MR. NOAH OCHEDI & ORS v. CENTRAL BANK OF NIGERIA & ORS
(2018)LCN/11930(CA)
In The Court of Appeal of Nigeria
On Thursday, the 12th day of July, 2018
CA/L/1025/2014
RATIO
CONTRACT: ILLEGAL BREACH OF CONTRACT
“‘No Court of law or Judge has the Jurisdiction to enforce an illegal contract. The duty of a Court of law or Judge is to administer Justice according to law. Therefore, it will be a breach of that duty and the oath of office to enforce an illegal contract. None of the parties to an illegal contract is entitled to any remedy or relief from a Court of law and once a Court or Judge becomes aware of the illegality, it is the duty of the Court or Judge to stop the case and dismiss the claim for being void and unenforceable.’ See also the cases of SODIPO v LEMMINKAINEN OY & ANOR (1985) 2 NSCC 1102 at 1114; OKAFOR v SOYEMI [2001] 2 NWLR (PT. 698) 465; UNITRUST INSURANCE CO. LTD v. AMBICO SENDIRIAN NIG LTD (2012) LPELR – 15417 (CA); S.D.C. CEMENTATION (NIG) LTD & ANOR v NAGEL & CO LTD & ANOR [2003) 4 NWLR (PT. 811) 611.” PER ABUBAKAR DATTI YAHAYA, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
1. MR. NOAH OCHEDI
2. MR. ADEDEJI LAWRENCE ADEGOKE
3. MR. JAMES S. USMAN
4. MRS. BUNMI MOLEHIM
5. MR. MAKUS ABUI
6. MRS. OLUMIDE PREVAIL
AGBABIAKA
7. MR. AKINTOLA HENRY OLUFEMI
8. MR. AYENI EKUNDAYO BENJAMIN
(for themselves and on behalf of other investors/depositors
in the scheme of investment designed by Wealth Zone Ltd.) Appellant(s)
AND
1. CENTRAL BANK OF NIGERIA
2. SECURITY & EXCHANGE COMMISSION
3. NIGERIA DEPOSIT INSURANCE CORPORATION
4. CORPORATE AFFAIRS COMMISSION
5. NIGERIA POLICE FORCE
6. ECONOMIC & FINANCIAL CRIMES COMMISSION
7. KEYSTONE BANK LIMITED
8. GT. BANK PLC.
9. FIRST BANK OF NIGERIA PLC.
10. ECOBANK NIGERIA PLC. Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment):
For themselves and on behalf of other investors/depositors in a scheme designed by Wealth Zone Limited, the Appellants, by way of originating summons dated 8th March, 2013, had submitted questions for determination by the Federal High Court, Lagos (Lower Court) and sought reliefs against the Respondents. The questions and the reliefs sought are as follows: –
(1) Whether the 1st – 6th Respondents are by law entitled to hold on to the investments/deposits of the Applicants for over 5 years without a legal right/reason and/or disclosing the state of the investments to the Applicants?
(2) Whether the withholding of the investments/deposits of the Appellants, appropriating same now in excess of 5 (five) years by the 1st – 6th Respondents, does not amount to the breach of the fundamental rights of the Applicants guaranteed under the Constitution of the Federal Republic of Nigeria 1999 (as amended), the African Charter on Human and Peoples’ (Ratification And Enforcement) Act Cap, A 9 Vol. 1 Laws of the Federation 2004 among others?
(3) Whether if the foregoing are answered in the affirmative, the Applicants are not entitled to apply to Court for an Order directing the 1st – 6th Respondents to return and/or refund of their investments/deposits together with interest at the ruling bank lending rate currently at 21st from the dote of seizure, withdrawal, transfer or however from the 7th -10th Respondents to their solicitors’ for purposes of the said solicitors repaying the Applicants?
(4) Whether the Applicants are not entitled in law to demand from the 7th – 10th Respondent the information requested, the breach of which entitles them (Applicants) to apply for same before a Court of law, and to equally demand the cost of that action?
(5) Whether the grant of the Reliefs here in does not amount to the justice of this matter?”
The summons was supported by a 25 paragraphs Affidavit deposed to by Noah Salifu Ochedi (the 1st Appellant) and in reaction, the Respondents filed counter affidavits in addition to which some of the Respondents fired a Notices of Preliminary objections challenging the jurisdiction of the Lower Court to entertain and adjudicate over the claims or reliefs sought by the Appellants on various grounds.
