (PT 1258) 2375 @ 397-398(S.C.). PER BOLOUKUROMO MOSES UGO, J.C.A.

WHETHER THE DEFENCE OF ESTOPPELS MUST BE SPECIFICALLY PLEADED

… it is also settled law that estoppel must be specifically pleaded before it can be considered by the Court and it is so even if the estoppel is founded on admissions. See Ajide v. Kelani (1985) LPELR-302 (SC) at p. 19-20, (1985)3 NWLR (PT 12) 248 @ 261, paragraph H, where it was said (Bello, J.S.C., later CJN) that: “It is trite law in Nigeria on the authorities I have earlier cited in this judgment that the defence of estoppel, whether founded on admissions or not, must be pleaded and, if it has not been pleaded, any evidence tending to establish it goes to no issue and the evidence ought to be rejected. See Ogboda v. Adulugha (1971) ALL NLR 86.” PER BOLOUKUROMO MOSES UGO, J.C.A.

BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Investment and Securities Tribunal of 23/02/2018 upholding respondent’s originating application against appellant and awarding in his favour against appellant (1) the sum of ₦37,667,375.10 as special damages same being the worth of his shares with appellant as at 9th April, 2008; (2) 16% interest on that amount from 9th April, 2008 till the date of judgment and until the sum is fully liquidated; (3) ₦11,814,050.80 also as special damages, being the sum difference as at 9th April, 2008, between the worth of respondent’s shares in his margin account and the loan taken by him from appellant, (4) and costs of ₦500,000.00 and (5) an order canceling any debt purportedly owed by him to appellant.

The Background
Appellant, a Capital Market Operator, at different times availed Respondent different margin trading facilities. The Margin Facility that is the subject of the action that culminated in this appeal is the one dated the 24th of September, 2007. It was tendered in evidence and marked Exhibit CW2 and spans pages 12 – 16 and 332

paragraphs 15 -20 of the records of Appeal. In it, Respondent was said to have applied for, and appellant approved and offered him ₦29, 300,000.00 (Twenty Nine Million, Three Hundred Thousand Naira) Margin trading facility. The tenor of the Facility was 180 days, with option of rollover. One condition precedent to utilization of the Facility is signing of the said Agreement/Offer Letter by parties. Clause 4 at Page 4 of the said Agreement (Exhibit CW2) clearly stated so. The last page of the Agreement shows that the Respondent, Mr. Onokurhefe, only signed it on 10/11/2007.

Another important covenant of the facility is that margin call be made by appellant to Respondent whenever the collateral value of his stock was at 130% of the amount standing in his margin account and for Respondent to inject funds into his margin account within three working days, upon receipt of that call, to make up for the shortfall. The said Margin Call Clause read thus:
Lead Capital will make a Margin Call when the collateral value is at 130% of the amount outstanding in the borrower’s account. Once a Margin Call is made by Lead Capital, the borrower has 3 business

days within which to cover any shortfall as advised by depositing cash into the borrower’s Margin Trading Account.
Should the borrower fail to meet a margin call within stipulated time, Lead Capital is authorized to sell any or all of the securities in the borrower’s brokerage account(s) with Lead Capital to redeem or liquidate any debit balance in the borrower’s margin trading account.

Respondent also averred specifically in paragraph 6(c) of his Application, and it is not denied by appellant in its Reply to the Application, that besides the margin account, he also maintained a personal stock brokerage account with appellant, and that as at 9th April, 2008 the stock market was buoyant and the worth of his stocks in his said Personal account was ₦41, 114,050.82 while that in his Margin trading account was ₦37, 667, 375.10.

Respondent’s main grouse seemed to be that appellant neglected to sell the stock in his margin account at its ‘expiration’ in March 2008 (by his interpretation) when the stock market was high, particularly as at 9th April, 2008; rather it waited till November 2008, long after the

180-day tenor of the margin trading facility between them had expired and the stock market had crashed drastically, before it began to sell all his stock in the Margin account and also sold all those in his personal account and even purported to charge him interest running into millions of Naira. All that happened without appellant making a margin call to him as agreed by them in Exhibit CW2. The first margin call that was made to him by appellant, he said, was in November 2008. After so mismanaging his account, he claimed, appellant, in a bid to stave off any claims against him, wrote him a letter dated 2nd April, 2009 demanding payment of ₦9,705,333.14 and after further threatening to report him to the Economic and Financial Crimes Commission, ‘ingeniously,’ according to him, termed the said Margin debt a bad one and wrote it off. Aggrieved by these events, he averred, he first approached the Administrative & Proceedings Committee of the Securities and Exchange Commission vide a petition in 2009, in line with the Securities & Exchange Commission Rules, for resolution of the issue but that Committee did nothing to his petition for four

years hence he filed his Originating Application at the trial Tribunal in 2014. On the basis of the foregoing, it claimed from appellant:
1. The sum of ₦37,667,373.10 as special damages being the worth of his shares with appellant (defendant) as at the 9th day of April, 2008.
2. 31% interest per annum on the said sum from 9th day of April, 2008 till delivery of judgment and 21% per annum from the date of delivery of judgment until the sum is fully liquidated.
3. The sum of ₦11,814,050.80 as special damages being the sum of difference between the worth of his shares in the margin trading account and the loan taken as at 9th day of April, 2008.
4. The sum of ₦8,185,950.00 being the alleged damages incurred by the claimant by reason of defendant’s failure to take appropriate steps to mitigate loses by selling the shares before the prices of the stock crashed.
5. ₦500,000.00 as cost of the action.
6. An order cancelling all sums allegedly owed appellant by him.

