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LEAD SECURITIES & INVESTMENT v. ELIZABETH & ANOR (2022)

LEAD SECURITIES & INVESTMENT v. ELIZABETH & ANOR

(2022)LCN/17029(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, July 14, 2022

CA/A/802/2018

Before Our Lordships:

Biobele Abraham Georgewill Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Bature Isah Gafai Justice of the Court of Appeal

Between

LEAD SECURITIES AND INVESTMENT APPELANT(S)

And

1. MRS. ONAJI ABICHI ELIZABETH 2. SECURITIES AND EXCHANGE COMMISSION RESPONDENT(S)

 

RATIO

THE POSITION OF LAW ON WHEN A TRIAL COURT IS SAID TO HAVE PROPERLY EVALUATED THE EVIDENCE BEFORE IT

A trial Court is said to have properly evaluated the evidence before it when it takes note of the main issues of the parties as raised by counsel and borne out by the evidence adduced at trial, and resolves those issues in accordance with the law; see MOSES IGBINOGHODUA OSAYABAMWEN & ANOR v. DR. GODWIN IRORO & ORS (2016) LPELR-40804 (CA); ONWUKA v. EDIALA (1989) 1 NWLR (pt. 96) 182 at 208-209; A. R. MOGAJI & ORS v. MADAM RABIATU ODOFIN & ORS (1978) 4 SC 91 at 93; OYEKOLA v. AJIBADE (2004) 17 NWLR (pt. 902) 356; EDWIN IKHINMWIN & ANOR v. PRINCE FRIDAY ELEMA & ORS (2014) LPELR-23322 (CA); ONISAODU & ANOR V. ELEWUJU & ANOR (2006) LPELR- 2657 (SC); and RABILU V. USMAN (2016) LPELR-40233 (CA). PER MUSTAPHA, J.C.A.

THE DUTY OF AN ELECTORAL TRIBUNAL TO HEAR AND RECEIVE EVIDENCE FROM WITNESSES BEFORE IT

It is uncharitable to suggest that the trial Court arrived at its decision, merely on the basis of the demeanor of the witnesses. It is very important in situations like this not to lose sight of the fact that the tribunal has a duty to hear and receive evidence both oral and documentary from witnesses who appear before it in Court. In the process, it also engages them to see, listen to and watches them, taking into account their respective demeanors under all circumstances, and more often than not, it is this that helps the lower Court to decide who and what to believe. Furthermore, the primary duty of the trial Judge is among other things to receive all relevant evidence; that is perception, and the next task is to weigh the evidence in the case; i.e. evaluation. Therefore, a finding of fact involves both perception and evaluation; see NACENN NIG LTD V. BEWAC AUTOMOTIVE PRODUCES LTD (2011) LPELR-8125 (SC) AND ADELEKE & ORS V. IYANDA & ORS (2001) 13 NWLR (PT.729) 1 AT 20; (2001) LPELR-114 (SC) AT P. 23. PER MUSTAPHA, J.C.A.

WHETHER OR NOT IT IS THE BUSINESS OF AN APPELLATE COURT TO SUBSTITUTE ITS VIEWS FOR THAT THAT OF THE TRIAL COURT

​It is necessary to be reminded at this juncture that It is rudimentary law that where a trial Court unquestionably evaluates and justifiably appraises facts, it is not the business of an appellate Court to substitute its own views for the view of the trial Court. Of course an appellate Court can intervene where there is insufficient evidence to sustain the judgment or where the trial Court fails to make proper use of the opportunity of seeing, hearing, and observing the witnesses or where the findings of facts by the trial Court cannot be regarded as resulting from the evidence or where the trial Court has drawn wrong conclusion from accepted evidence or has taken an erroneous view of the evidence adduced before it or its findings are perverse in the sense that they do not flow from accepted evidence or not supported by the evidence before the Court. See EDJEKPO VS. OSIA (2007) 8 NWLR (PT. 1037) 635 OR (2007) LPELR (1014) 1 AT 46-47, ARE VS. IPAYE (1990) LPELR (541) 1 AT 22, WOLUCHEM VS. GUDI (1981) 5 SC 291 AT 320 AND FASIKUN II VS. OLURONKE II (1999) 2 NWLR (PT. 589) 1 OR (1999) LPELR (1248) 1 AT 47-48.
​This case does not fall into any of the categories that will require interference, in the situations as listed above. In the discharge of its primary duty of evaluating the evidence and ascribing probative value thereto, the lower Court stated, at page 527 of the Records that it: “…painstakingly gone through the facts, evidence and written address of parties in this case…” and there is nothing in the whole record or to suggests it failed in this onerous duty. Without a doubt, the lower Court unquestionably evaluated the evidence and justifiably appraised the facts. It is the law that for the determination of an appeal on issues of facts, it is not the business of an appellate Court to embark on a fresh appraisal of the evidence where the trial Court has unquestionably evaluated and appraised it, unless the findings arrived at is perverse. See AYANWALE vs. ATANDA (1988) 1 NWLR (PT. 68) 22 or (1988) LPELR (671) 1 at 21; AWOYALE vs. OGUNBIYI (1986) 4 SC 98 and BOARD OF CUSTOMS & EXCISE vs. BARAU (1982) LPELR (786) 1 at 47. Furthermore, at the risk of prolixity, if a Court of trial Court, as in this case, unquestionably evaluates the evidence then it is not the business of a Court of appeal to substitute its own views for the views of the trial Court. See NGILLARI vs. NICON (1998) 8 NWLR (PT. 560) 1 and AGBABIAKA vs. SAIBU (1998) 10 NWLR (PT. 571) 534 or (1998) LPELR (222) 1 at 19-20.  PER MUSTAPHA, J.C.A.

THE POSITION OF LAW WHERE AN AGENT IS ACTING ON BEHALF OF A PRINCIPAL

The claim of denial of fair hearing does not arise; the Appellant appears to be clutching at straws. The judgment is against the Appellant and Appellant alone; the Appellant is responsible for whatever is done in its name by its agents. It is settled principle of law that an agent acting on behalf of a disclosed and known principal, as in the instant appeal, is not liable for his acts of agency. Only the principal should be liable. The act of an agent, for a particular purpose, is the act of the principal. In law, it is the principal that did what the agent did or omitted to do; SEE VASSILE VS. PASS INDUSTRIES LTD. (2000) 12 NWLR (PT. 681) 347 AT 357; LEVENTIS TECH. LTD. VS. PETROJESSICA ENT. LTD. (1992) 2 NWLR (PT. 224) 459 AND QUA STEEL PRODUCTS LTD. VS. BASSEY (1992) 5 NWLR (PT. 230) 67; AND ALSO UNIVERSITY OF CALABAR VS. EPHRAIM (1993) 1 NWLR (PT. 271) 551; OYENUGA VS. I.C.L. LTD. (1991) 1 N.W.L.R. (PT. 168) 415 AND OLUFOSOYE VS. FAKOREDE (1993) 1 NWLR (PT. 272). PER MUSTAPHA, J.C.A.

THE POSITION OF LAW ON WHETHER OR NOT A COMPANY IS A JURISTIC PERSON

On the issue of jurisdiction, especially in regard to whether the failure to add the word ‘limited’ to the name of the appellant robs the tribunal of jurisdiction, it is important to state from the onset that, generally speaking, it is not sufficient for a plaintiff being a corporation or a defendant for that matter to establish its juristic personality by merely stating its name with the addition of “Ltd. or “Plc.”.
That status, whether a company is a juristic person or not has to be proved, except of course where it is admitted by the opposing party, as in this case; admission, for the avoidance of doubt could be express or implied. This is not to suggest by any means that jurisdiction can be conferred by concession; SEE BANK OF BARODA V IYALABANI CO LTD (2002) LPELR- 743-SC.
​Juristic personality is a well established principle of law, a ‘person’ has it or doesn’t. The mere fact that the words ‘Public Liability Company (PLC)’ or ‘Limited liability (LTD)’ were not added to the name per se, will not diminish its status as a Public Liability Company or a limited liability company, and as a juristic Personality; see ADEJOBI & ANR V STATE (2011) LPELR-97-SC. In a similar situation to the one at hand, the Supreme Court held in WAHAB ADEJOBI V. THE STATE (2011) LPELR-97 (SC) that the fact that ‘PLC was not added to Trans International Bank on the charge sheet was immaterial as it does not diminish its status as a Public Liability Company and as a juristic person.
The name used in all the processes in this suit, by both parties is Lead securities and investment; the fact that all the processes served on the Appellant bore the same name right from the beginning of this case indicates that a business or a contractual, relationship existed between the 1st Respondent and the Appellant; Exhibit B4 and C1-13 attest to that. The fact that the word “Ltd” was omitted in the name of the Appellant is not prejudicial to it, as long as the company is registered and incorporated according to law. In ADEJOBI & ANOR v. THE STATE (2011) LPELR 97, SC. It was held to the effect that the mere fact that the words “PLC” were not added to the name on the charge sheet would not diminish its status as a public liability company and as a juristic personality.  PER MUSTAPHA, J.C.A.

MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Investment and Securities Tribunal, delivered by Saika I. Idoko-Akoh, Jude I. Udunni, Mamman B. Zargana, Edward 0. Ajayi and Emeka C. Madubuike, on the 25th of April, 2018, in an action commenced by the 1st Respondent, pursuant to the Investment and Securities Tribunal, Procedure Rules, 2014.

At trial the 1st Respondent claimed as follows:
(a) A DECLARATION that the 1st Defendant jointly and/or severally by themselves, their officers, agents, servants, representatives, assignees, employees and others however styled and all other persons acting under them or on their behalf grossly mismanaged the Claimant’s portfolio to the tune of Fifteen Million, Four Hundred and Forty Seven Thousand, Nine Hundred and Twenty Six Naira, Sixty One Kobo (N15,447,926.61).
(b) AN ORDER compelling the 1st Defendant jointly and/or severally by their officers, agents, servants, representatives, assignees, employees and others however styled and all other persons acting under them or on their behalf to immediately pay the Claimant the sum of Fifteen Million, Four Hundred, and Forty Seven Thousand, Nine Hundred and Twenty Six Naira, Sixty One Kobo (N15,447,926.61) being the total sum of money realized for all transactions/sales made from the Claimant’s portfolio.
(c) AN ORDER compelling the 1st Defendant jointly and/or severally by their officers, agents, servants, representatives, assignees, employees and others however styled and all other persons acting under them or on their behalf to immediately pay the Claimant the sum of Five Million Naira (5,000,000.00) being special damages consisting of the return on investment that would have been realized by the Claimant from investment in other Business ventures had the said Fifteen Million, Four Hundred and Forty-Seven Thousand, Nine Hundred and Twenty Six Naira, Sixty One Kobo (N15,447,926.61) not been taken by the 1st Defendant.
(d) AN ORDER compelling the 1st Defendant jointly and/or severally by their officers, agents, servants, representatives, assignees, employees and others however styled and all other persons acting under them or on their behalf to immediately pay the Claimant Twenty Five Percent (25%) of the sum of Fifteen Million, Four Hundred and Forty Seven Thousand, Nine Hundred and Twenty Six Naira, Sixty One Kobo (N15,447,926.61) as interest which would have accrued therefrom if the money had been invested.
(e) AN ORDER compelling the 1st Defendant, jointly and severally to pay the Claimant the sum of One Million Naira (N1,000,000) as costs, disbursements and counsel fees associated with this application and such further and/or other reliefs as the Honourable Tribunal deems fit.

The tribunal in its judgment ordered as follows:
“In the final analysis the Claimant’s suit succeeds in part;
i. The transactions carried out by the 1st Defendant in Exhibit C1-C3 (or F40) cannot rightly be said to have been made pursuant to or in execution of the Claimant’s Standing Mandate in Exhibit B4, executed on the 14h of September
ii. The conduct of the 1st Defendant in the management of the Claimant’s portfolio was unprofessional and lacking in due diligence, thereby occasioning loss to the Claimant.
iii. The Claimant is entitled to an award of interests on the judgment.
iv. The Claimant failed to make out a case for special damages.
v. The Claimant is entitled to an award of costs of this suit.
vi. The Claimant has failed to make out any case against the Defendant.
Consequently:
1. It is hereby declared that the 1st Defendant jointly and or severally by themselves, their officers, agents, servants, representatives, assignees, employees and others however styled and all other persons acting under them or on their behalf grossly mismanaged the Claimant’s portfolio.
2. The Claimant is entitled to the sum of N15,447,926.61 and the 1st Defendant is hereby ordered to jointly and/or severally by themselves, their officers, agents, servants, representatives, assignees, employees and others however styled and all other persons acting under them or on their behalf to immediately pay the Claimant the sum of Fifteen Million, Four Hundred and Forty-Seven Thousand, Nine Hundred and Twenty-Six Naira, Sixty-One Kobo (N15,447,926.61) being the total sum of money realized from the sale transactions made from the Claimant’s portfolio.
3. Interest at the rate of 16% (MPR + 2%) is hereby awarded to the Claimant on the sum of N15,447,926.61 from the 1st Defendant.
4. The Claimant is awarded the sum of N500,000.00 against the Defendant as cost of this action.” – See pages 507-552 of the Record of Appeal.

Dissatisfied, the Appellant appealed by a notice of appeal filed on the 24th of July, 2018 on the following grounds shorn of their particulars:
GROUNDS OF APPEAL:
GROUND ONE:
The Honourable Tribunal erred in law when it assumed jurisdiction over the suit instituted by the 1st Respondent notwithstanding the fact that the Appellant is a non-juristic person incapable of suing and/or being sued
GROUND TWO:
The Honourable Tribunal erred in law when it relied on the incompetent final written address filed on behalf of the 1st Respondent.
GROUND THREE:
The Honourable Tribunal erred in law when it held that the 1st Respondent signed Exhibit C1 – C13 (or F-F40) in blank form, whereas, there were no material or cogent evidence adduced by the 1st Respondent to that effect.
GROUND FOUR:
The Honourable Tribunal misdirected itself on the facts when it held that the Appellant was unprofessional and negligent in the management of the 1st Respondent’s Portfolio, thereby occasioning loss to the 1st Respondent.
GROUND FIVE:
The Honourable Tribunal misdirected itself in law when it held that the 1st Respondent was not bound by the trades, both sales and purchases, carried out by the Appellant on the 1st Respondent behalf and consequently, awarded the sum of N15,44,926.61 to the 1st Respondent.
GROUND 6:
The Honourable Tribunal misdirected itself on the facts when it ignored the purchases made on behalf of the 1st Respondent and held that the 1st Respondent is entitled to the total sum of N15,447,926.61 being the total sum of money realized from the sale transactions on the 1st Respondent’s portfolio.
GROUND 7:
The judgment of the lower Court is against the weight of evidence adduced at trial.

The record of appeal was filed on the 23rd of August, 2018, but deemed properly filed on the 18th of October, 2021. The Appellant’s brief was filed on the 22nd November, 2021, wherein two issues were formulated from the grounds of appeal as follows:
ISSUES FOR DETERMINATION
1. Whether the lower Court was wrong to have awarded the sum of N15,447,926.61 (Fifteen Million Four Hundred and Forty Seven Thousand Nine Hundred and Twenty Six Naira Sixty One Kobo) against the Appellant and in favour of the 1st Respondent.
2. Whether the Honourable Tribunal has the jurisdiction to adjudicate over this matter in view of the fact that the Appellant sued is not a juristic person and the impropriety of the 1st Respondent’s Final Address, (distilled from grounds 3, 4, 5 and 6).

The Respondent adopted the Appellant’s issues for determination.
ISSUE ONE:
Whether the lower Court was wrong to have awarded the sum of N15,447,926.61 against the appellant and in favour of the 1st respondent.
It is submitted for the Appellant that the tribunal improperly evaluated evidence tendered by the Appellant, and also failed to consider the report of investigation into the conduct of the Appellant in relation to the 1st Respondent’s portfolio, by the 2nd Respondent, which in the performance of its functions found the Appellant not liable for the claims of the 1st Respondent. Learned counsel contends, the tribunal completely shut its eyes to the evidence put forward by the Appellant in defense of the suit, he referred the Court to FBN PLC V OZOKWERE (2013) LPELR- 21897-SC.