The objections and the summons were taken together and in a judgment delivered on the 23rd November, 2013, the Lower Court declined jurisdiction to entertain the suit on the ground that the claims were based on contract prohibited by statute and so illegal. It struck out the suit.
Dissatisfied with that decision, the Appellants brought this appeal vide the Notice of Appeal dated 11th February, 2014 and in the Appellants’ brief filed on the 28th November, submit the following issues for decision by the Court:-
ISSUE ONE
Whether the claims and/or cause(s) of action presented before the Lower Court were statutorily prohibited ventures or contracts, for which there exist statutory provisions ousting the jurisdiction of the Lower Court? Issue one arises from Grounds one and two of the Notice of Appeal.
ISSUE TWO
Whether in coming to the conclusion, the Lower Court properly appraised the issues in contention, which said contention as well appreciated by certain of the Respondents and who joined issues thereto? Issue two arises from Grounds three and four of the Notice of Appeal.
ISSUE THREE
Whether the right to request information as guaranteed under the Freedom of Information Act 2011 is available to the Appellants, a breach of which right entitles the Appellants’ to approach a Court a Law? issue arises from Ground five of the Notice of Appeal.”
In reaction to the Appellants’ brief, the 1st, 2nd, 3rd, 7th, 8th, 9th and 10th Respondents filed their respective briefs on various dates and would be referred to in the review of the submissions by counsel for the parties.
Although from the record of the Court, the 4th, 5th and 6th Respondents were duly served with all the material processes of the appeal including the Notice of Appeal, Record of Appeal and Appellants’ Brief, none of them filed a brief of argument for the determination of the appeal.
I intend to use the Appellants’ issues in the determination of the appeal for representing the specific complaints against the decision by the Lower Court and consider submissions in the Respondents’ briefs relevant thereto.
I would consider issues 1 and 2 together.
Issues 1 & 2:
Appellants’ Submissions:
After copiously setting out the questions submitted for determination by the Lower Court and some depositions in the parties’ Affidavits, it is contended that the Lower Court did not properly appreciate the facts and issues in contention in the suit that the Appellants are/were investors in an investment scheme described by the 1st – 6th Respondents as operating without authorization.
That the Appellants had complied with the call and requirements by the 1st ? 6th Respondent for people like the Appellants to verify their investments for the purpose of any arrangement that may be put in place to repay the monies deposited/invested by them. Sekoni v. Ogunmola (2003) 22 WRN, 154 @ 167 and Osagie v. Adonri (1994) 6 NWLR (349) 131 @ 154 were referred to on the duty of a Court to consider a case on the basis of the facts presented by the parties and on evaluation of evidence. It is argued that the Appellants did not allude to the licensing or non authorization of wealth zone Limited in their summons and so reliance by the Lower Court on this facts for its decision is not on the facts presented by the parties since the 1st – 6th Respondents did not in their depositions describe wealth zone Limited as an illegal wonder bank.
It is submitted that it is the Appellants, summons that would determine whether the Lower Court has jurisdiction to entertain the reliefs sought by them on the authority of Ladoja v. INEC (2007) 10 MJSC, 1 @ 14 – 15.
The Court is urged to hold that the findings by the Lower Court are perverse and to set them aside.
The above arguments are adopted under issue 2 and the case of Nsiege v. Mgbemena (2007) 4-5 SC, 1 @ 4-5 on the law that parties shall be given an opportunity to address a new or fresh issue raised suo motu by the Court was cited. According to Counsel, the judgment by the Lower Court was on issues/facts not canvassed by the parties which include: –
(A) The foundation of the matter relates to contracts of the Appellants’ with Wealth Zone Limited.
(B) The legality of the said foundational contracts of the Appellants’ with Wealth Zone Ltd.
(C) The licensing and/or otherwise of Wealth Zone Ltd by the 1st and 2nd Respondent.
(D) The classification of Wealth Zone Ltd as an illegal fund manager/wonder bank by the Federal Government of Nigeria.