Appellant in its Reply to the Application maintained that there was actually a shortfall in Respondent’s margin account and it sent him margin calls,

starting from 15th July, 2008, by way of emails, telling him to inject cash into his margin account, but he failed hence, in line with best practices and the terms of their agreement, it sold his stocks in his margin account and even those in his personal account to redeem the debit balance in the margin account. It also maintained that Respondent was in breach and default of the Margin Facility and still indebted to it to the tune of ₦9,976,947,06.

At the trial, Respondent testified for himself in line with his claims and closed his case. Appellant as defendant also called a sole witness in its Relationship Manager (one Francis Iyebutemeh) and closed its case. This sole witness of appellant, I should stress, admitted under cross-examination, among other things, that (1) the Margin Trading Facility in issue between parties actually expired in March 2008 as asserted by Respondent; (2) that as at 9th April, 2008 the value of Respondent’s stocks in his personal account was ₦41,114,050.82 (Forty One Million, One Hundred and Fourteen Thousand Fifty Naira and Eighty two kobo) while that in his Margin trading account was ₦37, 667, 375.10 (Thirty

Seven Million Six Hundred and Sixty Seven Thousand Three Hundred and Seventy Five Naira Ten Kobo) as also asserted by Respondent in his Originating Application, and (3) that appellant’s decision to sell Respondent’s stocks the way it did was ‘not a wise decision.’

In its considered judgment of 23/02/2018, the trial Investment and Securities Tribunal, after a meticulous evaluation of the evidence before it and referencing among others the admission of appellant’s witness that the manner appellant handled Respondent’s stocks cannot be described as wise, found against appellant as follows:
“In its role as a portfolio manager in the capital market, the conduct of the Defendant elicited from the cross-examination of its witness leaves much to be desired. In our considered view it falls short of the standard of care and transparency expected of a capital market operator of the Defendant’s standing.”

On that note, it entered judgment in favour of Respondent against appellant in terms of Respondent’s first, second, third, fourth and sixth claims but refused his fifth claim.

Appellant is dissatisfied with that judgment hence this appeal of eleven grounds. It framed for our determination the following four issues from its said grounds of appeal:
1. Whether the Investment and Securities Tribunal had jurisdiction to entertain respondent’s originating application when he had not exhausted all administrative remedies available to him before instituting his action at the tribunal.
2. Whether the Investment and Securities Tribunal rightly held that the tenor of the facility had elapsed as at 9th April, 2008 relying on the date of the offer (24th September, 2007) rather than the date of acceptance by the respondent.
3. Whether the Investment and Securities Tribunal was right when it relied on Exhibits CW10A and CW10B in granting special damages against it despite its objection to the admissibility of the documents.
4. Whether on the preponderance of evidence placed before the Investment and Securities Tribunal the evaluation of evidence in favour of respondent is not against the weight of evidence.

Respondent practically adopted these four issues of appellant but reframed them thus:
1. Whether in view of the nature of

Capital market proceedings Respondent satisfied the condition precedent for invoking the jurisdiction of the Investment and Securities Tribunal.
2. Whether the Investment and Securities Tribunal rightly construed the commencement date of the margin facility to have started on the 24th September, 2007 and, if not, whether it rendered its judgment wrong and liable to be set aside.
3. Whether in view of the evidence led during the trial the Investment and Securities Tribunal was right to have relied on Exhibits CW10A and CW10B in proof of his claims for special damages.
4. Whether on the preponderance of evidence placed before the Investment and Securities Tribunal it was correct in its evaluation of the evidence in his favour.

The argument of appellant on Issue 1 is that Respondent did not exhaust administrative remedies provided by the Rules of the Securities and Exchange Commission, particularly Rules 599 and Schedule VIII Rules 17 and 18 establishing an administrative body known as Administrative Proceedings Committee as a first port of call for resolution of capital market disputes. It contends that those provisions enjoin complainants of

violation or threatened violation of the provisions of the Securities and Exchange Commission and its Rules to first approach that Committee, get its decision and even await the confirmation of that decision by the Board of the Securities and Exchange Commission or Minister of Finance; that it is only when such persons are dissatisfied with the decision of the Committee as confirmed by the Commission that they can appeal to the Investments and Securities Tribunal. While conceding that Respondent complained to the said Administrative Proceedings Committee by a letter dated 8th June, 2009 and parties were even invited for a meeting, appellant nevertheless submits that he did not wait for the decision of the Committee before commencing his originating application in the Investments and Securities Tribunal in 2014 so he failed to exhaust statutory remedies for dispute resolution and that denied the Tribunal of jurisdiction to entertain his application. On another wicket, it argued that a 2006 Margin Agreement between parties provided for arbitration and that also applied to Respondent so his failure to resort to arbitration equally denied the lower Tribunal of jurisdiction.