That the Appellant forwarded stock summary and detailed cash statements to the 1st Respondent, which she admittedly received by way of text messages, updating her of the trading activities on her securities, yet the tribunal failed to consider these facts in its judgment, leading it to a wrong conclusion; the Court was referred to OLAIYA V STATE (2017) LPELR-43714- SC and ADELEKE V IYANDA (2001) 13 NWLR part 729 page 1.

It is further submitted that even if Exhibits C1-C13 were indeed blank forms filled by the Appellant as contended, the onus iof proving the existence of this fact rests on the 1st Respondent and she failed to tender any evidence in support of her averments. As such, the tribunal was wrong in affirming the unsupported averments of the 1st Respondent as the true reflection of facts in issue between the parties; MAIHAJA V GAIDA (2017) LPELR-42474.

It is contended that even if the Appellant filled Exhibits C1- C13, having already been signed and executed by the 1st Respondent, it follows that the 1st Respondent impliedly authorized the Appellant to fill Exhibits C1-C13 on her behalf. This is so, it is argued, because the 1st Respondent signed Exhibit B4 with the intention of authorizing the Appellant to deal on its behalf, rather than putting herself in a situation where she would have to shuttle between her house and the Appellant’s office all the time.

Learned counsel submits that the 1st Respondent is deemed to have ratified every action taken by the Appellant by admitting that she signed the form in blank, authorizing the Appellant to transact on her behalf, as long as there is no proof of any action taken in bad faith or malice; CARLEN NIG. LTD V UNIVERSITY OF JOS & ORS (1994) LPELR-832-SC and WAMBAI V MUSA (2009) LPELR-8186-CA.

It is further submitted that the 1st Respondent cannot use the Court to renege from an agreement she voluntarily entered; and that the judgment of the tribunal is flawed because the claim of coercion can only be determined by credible witnesses, and not by merely observing the demeanor of the witness.

That the allegation of fraud places on the 1st Respondent the burden of proving the claim beyond reasonable doubt, and that the 1st Respondent failed to discharge that burden as no evidence of coercion was led or established.

​It is also submitted that the 1st Respondent failed to establish her claim of N15,447,926.61, bearing in mind that the Appellant made several purchases on behalf of the 1st Respondent. That the tribunal was wrong to have awarded the sum claimed, without taking into account the fact that the Appellant traded on behalf of the 1st Respondent.

It is also contended that the 1st Respondent did not suffer any loss as a result of the conduct of the Appellant. The loss, if any, is the result of fluctuations in the capital market, which is beyond the control of the Appellant, and so the trial Court was wrong to have ordered for the payment of all proceeds from the sales made on behalf of the 1st Respondent, while giving her the benefit, without actually paying for the shares.

​Learned counsel submits that there is no allegation of negligence or misconduct on the part of the Appellant, and no evidence was led to establish that the value of the stocks purchased were different from the prevailing rate or that the Appellant negligently sold any shares, as such the Appellant cannot be accused of mismanaging the 1st Respondent’s account simply because there were some loses.

That the ‘business judgment rule’ provides cover for the actions of the Appellant, because it gives immunity from liability, if the act is in good faith. The rule also requires that a Court does not interfere with commercial decisions made by corporate managers in the course of a business; the Court was referred to GROBOW V PEROT 539 A.2d 180 (1989).

While referring to NIKA FISHING CO. LTD V LAVINA CORPORATION (2008) LPELR-2035-SC learned counsel further submits that parties to an agreement are bound by their terms of agreement; that the terms in Exhibit B4 and C1-C13 are binding on the parties as well as the tribunal in its role as an umpire, especially as the 1st Respondent agreed to indemnify the Appellant in the agreement; BFI GROUP CORPORATION V BUREAU OF PUBLIC ENTERPRISES (2012) LPELR-9339.

It is also submitted that the reliefs granted by the tribunal is incompetent, and breached the Appellant’s right to fair hearing, because the Appellant’s servants, staff and officers were not made parties to the proceedings in the sense that monetary claims are specific, and could only be made against parties to a proceeding unlike other reliefs, such an injunction, which could be made against officers, agents and privies to a proceeding; learned counsel referred to UMAR v ONIKAN & ORS (1999) LPELR- 6745-CA.

Learned counsel contends that failure to join the officers and staff of the Appellant to the proceeding denied them the opportunity to defend themselves, and rendered the suit incompetent; SOOM & ORS V JIBO & ORS (2019) LPELR- 47265-CA.

It is submitted for the 1st Respondent in response that even though the mandate form relied on by the Appellant i.e. Exhibit E1 was dated the 19th of September, 2012, all the transactions made in the 1st Respondent’s portfolio were done before the execution of the mandate, clearly without her authorization; and also that none of the proceeds of the sale was paid into the account of the 1st Respondent, who ignorantly signed documents in violation of the mandate.

That even though it is accepted, generally, to open an account in the name of a client, such account is used mainly for deposit of money paid to purchase a given quantity of shares at a particular time, and not for buying and selling whimsically.

​It is further submitted that contrary to the contention of the Appellant, the tribunal creditably performed its duty of evaluation of the evidence before it, and ascribed probative value to its findings, as such, the findings cannot be said to be perverse; the Court was referred to KOLEOSO V OMOWOOD INDUSTRIES LTD & ANR (2017) LPELR-42425CA and ENWEREM V ABUBAKAR & ANR CA/A/351/2013.

That also the findings of the tribunal cannot be perverse when it was established that not only was the 1st Respondent cajoled into signing blank order forms but it was in evidence that the Appellant made many entries as footnotes as regards buying and selling from the 1st Respondent’s portfolio; ANYAEGWU V THE STATE (2009) SCNJ 91.

Learned counsel also submits that the tribunal’s decision is not perverse because it had the opportunity to observe the demeanor and countenance of the witnesses that testified before it in making an informed evaluation of the evidence of each and every witness.; JOSEPH OYEWOLE V KARIMU AKANDE & ANR (2009) 7 SCNJ 225 and GUARDIAN NEWSPAPERS LTD & ANR V REV PASTOR C.I. AJEH (2011) 4 SCNJ 167.

​That from the totality of the evidence, the Appellant did not employ any sense of professionalism or experience in all the transactions; as it was reckless in buying and selling the various shares, and that Exhibits G-G4 and F1-F40 are evidence of unauthorized buying and selling before the execution of the mandate on 14th of September, 2012.

It is also contended that in spite of all the transactions made on behalf of the 1st Respondent, proceeds were never remitted to the 1st Respondent’s account on the excuse that she failed to provide her bank details; learned counsel referred the Court to NACB LTD V AGHAGWA (2010) 11 NWLR part 1205 page 346 and ENERTECH ENG LTD V ALPHA PRAKS NIG LTD & ANR (2015) 5 NWLR part 1452 page 342.

While referring to OZIGBU ENG CO LTD V IWUAMAADI (2009) 16 NWLR part 1166 page 78, learned counsel submits that the amount awarded by the tribunal to the 1st Respondent is in order, especially as from 2018 to now, naira has lost its purchasing power.

​Learned counsel also submits that since the Appellant did not furnish the 1st Respondent with the contract notes, she could not have known of the unauthorized transactions made on her portfolio, in breach of the mandate.

RESOLUTION OF ISSUE ONE:
A trial Court is said to have properly evaluated the evidence before it when it takes note of the main issues of the parties as raised by counsel and borne out by the evidence adduced at trial, and resolves those issues in accordance with the law; see MOSES IGBINOGHODUA OSAYABAMWEN & ANOR v. DR. GODWIN IRORO & ORS (2016) LPELR-40804 (CA); ONWUKA v. EDIALA (1989) 1 NWLR (pt. 96) 182 at 208-209; A. R. MOGAJI & ORS v. MADAM RABIATU ODOFIN & ORS (1978) 4 SC 91 at 93; OYEKOLA v. AJIBADE (2004) 17 NWLR (pt. 902) 356; EDWIN IKHINMWIN & ANOR v. PRINCE FRIDAY ELEMA & ORS (2014) LPELR-23322 (CA); ONISAODU & ANOR V. ELEWUJU & ANOR (2006) LPELR- 2657 (SC); and RABILU V. USMAN (2016) LPELR-40233 (CA).

It is argued for the Appellant that the tribunal failed to properly evaluate the evidence tendered by the Appellant in this case, as a result of which, learned counsel contends the judgment is perverse.