He said the Appellants were not afforded a hearing by the Lower Court on the above issues/facts which it based its decision on and so their right to fair hearing was denied, relying on Deduwa v. Okorodudu SC/74/1974. Order 9 Rules (1) and 14(3) of the Lower Court’s Rules, 2009 were said not to have been used by the Lower Court to make Wealth Zone Ltd., a party to the suit before determining that it was not licensed to carry out financial business in Nigeria by 1st and 2nd Respondents and so its scheme of investment was illegal. On that basis, the Lower Court is said to have completely compromised the legal status of wealth Zone Ltd, without affording it the right to a hearing and the Court is urged to “completely set aside the judgement of the Lower Court”.
In the 1st Respondent’s brief filed on the 18th November, 2015 a sole issue was raised for determination and it is submitted that the Lower Court painstaking considered the depositions of the 1st and 2nd Appellants in Support of the summons before concluding that the reliefs sought were based on illegal contract prohibited by statute. Factors listed in Attorney General, Lagos State v. Dosunmu (1989) 3 NWLR (111) 552 @ 556-7 for a Court’s jurisdiction were set out and citing Sections 58(1) and 59 of the Banks and other Financial Institutions Act, Cap B3, Laws of the Federation of Nigeria, 2010 (BOFIA), it is argued that the contract/transaction upon which the Appellants suit was based being prohibited by statute, is a feature which robs the Lower Court of jurisdiction to entertain it, as rightly held by the Lower Court.
Among other cases, Sodipo v. Lemminkainen 1 (1986) NWLR (2015) 220, Ekwunife v. Wayne (WA) Ltd. (1989) 5 NWLR (122) 422 @ 460 and Melwani v. Chanhira Corp. (1995) 6 NWLR (402) 438 @ 460 on the enforcement of an illegal contract were referred to and it is submitted the 1st and 10th Respondents in their Affidavits did allude to the issue of the illegality of activities of Wealth Zone Ltd., which the Appellants did not deny. Sections 1(5)(a), 2(1) and (2) of BOFIA were set out and it is maintained that since the activities of Wealth Zone Ltd., were conducted in contravention of the law, the basis of the Appellants’ suit was an illegal transaction, whether or not the Respondents said so and that the Lower Court was right to have declined jurisdiction.
It is the case of counsel that the Lower Court did not raise the issue of the illegality of the transaction between the Appellants and Wealth Zone Ltd., suo motu since it was raised by the 1st and 10th Respondents and that it even if so raised, there was no miscarriage of justice occasioned to the Appellants.
In the 2nd Respondent’s brief filed on the 26th November, 2015, settled by Chief P. N. Umeh, the Appellants’ issues are adopted for determination and it is submitted that the Lower Court clearly and properly appreciated and considered the facts of the Appellants’ summons and rightly concluded that the reliefs sought therein were based on transaction prohibited by statute and so illegal. It is pointed out that the crux of the Appellants’ case is to recover monies invested in Wealth Zone Ltd. and the Lower Court considered the facts set out in their Affidavits as the basis of the claims which show that the transaction is tainted with illegality.
Similar arguments as made by the 1st Respondent on the illegality of the transaction between Appellants and Wealth Zone Limited are made and in addition to the cases cited by the 1st Respondent,Alao v. ACB Limited (1998) 3 NWLR (842) 339, Fasal Services Limited v. NPA (2009) LPELR-1245 (SC) as well as Halsbury’s Laws of England, 3rd Edition, Vol. 8, Page 126 paragraph 218 were referred to.
It is then contended that the Appellants in their Affidavits alluded to and admitted the lack of authorization and license on the part of Wealth Zone Limited to operate the scheme they invested in and so there was no need to prove it and the Lower Court cannot be said to have raised it suo motu. Ndayako v. Dantoro (2004) 13 NWLR (589) 187 on admission, Monkom v. Odili (2010) 2 NWLR (1179) 419 @ 442 and Kopek Const. Ltd. v. Ekisola (2010) 3 NWLR (1182) 618 @ 665 on duty of a Court to act on unchallenged evidence which is good and credible, were cited and it is maintained that the Lower Court accurately appreciated the issues raised by the parties in the case before reaching its decision to strick out the case.