In answer, Respondent submitted that in matters of this nature what is paramount is whether the aggrieved party took steps in compliance with the statutory provisions for administrative resolution of the dispute in question before resorting to litigation. That, he submitted, he did as confirmed by even appellant. He referred us to paragraph 6(m) of his Further Amended Originating Application where he averred that he first approached the said Administrative Proceedings Committee of the Securities and Exchange Commission (SEC) but nothing was resolved by it and he had been waiting in vain hence his resort to the Tribunal with his application four years later. That averment, he pointed out, was not contradicted by appellant in its Reply or even at the trial. He thus submitted that he fulfilled the conditions precedent to instituting his action and the trial Tribunal right in so holding.

On appellant’s reliance on the 2006 Margin Trading Agreement between them and its Arbitration Clause, he argued that that Agreement was inapplicable to the present case, because it was in respect of a previous facility granted him by appellant in

2006 and not the subject of the present dispute which is contained in Exhibit CW2 entered into by parties on 24th September, 2007. The two Agreements – 2006 and 2007 – he submitted were independent of each other so the provisions of one cannot apply to the other. He further submitted that assuming without conceding that the 2006 Agreement and its arbitration clause was even applicable the proper order the Court could make under Section 5(2) of the Arbitration and Conciliation Act 2004 is to stay the proceedings for parties to go to arbitration. At any rate, he further submitted and relying on Owners of M.V. Lupex v. Nigerian Overseas Chattering & Shipping Ltd (2003) 15 NWLR (PT 844) 469, in so far as Clause 9 of the said 2006 Agreement stating that ‘parties are waiving their right to seek remedies in any Court of Law,’ purports to completely oust the jurisdiction conferred by Section 274 on the trial Tribunal by the Investment and Securities Act, it is unenforceable, same being against public policy. He finally urged us to resolve this issue against appellant.

Resolution of issue
I must say I have no difficulty resolving this

issue of exhaustion of statutory remedies and purported lack of jurisdiction in the lower Tribunal against appellant. In fact, none of the cases of Adesola v. Abidoye (1999) 14 NWLR (PT 638) 28, Ayida v. Town Planning Authority (2013) 10 NWLR (PT 1362) 226, Ojora v. Agip (Nig.) Plc (2014) 1 NWLR (PT 1387) 150 and Agip (Nig.) Ltd v. Agip Petroli Int’l Ltd (2010) 5 NWLR (PT 1187) 348 it cited in support of its contention dealt with the peculiar situation here of the manner the Administrative Committee of SEC dealt with respondent’s complaint by refusing or neglecting to determine it for a whole four years. But first, let me reproduce the relevant rules of the Securities and Exchange Commission (SEC) Rules dealing with administrative dispute resolution. First is Rule 599 of 2013 of SEC stating that:
Pursuant to Section 310 of the Act, there is hereby established an administrative body to be known as Administrative Proceedings Committee (the Committee) for the purpose of hearing capital market operators and institutions in the market who are perceived to have violated or have actually violated or threatened to violate the provisions of the Act and

the rules and regulations made thereunder and such operators or persons against whom complaints allegations have been made to the Commission.
Rule 17 of the Schedule VIII of the said rules further provides that:
Every decision of the Committee shall be confirmed by Commission before it becomes effective. The confirmation shall be made not later than thirty (30) days after the decision was taken by the Committee, provided that in the absence of the Board or Commission, confirmation of the Committee’s decision shall be by the Minister of Finance or any person performing that function.
(b) The decision of the Commission shall be communicated in writing to the parties by the Secretary to the committee within five (5) days of the confirmation of the decision.
And Rule 18 says:
Any party who is not satisfied with the decision of the Committee as confirmed by the Commission may within 30 days of the receipt of the decision appeal to the Investments and Securities Tribunal.
These Rules undoubtedly provide for administrative resolution of capital market disputes by aggrieved persons before resorting to litigation in the Investment

and Securities Tribunal, nevertheless their real aim, I am inclined to agree with Respondent, is that an aggrieved person first take his complaint to the Administrative Proceedings Committee for resolution and wait for a reasonable time for the decision of that Committee. Such reasonable time, it is my humble opinion, cannot be any more than the ‘reasonable time’ Section 36(1) of the 1999 Constitution of this country (Federal Republic of Nigeria) enjoins Tribunals and Courts established by Law to hear and determine cases. The Committee certainly cannot refuse to give its decision on complaint as it is said to have done to respondent’s complaint. By its conduct, the Committee was gradually pushing Respondent’s claims towards the cold embrace of the statute of Limitations. Respondent averred in paragraph 6(l) and (m) of his originating application that:
(l) By a letter dated 8th June, 2009, the applicant’s solicitor made a formal complaint to the Administrative Proceedings Committee of the Securities and Exchange Commission complaining of the Respondent’s conduct whereupon the parties were invited for a meeting.