​This contention is not borne out by the record. Having gone through the judgment of the trial Court, one cannot help but be impressed by the way and manner it meticulously evaluated the evidence of both parties in each of the four issues before resolving them impeccably leaving nothing out, in the considered opinion of this Court.

The selective attack on aspects of the judgment, without taking into account the holistic effort of the tribunal in its evaluation of the evidence before it, least qualifies for a justifiable complaint in this regard. It is for this reason that this Court held in ODUNUKWE V OFOMATA & ANR (1999) LPELR-13055- CA:
“In attacking the evaluation of evidence by a trial Court, counsel has a duty to examine the totality of the evaluation and not pick pockets here and there to puncture or destroy the efforts of the Judge. With respect that is what the learned Senior Advocate for the appellant has done. That is not acceptable, because it is not the legal position.”

​It is uncharitable to suggest that the trial Court arrived at its decision, merely on the basis of the demeanor of the witnesses. It is very important in situations like this not to lose sight of the fact that the tribunal has a duty to hear and receive evidence both oral and documentary from witnesses who appear before it in Court. In the process, it also engages them to see, listen to and watches them, taking into account their respective demeanors under all circumstances, and more often than not, it is this that helps the lower Court to decide who and what to believe. Furthermore, the primary duty of the trial Judge is among other things to receive all relevant evidence; that is perception, and the next task is to weigh the evidence in the case; i.e. evaluation. Therefore, a finding of fact involves both perception and evaluation; see NACENN NIG LTD V. BEWAC AUTOMOTIVE PRODUCES LTD (2011) LPELR-8125 (SC) AND ADELEKE & ORS V. IYANDA & ORS (2001) 13 NWLR (PT.729) 1 AT 20; (2001) LPELR-114 (SC) AT P. 23.

​It is necessary to be reminded at this juncture that It is rudimentary law that where a trial Court unquestionably evaluates and justifiably appraises facts, it is not the business of an appellate Court to substitute its own views for the view of the trial Court. Of course an appellate Court can intervene where there is insufficient evidence to sustain the judgment or where the trial Court fails to make proper use of the opportunity of seeing, hearing, and observing the witnesses or where the findings of facts by the trial Court cannot be regarded as resulting from the evidence or where the trial Court has drawn wrong conclusion from accepted evidence or has taken an erroneous view of the evidence adduced before it or its findings are perverse in the sense that they do not flow from accepted evidence or not supported by the evidence before the Court. See EDJEKPO VS. OSIA (2007) 8 NWLR (PT. 1037) 635 OR (2007) LPELR (1014) 1 AT 46-47, ARE VS. IPAYE (1990) LPELR (541) 1 AT 22, WOLUCHEM VS. GUDI (1981) 5 SC 291 AT 320 AND FASIKUN II VS. OLURONKE II (1999) 2 NWLR (PT. 589) 1 OR (1999) LPELR (1248) 1 AT 47-48.
​This case does not fall into any of the categories that will require interference, in the situations as listed above. In the discharge of its primary duty of evaluating the evidence and ascribing probative value thereto, the lower Court stated, at page 527 of the Records that it: “…painstakingly gone through the facts, evidence and written address of parties in this case…” and there is nothing in the whole record or to suggests it failed in this onerous duty. Without a doubt, the lower Court unquestionably evaluated the evidence and justifiably appraised the facts. It is the law that for the determination of an appeal on issues of facts, it is not the business of an appellate Court to embark on a fresh appraisal of the evidence where the trial Court has unquestionably evaluated and appraised it, unless the findings arrived at is perverse. See AYANWALE vs. ATANDA (1988) 1 NWLR (PT. 68) 22 or (1988) LPELR (671) 1 at 21; AWOYALE vs. OGUNBIYI (1986) 4 SC 98 and BOARD OF CUSTOMS & EXCISE vs. BARAU (1982) LPELR (786) 1 at 47. Furthermore, at the risk of prolixity, if a Court of trial Court, as in this case, unquestionably evaluates the evidence then it is not the business of a Court of appeal to substitute its own views for the views of the trial Court. See NGILLARI vs. NICON (1998) 8 NWLR (PT. 560) 1 and AGBABIAKA vs. SAIBU (1998) 10 NWLR (PT. 571) 534 or (1998) LPELR (222) 1 at 19-20.

Both Exhibits E1 on which learned counsel for the Appellant places so much emphasis and E2, were tendered by the 1st Respondent, and admitted in evidence. These Exhibits are copies of mandates executed by the parties. I do not see how Exhibit E1 would have changed the overall picture when account is taken of the totality of evidence adduced, and evaluated by the trial Court.

What is glaring is the fact that the Appellant who was supposed to manage the portfolio of the 1st Respondent with professional diligence did not appear to have done so, because transactions were made in the first Respondent’s account not only without authorization but with reckless abandon. Otherwise, how else can one explain why proceeds from the sales were not paid into the 1st Respondent’s account?

Exhibit B3 shows that the 1st Respondent had a total of 44,194 units of first Bank shares, after the ‘hurly burly’ was done, she only had 1,194 units left; and as at 3rd September, 2014 she had 63,481 units of Zenith Bank shares, but ended up with 32,481 units; she had a holding of 4,598 Gtbank shares which became 1,663; 35,000 units of Transnational corporation shares which dwindled to 5000; 5220 shares of Dangote sugar which depreciated to 3,320 shares.

A careful scrutiny of Exhibit E2 reveals that the shares were sold for far less than they were bought or higher than they were sold, all within a span of a very short time without explanation.

​For example, 28,000 Zenith Bank was purchased on the 15th of March, 2012 at N13,11k per unit at N373, 891.26 yet on the 23rd of March, 2012, 23,181 units were sold for N291,138.92 at the rate of N12.84k per unit.

Again on the same 23rd of march, 2012, 5819 units of the same Zenith Bank was sold for N13.21k, while on the 21st of May, 2012, 24,000 units were purchased at 14.71 per unit for a total amount of N359,590.78 out of which 23,000 units were later sold on 24th may, 2012 at 14.97, and the sum of N336,785.03 realized; and on the 20th June, 2012, 21,657 units were bought at N 13.94 per unit, on the 24th of the same month 25,000 units were sold at N13.83 per unit. –

I find it hard to disagree with learned counsel for the 1st Respondent that the patterns suggest a complete lack of good faith and professionalism bothering on recklessness. Why buy at high and sell at low? It just does not add up.

This Court cannot comprehend why in spite of all these transactions before the 14th of September, 2012 proceeds of sale were not remitted to the 1st Respondent’s account, on the flimsy excuse that she did not provide bank details. If they can extract other things why not bank details? See pages 540 to 542 of the record of appeal.

The amount of N15,447,926.61 was not arbitrarily awarded to the 1st Respondent; it was awarded on the basis of her claim which is captured in paragraphs 13 and 14 of the amended claim which is:
13. The 1st defendant recklessly and unprofessionally sold claimant’s share for its persona! use and without due authorization or mandate…
14. Claimant therefore lost a total sum of 15,447,926.61; being the amount which ought to accrue to her from the entire sales of her portfolio.

When asked how she arrived at the sum, the 1st Respondent categorically stated it was the total sum of all the sales on her portfolio put together; and it was established from Exhibit B1 that a total of 70 sales and 62 purchases were made by the Appellant on behalf of the 1st Respondent.

The 1st Respondent as claimant testified, and was cross-examined; and tendered her witness statement on oath, as Exhibit A; Exhibit B, cash statement detail of Onaji Abichi Elizabeth for the period 2008; Lead capital, detailed statement as B1; Lead capital stock summary on Account No. 375163244, Exhibit B2; Dangote Sugar Refinery plc account, exhibit B3; Lead Securities Investment Ltd clearance standing mandate of Mrs. Onaji Abichi Elizabeth Exhibit B4; forms in the name of Onachi Abichi Elizabeth with account number 37516324 and a letter from Daniel A Associates dated 11th June, 2014 with ref number IZU/LAT/ORG/VOL 1 addressed to DG SEC Exhibit C14.