Similar submissions on the issues were made in the 3rd Respondent’s brief filed on the 17th February, 2017, the 7th Respondent’s brief filed on the 2nd February, 2016, the 8th Respondent’s brief filed on the 14th December, 2015, deemed on 9th February, 2017, the 9th Respondent’s brief filed on the 21st November, 2016, deemed on the 11th January, 2017 and the 10th Respondent’s brief filed on the 5th October, 2015, wherein Counsel maintain that the Lower Court properly appreciated the issues raised by the parties, did not raise the issue of the illegality of the transaction between the Appellants and Wealth Zone Ltd suo motu and rightly found that the suit was based on illegal contract transaction prohibited by statute thereby depriving it the jurisdiction to adjudicate over the claims/relief sought by the Appellants. Judicial authorities were referred to by Counsel in their respective briefs in support of their submissions and the Court is urged to resolve the issues in Respondents’ favour.
Since the basis of the decision by the Lower Court is that the Appellants’ claims are based on transactions prohibited by statute and so illegal, the foundation for the determination of whether it is right or not, would be the facts presented to the Lower Court and relied on by the Appellants for the reliefs sought as well as the relevant statute(s).
The primary facts relied on by the Appellants in support of their suit are contained in the 25 paragraphs Affidavit setting out the facts, dated the 8th March, 2003 and deposed to by the 1st Appellant, wherein he said: –
1. I am the first Applicant to this Summons.
2. The facts deposed to hereunder are within my personal knowledge saved otherwise stated.
3. That I am an investor in the scheme of investment designed by Wealth Zone Ltd. Now shown to me and marked as Exhibit NSO 1 are copies of my investment papers with Wealth Zone Ltd.
4. That further to the foregoing, I was elected chairman of the body of investors/depositors of wealth Zone Ltd in Northern Nigeria, following our receipt of information that the 2nd Appellant has been elected chairman of the body of investors/depositors for investors in Southern Nigeria.
5. That I was elected chairman of the body in the meeting of 8th March, 2008 held at the open field of the Nigeria Railway Corporation in Kaduna, Kaduna State; following the sudden seizure, withdrawal, transfer or however of the total funds standing to the credit of the said Wealth Zone Ltd., with the 7th-10th Respondents by the lst-6th Respondents to the 1st Respondent.
Now shown to me and marked as Exhibit NSO 2 is a copy of the Extract of Minutes of Meeting wherein I was elected chairman of the Northern Zone investors/depositors.
6. That following the said seizure, withdrawal, transfer or however of the total funds standing to the credit of the said Wealth Zone Ltd with the 7th-10th Respondents by the 1st-6th Respondents to the 1st Respondent; he said 1st-6th Respondents caused several publications in National newspapers including the publication of 12th February, 2008 and 20th March, 2008 of the Guardian Newspaper, wherein the said Respondents purportedly created an Agency (the Inter-Agency Committee on Illegal Fund Managers/wonder Banks) to receive details of investors of Wealth Zone Ltd among other such investment companies.
Now shown to me and marked as Exhibit NSO 3A & B are copies of the said Publications.
7. That by the publication of 12th February, 2008, the 1st-6th Respondents described the investment scheme of Wealth Zone Ltd among others to be lacking only “PROPER” authorization. Underlining is mine and for emphasis purpose.
8. That following the said publication, I and the other leaders of the investors/depositors in Northern Nigeria encouraged our members to submit the publications requested data which included, Name, addresses and telephone members of depositors/investors; means of identification; photocopies of deposit slips: evidence of previous payments by the companies and photocopy of statement of account issued by Wealth Zone Ltd.
9. That I personally submitted the requested data at the address supplied by the 1st-6th Respondents’ publication, in Kaduna; that is at National Bank Building 22 Bida Road Kaduna sometime 13th February, 2008 and 10th March, 2008.
10. That I am aware that a large number of our investors/member submitted the requested data at different locations provided for Northern Nigeria.
11. That thereafter, the lst-6th Respondents elected to seat on our investment, whereas they declared in the publication of 20th March, 2008 that (and to use their exact words) “The main purpose of the referred advertorial was to enable the inter-agency committee collate the liabilities of each of the wonder banks to facilitate any arrangement that maybe put in place for these wonder banks to repay the monies deposited/invested with them,” about 6 (six) years thereafter, the said Respondents have declined to pay down our investments and/or issue any further publication on our investment to our knowledge.
12. That upon our repeated enquiries subsequently, we decided to employ the social contacts available to us to ascertain the state of things with the said Respondents whereupon we discovered that the Respondents were determined to ploy on our patience to frustrate any attempts by us to ever recover our investments and deposits from the 1st-6th Respondents.