The applicant shall rely on same at the trial.
(m) The applicant was duly represented by his solicitors but nothing was resolved at the meeting and the Applicant has been waiting since for the respondent to compensate him all to no avail hence this application to the Tribunal. (Italics mine)
These averments were not disputed at all by appellant and so deemed admitted: see Section 123 of the Evidence Act 2011. I am therefore in full agreement with the trial Tribunal’s position that Respondent properly commenced his action before it in the circumstances he found himself. To hold otherwise is to promote injustice – something a Court of justice or any other Tribunal established to do justice between parties ought not to and should not do. And here I particularly find the apex Court’s decision in Kayili v. Yilbuk & Ors (2015) 7 NWLR (PT 1457) 26 quite apposite. There, Section 3(2) of the Chiefs (Appointment and Deposition) Law, Cap. 20, Laws of Northern Nigeria 1963, conferred similar powers on the Governor to conduct an inquiry for the purpose of determining whether the appointment of a Chief was in accordance with native law and custom.

The plaintiffs/respondents there having twice unsuccessfully petitioned their Pankshin Local Government regarding the wrongful appointment of appellant as Chief finally petitioned the Governor of Plateau State in 1987 in line with the Law. Getting no response to their petition from the Governor despite several reminders, they commenced action in the High Court of Plateau State in the same 1987 – unlike the case in hand where Respondent waited for a whole four years before commencing action. A similar argument like the instant one was raised by the appellant at the Supreme Court that since the Governor had not given his decision on the petition to him Respondents’ action was incompetent for failure by them to exhaust statutory remedies and the Court deprived of jurisdiction to entertain the matter. In dismissing that argument, the apex Court (Ogunbiyi, J.S.C., with her brothers all concurring) had this to say at p. 58:
“As rightly submitted on behalf of the 1st respondent therefore, the condition for the Court to assume jurisdiction in this case exists with the obvious complaints lodged and which had not been attended to by the Governor.

The refusal to act by the Governor should not be used against the plaintiff/1st Respondent. It was enough that the various steps which were taken for the purpose of seeking redress were not addressed.”
As for appellant’s argument of application of Clause 9 of the 2006 Margin Trading Agreement between parties, I also agree completely with Respondent that the said agreement is in respect of an earlier transaction between parties and so inapplicable to the present dispute which arose from and is guided by the parties’ Agreement dated 24th September, 2007. In the result, Issue 1 is resolved against appellant.

Issue 2: The substance of appellant’s complaint here is that the lower Tribunal again erred when it held that the 180-day tenor of the Margin Trading Facility in Exhibit CW2 between it and Respondent expired on 9th April, 2008. It contends that the trial Tribunal wrongly relied on the 24th September, 2007 date of the making of that offer by it as the date the contract was entered into by parties when in fact the contract on its face showed clearly that it was only accepted by Respondent on 10th November, 2007 and so came into effect

on that day. He argued, and cited a number of cases in support of it, that an offer does not constitute a contract, that it is the acceptance of that offer – which in this case only happened on 10th November, 2007 – that brings about a contract and not earlier and the 180-day tenor of the Margin Trading Contract between parties began to run only from 10th November, 2007 when the offer was accepted by Respondent and expired on 8th May, 2007. For that reason, it submitted, it cannot be held liable for reduced value of stocks of Respondent as at 9th April, 2008 as contained in the orders of the trial Tribunal, since the 180-day tenor of the facility was still running as at April 2008. It thus urged us to resolve this issue too in its favour.

Respondent labeled this argument of appellant academic and having no bearing on the live issues between parties as canvassed before the trial Tribunal. He submitted that the question appellant failed to answer is what effect a change in the 23rd March, 2008 expiration date of the contract accepted by the trial Tribunal in its judgment and the 8th May, 2008, expiration date now espoused by appellant would have had on the