Learned counsel contends that the 1st Respondent is desperate to escape the implication of the consent given in Exhibits C1-C13 for shares to be traded on her behalf. This argument loses sight of the fact that while in principle shares could be traded, in the absence of a shareholder, the caveat is that the necessary consent of the shareholder has to be obtained, expressly or impliedly, and the ‘agent’ is expected to act not only in good faith but also competently and diligently.

Even though there is no denying that the Appellant was indeed the portfolio manager of the 1st Respondent, in favour of whom she executed a standing mandate form, Exhibit B4, which was found to have been executed on 14th September, 2012; as shown by Exhibit E3. In order to appreciate the 1st Respondent’s claim, it is Important to have recourse to relevant portions of the pleadings of both the Appellant as well as the 1st Respondent; Paragraphs 6, 7 and 17 of the 1st Respondent’s amended statement of claim states:
“6. On or about 2008 the 1st respondent became the applicant’s stockbroker and therefore saddled with the responsibilities of managing the applicant’s portfolio, and other statutory duties.
7. on or about the 14h September, 2012, the applicant was coerced and cajoled by the 1st respondent to sign some. consent forms to enable it make the applicant’s portfolio grow and appreciate.
17. The respondent took advantage of the applicant’s ignorance of the general operation of the capital market with respect to buying and selling of stocks and cajoled her into signing some forms to authenticate all the sales the respondent had earlier made.”

The Appellant on the other hand stated at paragraphs 2, 3 and 21 of the amended reply in acknowledgment of the originating application as follows:
“2. The 1st defendant agrees with the claim of the claimant in paragraphs 5 and 6 of the claims.
3. The 1st defendant denies in strong terms the claim of the claimant in paragraph 7 of the statement of claim. Claimant Mrs. Onaji Abichi Elizabeth in company of her daughter Josephine Onaji and her niece Ele-ojo Ochai is introduced came to the office of the 1st defendant on that date mentioned and met with her relations manager, Mr. Fancis Ngenebo. After the meeting, she requested that she would sign the client’s standing mandate once and for all to authorize the defendant to buy and sell shares on the capital market rather than for the appellant/claimant to be shuttling the office of the 1st defendant.
21. The 1st defendant denies the claim of the claimant in paragraph 17 of the claim. The claimant did not sign any mandate authorizing the 1st defendant to pay the proceeds into her account. The 1st defendant does not act outside the mandate of a client as regulated by the defendant. The room is open for the claimant to request and sign a mandate form to so authorize the 1st defendant to make such payment on her behalf. The mandate the claimant signed authorized the 1st defendant to buy and sell stocks on her behalf. We rely on exhibit 1 above.”

Now, as rightly observed by the trial Court, it is clear from the foregoing, and 1st Respondent’s pleadings at the lower Court, that the Appellant admitted in paragraph 2 that it became responsible to the 1st Respondent’s portfolio in 2008; and admitted also in paragraph 3 of the amended reply, that the 1st Respondent signed Exhibit B4 on the 14th of September, 2012.

That being so, it follows that the determination of the starting point, for the apportionment of blame, if any should be based on Exhibit B4, which contains all the terms and conditions binding the Appellant and the 1st Respondent.

In its effort at resolving the dispute, having meticulously taken the contentions of the parties, the tribunal now beamed its attention, for good reason, on Exhibits C1-13 and F-F40 to discover when they were signed or executed. The rationale behind this is to further find out when the transaction was carried out by the Appellant, and whether it would be valid or not. That would depend on when Exhibits C1-13 is found to have been signed, earlier or later than Exhibit B4, and the answer to that question would be obvious.

​From the cross-examination of the 1st Respondent at pages 543 to 536 of the record of appeal it is clear that exhibit C1-13 were signed on the 14th of September, 2012, the same day Exhibit B4 was signed. Further to this; as rightly found by the trial Court, the 8th of February, 2012 to 14th September, 2012, which appears on Exhibit F to F40, as the dates on which the transaction were endorsed, accords seamlessly with the dates stated by the Appellant in Exhibit E3, as the dates on which it carried out the transaction signed by the 1st Respondent on the 14th of September, 2012.

Still on whether the 1st Respondent was able to establish her claim; to her credit, the Appellant’s witness, DW1, stated during cross-examination at page 403-406 of the record of appeal, that it was the Appellant’s relationship manager who made the entries and endorsements on Exhibits F-F40; and that it was not right, as it removes the mandate from being the orders of the claimant.

​This Court cannot help but agree with the lower Court that the 1st Respondent signed Exhibits B4 and C1-13 on the 14th of September, 2012. Exhibits C1-13 were undated when they were signed by the 1st Respondent as blank forms; and that the Appellant’s relationship manager filled the order forms, endorsed and wrote the mandates on them, including the outstanding orders, as evidence suggests.

This conduct of the relationship manager, by inserting the 8th of February, 2012 to 14th September, 2012 on Exhibits C1-13, signed on the same day with exhibit B4, created the impression that the transaction was done prior signing of B4, and so Exhibit Cl-13 cannot be said to have emanated from Exhibit B4.

Contrary to the contention of learned counsel to the Appellant that the trial Court did not enforce Exhibit B4, it is the Appellant who breached the terms of the said Exhibit, as rightly found by the lower Court. For the avoidance of doubt, Exhibit B4 states in its opening paragraph, part, that
“…to carry on such trades and transactions on my stock being account domiciled with them on my behalf and that the report of such trades and/or transactions be forwarded to me for my records through my email address earlier supplied to them.”

​Notwithstanding this provision, evidence of contract notes were never tendered as Exhibits, even though the defense witness vainly tried to suggest that it was forwarded via email, when during cross examination he was asked, if he informed the 1st Respondent he claimed, initially that:
“Yes we informed the client by forwarding contract note …every contract transaction”

Later he said “I don’t have it. It is automated. It is sent to the client by email”

And later still he stated: “no it is not part of the evidence”

In relation to this case and contrary to the suggestion of the learned counsel for the Appellant; where an allegation of fraud appears to have been made in a civil case, the standard of proof must be a preponderance of evidence, and not on the basis of proof beyond reasonable doubt; see MICHEAL AROWOLO V. CHIEF TITUS IFABIYI (2002) FWLR (PT. 95) 296.
Where fraud is used, merely for emphasis to express reprehensible conduct by a party, in a transaction as by the use of the word “fraudulently”, that in itself does not convert the basis of the claim into a crime; SEE BENSON IKOKWU V. ENOCH OLI (1962) 1 ALL NLR 194. It is clear that fraud was not the foundation of the 1st Respondent’s, claim, both from the pleadings and evidence before the tribunal; SEE GODWIN NWANKWERE V. JOSEPH ADEWUNMI (1967) NMLR 45. The required standard of proof is therefore on the balance of probabilities, and not proof beyond reasonable doubt as contended; See MOGAJI V. ODOFIN (1978) 4 SC. 91.

The claim of denial of fair hearing does not arise; the Appellant appears to be clutching at straws. The judgment is against the Appellant and Appellant alone; the Appellant is responsible for whatever is done in its name by its agents. It is settled principle of law that an agent acting on behalf of a disclosed and known principal, as in the instant appeal, is not liable for his acts of agency. Only the principal should be liable. The act of an agent, for a particular purpose, is the act of the principal. In law, it is the principal that did what the agent did or omitted to do; SEE VASSILE VS. PASS INDUSTRIES LTD. (2000) 12 NWLR (PT. 681) 347 AT 357; LEVENTIS TECH. LTD. VS. PETROJESSICA ENT. LTD. (1992) 2 NWLR (PT. 224) 459 AND QUA STEEL PRODUCTS LTD. VS. BASSEY (1992) 5 NWLR (PT. 230) 67; AND ALSO UNIVERSITY OF CALABAR VS. EPHRAIM (1993) 1 NWLR (PT. 271) 551; OYENUGA VS. I.C.L. LTD. (1991) 1 N.W.L.R. (PT. 168) 415 AND OLUFOSOYE VS. FAKOREDE (1993) 1 NWLR (PT. 272).

​The law is that the conclusion of the trial Court on the facts is presumed to be correct, that presumption has not been displaced by the Appellant who is seeking to upset the judgment on the facts; See WILLIAMS vs. JOHNSON (1937) 2 WACA 253, BALOGUN vs. AGBOOLA (1974) 1 ALL NLR (PT. 2) 66 and EHOLOR vs. OSAYANDE (1992) LPELR (8053) 1 at 43. I have carefully considered the judgment of the lower Court and I hold the view that the findings of facts made therein flow from the evidence on record and the findings are not perverse. Therefore, there is absolutely no basis on which this Court can intervene. Accordingly, I must resolve this issue in favour of the 1st Respondent against the Appellant.