13. That from my personal experience which the other members of our Northern Nigeria investors confirmed to me the same with them are, following my investment with wealth Zone Ltd on 22nd April, 2007, I received steady/constant monthly return on my investment until the 1st-6th Respondents seizure, withdrawal, transfer or however of the total funds standing to the credit of the said Wealth Zone Ltd with the 7th-10th Respondents by the 1st-6th Respondents to the 1st Respondent.
14. That following the foregoing, at our meeting of 12th January 2013 held at our usual meeting ground that is the open field of the Nigeria Railway Corporation in Kaduna, Kaduna State, which I chaired, and upon a further review of the insensitive actions of the 1st-6th Respondents which has lead to the death a member investors/depositors; and for which may seriously sick in various hospitals and treatment facilities; it was resolved that the firm of Ayetenny & Associates be authorised to immediately commence legal proceedings against the said Respondents.
15. That in the said action, the said firm of Ayetenny & Associates should be authorised to demand that all funds seized, withdrawn, transferred or howsoever of the total funds standing to the credit of the said Wealth Zone Ltd with the 7th-10th Respondents by the 1st-6th Respondents to the 1st Respondent, should be paid to the firm of Ayetenny & Associates for purposes of paying same to we the investors/depositors of Wealth Zone Ltd.
16. That copies of all records supplied by the investors/depositors of Wealth Zone Ltd to the Inter-Agency Committee on Illegal Fund Managers/Wonder Banks purportedly created by the 1st-6th Respondents be giving to the said Ayetenny & Associates for purposes of using same and other verifiable documents/investment papers to repay the investors/depositors of Wealth Zone Ltd.
17. That Mr. A. Y. Aremiyau one of the counsel in the firm Ayetenny & Associates charged with the conduct of this Summons states to my belief that by law, the said 1st-6th Respondents cannot swoop on our resources and attempt to appropriate same unto themselves as they have purported to for the past 6 years.
18. Further, the said counsel states to my belief that 1st-6th Respondents cannot by law seize funds lawfully belonging to Nigeria citizens and proceed to design a scheme to frustrate the owners of such funds deploying the tactics of delay among others in pursuit of that scheme.
19. That I believe that the only proper Order the Court should make in the interest of Justices and in the circumstance, is to order the said 1st-6th Respondents to pay all such monies standing to the credit Wealth Zone Ltd to us through our lawyers Messrs. Ayetenny & Associates.
20. That Mr. A. Y. Aremiyau again states to my belief by the publication of the 4th Respondent dated 11th February, 2013 in the Punch Newspapers, the same being Court Processes in Suit No.FHC/L/CP/794/2011; wherein the 1st-6th Respondents devised a scheme to wind-up Wealth Zone Ltd, thereby eroding the legal capacity of Wealth Zone Ltd., to understate legal proceedings or undertaking any function whatsoever, removes the option of requesting the Court to order Wealth Zone Ltd to repay the investment.
21. That by the said publication, a certain Lawal Ibrahim, Nigeria citizen/legal practitioner and a deputy manager with the 4th Respondent deposed in the supporting affidavit the following averments? that is;
(a) “That members of the Nigerian public deposited funds with the Respondent to the tune of N1,856,220,838
(b)
(c)
(d) That when the Petitioner visited the registered address of the Respondent at No. 10 Olatunji Street, Ojota, Lagos, the Petitioner found that the Respondent had ceased operation and that the Directors of the company named in the memorandum and articles of Association of the company namely Mr. Stanley Ikechukwu Ikem, Mr. Abiodun Sheriff and Mr. Timothy Ifidon Ikhide could not be located at the address supplied by then in the incorporation document of the Respondent filed with the Petitioner.
(e) That the Petitioner verily believes that the Respondent is insolvent and unable to pay its debts.
(f) That the Petitioner has obtained the consent of the Hon. Attorney general and Minister of Justice to apply for the winding up of the Respondent.
(g) That in the circumstance, it will be just and equitable to wind up the affairs of the Respondent in the public interest.
(h)….
Now shown to me and marked as Exhibit NSO 4 is a copy of the said Publication.