judgment of the Tribunal and whether any miscarriage of justice was occasioned by that difference in dates. His counsel Mrs. Ogbe on his behalf submitted that the evidence before the trial Tribunal revealed that he was based in Warri, Delta State, and not in Lagos where appellant resides. And referring us specifically to page 287 lines 13-16 and p. 334 lines 22-23 of the records, counsel argued that in any case, the fact that the commencement date of the margin contract is 24th November, 2007 and its 180 days tenor expired in March, 2008 was also admitted by appellant’s sole witness. At any rate, she continued, assuming but without conceding that the trial Tribunal was wrong in its decision on the commencement date of the contract between parties, it is not every error in a judgment that would warrant its reversal on appeal. She said the judgment would not have been different even if appellant were correct that parties entered into the contract on 10/11/2007 and not on 24/11/2007, the difference of which is less than two months. Learned counsel then proceeded to give the following reasons why the judgment of the Tribunal would not have been different:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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That appellant had an obligation under the contract to close the transaction at the expiration of its 180-day tenor and sell the stock in the Margin account, deduct the amount on the facility and transfer the rest to his personal account as profit.
2. That appellant also had a duty under the same agreement to notify him through a margin call, when the collateral value of the shares in the Margin account is at 130%, to enable him inject funds into the margin account within three days of the call but the evidence from even appellant’s sole witness before the Tribunal was that appellant made its first margin call to him only on the 15th of July, 2008, which date, going by appellant’s own argument and computation would simply reduce the time from four months to two, meaning appellant was still clearly outside the 180-day tenor of the contract when it made its first margin call.
3. That the trial Tribunal found in line with Respondent’s case that his shares were sold in November 2008, by which time the stock market had crashed. This again, going by even appellant’s own computation of the 180-day tenor of the contract expiring

on 8th May, 2008, would only reduce the period the contract expired and the time the shares were sold from eight months to six months, which time is still outside the 180-day tenor of the contract.
4. That the evidence as shown by page 182-183 and 388 (last page) to 384 of the records of appeal is that appellant continued to charge interest on Respondent’s shares, amounting to ₦8,185, 950.00, from 31/10/2010 even up to 31/3/2013, a period clearly outside the expiration date of the contract, again going even by appellant’s computation of the facility expiring only on 8th May, 2008.
5. That Respondent’s averment in paragraph 6(c) of his Further Amended Originating Application on the worth of his shares being ₦41,114,050,82 in the margin account and ₦38,667,375.10 in his personal account was not denied by appellant.
6. That even appellant’s sole witness in his evidence at page 383 paragraph 5 of the records confirmed that the action of appellant was wrong and demonstrated a poor sense of management of his interest.

The trial Tribunal, counsel thus submitted, rightly relied on these pieces of evidence before it in

reaching what counsel called its sound judgment of 23/2/2018 so appellant cannot be heard to complain and seek its setting aside on grounds of difference between the March 2008 the contract was to expire as admitted by appellant’s sole witness and confirmed by the trial Tribunal and the 8th May, 2008 date which by appellant’s reckoning was the real date the 190-day margin trading facility really expired. That difference, she submitted, did not affect the merits of the case and the live issues between parties and so caused no miscarriage of justice.

Resolution of issue
First, I cannot but agree with appellant that the trial Tribunal was wrong in its decision on the date the margin trading agreement in Exhibit CW2 between parties came into operation and when its 180-day tenor expired. As stated earlier, their Agreement, Exhibit CW2, of 24th September 2007 (it is contained at p.13 to 16 of the records of appeal) stated clearly on its face that that what appellant made to Respondent was just an offer, and that one of the conditions-precedent to utilization of the said margin trading Facility is “signing of the Agreement/Offer

Letter” by parties. Clause 4 at Page 4 of the said agreement clearly stated so. In its fifth and last page, the Offer Letter went on further to tell Respondent to:
Kindly indicate your acceptance of the terms and conditions of this Margin Trading Facility by signing this letter and return same.
In response and indication of his acceptance of appellant’s said Offer, Respondent proceeded to append his name and signature on the Agreement and dated it 10/11/2007 under a sentence that reads: “The terms and conditions of this offer is acceptable by me.” By simple contract law, principles of offer and acceptance coupled with the aforementioned stipulations of the offer, the Margin Trading Agreement between appellant and respondent dated 24th September, 2007 only came into force as a binding contract between parties on the said 10/11/2007 when Respondent accepted the offer by signing it. See Ashakacem Plc v. Mubashshurun Inv. Ltd (2019) LPELR-4654 (SC) p. 16-19. That means its 180-day tenor also only began to run from the said 10/11/2007 and not its Offer date of 24th September, 2007 as erroneously held by the lower tribunal in its

judgment. That the foregoing is the correct position is further confirmed by Clause 4 of the same Agreement (Exhibit CW2) clearly making ‘Signing Lead Capital Margin Trading Agreement” one of the ‘Conditions Precedent to Utilization’ of the Facility earlier alluded to. At any rate, parties having documented their Agreement, its terms, including when its 180-day tenor started to run and lapsed, must be looked for within the four walls of that Contract (Exhibit CW2) and nowhere else. No oral evidence is admissible for that purpose let alone to contradict, alter, add to or vary it. That much is clear from Section 128(1) of the Evidence Act 2011 stating that:
When a judgment of a Court or any other judicial or official proceeding, contract or any other grant or disposition of property has been reduced to the form of document or series of documents no evidence may be given of the terms of such contract, other grant or disposition of property except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under this Act; nor may the contents of any such document be contradicted,

altered, added to or varied by oral evidence.
See again Ashakacem Plc v. Mubashshurun Inv. Ltd (2019) LPELR-4654 (SC) p.1-16. So clearly, an error was made.