ISSUE TWO:
Whether the Honourable Tribunal has the jurisdiction to adjudicate over this matter in view of the fact that the Appellant sued is not a juristic person and the impropriety of the 1st Respondent’s Final Address, (distilled from grounds 3, 4, 5 and 6).
It is submitted for the Appellant that for a suit to be competent there must be at least a competent plaintiff and a competent defendant, in the sense that both must be juristic persons, capable of suing and being sued; learned counsel referred the Court to ATAGUBA & CO V GURA NIG. LTD (2005) 8 NWLR part 927 page 429.

That the 1st Respondent instituted this suit against a non-juristic person, constituted as ‘lead securities and investment’, and not ‘Leads Securities and Investment Limited’; and that this has deprived the tribunal of jurisdiction to hear this suit.

Learned counsel further submits while referring to Sections 29 and 38 of the CAMA that the inclusion of the word ‘limited’ is crucial in the name of a private limited liability company and in the determination of whether it is a juristic or non-juristic person.

That once the lower Court has no jurisdiction, the appellate Court also lacks jurisdiction; CHIEF (MRS) OLUFUNKE VICTORIA EHUWA V ONDO STATE INDEPENDENT ELECTORAL COMMISSION& ORS (2006) LPELR-1056-SC and IJEBU ODE LOCAL GOVT V BALOGUN & CO LTD (1991) LPELR-1463-SC.

​Learned counsel submits that the rules of professional conduct for legal practitioners requires that the stamp and seal of the Nigeria bar association be affixed to every document signed by a legal practitioner, otherwise the document is deemed improper; RONKE V FRN (2017) LPELR-43584-CA and SENATOR BELLO SARKIN YAKI & ANR V SENATU ATIKU ABUBAKAR BAGUDU & ORS (2015) LPELR-25721-SC.

That the 1st Respondent’s final written address was not properly signed and sealed, for that reason the condition precedent to its filing had not been fulfilled, by failure of counsel to affix his seal to the process. That Mathias Ofuegbo Izuchukwu whose signature appeared on the 1st Respondent’s final written address ought to have fixed his seal to the said process, instead of Felix Dumebi Esume; as a result of which the process ought not to have been countenanced. Thus learned counsel contends the decision of the trial Court is a nullity.

It is submitted in response that the name in question was the name used in all the processes served on the Appellant, and the Appellant submitted itself to the jurisdiction of the tribunal, throughout the proceedings; it cannot therefore raise this issue at the judgment stage, learned counsel referred the Court to ACCESS BANK PLC V AGEGE LOCAL GOVT & ANR CA/L/649/2014; NJOKU V UAC FOODS (1999) 12 NWLR part 632 page 557 and EMESPO J CONTINENTAL LTD V CORONA SHIFAH (2006) LPELR-1129-SC.

It is contended for the 1st Respondent that what happened is akin to a misnomer, because it is simply a case of the use of incorrect name, which has not misled the parties; PRINCE DESMOND OSAWARU & ANR V FAY-DESSY CATERING (2011) LPELR-4872-CA; AGBULE V WARRI REFINERY & PETROCHEMICAL CO LTD (2012) LPELR-20625-SC.

Learned counsel submits that this Court can, under its inherent powers, correct the error, without any need for a formal application; AFOLABI & 2 ORS V ADEKUNLE & ANR (1983) 8 SC 98; and that since the Appellant did not protest against the name used before the tribunal, he cannot be heard now to turn around to complain.

That also, the Appellant is a juristic person; and also that the Appellant cannot escape whatever was done by its agents and servants; UNITED BANK FOR AFRICAN PLC V VICTORIA FUNMILAYO OGUNDOKUN (2009) 6 NWLR part 1138 page 456; learned counsel contends the 1st Respondent did not enter into any agreement with the servants and agents, and so it will amount to an abuse to sue them and expect any relief, as such the relief granted by the tribunal did not occasion a denial of fair hearing.

​On the failure of counsel to affix his stamp and seal, learned counsel submitted while referring to YAKI V BAGUDU (2015) 18 NWLR part 1491 page 288 that a breach in that regard can be regularized; he referred the Court to NYESOM V PETERSIDE (2016) 7 NWLR part 1512 page 452.

RESOLUTION OF ISSUE TWO:
On the issue of jurisdiction, especially in regard to whether the failure to add the word ‘limited’ to the name of the appellant robs the tribunal of jurisdiction, it is important to state from the onset that, generally speaking, it is not sufficient for a plaintiff being a corporation or a defendant for that matter to establish its juristic personality by merely stating its name with the addition of “Ltd. or “Plc.”.
That status, whether a company is a juristic person or not has to be proved, except of course where it is admitted by the opposing party, as in this case; admission, for the avoidance of doubt could be express or implied. This is not to suggest by any means that jurisdiction can be conferred by concession; SEE BANK OF BARODA V IYALABANI CO LTD (2002) LPELR- 743-SC.
​Juristic personality is a well established principle of law, a ‘person’ has it or doesn’t. The mere fact that the words ‘Public Liability Company (PLC)’ or ‘Limited liability (LTD)’ were not added to the name per se, will not diminish its status as a Public Liability Company or a limited liability company, and as a juristic Personality; see ADEJOBI & ANR V STATE (2011) LPELR-97-SC. In a similar situation to the one at hand, the Supreme Court held in WAHAB ADEJOBI V. THE STATE (2011) LPELR-97 (SC) that the fact that ‘PLC was not added to Trans International Bank on the charge sheet was immaterial as it does not diminish its status as a Public Liability Company and as a juristic person.
The name used in all the processes in this suit, by both parties is Lead securities and investment; the fact that all the processes served on the Appellant bore the same name right from the beginning of this case indicates that a business or a contractual, relationship existed between the 1st Respondent and the Appellant; Exhibit B4 and C1-13 attest to that. The fact that the word “Ltd” was omitted in the name of the Appellant is not prejudicial to it, as long as the company is registered and incorporated according to law. In ADEJOBI & ANOR v. THE STATE (2011) LPELR 97, SC. It was held to the effect that the mere fact that the words “PLC” were not added to the name on the charge sheet would not diminish its status as a public liability company and as a juristic personality.

Having said that, the contention of learned counsel for the 1st Respondent that failure of the Appellant to raise the issue earlier at trial counted against the Appellant is completely wrong, because it is settled, that the issue of jurisdiction can be raised at any point in time, before any Court.

On the competence of the reliefs sought and granted, once again it has to be stated, at the risk of prolixity, that the Appellant is a juristic person; and the 1st Respondent sued the Appellant, not any other person. The agents and servants are only relevant because they acted in that capacity for the Appellant, a disclosed principal. As such the Appellant bears responsibility for all actions of its agents and servants. The 1st Respondent does not have to sue the agents and Respondents separately, for the purpose of the monetary judgment as contended. This is more so, as the 1st Respondent did not enter into any contract with the agents and servants of the Appellant, besides the 1st Respondent will be wasting precious time if she sued the agents in their private capacity, as suggested, for acts done on behalf of a disclosed principal. The reliefs granted by the trial Court did not occasion any breach of fair hearing as contended, as they are perfectly in order.