22. That from the foregoing averments of the Respondents, Wealth Zone Ltd now lacks the capacity to repay our investments/deposits hence we are praying the Court to order that the funds recovered stated to be N1,856,220.838 (One Billon Eight Hundred & Fifty Six Million Two Hundred & Twenty Thousand Eight Hundred & Thirty Eight Naira only) together with interest at bonk interest rate currently at 21% from October, 2007 till complying with the order of Court; be paid to our solicitors Ayetenny & Associates for Purposes of repaying same to us the depositors/investors.
23. That in my belief the grant of this Summons would meet the ends of justice.
24. That the Respondents would not be prejudiced howsoever by the grant of this Summons.
25. I depose to this affidavit in good faith and in accordance with the Oath Act, Laws of the Federation.
Substantially similar facts were deposed to by the 2nd Appellant on the same 8th March, 2013 in support of the Summons.
Undoubtedly, “it is clear as crystal” that the origin of the above facts is the relationship/transaction/investment/deposit made by the Appellants in the financial business scheme designed, introduced, and conducted by Wealth Zone Ltd for members of the Nigerian public who wanted to invest/deposit money for profit to be earned and paid periodically as agreed between the parties.
In reaction to the facts supporting the summons, a Counter Affidavit deposed to by a Principal Manager in the 1st Respondent, dated 13th May, 2013 was filed and in paragraphs 6, 7 and 8 he deposed that:
6. That sometimes in the year 2008 the Investment and Securities Tribunal in suit No.IST/OA/17/07 in the case of SEC vs. Allgreen Investment Limited and 35 Ors gave a freezing order on the accounts of the Defendants therein, who are investment fund managers deemed to be operating illegal in the country.
7. That in making the freezing order, the Tribunal ordered the Central Bank of Nigeria (hereinafter called the 1st Respondent) to fake over the funds of the said fund managers/wonder banks and transfer them to an escrow account.
8. That wealth Zone Limited, the investment and or fund managers of the Applicants was one of the Defendants in the said suit.”
On its part, the 10th Respondent, by the Counter Affidavit sworn to by Olubukola Ijanla, Banking Relationship officer with the 10th Respondent, it was deposed in paragraphs 10c and 10d that: –
10c. That on 3rd July, 2008, the Investment and Securities Tribunal delivered a judgment in Suit No. IST/A/17/07 pursuant to which the Central Bank of Nigeria requested the 10th Respondent to forward details of the accounts of the effected illegal funds managers with it to the Apex Bank and on 16th June, 2009 the Central Bank of Nigeria further demanded from the 10th Respondent the balances in the account of the adjudge illegal fund managers.
10d. That sequel to the Central Bank of Nigeria request and demand the 10th Respondent on the 5th day of November, 2008 forwarded details of the accounts of the adjudge illegal fund managers to the Central Bank of Nigeria and also on the 17th day of August, 2009, the 10th Respondent forwarded a cheque in the sum of N3,939,228.78 (Three Million, Nine Hundred and Thirty Nine Thousand, Two Hundred and Twenty Eight Naira Seventy Nine Kobo) to the Central Bank of Nigeria representing the total amount standing then to the credit of the wonder banks inclusive of Wealthzone in the custody of the 10th Respondent. The 10th Respondent letters dated 5th November, 2008 and 17th August, 2009 and the cheque number 02403219 are hereby attached and marked as Exhibit ECO5.”
The combined effect of the above avernments/depositions in the Counter Affidavits of the 1st and 10th Respondents, is that Wealth Zone Ltd had been adjudged by the Securities & Exchange Tribunal, an illegal Wonder Bank/Fund Manager operating in Nigeria at the material time.
In the Appellants’ Reply Affidavit to the 1st Respondent’s Counter Affidavit deposed to on 23rd May, 2013 by an Associate in the firm of the Appellants’ Counsel, the fact that Wealth Zone Ltd., was an illegal Wonder Bank/Fund manager, was not denied or even alluded to.
It is the same position in the Reply Affidavit to the 10th Respondent’s Counter Affidavit deposed to by the same Associates on the same 23rd May, 2013.
Without the need to waste verbiage, it is beyond argument that the suit by the Appellants against the Respondents was/is for the recovery of monies they paid, deposited or invested in a financial transaction, business or scheme that was conducted, operated and carried out in clear violation of statutory provisions. Sections 58(1) and 59 of BOFIA provide that:
Section 58 of the act provides: –
(1) Without prejudice to the provisions of part 1 of this Act, no person shall carry on financial business in Nigeria other than insurance and stock broking except if it is a company duly incorporated in Nigeria and holds a valid licence granted under Section 59 of this Act.