But then, that error is only one aspect of the issue, for the more pertinent question is whether the said error of the lower Tribunal made any difference to the real issues that were fought between parties and appellant’s responsibilities to Respondent under the contract the breach of which he was found liable by the trial Tribunal. I am of the opinion that the said error in date of expiry of the contract made no difference to the correctness of the judgment of the Tribunal against it. In fact, if anything, the May 2008 expiry date of the facility rather makes respondent’s case against appellant stronger, because it means that as at 9th April, 2008 when the stock market was buoyant, the facility was still running and had only about a month to expire appellant as a good portfolio manager ought to have sold his stocks. It also further means that whichever way one looks at the issue the facility had long expired as at 15th July, 2008 when appellant by its own admission sent its first

margin call to Respondent and proceeded much later in November 2008 to sell his stocks and even purported to charge interest on his account. All that in my view goes to give credence to the trial Tribunal’s finding, supported by the evidence of appellant’s sole witness, that appellant’s actions as a portfolio manager in the capital market in this case left much to be desired and fell short of the standard of care and transparency expected of a capital market operator of its standing, meaning further that appellant’s quarrel with the error of the lower Tribunal regarding the date the contract was to expire is of no moment to the correctness of its judgment. Judgments are not upturned on appeal simply because an appellant was able to identify an error in them. To succeed in upturning a judgment on appeal the appellant must go further to show that the error was substantial and a miscarriage of justice was occasioned by it. See Irolo v. Uka (2002) 14 NWLR (PT 786) 145 @ 339 (SC); Etajata v. Ologbo (2007) 16 NWLR (PT 1061) 554 @ 584 and Owners of M.V. Arabella v. N.A.I.C. (2008) 11 NWLR (PT 1097) 182 @ 219). That is not the case with the

error of the trial Tribunal identified by appellant. In the circumstance, I hold that this issue also lacks merit and hereby resolve it against appellant.

Issue 3: The contention of appellant here is that the trial Tribunal wrongly admitted and founded its judgment for special damages against it on Exhibits 10A and 10B even when the said two documents (electronically generated statements of the Margin and Personal accounts of Respondent with it) were not signed by it. While conceding that it did not object to their admission when they were sought to be tendered by Respondent, it argues that despite that omission on its part, the trial Tribunal should have expunged them in its judgment as, according to it, the fact that the documents were not signed made them inadmissible in all circumstances. It said it at least raised the ‘objection’ in its final address so the trial Tribunal was wrong in not rejecting it in its judgment. It thus urges us to expunge the said documents, which, it further contends, were the basis of the trial Tribunal’s award of special damages against it.

Respondent contends the contrary and submits, as he also did

before the trial Tribunal, that the omission of appellant to object to the two documents when they were sought to be tendered stopped it from ever raising issue of their admissibility.

Resolution of issue
I must say first that it appears to me that at the end of the day, this argument of appellant is actually much ado about nothing given that appellant did not deny paragraph 6(c) of the Further Amended Originating Application where Respondent specifically averred to the said worth of his shares as at 9th April 2008 thus:
6(c) The applicant had two separate accounts, a personal one and the one with the lien and as at the 9th day of April, 2008, the account with the lien had shares worth ₦41,114, 050.82 while the appellants personal account as at the 9th day of April, 2008 had shares worth ₦37,667, 375.10. (See p. 250 of the records).
Respondent in the same subparagraph 6(c) of his Originating Application then proceeded to carefully tabulate his shares in both his personal and margin accounts and their worth in different banks as at 9th April, 2008. It is only at the end of that tabulation that he went on to say that he would rely on his

statements of accounts which are attached to his application and marked as Exhibits B and C respectively. Even though appellant took time to deny every other subparagraph of the lengthy fourteen sub-paragraphed Paragraph 6 of Respondent, it opted not to deny subparagraph 6(c) where this averment was made. Averments that are not disputed are deemed admitted and established. See Godwin Ugwuanyi v. NICON Insurance Plc (2017) 10 ACELR 1 @ 28-29 (S.C). It is the same point that was made by Oputa, J.S.C. in Debs v. Cenico Ltd (1986) 3 NWLR (PT 32) 846 @ 850, 853 when he said that:
“…by the rules of pleadings, any matter not specifically denied or stated not to be admitted should be regarded as established. Messrs Lewis & Peat (N.R.I.) Ltd v. A.E. Akhimien (1976) 7 S.C. 157 @ 163/164.”
In Taiwo v. Adegboro (2011) ALL FWLR (PT 584) 52, (2011) 5 SCNJ 125, (2011) 11 NWLR (PT 1259) 562 @ 584, it again was stated by the apex Court that:
“Judicial admissions are conclusive. That is so where a party agrees to a fact in issue; it is no longer necessary to prove that fact. In effect, after an admission, no further dispute should be