It is argued for the Appellant that the 1st Respondent’s brief is incompetent, because counsel who prepared it did not stamp and seal it. First, I agree with learned counsel for the Appellant that a legal document and process is required to be signed, stamped and sealed by a legal practitioner. As can easily be observed, there is a sanction in Rule 10 (3) for failure to comply or non-compliance with the Rule, which is that:
“The document so signed or filed shall be deemed not to have been properly signed or filed.”
​The consequence of failure by a legal practitioner who signed and filed a legal document or process in a Court of law, without the stamp and seal approved by the NBA, by the provisions of Rule 10(3), is that the process was not properly filed in Court and so the Court cannot properly take cognizance of or act on it. The effect is that a process filed in Court which the Court cannot properly act on as filed is incompetent, and that would affect the competence of the Court to adjudicate over it.
The process so signed and filed is a legal process within the intendment of Rule 10(2) of the Rules. What is the consequence of a legal document signed and filed in contravention of Rule 10(1) of the Rules? It is my view that the legal document so signed and filed is not null and void or incompetent unlike the case of a Court process signed in the name of a corporation or association; See OKAFOR V. NWEKE (2007) 10 NWLR (PT. 1043) SC 521. The law, as it stands now is that the document, is deemed not to have been properly signed or filed, but not incompetent as learned counsel for the Appellant assumes. It has been signed and filed but not properly so signed and filed for the reason that the condition precedent to its proper signing and filing had not been met.
​In the case at hand, the process filed in breach of Rule 10(1) can be saved, and its signing and filing regularized by affixing the approved seal and stamp on it. It is a legal document improperly filed and the fixing of the seal and stamp would make the filing in law. In other words, the offending document can be remedied at any stage in the proceeding by application for and production and fixing of the seal. The consequence of the said non-compliance renders the document so filed voidable not void which is subject to regularization upon application, even orally, in the open Court, at any stage in the proceedings involved, even on appeal.
Failure to fully comply with requirements of the rules or regulations in filing a Court process is treated as a mere irregularity which would render the process legally voidable and capable of being regularized or made to meet the requirements by the party who filed it. That is usually done by the filing of a fresh process which fully complies with or satisfies the requirements of the relevant rules or regulations or, as the case may be, by application for extension or enlargement of time where time was limited, for the party to regularize the said process. This trite position of the law was clearly brought out in the case of SEN. BELLO SARKIN YAKI VS. SEN. ATIKU ABUBAKAR BAGUDU (2015) LPELR-25721 (SC).
​In the circumstances therefore, the tribunal was not wrong to consider the 1st Respondent’s written advice, more so, in view of the fact that the irregularity can be fixed even by oral application, at any stage, even on appeal.

It is for these reasons that I now resolve this issue in favour of the 1st Respondent, against the Appellant.

Having resolved the two issues that call for determination in favour of the 1st Respondent, against the Appellant, the appeal fails for lack of merit and it is dismissed. Judgment of the Investment and Securities Tribunal, delivered on the 25th of April, 2018 is hereby affirmed.

Cost of N200,000 is awarded in favour of the 1st Respondent, against the Appellant.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: My noble lord and brother. Mohammed Mustapha JCA., had availed me a draft copy of the leading judgment just delivered and I am completely satisfied with the lucid reasoning and impeccable conclusion reached therein to the effect that the appeal is devoid of any iota of merit and is thus, liable to be dismissed in its entirety. I agree!

My lords, this judgment is a great judgment! It is great erudition! And above all, it is great analysis and a perfect conclusion!!! The more I read it the happier I become for the sound justice rendered to the parties.

I have considered the vehement but erroneous contention by learned counsel for the Appellant that it was not a juristic person in the name it was sued by the 1st Respondent. I have taken a calm look at the endorsements of the name of the Appellant on the action filed by the 1st Respondent. I have also, looked at the defence filed by the Appellant and I cannot find anywhere or in any way the Appellant put the 1st Respondent to proof of the juristic personality of the Appellant. In law, proof is a function of issues joined by the parties in their pleadings. Thus, a fact on which no issue was joined between the parties is taken as established and therefore, there is no need to further dissipate energy proving such fact on which no issue was joined by the parties. 

The law, as I understand it, is that the competence of a Court can be affected adversely where a Defendant had raised an objection to that effect or it was raised suo motu by the Court and the addresses upon by the parties. See Chief Austine Oguejifor & Anor V. Ubakason Nigeria Limited (2022) LPELR-56783(CA) per Sir Biobele Abraham Georgewill, JCA. See also Mailafia V. Veritas Insurance (1986) 4 NWLR (Pt. 38) 802 AT p. 812; Merill Guaranty Savings & Loans Ltd & Anor V. Worldgate Building Society Ltd (2012) LPELR-9719 (SC); Bakare V. Ajose-Adeogun (2014) LPELR-2013; Multi Purposes Ventures Ltd V. A. G. Rivers State (1997) 9 NWLR (Pt. 522) 642; Ehidimhen V. Musa (2000) 8 NWLR (Pt. 669) 540.

In the instant appeal, until and if the Appellant had challenged the 1st Respondent before the lower Court as to its juristic personality as a legal entity, there was no further duty on the 1st Respondent to furnish more evidence in addition to the averments in the 1st Respondent’s Amended Statement of Claim and unchallenged evidence led in support thereof, which in my finding was sufficient, to show that the Appellant is a juristic person. At best, the contention of the Appellant amounted to mere misnomer in the name of the Appellant as endorsed on the 1st Respondent’s action. It is nothing serious in law being neither a misjoinder nor non-joinder of necessary parties. It is the law that a mere misnomer, which occurs where the natural or legal person actually exists, as in the Appellant, but is sued in a wrong or incomplete name. Truly, such a misnomer is never regarded in law as substantial or so fundamental as to deny a Court of its competency to hear and determine a matter otherwise competently before it. At any rate, neither did the Appellant allege nor did they prove that they were in any way misled or overreached or confused by this mere misnomer. In Bank of Baroda V. lyalabani Company Ltd (2002) LPELR-743 (SC) AT pp. 15-16, the Supreme Court had stated inter alia thus:
“A Plaintiff to an action must be competent to institute such an action and if his competency is challenged then the onus of proving that he has legal capacity to institute the action lies on him. It is only where it is obvious that a party is not a legal person that the matter can be dealt with without much ado and the non-juristic party struck out or the action struck out if such a party is the Plaintiff…….Nothing on the face of the Writ or the Statement of Claim shows that Bank of Baroda is not a juristic person. The mere fact that its name did not end with ‘limited’ does not raise any reasonable presumption that it was not a juristic person nor is it evidence of that fact”
Also, in APGA V. Ubah & Ors (2019) LPELR-48132 (SC) AT pp. 12-14, the Supreme Court had per Sanusi, JSC stated inter alia thus:
“It is the grouse of the Appellant herein, that while instituting the action or suit before the trial Court, the Plaintiff (now 1st Respondent) sued the ‘All Progressive Party’ as the 2nd Defendant instead of the correct name of his party ‘The All Progressive Grand Alliance’. It is therefore the contention of the Appellant herein, that suing the 2nd Defendant in a wrong name robs the trial Court of the jurisdiction to adjudicate in the entire matter…. To my mind, the use of the name ‘All Progressives Party’ is just a misnomer and same cannot be regarded as fatal to the competence of the suit as would deprive the trial Court of the jurisdiction to entertain and hear and determine the matter. It therefore cannot be regarded to have any serious consequence as would render the Suit incompetent.”
See also Chief Austine Oguejifor & Anor V. Ubakason Nigeria Limited (2022) LPELR-56783(CA) per Sir Biobele Abraham Georgewill, JCA.

My lords, when in an appeal it is alleged that the judgment is against the weight of evidence, as in Ground 7 on the Appellant’s Notice of Appeal, it is called on this Court to re-evaluate the evidence led before the Court below to arrive at proper finding of facts should it turn out that proper evaluation had not been carried out by the Court below. Thus, unless and until the appellate Court comes to the conclusion that the trial Court had not carried out its duty of proper evaluation and ascription of probative value to the evidence before it, the duty of the appellate Court to re-evaluate the evidence on the printed records would not arise. The law is that for an appellate Court to embark on such a duty it must be demonstrated that the Court below had cither not carried out its duty of evaluation of the evidence led before it or had carried out an improper evaluation of the evidence and had arrived at findings which are perverse, and which ought in law to be set aside so that proper findings as dictated by the proved evidence as in the printed record are made by the appellate Court in the interest of justice and to avoid the perpetuation of injustice should the perverse judgment of the trial Court be allowed to stand. See Woluchem V. Gudi (Supra). See also Michael Hausa V. The State (1994) 7-8 SC 144. See also Guardian Newspaper Ltd. V. Rev. Ajeh (2011) 10 NWLR (Pt. 1256) 574 AT p. 582; Prince Lgoh Michael V. Access Bank of Nigeria Plc. (2017) LPELR-41981(CA) per Sir Biobele Abraham Georgewill JCA; Andrew V. Oshoakpemhe & Ors (2021) LPELR- 53228 (CA) per Sir Biobele Abraham Georgewill JCA.
It must be noted at once that in carrying out evaluation of evidence, a very tough turf for trial Courts, a Court is not to merely review or restate the evidence but is expected to critically appraise it in the light of the facts in issue, as to what is relevant, admissible and what weight to be attached thereto. In other words, evaluation of evidence is much more critical, crucial and tasking than mere review of evidence. Thus, unlike mere review of evidence, its actual evaluation involves a reasonable belief of the evidence of one of the contending parties and disbelief of the other or reasoned preference of one version to the other. There must be an indication on the record as to show how the Court arrived at its conclusion preferring one piece of evidence to the other. Therefore, the reaching of conclusions by drawing necessary inference is a product of legal mind not an indulgence in speculation. See Aregbesola V. Olagunsoye (2011) 9 NWLR (Pt. 1253) 458. See also Andrew V. Oshoakpemhe & Ors (2021) LPELR-53228 (CA) per Sir Biobele Abraham Georgewill, JCA.