And Section 59 of the Act provides thus:
(1) Any person wishing to carry on other financial business other than insurance and stock broking in Nigeria shall apply in writing to the Bank for the grant of a license.
(2) After the Applicant has provided all such information, documents and reports as the Bank may require under Subsection (1) of this section the Bank may grant the license with or without conditions or refuse to grant the licence.
(3) Any person who transacts business without a valid licence under Section 58 of this Act or Subsection (2) of this section, whether in the case of an individual or in the case of a corporate body is guilty of an offence and liable.
(a) In the case of a corporate body, to a fine of N1,000,000.00;
(b) In any other case, to a fine not exceeding N1,000,000.00 or inprisonment for a term not exceeding five years or to both such fine and imprisonment.”
Under BOFIA, a person or company is regarded as carrying on or conducting financial business other than insurance and stock broking, if it solicits and accepts money deposits from the public and pays interests thereon, as a business, by whatever name called. Section 1(5)(a) of BOFIA stipulates that –
“if the Person accepts deposit from the general public as a feature of its business or if it issues an advertisement or solicits for such deposition.”
Then Section 2(1) of the Act provides that: –
“No person shall carry on any banking business in Nigeria except if it is a company duly incorporated in Nigeria and holds a valid bonking license issued under the Act.”
Subsection (2) of Section 2 punishes any person who transacts banking business without a valid license under the Act, with imprisonment for a term not exceeding ten (10) years or two (2) Million Naira fine or both.
The monies the Appellants seek to recover from the 1st – 6th Respondents by the facts presented in the Affidavit evidence of the parties, as shown earlier, are in respect of transactions; i.e. financial business of soliciting for and accepting money from the general public as deposits for profit, by a company that did not have a valid license carry on such business, prohibited by the above provisions of BOFIA and so illegal. As was stated by the apex Court in the case of Sodipo v. Lemminkainen (supra) “out of an illegal cause, no action can arise, Exturp causa Oritur non action, illegality, once brought to the attention of the Court, overrides all questions of pleading.”
In addition, in the case of Fasel Services Limited v. NPA (supra) the apex Court had poignantly held that:-
“The position of the law is that where a statute declares a contract or transaction between parties not only void but also imposes a penalty for violation, that contract or transaction is illegal abinitio.”
For the purpose of and in the eyes of the law, the transaction between the Appellants and Wealth Zone Limited from the beginning, was clearly not only prohibited, but also punished by the law and so illegal, whether the Appellants knew or not as ignorance of the law is no defence or excuse.
Being illegal from the beginning, the transaction between the Appellants and Wealth Zone Limited could not have vested the Appellants any legal right that is cognizable and enforceable by a Court of law.
In fact, by dint of the provisions of Section 122 (2)(b) of the Evidence Act, 2011, the Lower Court had the duty to take judicial notice of the provisions of all extant statutes in the country, including BOFIA and so whether or not any of the parties raised the issue of non-compliance or contravention of the relevant provisions of the Act, the Lower Court could do that suo motu.
In the case of Omokuwajo v. FRN (2013) 9 NWLR (1359) 300 @ 332, it was held by the Supreme Court that: –
“The need to give the parties a hearing when a Judge raises an issue on his own motion or suo motu would not be necessary if:
(a) The issue relates to the Court’s own jurisdiction;
(b) Both parties are/were not aware or ignored a statute which may have bearing on the case. That is to say where by virtue of statutory provisions, the Judge is expected to take judicial notice under Section 73 of the Evidence Act.
(c) When, on the face of the record, serious questions of fairness of the proceedings are evident.”
See also Olutola v. University of Ilorin (2005) ALL FWLR (245) 1154, Alims v. UBA, Plc. (2013) 1 MJSC (Pt.1) 156 @ 170.
In the Appellant’s case, the issue of the non compliance or contravening of the provisions of BOFIA in respect of the transaction on which the Appellant’s suit was predicated was not only raised by the parties, as demonstrated earlier, but was also addressed by them. The Appellants’ Counsel, in particular, in the Written Address on Points of Law in Response to the 1st, 2nd, 7th, 8th, 9th and 10th Respondents dated 8th July, 2013, addressed the issue of the illegality of the transaction giving rise to the Appellants’ suit and the jurisdiction of the Lower Court to entertain it. So the case of the Appellants is not one in which the issue was raised suo motu and decided by the Lower Court without affording the parties, particular the Counsel for the Appellants, a hearing.