entertained by the Court. This is the strongest proof of that fact in issue.”
That is also the clear prescription of Section 123 of the Evidence Act 2011. In any case, the purpose of pleadings is to give notice of a party’s case to his opponent and the Court (Abubakar v. Joseph (2008) LPELR-48 (SC) p.53-54, Apostolic Church v. Olowolemi (1999) 3 NSCC 316 @ 324), so where an issue is admitted on the pleadings or deemed to be admitted and therefore not in issue between parties even the rejection by the Court of a document tendered to further support such undisputed averment (as is now sought by appellant) has no adverse effect on such averment that is fact not challenged; the averment remains proved. See Atolagbe v. Shorun (1985) 1 NWLR (PT 2) 360 @ 370 Para. C, (1985) LPELR-592 (SC) p. 18, 19, 21, 26-27. That is the situation here with the two accounts of Respondent with appellant which Exhibits 10A and 10B were meant to further, and only further, support. What is more, even appellant’s only witness (DW) in his testimony under cross-examination further confirmed the said ₦41,114,050.82 and ₦37,667,375.10 worth of Respondent’s

stocks in his two accounts as stated in the pleadings (See p. 336 lines 21 to 32 of the records of appeal). In those circumstances, I repeat, the argument of appellant as to whether Exhibits 10A and 10B tendered without objection by Respondent were inadmissible in every circumstance and should have been rejected become completely academic and of no value to his case and this appeal, for what the contents of the two documents were supposed to further authenticate was not in dispute between parties. For this reasons, any error in admission of the Exhibits 10A and 10B has no effect on the decision of the lower Tribunal and has occasioned no miscarriage of justice. Judgments, I repeat, are only upturned on appeal if miscarriage of justice was shown to have been occasioned and not simply that an error so-called was made by the lower tribunal. See again Irolo v. Uka supra, Etajata v. Ologbo supra, and Owners of M.V. Arabella v. N.A.I.C. supra.

But even reverting to the merits of the argument of appellant for whatever it is worth, one is constrained to agree with the trial Tribunal and Respondent that appellant having not objected to the two account

statements at the time they were tendered, it is estopped from complaining later let alone on appeal about their admission in evidence on grounds only of absence of signature in them. Yes, it is true and a correct statement of the law that evidence which is inadmissible in every circumstance remains inadmissible even when no objection is raised to them at the time it was tendered, but that position only seems to be as regards documents made expressly inadmissible in every circumstance by the law. See Yassin v. Barclays Bank D.C.O (1968) 1 ALL NLR 171 @ 177 (Lewis, J.S.C.). It has to be also pointed out that the rationale for not attaching weight to unsigned document is that such document has no origin in terms of its maker and so attracts no weight. It is not an issue that affects admissibility as such. See Jinadu v. Esurombi-Aro (2009)14 NWLR (PT 949) 142 @ 188, (2009) LPELR-1614 (SC) P. 31-32; Omega Bank (Nig.) Plc v. OBC Ltd (2005) 8 NWLR (PT 928) 547 (Tobi, J.S.C.), Ashakacem Plc v. Mubashshurun Inv. Ltd (2018) 77 NSCQR 109, (2019) LPELR-4654 (SC) p. 27-29, Ogungbele v. Oladele (2004) 27 WRN 153 @ 163, 1665-166, S.P.D.C. (Nig) Ltd v. Olarewaju (2002) 16

NWLR (PT 792) 38 @ 69 (C.A). In that connection, Exhibits 10A and 10B pleaded by Respondent to have emanated from appellant and which appellant also never denied their authenticity or as having originating from it cannot be seriously said to be unknown in their origin to accommodate appellant’s argument.
What is more, the point that an unsigned document is not inadmissible in every circumstance was further confirmed by the apex Court in its recent decision in Ashakacem Plc v. Mubashshurun Inv. Ltd (2018) 77 NSCQR 109 at p.133, (2019) LPELR-4654 (SC) p. 27-29 while rejecting a similar submission by an appellant who had also not objected to an unsigned document when it was tendered. There, it was said by the apex Court (Peter-Odili, J.S.C., with her learned brothers Aka’ahs. Kekere-Ekun, Sanusi and Eko, JJ.S.C in agreement) thus:
“The appellant is urging this Court to discountenance Exhibit L because it was unsigned… The point has to be made that the requirement of signature is made by the law to determine its origin and authenticity with regard to its maker and so where certain conditions exist an unsigned document could be admissible,…”

See also Kossen Nig. Ltd v. Savannah Bank (Nig.) Ltd (1995) 9 NWLR (PT 420) 439 @ 453 (S.C.), Yassin v. Barclays Bank D.C.O (1968) 1 ALL NLR 171 @ 177; Ekpe v. Fagbemi (1978) 3 S.C. 209 @ 213 where it was held that a document that is admissible in some circumstances, including account statements (as in Exhibits 10A and 10B in issue), not objected to at the time of tendering cannot be objected to later in the proceeding.

For each and all of the above reasons, I resolve this issue too against appellant.