​In law, once an allegation of crime is made even in a Civil proceeding and such an allegation is central and directly in issue, as in being made the foundation to the claim of a party, then it must be proved beyond reasonable doubt. However, where the allegation of crime is not central to the claims of the party then it not be proved beyond reasonable doubt as the standard of proof will remain proof on a balance of probability or on a preponderance of evidence as required in Civil proceedings, notwithstanding the passing allegation of crime. Thus, the mere use of the word ‘fraudulently’ by the 1st Respondent without basing her claim on it or it being made directly in issue by the parties, does not require proof beyond reasonable doubt as was erroneously thought by the Appellant. See Section 135(1) of the Evidence Act 2011, which provides as follows:
If the commission of a crime by a party in any proceeding is directly in issue in any proceeding, civil of criminal, it must be proved beyond reasonable doubt.”
In Nwobodo V. Onoh (1984) NSCC 1 AT p. 17, the Supreme Court had laid down applicable principle of law inter alia thus:
“…Where in an Election Petition the Petitioner makes an allegation of a crime against a Respondent and he makes the commission of the crime as the basis of his Petition, the sub-section imposes strict burden on the Petitioner to prove the crime beyond reasonable doubt. If the petitioner fails to discharge the burden, his Petition fails.”
See also ACN V. Lamido (2011) 3 LRECN at 296; Benson Ikokwu V. Enoch Oli (1962) 1 All NLR 194; Godwin Nwankwere V. Joseph Adewunmi (1967) NMLR 45.

The Appellant also raised in passing the vexed issue of breach of fair hearing, as to when in law the proceedings and/or judgment of a Court can be said to be in breach of the right to fair hearing as constitutionally guaranteed to the citizens of this Country in the determination of their civil rights and obligations? In law, so grave is this issue that the effect of such a breach is that it invariably renders such a judgment a nullity. See Ekpenetu V. Ofegobi (2012) 15 NWLR (Pt. 1323) 276; Amadi V. INEC (2013) 4 NWLR (Pt. 1345) 595.

Now, in considering whether or not a proceeding or judgment of a Court was in breach of the right to fair hearing of a party, the law is that each case of allegation of breach of the right to fair hearing must be decided on the peculiar facts and circumstances of each case. This is so because fair hearing is primarily a matter of fact. It is only when the facts are ascertained that the law would be applied to the facts so established to see whether or not such established facts constituted a breach of the party’s right to fair hearing. See Newswatch Communications Limited V. Alhaji Ibrahim Atta (2006) 12 NWLR (Pt. 993) 144. See also CBN V. Ovie & Ors (2021) LPELR-56034 (CA) per Sir Biobele Abraham Georgewill, JCA; Shola V. Ofili & Ors (2020) LPELR-51986 (CA) per Sir Biobele Abraham Georgewill JCA; Abubakar V. Yar’ Adua (2008) 4 NWLR (Pt. 1078) 465 AT p. 503; Agbapounwu V. Agbapuonwu (1991) 1 NWLR (Pt. 165) 33 p. 40.

It is true that the right to fair hearing is very fundamental and failure by a Court to observe it would invariably vitiate both the proceedings and judgment of such a Court, notwithstanding the merit or otherwise of the cases of the parties or indeed how meticulous the proceedings were conducted or even how sound the resultant judgment was on the merit. However, it must be pointed out at once that the issue of fair hearing must be raised with all seriousness and in good faith. It must never be raised in bad faith or merely intended as a red herring to raise a storm in a teacup without any factual basis. See Adegbesin V. The State (2014) 9 NWLR (Pt. 1413) 609 AT pp. 641-642, where Ngwuta JSC (God bless his soul) had pronounced emphatically thus:
“As for the related complaint of denial of right to fair hearing, my lord Chukwuma Eneh, JSC had this to say: “There can be no doubt from the foregoing that fair hearing has become the whipping principles for counsel trying to catch at a straw to sustain a modicum of standing in a hopeless case where the ease is already dead as a dodo. The approach of counsel in general is deprecated. Fair hearing should, from what it is and represents in our adjudicative process be raised only seriously and not lightly.” I agree with his Lordship”

Having considered the facts and circumstances of this appeal, it is my view and I so hold that the Appellant was afforded every and equal opportunity with the 1st Respondents and was duly heard and the lower Court duly considered and resolved all the relevant issues on the evidence, both oral and documentary Exhibits furnished before it by the parties. The right to fair hearing of the citizen is not breached merely because he losses a case in Court and thus would be seen to have been observed only when the citizen wins his case against the other party. That is certainly not the protection afforded by the right to fair hearing. In my view, winning or losing a case is dependent on the facts and evidence led before the Court. At any rate, in law the issue of fair, hearing is a two-way traffic as well as a two-edged, sword as both parties are equally entitled to the protection of the law. affording them their guaranteed right to fair hearing. The Appellant’s right to fair hearing was not in any way breached by the lower Court and I so hold firmly hold. See Newswatch Communications Limited V. Alhaji Ibrahim Atta (2006) 12 NWLR (Pt. 993) 144. See also CBN V. Ovie & Ors (2021) LPELR-56034 (CA) per Sir Biobele Abraham Georgewill JCA; Shola V. Ofili & Ors (2020) LPELR-51986 (CA) per Sir Biobele Abraham Georgewill JCA.

​On the whole, my lords, I subscribe fully to the well settled position of the law that an appellate Court Which had not seen the witnesses testify and observed their demeanour in the witness stand, should respect the views of a trial Court and should not readily substitute its own views except where it is shown that the conclusion reached by the Court below was perverse. The evaluation and ascription of probative value to the evidence led is ordinarily the turf of the trial Court, and once a trial Court discharges that duty on the strength of the evidence placed before it, unless it arrives at perverse conclusions or findings not supported by the established evidence before it, an appellate Court will not interfere once the conclusions reached is correct, even if the reason which is the pathway to the conclusion or finding turns out to be wrong. See Alhaji Ndayako & Ors. V. Alhaji Dantoro & Ors. (20(14) 13 NWLR (Pt. 889) 187 AT p. 198. See also FBN Plc V. Paul (2022) LPELR-57591(CA) per Sir Biobele Abraham Georgewill, JCA; Africans Songs Ltd & Abor V. King Sunny Ade (2018) LPELR-46184 (CA) per Sir Biobele Abraham Georgewill JCA; Abaye V. Ofili (1986) 1 NWLR (Pt. 15) 134; Ukejianya V. Uchendu 18 WACA 46.

It is for the above few comments of mine but for the fuller reasons adroitly marshalled out in the leading judgment that I too hold that the appeal lacks merit and is thus liable to be dismissed. I too hereby dismiss this appeal and shall abide by the consequential orders made in the leading judgment, including the Order as to cost.

BATURE ISAH GAFAI, J.C.A.: I have had a preview of the judgment delivered by my learned brother Mustapha, JCA.

I am in full agreement with the reasonings and conclusions expressed therein. I adopt those reasonings as mine; by which I too find this appeal unmeritorious, liable to be and is dismissed by me too.
I abide by the Order on costs.

Appearances:

Eric Otojahi. For Appellant(s)

F. D. Esume, Esq, with him, M. O. Izuchukwu, Esq, for the 1st Respondent. For Respondent(s)