After a reading of the judgment by the Lower Court, there is no doubt that the case, facts and issues raised and presented by the parties, especially the counsel for the Appellants, were very clearly, accurately and properly appreciated and dutifully considered, completely by it to rightly conclude that the transactions between the Appellants and Wealth Zone Limited translated and constituted illegal contract, which illegality, is a feature that deprived it of the requisite jurisdiction to entertain and adjudicate over the Appellant’s suit. See Madukolu v. Nkemdilim (1962) 2 SCNLR, 341, (1962) 1 ALL NLR, 587 followed and applied in later well known cases, such as Sken Consult Nig. Ltd v. Ukey (1981) 1 SC. 6; Ajao v. Alao (1986) NWLR (45) 802; OKafor v. A.G, Anambra State(1991) 7 SC (Pt.III) 138; (1991) 2 SCNJ, 345, (1991) 6 NWLR (200) 659; SPDCN Ltd v. Isah (1997) 6 NWLR (505) 236; Araka v. Ejeagwu (2000) 15 NWLR (692) 684.
In the result, the arguments on issues 1 and 2 by the Appellants are devoid of merit and the issues are resolved against them.
Issue 3 of the Appellants has apparently been rendered academic for the purpose of the appeal by the resolution of the issues 1 and 2 against them and is no longer of any moment in the appeal.
In the final result, I find no merit in the appeal and it is dismissed in its entirety and as a consequence, the judgment by the Lower Court is hereby affirmed.
Parties to bear their respective costs of prosecuting the appeal.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I read in draft a copy of the judgment of my learned brother, MOHAMMED LAWAL GARBA, JCA just delivered. I am in agreement with the reasoning and conclusion reached therein.
The crux of the appeal is whether the Lower Court can exercise jurisdiction to enforce an illegal contract between the Appellants and Wealth Zone Ltd.
The case of the Appellants was for recovery of money invested in a financial transaction operated in clear violation of the statutory provision of Sections 58 and 59 of BOFIA which stipulated that no one shall carry on financial business in Nigeria other than insurance and stock broking except the company is duly incorporated in Nigeria with a valid licence obtained.
ABUBAKAR DATTI YAHAYA, J.C.A. where the supreme court held that: “No Court of law or Judge has the Jurisdiction to enforce an illegal contract. The duty of a Court of law or Judge is to administer Justice according to law. Therefore, it will be a breach of that duty and the oath of office to enforce an illegal contract. None of the parties to an illegal contract is entitled to any remedy or relief from a Court of law and once a Court or Judge becomes aware of the illegality, it is the duty of the Court or Judge to stop the case and dismiss the claim for being void and unenforceable.”
See also the cases of SODIPO v LEMMINKAINEN OY & ANOR (1985) 2 NSCC 1102 at 1114; OKAFOR v SOYEMI [2001] 2 NWLR (PT. 698) 465; UNITRUST INSURANCE CO. LTD v. AMBICO SENDIRIAN NIG LTD (2012) LPELR – 15417 (CA); S.D.C. CEMENTATION (NIG) LTD & ANOR v NAGEL & CO LTD & ANOR [2003) 4 NWLR (PT. 811) 611.
Consequently I agree with my learned brother that this appeal lacks merit and it is hereby dismissed. The judgment of the Lower Court is accordingly affirmed.
JAMILU YAMMAMA TUKUR, J.C.A.: My Lord MOHAMMED LAWAL GARBA JCA, afforded me the opportunity of reading before today the lead judgment just delivered. I agree that the appeal should be dismissed. I dismissed same and abide by the consequential orders made therein.
Appearances:
ABSENTFor Appellant(s)
Folajimi Akinla – for 1st Respondent.
Chief Philip N. Umeh with him, D. Chiamaka – for 2nd Respondent.
Hamza Gudaji – for 3rd Respondent.
E. Sada – for 9th Respondent.
F. B. Odesanya – for 10th Respondent.
Chike Ekwueme and A. A. Baruwa – for 7th Respondent.
B. O. Oni – for 8th Respondent.
4th, 5th, 6th, Respondents Absent.For Respondent(s)