Issue 4: Appellant’s main complaint in its final issue here is about the evaluation by the trial Tribunal of the evidence that was adduced before it by parties. It contends that the trial Tribunal was wrong in the way it went about evaluating the evidence so this Court which possesses the powers to intervene should so intervene to reevaluate that evidence and reach a different conclusion. It anchors this contention of improper evaluation of evidence on the argument that there was a rollover of the Margin Trading Facility by Respondent by his conduct so the trial Tribunal was wrong in not taking cognizance of that

fact and holding that the facility expired at the end of its 180-day tenor. For evidence of this conduct of Respondent, appellant pointed to emails (Exhibits E-E1) exchanged by parties, including some that were sent to it by Respondent well after the 180-day lifespan of the facility. It argued that in some of those emails Respondent complained against its sale of his stocks and informed it that if it was minded to sell it should inform him so that they can first agree on it, and further that even as late as 17th and 19th of November, 2008 Respondent sent emails to it warning it not to sell his stocks without his instructions and also inquiring at the same time the state of his indebtedness to it. The effect of these emails, it submitted, is to stop Respondent from insisting on expiration of the Margin Facility after its 180-day tenor and the lower Tribunal wrong in accepting his argument.

In answer, Respondent argued that not only was rollover by conduct not raised by appellant in its Reply to his Originating Application so it went to no issue, that contention even runs against appellant’s admission through its sole witness that he did not apply for

rollover. In any event, he further argued, the emails exchanged by parties which appellant made heavy weather of were exchanged after the 180-day tenor of the facility. Counsel on his behalf then went through the entire evidence adduced before the trial Tribunal by parties and the Tribunal’s judgment on it and submitted that it was well considered so we should not interfere with it.

Resolution of issue
Now, the case in the trial Investment and Securities Tribunal having been fought by parties on pleadings exchanged by them, it follows that parties and even the Court are bound by those pleadings and any issue not raised in them cannot be agitated by parties either at the trial or at any further stage of the proceeding including appeal. In fact any issue not raised by parties in their pleadings is bound to be ignored by the Court even if it was allowed in evidence. See Emegokwue v. Okadigbo (1973) 4 S.C. 113; Buhari & Anor v. Obasanjo (2005) LPELR-815 (SC) 258, Agboola v. U.B.A. Plc (2011) 11 NWLR (PT 1258) 2375 @ 397-398(S.C.), Agboola v. U.B.A. Plc (2011) 11 NWLR (PT 1258) 2375 @ 397-398(S.C.).

More specifically on estoppel, it is also

settled law that estoppel must be specifically pleaded before it can be considered by the Court and it is so even if the estoppel is founded on admissions. See Ajide v. Kelani (1985) LPELR-302 (SC) at p. 19-20, (1985)3 NWLR (PT 12) 248 @ 261, paragraph H, where it was said (Bello, J.S.C., later CJN) that:
“It is trite law in Nigeria on the authorities I have earlier cited in this judgment that the defence of estoppel, whether founded on admissions or not, must be pleaded and, if it has not been pleaded, any evidence tending to establish it goes to no issue and the evidence ought to be rejected. See Ogboda v. Adulugha (1971) ALL NLR 86.”

Here, Appellant in its Reply to Respondent’s Originating Application did not at all raise rollover of the Margin Trading Facility or even any step taken by Respondent as constituting estoppel. In fact all it pleaded in its 32-paragraphed Reply are emails sent by it to Respondent. It did not plead even a single correspondence by Respondent to it or any suggestion by Respondent of a rollover or same constituting estoppels, it therefore cannot be heard on its argument here of rollover and estoppel arising from Respondent’s conduct.

Besides, a rollover can only be made before the expiration and lapse of a stock trading contract, and indeed any contract, not after its expiry as suggested by the argument of appellant and the emails it referenced for that argument, all of which were made after the May 2008 expiry of the facility. That, that is the position of rollover in stock trading is also confirmed by the online platform m.economictimes.com where it correctly explained the position thus:
Rollover involves carrying forward of future positions from one series, which is nearing expiry date, to the next one. (Emphasis mine)

For each and all of the foregoing reasons, I hold issue 4 of appellant dead on arrival and hereby also resolve it against appellant.

The long and short of all the foregoing is that this appeal lacks merit and is hereby dismissed in its entirety while the decision of the trial Investment and Securities Tribunal in favour of Respondent is affirmed.
Cost of the appeal is assessed at ₦100,000.00 against appellant.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.

JAMES GAMBO ABUNDAGA, J.C.A.: I have had the advantage of reading the draft of the judgment delivered by my learned brother, Boloukuromo Moses Ugo, JCA.

His Lordship’s reasoning and conclusion on the issues for determination of the appeal is no doubt an erudite exposition of the law. Therefore, his finding that the appeal lacks merit is hereby adopted by me. In consequence, I too dismiss the appeal in its entirety and accordingly affirm the decision of the Investment and Securities Tribunal in favour of the Respondent.

I abide by his Lordship’s order of cost of N100,000 in favour of the Respondent against the Appellant.